reMM
**— *-«^;®
CLERK OF SENATE
State Library of Massachusetts
~^ State House, Boston
<5SbSifer»-^-..
THE
GENERAL LAWS
OF
QTfje Commontoealtf) of ilassacljugettg
Enacted December 22, 1920
To TAKE Effect January 1, 1921
WITH THE
CONSTITUTION OF THE UNITED STATES, THE CONSTITUTION OF THE
COMMONWEALTH AND THE REARRANGEMENT THEREOF
AND TABLES SHOWING THE DISPOSITION OF THE
REVISED LAWS AND OF OTHER STATUTES
OF GENERAL APPLICATION
VOL. II
Chapters 128-282
BOSTON
WEIGHT & POTTER PRINTING CO., STATE PRINTERS
32 DERNE STREET
1921
ANALYSIS
TITLES AND CHAPTERS
CONTAINED IN
THE GENERAL LAWS
Vol. I.
PART I.
ADlVnNISTRATION OF THE GOVERNMENT.
1 TITLE I.
JURISDICTION AND EMBLEMS OF THE COMMONWEALTH, THE GENERAL
COURT, STATUTES AND PUBLIC DOCUMENTS.
Chapter 1. Jurisdiction of the Commonwealth and of the LTnited States.
Chapter 2. Arms, Great Seal and Other Emblems of the Commonwealth.
Chapter 3. The General Court.
Chapter 4. Statutes.
Chapter 5. Printing and Distribution of Laws and Public Documents.
TITLE II.
EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH.
Chapter 6. The Governor, Lieutenant Governor and Council, Certain Officers under the
Governor and Council, and State Library.
Chapter 7. Supervisor of Administration.
Chapter 8. Superintendent of Buildings, and State House.
Chapter 9. Department of the State Secretary.
Chapter 10. Department of the State Treasurer.
Chapter 11. Department of the State Auditor.
Chapter 12. Department of the Attorney General, and the District Attorneys.
[iiil
IV
ANALYSIS -
■PART I.
Chapter 13. Department of Civil Service and Registration.
Chapter 14. Department of Corporations and Taxation.
Chapter 15. Department of Education.
Chapter 16. Department of Public Works.
Chapter 17. Department of Public Health.
Chapter IS. Department of Public Welfare.
Chapter 19. Department of Mental Diseases.
Chapter 20. Department of Agriculture.
Chapter 21. Department of Conservation.
Chapter 22. Department of Public Safety.
Chapter 23. Department of Labor and Industries.
Chapter 24. Department of Industrial Accidents.
Chapter 25. Department of Public Utilities.
Chapter 26. Department of Banking and Insurance.
Chapter 27. Department of Correction.
Chapter 28. Metropolitan District Commission.
TITLE III.
LAWS RELATING TO STATE OFFICERS.
Chapter 29. State Finance.
Chapter 30. General Provisions relative to State Departments, Commissions, Officers and
Employees.
TITLE IV.
CIVIL SERVICE, RETIREMENTS AND PENSIONS.
Chapter 31. Civil Service.
Chapter 32. Retirement Systems and Pensions.
TITLE V.
MILITIA.
Chapter 33. Militia.
TITLE VI,
COUNTIES AND COUNTY OFFICERS.
Chapter 34. Counties and County Commissioners.
Chapter 35. County Treasurers, State Supervision of County Accounts, and County Finances.
Chapter 36. Registers of Deeds.
Chapter 37. Sheriffs. '
Chapter 38. Medical Examiners.
ANALYSIS — PART I.
TITLE VII.
CITIES, TOWNS AND DISTRICTS.
Chapter 39. Municipal Government.
Chapter 40. Powers and Duties of Cities and Towns.
Chapter 41. Officers and Employees of Cities, Towns and Districts.
Chapter 42. Boundaries of Cities and Towns.
Chapter 43. City Charters.
Chapter 44. Municipal Finance.
Chapter 45. Public Parks, Playgroimds and the Public Domain.
Chapter 46. Return and Registry of Births, Marriages and Deaths.
Chapter 47. Workhouses and Almshouses.
Chapter 48. Fires, Fire Departments and Fire Districts.
Chapter 49. Fences, Fence Viewers, Pounds and Field Drivers.
TITLE VIII.
ELECTIONS.
Chapter 50. General Provisions relative to Primaries, Caucuses and Elections.
Chapter 51. Voters.
Chapter 52. PoUtical Committees.
Chapter 53. Nominations, Questions to be submitted to the Voters, Primaries and Caucuses.
Chapter 54. Elections.
Chapter 55. Corrupt Practices and Election Inquests.
Chapter 56. Violations of Election Laws.
Chapter 57. Congressional, Councillor and Senatorial Districts, and Apportionment of Rep-
resentatives.
TITLE IX.
TAXATION.
Chapter 58. General Provisions relative to Taxation.
Chapter 59. Assessment of Local Taxes.
Chapter 60. Collection of Local Taxes.
Chapter 61. Taxation of Forest Lands.
Chapter 62. Taxation of Incomes.
Chapter 63. Taxation of Corporations.
Chapter 64. Taxation of Stock Transfers.
Chapter 65. Taxation of Legacies and Successions.
TITLE X.
PUBLIC RECORDS.
Chapter 66. Public Records.
VI
ANALYSIS — PART I.
TITLE XI.
CERTAIN RELIGIOUS AND CHARITABLE MATTERS.
Chapter 67. Parishes and Religious Societies.
Chapter 6S. Donations and Conveyances for Pious and Charitable Uses.
Chapter 69.
Chapter 70.
Chapter 71.
Chapter 72.
Chapter 73.
Chapter 74.
Chapter 75.
Chapter 76.
Chapter 77.
Chapter 78.
Chapter 79.
Chapter 80.
Chapter 81.
Chapter 82.
Chapter S3.
Chapter 84.
Chapter 85.
Chapter 86.
Chapter 87.
Chapter 88.
Chapter 89.
Chapter 90.
Chapter 91.
Chapter 92.
TITLE XII.
EDUCATION.
Powers and Duties of the Department of Education.
School Funds and Other State Aid for Public Schools.
Public Schools. I
School Registers and Returns.
State Normal Schools.
Vocational Education.
Massachusetts Agricultural College. '
School Attendance.
School Offenders and County Training Schools.
Libraries.
TITLE XIII.
EMINENT DOMAIN AND BETTERMENTS.
Eminent Domain.
Betterments.
TITLE XIV.
PUBLIC WAYS AND WORKS.
State Highways.
The Laying Out, Alteration, Relocation and Discontinuance of Pubhc Ways, and
Specific Repairs thereon.
Sewers, Drains and Sidewalks.
Repair of Ways and Bridges.
Regulations and By-laws relative to Ways and Bridges.
Boundaries of Highways and Other Pubhc Places, and Encroachments thereon.
Shade Trees.
Ferries, Canals and Public Landings.
Law of the Road.
Motor Vehicles and Aircraft.
Waterways.
Metropohtan Sewers, Water and Parks.
Chapter 93.
Chapter 94.
Chapter 95.
TITLE XV.
REGULATION OF TRADE.
Regulation of Trade and Certain Enterprises.
Inspection and Sale of Food, Drugs and Various Articles.
Measuring of Leather.
ANALYSIS — PART I.
Vll
Chapter 96. Survey of Lumber.
Chapter 97. Surveying of Land.
Chapter 98. Weights and Measures.
Chapter 99. The Metric System of Weights and Measures.
Chapter 100. Auctioneers.
Chapter 101. Transient Vendors, Hawkers and Pedlers.
Chapter 102. Shipping and Seamen, Harbors and Harbor Masters.
Chapter 103. Pilots.
Chapter 104. Agents, Consignees and Factors.
Chapter 105. Public Warehouses.
Chapter 106. Sales of Personal Property.
Chapter 107. Money and Negotiable Instruments.
Chapter 108. BUls of Lading.
Chapter 109. Limited Partnerships.
Chapter 110. Labels, Trade Marks, Names and Registration thereof.
TITLE XVI.
PUBLIC HEALTH.
Chapter 111. Public Health.
Chapter 112. Registration of Certain Professions and Occupations.
Chapter 113. Promotion of Anatomical Science.
Chapter 11-4. Cemeteries and Burials.
TITLE XVII.
PUBLIC WELFARE.
Chapter 115. State and Mihtary Aid, Soldiers' ReUef, etc.
Chapter 116. Settlement of Paupers.
Chapter 1 17. Support of Paupers by Cities and Towns.
Chapter 118. Aid to Mothers vrith Dependent Children.
Chapter 119. Protection and Care of Children, and Proceedings against Them.
Chapter 120. Massachusetts Training Schools.
Chapter 121. Powers and Duties of the Department of PubUc Welfare, and the Massachusetts
Hospital School.
Chapter 122. State Infirmary and State Paupers.
Chapter 123. Commitment and Care of the Insane and Other Mental Defectives.
TITLE XVIII.
PRISONS, IMPRISONMENT, PAROLES AND PARDONS.
Chapter 124. Powers and Duties of the Department of Correction.
Chapter 125. Penal and Reformatory Institutions of the Commonwealth.
Chapter 126. Jails, Houses of Correction and Reformation, and County Industrial Farms.
Chapter 127. Officers and Inmates of Penal and Reformatory Institutions. Paroles and
Pardons.
Vlll
ANALYSIS PART I.
Vol. II.
TITLE XIX.
AGRICULTURE AND CONSERVATION.
Chapter 128. Agriculture.
Chapter 129. Animal Industry.
Chapter 130. Powers and Duties of the Division of Fisheries and Game. Fisheries.
Chapter 131. Preservation of Certain Birds and Animals. Hunting and Fishing Licenses.
Chapter 132. Forestry.
TITLE XX.
PUBLIC SAFETY AND GOOD ORDER.
Chapter 133. Disposition of Old and Infirm Animals.
Chapter 134. Lost Goods and Stray Beasts.
Chapter 135. Unclauned and Abandoned Property.
Chapter 136. Observance of the Lord's Day.
Chapter 137. Gaming.
Chapter 13S. Intoxicating Liquors and Certain Non-Intoxicating Beverages.
Chapter 139. Common Nuisances.
Chapter 140. Licenses.
Chapter 141. Supervision of Electricians.
Chapter 142. Supervision of Plumbing.
Chapter 143. Inspection and Regulation of, and Licenses for, Buildings, Elevators and Cine-
matographs.
Chapter 144. Tenement Houses in Cities.
Chapter 14.5. Tenement Houses in Towns.
Chapter 146. Inspection of Boilers, Air Tanks, etc. Licenses of Engineers, Firemen, and
Operators of Hoisting Machinery.
Chapter 147. State and Other PoUce, and Certain Powers and Duties of the Department of
Public Safety.
Chapter 148. Fire Prevention.
TITLE XXI.
LABOR AND INDUSTRIES.
Chapter 149. Labor and Industries.
Chapter 150. Conciliation and Arbitration of Industrial Disputes.
Chapter 151. The Minimum Wage.
Chapter 152. AYorkmen's Compensation.
Chapter 153. Liability of Employers to Employees for Injuries not resulting in Death.
Chapter 154. Assignment of Wages.
ANALYSIS — -PART II.
IX
TITLE XXII.
CORPORATIONS.
Chapter 155. General Provisions relative to Corporations.
Chapter 156. Business Corporations.
Chapter 157. Co-operative Corporations.
Chapter 158. Certain Miscellaneous Corporations.
Chapter 159. Common Carriers.
Chapter 160. Railroads.
Chapter 161. Street Railways.
Chapter 162. Electric R.ailroadg.
Chapter 163. Trackless Trolley Companies.
Chapter 164. Manufacture and Sale of Gas and Electricity.
Chapter 165. Water and Aqueduct Companies.
Chapter 166. Telephone and Telegraph Companies, and Lines for the Transmission of
Electricity.
Chapter 167. Banks and Banking.
Chapter 168. Savings Banks.
Chapter 169. Deposits with Others than Banks.
Chapter 170. Co-operative Banks.
Chapter 171. Credit Unions.
Chapter 172. Trust Companies.
Chapter 173. Mortgage Loan Investment Companies.
Chapter 174. Bond and Investment Companies.
Chapter 175. Insurance.
Chapter 176. Fraternal Benefit Societies.
Chapter 177. Assessment Insurance.
Chapter 178. Savings Bank Life Insurance.
Chapter 179. Proprietors of Wharves, Real Estate lying in Common, and General Fields.
Chapter ISO. Corporations for Charitable and Certain Other Purposes.
Chapter 181. Foreign Corporations.
Chapter 1S2. Voluntary Associations.
PART II.
REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS.
TITLE I.
TITLE TO RE.4L PROPERTY.
Chapter 183. Alienation of Land.
Chapter 184. General Provisions relative to Real Property.
Chapter 185. The Land Com-t and Registration of Title to Land.
ANALYSIS — PART II.
Chapter 186.
Chapter 187.
Chapter 188.
Chapter 189.
Estates for Years and at Will.
Easements.
Homesteads.
Dower and Curtesy.
TITLE II.
DESCENT AND DISTRIBUTION, WILLS, ESTATES OF DECEASED PERSONS
AND ABSENTEES, GUARDIANSHIP, CONSERVATORSHIP AND TRUSTS.
Chapter 190. Descent and Distribution of Real and Personal Property.
Chapter 191. Wills.
Chapter 192. Probate of Wills and Appointment of Executors. * I
Chapter 193. Appointment of Administrators.
Chapter 194. Public Administrators.
Chapter 195. General Provisions relative to Executors and Administrators.
Chapter 196. Allowances to W'idows and Children, and Advancements.
Chapter 197. Payment of Debts, Legacies and Distributive Shares.
Chapter 198. Insolvent Estates of Deceased Persons.
Chapter 199. Settlement of Estates of Deceased Non-Residents.
Chapter 200. Settlement of Estates of Absentees.
Chapter 201. Guardians and Conservators.
Chapter 202. Sales, Mortgages and Leases of Real Estate by Executors, Administrators,
Guardians and Conservators.
Chapter 203. Trusts. i
Chapter 204. General Provisions relative to Sales, Mortgages, Releases, Compromises, etc., by
Executors, etc.
Chapter 20.5. Bonds of E.xecutors, Administrators, Guardians, Conservators, Trustees and
Receivers.
Chapter 206. Accounts and Settlements of Executors, Administrators, Guardians, Con-
servators, Trustees and Receivers.
TITLE III.
DOMESTIC RELATIONS.
Chapter 207. Marriage.
Chapter 208. Divorce.
Chapter 209. Husband and Wife.
Chapter 210. Adoption of Children and Change of Names.
ANALYSIS — PART III.
XI
PART III.
COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIL CASES.
TITLE I.
COURTS AND JUDICIAL OFFICERS.
(For the Land Court see Chapter 185.)
Chapter 211. The Supreme Judicial Court.
Chapter 212. The Superior Court.
Chapter 213. Provisions Common to the Supreme Judicial and Superior Courts.
Chapter 214. Equity Jurisdiction and Procedure in the Supreme Judicial and Superior Courts
Ceapter 215. Probate Courts.
Chapter 216. Courts of Insolvency.
Chapter 217. Judges and Registers of Probate and Insolvency.
Chapter 218. District Courts.
Chapter 219. Trial Justices.
Chapter 220. Courts and Naturalization.
Chapter 221. Clerks, Attorneys and Other Officers of Judicial Coiu-ts.
Chapter 222. Justices of the Peace, Notaries PubUo and Commissioners.
TITLE II.
ACTIONS AND PROCEEDINGS THEREIN.
Chapter 223. Commencement of Actions, Service of Process.
Chapter 224. Arrest on Civil Process.
Chapter 225. Process after Judgment for Necessaries or Labor.
Chapter 226. Bail.
Chapter 227. Proceedings against Absent Defendants and upon Insufficient Service.
Chapter 228. Survival of Actions and Death and Disabilities of Parties.
Chapter 229. Actions for Death and Injuries resulting in Death.
Chapter 230. Actions by and against Executors and Administrators.
Chapter 231. Pleading and Practice.
Chapter 232. Set-off and Tender.
Chapter 233. Witnesses and Evidence.
Chapter 234. Juries.
Chapter 235. Judgment and E.Kecution.
Chapter 236. Levy of Executions on Land.
TITLE III.
REMEDIES RELATING TO REAL PROPERTY.
Chapter 237. Writs of Entry.
Chapter 238. Writs of Dower.
Chapter 239. Summary Process for Possession of Land.
xu
ANALYSIS -
PART III.
Chapter 240. Proceedings for Settlement of Title to Land.
Chapter 241. Partition of Land.
Chapter 242. Waste and Trespass.
Chapter 243. Actions for Private Nuisances.
Chapter 244. Foreclosure and Redemption of Mortgages.
Chapter 245. Informations by the Commonwealth.
TITLE IV.
CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES.
Chapter 246. Trustee Process.
Chapter 247. Replevin.
Chapter 248. Habeas Corpus and Personal Liberty.
Chapter 249. Audita Querela, Certiorari, Mandamus and Quo Warranto.
Chapter 2.50. Writs of Error, Vacating Judgment, Writs of Review.
Chapter 251. Arbitration.
Chapter 252. Improvement of Low Land and Swamps.
Chapter 253. Mills, Dams and Reservoirs.
Chapter 254. Liens on Buildings and Land.
Chapter 255. Mortgages, Conditional Sales and Pledges of Personal Property, and Liens
thereon.
Chapter 256. Recognizances for Debts.
Chapter 257. Seizure and Libelling of Forfeited Property.
Chapter 258. Claims against the Commonwealth.
TITLE V.
STATUTES OF FRAUDS AND LIMITATIONS.
Chapter 259. Prevention of Frauds and Perjuries.
Chapter 260. Limitation of Actions.
TITLE VI.
COSTS AND FEES.
Chapter 261. Costs in Civil Actions.
Chapter 262. Fees of Certain Officers.
ANALYSIS — PARTS IV. AND V.
XIH
PART lY.
CRIMES, PUNISHMENTS AND PROCEEDINGS IN CRIMINAL CASES.
TITLE I.
CRIMES AND PUNISHMENTS.
Chattek 263. Rights of Persons accused of Crime.
Chapter 264. Crimes against Governments.
Chapter 265. Crimes against the Person.
Chapter 266. Crimes against Property.
Chapter 267. Forgery and Crimes ag.ainst the Currency.
Chapter 268. Crimes against Public Justice.
Chapter 269. Crimes against Public Peace.
Chapter 270. Crimes against Public Health.
Chapter 271. Crimes against Public Policy.
Chapter 272. Crimes against Chastity, Morality, Decency and Good Order.
Chapter 273. Desertion, Non-Support and Bastardy.
Chapter 274. Felonies, Accessories and Attempts to commit Crimes.
TITLE II.
PROCEEDINGS IN CRIMINAL CASES.
Chapter 275. Proceedings to prevent Crimes.
Chapter 276. Search Warrants, Rewards, Fugitives from Justice, Arrest, Examination, Com-
mitment and Bail. Probation Officers and Commission on Probation.
Chapter 277. Indictments and Proceedings before Trial.
Chapter 278. Trials and Proceedings before Judgment.
^Chapter 279. Judgment and Execution.
Chapter 280. Fines and Forfeitures.
PART Y.
the general laws, and express repeal of certain acts and
resol\t;s.
Chapter 281. The General Laws and their Effect.
Chapter 282. Express Repeal of Certain Acts and Resolves.
GENEKAL LAAYS
MASSACHUSETTS
1292
AGRICULTURE.
[Chap. 128.
TITLE XIX.
AGRICULTURE AND CONSERVATION.
Chapter 128. Agriculture.
Chapter 129. Animal Industry.
Chapter 130. Powers and Duties of the Division of Fisheries and Game.
Fisheries.
Chapter 131. Preservation of Certain Birds and Animals. Hunting and
Fishing Licenses.
Chapter 132. Forestry.
CHAPTER 128.
AGRICULTURE.
Sect.
definitions.
1. Definitions.
DEPARTMENT AND COMMISSIONER.
2. Certain powers and duties defined.
3. May collect and publish information
on available lands.
4. Duties of department.
6. Annual report.
6. Lectures and publications.
7. Preparation and distribution of cer-
tain posters.
8. May enforce provisions relative to
packing, etc., of apples.
DEMONSTRATION SHEEP FARMS.
9. Establishment of demonstration sheep
farms.
10. Conduct of farms.
11. Compensation from the commonwealth.
DIVISION OF DAIRYING AND ANIM.AL HUS-
BANDRT.
12. Duties of division of dairj'ing and
animal husbandry.
13. Division of dairying, etc., to report
unsanitary conditions.
DUTIES, ETC., OP EMPLOYEES.
14. Department to have access to certain
places.
15. Employees and their duties.
Sect.
director of the division of plant pest
CONTROL.
16. May enter public or private grounds.
17. Inspection of nurseries and certificates.
18. Nursery agents to be licensed.
19. Sale, etc., of nursery stock regulated.
20. Transportation of nursery stock, etc.
21. Director may inspect all stock and
fruits coming into commonwealth.
22. Protection against white pine blister
rust.
23. Compensation provided for damages
incident to checking spread of white
pine blister rust.
24. Inspection of orchards, etc., and pro-
cedure.
25. Appeal may be taken.
26. Proceedings after appeal.
27. Powers of director.
28. Gypsy and brown tail moth control
exempted.
29. Penalty.
30. Prosecutions.
31. European corn borer, etc. Penalty.
INSPECTOR or APIARIES.
32. Duties of inspector.
33. Keeping of bees prohibited in certain
cases, etc.
34. Quarantine and treatment of diseased
bees.
35. Regulations concerning shipping or
transportation of bees, etc.
Chap. 128.]
AGRICULTXJKE.
1293
Sect.
36. Access by inspector and assistants to
apiaries, etc.
37. Record to be kept, etc.
38. Penalty.
DIRECTOR OF THE DIVISION OP ORNITHOLOGY.
39. Director of the division of ornithology,
duties, etc.
TRUSTEES FOR COUNTY AID TO AGRICUL-
TURE.
40. Trustees for county aid to agriculture.
Treasurer. Audit of accounts. Re-
port.
41. Directors, how chosen.
Sect.
42. Trustees, expenditures.
Trustees, appointment of instructors
by.
Trustees to prepare budget.
Towns may take land.
43
AGRICULTURAL AND HORTICULTURAL SO-
CIETIES, ETC.
4G. Agricultural, etc., societies, assign-
ment of police at exhibitions, etc.
47. Farmers' clubs to receive publications,
etc.
48. Preservation of peace.
49. Booths, etc., gaming, etc., prohibited.
50. Penalty.
DEFINITIONS.
1 Section 1. The following words as used in this chapter shall have Definitions.
2 the following meanings unless the context otherwise requires: "Com- igit^ll^'i^f'
3 missioner", the commissioner of agriculture. "Department", the de-gg^f^^*-
4 partment of agriculture. "Director", in sections sixteen to thirty-one,
5 inclusive, the director of the division of plant pest control. " Inspector ",
6 in sections thirty-two to thirty-eight, inclusive, the inspector of apiaries.
7 "Trustees", the trustees for county aid to agriculture.
DEPARTMENT AND COMMISSIONER.
The department through its proper divisions shall have certain powers
and duties
defined.
1918, 241.
1919, 350,
S§ 34. 38.
1 Op. A. G, 382.
2 0p. A. G. 118.
1 Section 2
2 power to —
3 (a) Execute and carry into effect the laws relative to dairy products, a^l.'i6,^S5.^
4 animal breeding, apple grading, plant pest control except the gypsy J'gg^f 4°'2^ in
5 and brown tail moth, ornithology, apiary inspection, and the produc- ?sgf?'
6 tion, storage, marketing and distribution of agricultural products. iaoo, 428.
7 (6) Aid in the promotion and development of the agricultural re- 1912! 4il
8 sources of the commonwealth and the improvement of conditions of rural Wu. 267! 298.'
9 life, the settlement of farms and the distribution of the supply of farm H" ''*' ^ "•
10 labor.
11 (c) Investigate the cost of production and marketing in all its phases,
12 and the sources of supply, of agricultural products, and the production,
13 transportation, storage, marketing and distribution of agricultural prod-
14 ucts sold, offered for sale, stored or held within the commonwealth.
15 (d) Collect and disseminate data and statistics as to the food pro-
16 duced, stored or held withm the commonwealth, with the quantities
17 available from time to time and the location thereof.
18 (e) Investigate and aid improved methods of co-operative produc-
19 tion, marketing and distribution of agricultural products within the
20 commonwealth.
21 (/) Offer prizes for and conduct exhibits of flowers, fruit, vegetables,
22 grasses, grains or other farm crops, dairy products, honey, horses, cattle,
23 sheep, swine, poultry, poultry products, farm operations, and canned
24 and dried fruits and vegetables.
25 It may also publish annually a leaflet relative to trees and birds, which
26 shall be approved by the commissioner of education, and may distribute
27 the same to the superintendents and teachers of rural and suburban
28 public schools prior to Arbor and Bird Day.
1294
AGRICULTURE.
[Chap. 128.
May collect
and publish
information on
available
lands.
1909, 212, § 1.
1919, 350, § 34.
Section 3. The department may collect all necessary information 1
in regard to the opportunities for developing agricultural resources 2
tlirough the reoccupancy of idle or partly improved farms and farm 3
land, and may cause the facts so obtained, and a statement of the ad- 4
vantages offered, to be cu-culated where and how it deems for the best 5
interest of the commonwealth. 6
Duties of
department.
1852, 142, § 3,
G. S. le, § 5.
P. S. 20, § 6.
Section 4. The department may take and hold in trust gifts or 1
bequests to it for promoting agricultural education or the general in- 2
terests of husbandry. R. l. 89, § 6. igis, 2gs, § i. i9i9, 350, § 34. 3
Annual report.
1852, 142, § 4.
G. .S. Hi, 5 7.
P. S. 20. 5 8.
1891,412,
§S 8, 10.
1895, 214.
1901, 130.
R. L. 9, § 7;
89, §§ 8, 12.
1908,410, § 1.
1910. 653, § 7.
1911,220, § 8.
1914, 291, § 1.
1918, 2tiS, § 1.
1919,350, §§8
34, 35. 37.
Section 5. The department shall make an annual report, including 1
the number of agents, assistants, experts and chemists employed in the 2
division of dairying and animal husbandry with their expenses and dis- 3
bursements, of all investigations made by the division, of all cases prose- 4
cuted with the results thereof and other information advantageous to 5
the dairy industry. There shall be included the report of the inspector 6
of apiaries. 7
Such parts of the report as the commissioner deems best adapted to 8
promote the interests of agriculture may be published separatelj^ for 9
general distribution. 10
Lectures and
publications.
1SI«, 9fi, § 2.
P. .S. 20, § 4.
1884, 66.
Section 6. The commissioner may arrange for lectures before the 1
department, and may issue for general distribution such publications as 2
he considers best adapted to promote the interests of agriculture. 3
R. L. 89, § 4.
1911, 186.
191.5, 250.
1910, 46, § 2.
1917, 286.
1919, 350, i
1 34, 35.
Preparation
and distribu-
tion of certain
posters.
1004, 444,
H2,3.
1914,239.
1915, 140.
1919, 3.50, 5 35.
1920,202: 231.
Section 7. The commissioner shall cause to be printed on durable 1
material, suitable to be affixed to trees or otherwise to be posted in the 2
open air, copies of such extracts from sections one hundred and five, 3
one hundred and thirteen, one hundred and fifteen, one hundred and 4
seventeen, one hundred and twenty-two and one hundred and thirty- 5
one of chapter two hundred and sixtj'-six as in his opinion will tend 6
to prevent depredations on farm and forest lands, and shall furnish a 7
reasonable number of such copies to any owner or tenant of land, 8
upon application, at a price not less than the cost thereof. 9
proviSonTrd- SECTION 8. The Commissioner may enforce sections one hundred to 1
ative to pack- Qj^g huiidrcd and seven, inclusive, one hundred and nine and one hundred 2
ing, etc., ot ' ^ '
apples. and twelve of chapter ninety-four and prosecute all violations thereof. 3
1918, 169, § 3. 1919, 350, § 35.
Establishment
of demonstra-
tion sheep
farms.
1919, 256, § 1;
350, §§ 34, 35.
DEMONSTRATION SHEEP FARMS.
Section 9. The department may establish demonstration -sheep 1
farms in such places as may be selected by the commissioner. Such a 2
farm may be established in co-operation with the owner of any farm 3
who is desirous of conducting it in conformity with this and the two 4
following sections. 6
Conduct of Section 10. Each person conducting a demonstration sheep farm 1
llo'iTh^st' ^'^^'' maintain under the supervision of and in accordance with such 2
rules and regulations as may be prescribed by the commissioner, a 3
ClL\P. 128.] AGRICULTURE. 1295
4 flock of not less than twenty sheep and under his direction may from
5 time to time purchase and sell such sheep as may be considered es-
6 sential to the proper development of the industry in the locality of
7 such farm, the sheep so purchased or sold to be passed upon by the
8 di^^sion of animal industry of the department of conservation as to
9 their condition and freedom from disease.
1 Section 11. The owner of every such farm shall receive a reason- compensation
2 able compensation froifi the commonwealth for the use of the farm as TOmm'o^nweaith.
3 such demonstration sheep farm, for the labor and expense involved in ^^^^' ^^^' ^ ^■
4 carryins out this and the two preceding sections, and for any loss in-
5 volved in the purchase or sale of sheep made in accordance with the
6 preceding section.
DIVISION OF DAIRYING AND ANIM.AL HUSBANDRY.
1 Section 12. The di\ision of dairying and animal husbandry, under Duties of
2 the general direction of the commissioner, shall inquire into the methods dairy°ng°ind
3 of making butter and cheese in creameries or cheese factories, investi- bUndry.'"""
4 gate all dairy products and imitation dairy products bought or sold, |§^7;i""ii.
5 enforce the laws for the manufacture, transfer and sale of such prod- f^J'i^i^a
6 ucts, and take such action as will tend to produce a better quality j^9g'4P,%M-
7 thereof and to improve the dairy industry. It may co-operate with wioisso,
8 the department of public health and with inspectors of milk, but it 4jDp!'a.'g. '
9 shall not interfere with the duties of such department or officers. ^'^'
1 Section 13. The di\'ision shall report to the director of animal Division of
2 industry each case brought to its attention where any barn, stable or to'repOTtun-"
3 other enclosure, where neat cattle, other ruminants or swine are kept, dttion"^^ '°^'
4 is found in an unsanitary condition. i9ii, ssi, § 2. 1919, 350, §§ 37, 39.
1
DUTIES, ETC., OF EMPLOYEES.
Section 14. The department and its employees shall have access Department
2 to each place used in the manufacture, transportation or sale of dairy to cmain""'^^
3 products or imitations thereof, and to each vessel and can used in such ?I,tj'\';^4i2,
4 manufacture, transportation and sale, and shall have the authority flg*^' ^jIq § 5
5 given to the department of public health or its officers, or to inspectors f^^^- |^'g5 13-
6 of milk, to enforce and prosecute violations of all laws relating to dairy §§ i".'2, 4.'
7 products or imitations thereof. Whoever hinders, obstructs, or in any §"§ 34, 44,' 96.
8 way interferes with an officer or duly authorized agent of the department
9 in the performance of his duty shall be punished for a first offence by
10 a fine of one hundred dollars and for a subsequent ofi'ence by a fine of
11 two hundred dollars, to the use of the commonwealth.
1 Section 15. Employees of the department shall visit towns to Employees and
2 inquire into the methods and needs of practical husbandry, ascertain isl'g, 203',!' 1.
3 the adaptation of agricultural products to soil, climate and markets, p.l.2o,'|?6.
4 encourage the establishment of farmers' clubs, agricultural libraries Hiis^les^*
5 and reading rooms, disseminate useful information in agriculture by fljg 350 534
6 lectures or otherwise, and annually in October make detailed reports
7 to the commissioner.
1296
AGRICULTURE.
[Chap. 128.
May enter
public or pri-
vate grounds.
1902, 495, § 6.
1909, 444,
§§ 15, 17.
1912, 507,
§§ 14, 16.
Inspection of
nurseries and
certificates.
1902, 495,
§§2,6.
1909, 444,
H 2, 15, 17.
1912, 507,
§§ 2, 14, 16.
1919,350,
§37.
Penalty, § 29.
Nursery agents
to be licensed.
1909, 444, § 3.
1912, 507,
§§ 3, 16.
1916, 91, § 1.
1918, 268,
§§1,4.
1919, 350,
§§ 34, .35, 37.
Penalty, § 29.
DIRECTOR OF THE DIVISION OF PLANT PEST CONTROL.
Section 16. The director of the division of plant pest control, and 1
his assistants, may at all times enter any public or private grounds in 2
the performance of any duty required by sections seventeen to thirty- 3
one, inclusive. 1919, 350, § 37. 4
Section 17. The said director, either personally or through hi.s as- 1
sistants, shall inspect at least once each year each nursery or place 2
where nursery stock is grown, and if no dangerous insects or fungous 3
pests are found therein, he shall give a certificate to that effect. If 4
such pests are found therein the owner of the stock shall take such 5
measures to suppress the same as the director shall prescribe, and no 6
certificate shall be given until he has satisfied himself by a subsequent 7
inspection that all such pests have been suppressed. He shall deter- 8
mine the season for inspecting nurseries and the form of certificates 9
to be given but in no case shall he issue a certificate to continue in force 10
after July first next following the date of inspection. 11
Section 18. Each agent or other person, except a grower, who sells 1
nursery stock shall make application to the director for an agent's li- 2
cense, and shall file with him the names and addresses of all persons 3
or nurseries from which he purchases liis stock. On receipt of such 4
application, the director shall issue an agent's license, valid for one 5
year, in such form and with such provisions as the department pre- 6
scribes. The license may be revoked at any time for failure to report 7
the names and addresses of persons or nurseries from which stock is 8
purchased, or for such other cause as may be deemed sufficient by the 9
director and the commissioner. Each person except a grower who sells, 10
or who takes or solicits orders for, nursery stock shall be regarded 11
as a nursery agent for the purposes of sections eighteen to thirty-one, 12
inclusive. 13
Sale, etc., of
nurser.v stock
regulated.
1902, 495,
§§3,4.
1909, 444,
§§4,17.
1912, 507,
§§ 4, 16.
1919, 350, § 34.
Penalty, § 29.
Transportation
of nursery
stock, etc.
1902, 495, § 5.
1907, 321, § 2.
1909, 444,
§§ 6, 17.
1912, 507,
§§5,16.
1919,331;
§37.
Penalty, § 29.
350,
Section 19. No person shall sell, exchange, give, deliver or ship 1
within the commonwealth any tree, slirub or plant commonly known as 2
nursery stock unless such person holds a grower's certificate under 3
section seventeen or an agent's license under the preceding section, and 4
unless a copy of such certificate or license, or such other evidence as the 5
department prescribes, shall accompany each car, box, bundle or pack- 6
age sold, exchanged, given, delivered or shipped, and unless such cer- 7
tificate or license is dated within twelve months of the date of such 8
delivery or shipment; but this section shall not prohibit the selling, 9
giving or exchanging of trees, plants or shrubs by any person who is not 10
a grower of, dealer in, or agent for nursery stock. 11
Section 20. No nursery stock shall be brought mto the common- 1
wealth unless it bears an unexpired certificate of inspection. Each per- 2
son bringing into the commonwealth, or receiving for transportation 3
to a point within the commonwealth from outside thereof, any car, box, 4
bundle, package or consignment in any form, of living trees, shrubs or 5
plants commonly knowm as nursery stock, shall immediately notify the 6
director of the fact that such consignment has been received by him and 7
give the name and address of the consignee, together with such further 8
report as may be lawfully required by the director. 9
Chap. 128.] agriculture. 1297
1 Section 21. The director, either personally or through his assist- Director may
2 ants, may inspect at its point of destination all nursery stock coming "tuurand
3 into the commonwealth, and if such stock is found to be infested with Ij^^to common-
4 injurious insects or plant disease he may cause it to be destroyed, treated lj'go<l*444, § 7
5 or returned to the consignor at the consignor's expense. He may, either J^'lfg''
6 personally or through his assistants, inspect all fruits brought into the wis. is'i,
7 commonwealth from outside thereof which were grown on plants, shrubs isio. 91. § 5.
8 or trees of any kind which also grow out of doors in this commonwealth, §§ ii':?-.'
9 and, if such fruits are found to be infested with injurious insects or plant Penalty. § 29.
10 disease lil'cely to become established herein, he may cause such fruits
11 to be destroyed, treated or returned to the consignor at the consignor's
12 expense.
13 Each person, except a common carrier, who receives, brings or causes
14 to be brought into this commonwealth any such fruits from such states,
15 provinces or countries as may be designated by the commissioner, shall
16 immediately after the arrival of such fruits notify the director of such
17 arrival, and hold the same until they have been duly inspected.
1 Section 22. If the director, either personally or through his as- Protection
2 sistants, finds ribes or five leaved pines which are either infected with pmo bLto' "
3 white pine blister rust, or so situated that in his opinion they are likely 'igfj, 263, ^ 2.
4 to become so infected, he or his assistants may forthwith destroy or cause ^^^^- ^^°' ^ ^''•
5 to be destroyed such ribes or five leaved pines. In carrying out his
6 duties under this section the director shall co-operate with the state for-
7 ester, local tree wardens, moth superintendents, city foresters and forest
8 wardens.
1 Section 23. The owner of any cultivated berry-bearing slirubbery compensation
2 destroyed by the director or his assistants under the two preceding damages ind-
3 sections shall receive compensation therefor from the commonwealth, fn "spread o'f'
4 provided that he has given written notice thereof to the director within y*'g'Jgr''rust
5 thirty days after the accrual of his claim to compensation. The di- }g j|' I50' Is s.s
6 rector or an assistant shall thereupon investigate the same, and if the di- 37. ' '
7 rector does not agree with the claimant as to the validity of his claim
8 or as to the amount thereof, the question at issue shall be determined
9 by three arbitrators who shall be the commissioner, the state forester,
10 and an assistant attorney general to be designated by the attorney gen-
ii eral. Any award of damages made by said arbitrators, together with
12 the cost of the appraisal, shall be certified to the state auditor, and shall
13 thereupon be paid by the commonwealth in the same manner as other
14 claims.
1 Section 24. The director, either personally or through his assist- inspectio.n of
2 tants, may inspect any orchard, field, garden, roadside or other place and procedure.
3 where trees, shrubs or other plants exist, whether on public or private I909; 444,' ^ *'
4 property, which he may know or have reason to suspect is infested with flilVo?,
5 the San Jose scale or any serious insect pests or plant disease, when in ^^^^ Jj'j ^ ^
6 his judgment such pests or disease are likely to cause loss to adjoining ^gj^.^^^j'^ ^gl'
7 owners, and may serve upon the owner, occupant or person in charge of '
8 trees, shrubs or other plants thus infested, written notice of the presence
9 of such pests or plant disease, with a statement that they constitute
10 a public nuisance, together with directions to abate the same, giving the
11 methods of treatment for the abatement thereof, and stating a time
1298
AGRICULTURE.
[Chap. 128.
within which the nuisance must be abated in accordance with the methods 12
given therein. If the person so notified refuses or neglects so to treat or 13
destroy sucli trees, shrubs or other plants within the time prescribed, 14
the director may cause such property to be so treated or destroyed, 15
and may employ all necessary assistants for this purpose, who may enter 16
upon any public or private property, if such entry is necessary for this 17
purpose. Upon the completion of said treatment the director shall cer- 18
tify in writing to the owner or person in charge of the treated property 19
the amount of the cost of such treatment, and if this be not paid to the 20
commissioner within ninety days thereafter, the same may be recovered 21
by suit, together with the cost of the suit. 22
Appeal may
be taken.
1907, 321, § 4.
1909. 444,
§5 9, 17.
1912, 507,
§§ 8, 16.
1918. 268,
l§1.4.
Section 25. In case of objection to the action of the director or 1
his assistants in executing any provision of sections sixteen to thirty-one, 2
inclusive, an appeal may be taken within ten days to the commissioner, 3
and the appeal shall act as a stay of proceedings until it has been heard 4
and decided by the commissioner, whose decision shall be final. 5
1919. .350, §§ 35. 37.
Proceedings
after appeal.
1907. 321, § 5.
1909. 444,
§§ 10. 17.
1912, S07,
§§ 9, If..
1916, 91, § 3.
1918, 268,
5§1.4.
1919.350,
§§ 35, 37.
Penalty, § 29.
Section 26. When the commissioner has heard an appeal and has ren- 1
dered a decision that the action of the director from which the appeal 2
was taken is sustained, the director shall notify in writing the owner, 3
occupant or person in charge of the trees, shrubs or other plants con- 4
cerned, of the decision, and shall direct him to treat or destroy the trees, 5
shrubs or other plants within a given time in accordance with a method 6
prescribed in the notice. If the person so notified refuses or neglects 7
so to treat or destroy such trees, shrubs or other plants within the time 8
prescribed, the director may cause such property to be so treated or 9
destroyed, and the cost thereof to be recovered as provided in section 10
twenty-four. 11
§3.
103.
Powers of
director.
1907,321,
1909,444,
§§ 13,17.
1911, Bes.
1912, 507,
§§ 12, 16.
191S, 193.
1919,350.
§§ 3.5. 37.
Penalty. § 29.
Section 27. The director, with the approval of the commissioner, 1
after a duly advertised public hearing with notice to interested parties, 2
may prohibit for such periods and under such conditions as he may im- 3
pose, the delivery within the commonwealth of nursery stock from out- 4
side thereof when in his opinion such nursery stock is likely to be in- 5
fested with insect pests or di.sease or is likely to act as a carrier thereof. 6
With the approval of the commissioner, he may prescribe such general 7
requirements as may be needed to carry out sections sixteen to thirty- 8
one, inclusive, and may publish information about such insects and 9
disease as come within his observation. 10
brXutoU Section 28. Sections sixteen to twenty-seven, inclusive, twenty- 1
moth control nine and thirty, shall not apply to g.A'psy or brown tail moths in any stage 2
1907, 321,' §8. of development except upon places wiiere nursery stock is grown and 3
1909,444, • I- 1 1- • • il A
§§ 14, 17. upon property immediately adjoining the same. 4
1911, Res. 103. 1912, 507, |§ 13, 16.
Penalty.
1902, 495, § 3.
1907, 321,
§S2, 6.
1909, 444,
§§11.17.
1912, 507,
§§ 10, 16.
Section 29. Whoever violates any provision of sections sixteen to
twenty-seven, inclusive, or offers any hindrance to the carrying out of
any part thereof, shall be punished by a fine of not less than ten nor more
than one hundred dollars to the use of the commonwealth.
CUAP. 128.] AGRICULTURE. 1299
7.
1 Section 30. All prosecutions under sections sixteen to twenty- Prosecutions.
2 seven, inclusive, or section thirty-one shall be instituted by the commis- nm, til', ^ '
3 sioner and shall be directed by him. ^^ '-• ^'^■
1912, 507, §§ 11. 16- 1918, 2GS, §§ 1,4. 1919, 350. § 35.
1 Section 31. Whenever the director finds that any town or part European com
2 thereof is infested with the European corn borer or other insect pest, PenaUy*'''
3 except the gypsy and brown tail moth, or with a plant disease which in §§'3^5,®3^'^;^358.
4 his opinion is likely to spread to other parts of the commonwealth or
5 to other states, he may, after a duly advertised public hearing, and with
6 the approval of the commissioner, issue an order stating the insect pest
7 or plant disease to be guarded against, and prohibiting, for such periods
8 and under such conditions as he deems necessary, the transportation to
9 or from such town or part thereof, of any specified trees, plants, shrubs
10 or other vegetable growths or products, and any specified containers or
11 other articles by means of whicli such an insect pest or plant disease is or
12 is likely to be carried. The order aforesaid shall be advertised in a news-
13 paper published in each town where it is to be effective, or, if no newspaper
14 is published in such town, then in a newspaper of general circulation
15 in the county where the town is situated. Whoever violates any order
16 issued under this section or whoever offers any hindrance to the carry-
17 ing out of such order shall be punished by a fine of not less than twenty-
18 five nor more than three hundred dollars.
INSPECTOR OF APIARIES.
1 Section 32. With the approval of the commissioner, the inspector of .^"''^^ °f
rt ■ • 1 n 1 1- -i c . • 11. inspector.
2 apiaries shall prepare and distribute from time to time such literature i^io, ess, § 2.
• 1011 2'-*0 S '^
3 upon the subject of bee culture as he deems advisable, shall annually 1919', 350! § 35.
4 make or cause to be made through his assistants such inspection of the
5 apiaries throughout the commonwealth as he deems necessary to dis-
6 cover and suppress all bee diseases of a contagious nature, and may
7 make and issue reasonable regulations for carrying out this and the six
8 following sections.
1 Section 33. No person shall keep a colony of bees affected with Keeping of
2 foul brood, black brood, or any other infectious or contagious disease uedin'rartaia
3 harmful to honey bees in the egg, larval, pupal or adult stage, except as ^gi'o'ess § 3
4 pro\'ided in the following section, and each beekeeper, when he becomes isi', 220, §3.
5 aware of the existence of such a disease among his bees, shall at once Penalty, § 38.
6 notify the inspector to that effect. No person, knowing that a con-
7 tagious or infectious disease exists among his bees, shall sell, barter, give, ^
8 or in any other way dispose of the same in whole or in part, or any prod-
9 act of the same, or any hive, super, frame, section or other appliance
10 used about the diseased bees, in such manner as to cause the spread of
11 the disease.
1 Section 34. The inspector or his assistants, upon the discovery of J^re""ent of"'*
2 foul brood, black brood or other infectious or contagious disease, in any jq^g'^gg,''^'^^-
3 apiary or colony, shall give instruction to the owner or caretaker thereof §§ 4,'5.
4 as to the treatment of the diseased bees, and shall also send to the owner §§ 4,' 5." '
5 or caretaker a written order that such bees be held in quarantine until Penalty, § 38.
6 released by WTitten permit from the inspector, and bees so quarantined
7 shall not be removed from the premises.
1300
AGRICXJLTXJRE.
[Chap. 128.
If upon subsequent inspection the disease is still found to exist the 8
inspector or his assistants may cause the diseased colonies to be de- 9
stroyed in such manner as to prevent the spread of the disease. 10
Regulations
concerning
shipping or
transportation
of bees. etc.
1911. 220, § 6.
Penalty, § 38.
Section 35. No colony of bees shall be shipped or transported into 1
or delivered in this commonwealth from a state or country having an 2
inspector of apiaries, or other officer charged with similar duties, without 3
a certificate stating that such officer has inspected said colonj^ and that 4
it is free from infectious or contagious disease. No transportation com- 5
pany or common carrier shall accept for transportation into the com- 6
monwealth, nor shall it deliver to any consignee herein, any such colony 7
from such state or country, unless such colony is accompamed by such 8
certificate. In the absence of such a certificate, the consignee upon 9
the receipt of said colony shall forthwith notify the inspector, who shall 10
forthwith inspect the same. No transportation company or common 11
carrier shall be liable in damages for refusing to receive, transport or 12
deliver any colony of bees when not accompanied by a certificate as 13
above provided. This section shall not prevent the transportation or 14
delivery of queen bees when not accompanied by brood or comb.
15
Access by in-
spector and
assistants to
apiaries, etc.
1910, 653, § 6.
1911, 220, § 7.
Section 36. The inspector and his assistants shall have access to 1
each place where bees, bee products or supplies or appliances used in 2
apiaries are kept. Penait5', § 38. 3
Record to be
kept, etc.
1910. 65,S, § 7.
1911.220. §8.
1919,350. §35.
Section 37. The inspector shall keep a detailed record of the num- 1
ber and location of all apiaries visited by him or his assistants, the num- 2
ber and location of all colonies found diseased, the treatment thereof, 3
and the expenditure incurred in the performance of the duties of his office. 4
He shall report to the commissioner annually, and at such other times 5
as he requests. 6
Penalty.
1910, 653, § 8.
1911, 220, § 9.
Section 38. Whoever violates any provision of sections thirty-two 1
to tliirty-six, inclusive, shall be punished for the first offence by a fine 2
of not more than ten dollars, for the second offence by a fine of not more 3
than twenty-five dollars and for a subsequent offence by a fine of not 4
more than fifty dollars. 5
Director of
the division
ornithology,
duties, etc.
1908, 245,
H2.3.
1912. 500. §
1914, 424, I
1917, 75.
1919, 350,
l§ 35, 37.
of
director of the division of ornithology.
Section 39. The director of the di\ision of ornithology shall in- 1
vestigate the distribution and food habits of the birds of the com- 2
monwealth; shall determine, so far as possible, the relation of birds to 3
outbreaks of insects and animals; shall experiment with a view to dis- 4
covering the best methods of protecting fruits and crops from birds; 5
and shall serve the department and the people of the commonwealth in 6
an advisory capacity in matters relating to the economic status of birds 7
and to legislation concerning them. He shall report annually to the com- 8
missioner. Subject to the approval of the commissioner, he may pur- 9
chase such supplies and apparatus as may be reasonably necessary in 10
carrying out his duties and may issue special reports and bulletins as the 11
exigencies of his work may require. For the purpose of aiding in the 12
study of the distribution and habits of the birds of the commonwealth 13
he may appoint special observers to serve without compensation. 14
Chap. 128.] agriculture. 1301
TRUSTEES FOR COUNTY AID TO AGRICULTURE.
1 Section 40. In each county, except Sufi'olk and except counties main- Trustees for
2 taining vocational agricultural schools, there shall be an unpaid board agSture.'"
3 of nine trustees to be known as trustees for county aid to agriculture. Aud'irof"^'
4 The county commissioners of each such county shall annually appoint Report'"
5 three trustees, qualified as hereinafter provided, to serve for three years J^js. 273, § 1.
6 from April first of the year of appointment, and shall fill any vacancy 1920! 103.
7 in said board for the unexpired term. All of said trustees shall be
8 residents of the county where they are appointed, one shall always be
9 a county commissioner of said county, and fom* so far as is possible shall
10 be taken from the directors, chosen as provided in the following section,
11 of such cities and towns as have appropriated funds toward carrying out
12 sections forty to forty-five, inclusive. Subject to the approval of the
13 county commissioners, the trustees shall annually appoint a competent
14 person, who may be one of their own number, to serve as their treas-
15 urer without compensation. He shall have the usual powers and duties
16 pertaining to the office of treasurer and shall give bond to the county
17 in such sum and with such surety as is approved by the county com-
18 missioners. The premium on such bond may be paid by the treasurer
19 from any funds held by him under sections forty to forty-five, inclusive.
20 The accounts of the trustees shall be audited by the director of accounts
21 in the manner in which other county accounts are audited imder general
22 law. The trustees shall annually submit to the county commissioners
23 a report for the previous year with a statement of receipts and expcndi-
24 tures in such form and at such time as is required by them, and they
25 shall cause the said report to be printed as a part of their regular annual
26 report.
1 Section 41. Choice of the directors mentioned m the preceding sec- Directors,
2 tion shall be made in such towns at the annual town meeting at which i'ms.'^273^°§' 1.
3 the appropriation is made, or at the next succeeding annual meeting i^''-''^^-
4 when the appropriation is made at a special meeting, and in such cities,
5 by the mayor, not later than fifteen days following the vote authorizing
6 the appropriation. The directors shall serve for such terms as the
7 mayor in cities and the voters in towns shall determine.
1 Section 42. The trustees may receive on behalf of the county and Expenditures.
2 apply to the purposes of sections forty to forty-five, inclusive, money '^^*' 2''3. § 2.
3 appropriated therefor by the general court for any county or by any
4 town, or by the federal government, and may control the expenditure
5 thereof either solely or in conjunction with representatives or agents of
6 the commonwealth or of the United States, or of any department, com-
7 mission, board or institution created under the statutes of this com-
8 monwealth or under an act of congress. The trustees may enter into
9 agreements, arrangements or undertakings with any such departments,
10 commissions, boards and institutions, relative to extension work with
11 adults and with boys and girls in agriculture, homemaking and country
12 life.
1 Section 43. The trustees shall maintain one or more agents or in- Trustees.
2 structors in agriculture, homemaking and country life, who shall meet i'n''8??i"tS'rs"by°
3 the residents of the county individually and in groups for the purpose '^'*' ^^^' ^ ^'
1302
AGRICULTURE.
[Chap. 128.
of teaching and demonstrating better practice in agriculture and home- 4
making, the benefits to be derived from co-operative efforts, better 5
methods of marketing farm products and the organization of communi- 6
ties to build up country life. 7
Trustees to
prepare budget.
1918, 273, § 4.
1920,517.
Towns may
take land.
191S, 273, § 5.
Section 44. The trustees shall annually prepare and submit to the 1
county commissioners, not later than the first Wednesday in December, 2
a budget containing detailed estimates of all sums required by them 3
for carrying out sections forty to forty-five, inclusive, diu-ing the en- 4
suing year. The county commissioners shall include in their annual 5
estimate of county expenses to be appropriated by the general court and 6
raised by the annual county tax levy at least one half of such sums as 7
they deem necessary to carry out said piu"poses, such sums so appropri- 8
ated to be paid over to the trustees annually. 9
Section 45. Any town may accjuu-e, by purchase or otherwise, in the 1
manner in which land may be acquired for school purposes, real estate 2
for the purpose of carrying on, under the direction of the agents or in- 3
structors of said trustees, demonstration work in agriculture and home- 4
making, and may appropriate money to be expended b^' said trustees 5
under sections forty to forty-three, inclusive, or for the purpose of ena- 6
bling the trustees to acquire necessary real estate, or for the support of 7
demonstration work, under the direction of the agents or instructors or 8
of the trustees, on land owned by the town or by any resident thereof. 9
Agricultural,
etc.. societies,
assigament of
police at ex-
hibitions, etc.
1892, ISO.
R. L. 124, i 16.
.'VGRICULTUIt'VL AND HORTICULTUK.\.L SOCIETIES, ETC.
Section 46. Upon the application of the president of an mcorporated
agricultural or horticultiu'al society to the authorities of a town where
an exhibition of such society is to be held, such authorities shall assign
for special service at such e.xliibition all police officers or constables nec-
essary to preserve the peace and enforce the law thereat.
to receive'^pub- SECTION 47. Farmers' clubs which are organized and are holding
is59°203'^"2 regular meetings shall, upon application made armually in November to
G. I '66 §18^ the commissioner, receive copies of the department's report and of its
20 other publications, in proportion to the number of their members and
to the ap]3lications so made. A club which receives such copies shall
annually in October make returns to said commissioner of its agricultural
experiments and of the reports of its committees.
R. L. 124,
1919. 350,
§§ 34. 35.
Section 48. Each agricultural or horticultural society or farmers'
clul) may establish such regulations, not inconsistent with law, as it
6 Alien, 5g8.
Preservation
of peace.
ISfil, 127, § 1,
P. .S. 114, § 20 - - • c 11
p L. 124. § 21 considers necessary and ex-pedient for the preservation ot peace and good
order or for the protection of its interests at its regular or annual meet-
ings, shows, fairs or exliibitions, and shall cause at least five copies of
such regulations to be posted in public places on its grounds not less
than forty-eight hours before the time of holding each meeting, show,
fair or exhibition.
gaming. Itc.', Section 49. No person, durmg the time of holding a cattle show, 1
i'8M''i27'*§ 2 ^^^^ o"" exhibition or meeting of a farmers' club and witliout the consent 2
T'i'ni'iii °^ ^^^^ authorities having charge of the same, shall establish within one 3
R L. 124, § 22. half mile of the place of holding such show, fair, exhibition or meeting a 4
tent, booth or vehicle of any kind for the purpose of vending any goods, 5
Chap. 129.]
ANIMAL INDUSTRY.
1303
6 wares, merchaiuiise, provisions or refreshments. No person shall engage
7 in gaming or horse racing or e>diibit a show or play during the regular
8 or stated time of holding a cattle show, agricultm-al fair or meeting of a
9 farmers' club, or engage in pool selling, at or within one half mile of the
10 place of holding the same; but no person having his regular place of busi-
11 ness within such limits shall be hereby required to suspend his business.
1 Section 50. Whoever violates any provisions of the preceding sec- Penalty
2 tion, or of a regulation established under section forty-eight, shall forfeit r'.s'i'u!'|22.
3 not more than twenty dollars. R. l. 124, § 23.
REFERENCE.
County aid to agriculture in Suffolk county, 1919, 75.
CHAPTER 129
ANIMAL INDUSTRY.
Sect.
1. Definitions.
2. Powers and duties of director, orders,
etc.
3. Records of inspectors.
4. Certification of documents by clerk.
5. Orders, etc., to be sent to inspectors.
6. Aid by sheriffs, etc.
7. Entry on premises.
8. Hospitals and quarantine.
Duties of agcnt.s of Massachusetts So-
ciety for Prevention of Cruelty to
Animals.
Examinations under oath.
11. Isolation, etc., of affected animals.
12. Compensation for killing cattle affected
with tuberculosis.
Compensation for killing animals af-
fected with glanders.
Extermination of foot and mouth dis-
ease. Appraisals of and payments
for property destroyed, etc.
15. Appointment of inspector of animals.
16. Penalty for refusal or neglect of town to
appoint inspectors. Appointment by
director.
17. Oath of inspector. Compensation.
9.
10
13
14
Sect.
18. Duties of inspector.
19. Inspection of domestic animals.
20. Certificate of healthy condition.
21. Quarantine of infected animals.
22. Service of notice of quarantine.
23. Examination of barns, etc.
24. Notice of quarantine.
25. Records of inspectors of animals.
26. Provisions applying to Boston.
27. Quarantine of imported animals.
2S. Notice of contagious diseases.
29. Expense of quarantine.
30. Quarantine. General penalties.
31. Assessment of damages.
32. U.se of tuberculin restricted, etc.
33. No compensation in certain cases for
animals tested with tuberculin.
34. No compensation to violators of regu-
lations.
35. Certain cattle not to be driven on
streets, etc.
36. Notice to be given of contagious dis-
eases.
37. Enforcement of provisions.
38. Annual report.
1 Section 1. The following words as used in this chapter, unless the Definitions.
2 context otherwise requires, shall have the following meanings: imiwi,' ^^'
3 "Agents", employees of the division of animal industry specially fglg^os,
4 designated as agents by the director. r l go
5 "Contagious disease", such disease as is recognized by the United ||,^,'|^-
6 States bureau of animal industry to be contagious or infectious. i9i8;2b9.
7 "Director", director of animal industry.
8 "Division", division of animal industry.
9 "Inspector", inspector of animals appointed under section fifteen or
10 sixteen.
1919. 350,
§§ 40, 44.
1304
ANLMAL INDUSTRY.
[Chap. 129.
Powers and
duties of
director,
orders, etc.
1S60, 221, § 6.
P. S. 90, § 10.
1S94, 491, § 3S.
1899, 408, § 4.
R. L. 90, § 4
1902, 116, § 3.
1911,381, § 1.
1912, 608, § 4.
1913, 329.
1919, 350,
5§40,44.
2 0p. A. G. 425,
542.
3 Op. A. G. 208.
Section 2. The director may make and enforce reasonable orders,
rules and regulations relative to the following: the sanitary condition of
neat cattle, other ruminants and swine and of places where such animals
are kept; the prevention, suppression and extirpation of contagious dis-
eases of domestic animals; the inspection, examination, quarantine, care
and treatment or destruction of domestic animals affected with or which
have been exposed to contagious disease, the burial or other disposal of
their carcasses, and the cleansing and disinfection of places where con-
tagion exists or has existed. No rules or regulations shall take effect
until approved by the governor and council. Op. a. g. (iqiq) 34.
9
10
Section 3. The director shall make and prescribe forms for records 1
899 408 1 1^' °^ inspectors, certificates of examination, notices and orders of quarantine, 2
notices and orders for killing and burial, and for returns of inspectors 3
Records of
inspectors.
1894, ■ '
1899,
R. L. 90, § 4
1902, 116, § 3 . , , , . , ,,
1911, 381, 1 1. required bv this chapter. 1912, eos, § 4. 1913, 329. 1919, 3,50, §§ 40, 44. 4
Certification
of documents
bv clerk.
1893, 306, § 7.
1894, 491. § 52.
1899. 408, § 2.
R. L. 90, § 2
1902, 116, § 3.
1912, 608, § 3.
Section 4. The director may designate an employee of the division
as clerk who shall keep the records of the di\-ision, shall certify copies
of such records or of any order, rule or regulation issued by the director,
and shall make any certificates of issuing, recording, delivering or pub-
lishing of orders required under this chapter.
1913, 329. 1918, 257, § 313. 1919, 5; 350. |§ 40, 44. 1920, 2.
Orders, etc ,
to be sent to
inspectors.
1894,491, §40.
1899. 408, § 13.
R. L. 90, § 4
1902. 116, §3
1912, 60S, § 4.
1913, 329.
Section 5. AH orders, rules and regulations made by the director
shall be entered on the records of his division and a copy thereof shall be
sent to each inspector in the town to which the orders, rules or regula-
tions apply, and shall be published by such inspector in the manner pre-
scribed by the order, rule or regulation. i9i9, sso. §§ 40. 44. 2 0p. a. g. 425.
Aid by
sfieriffs, etc.
1,894, 491, § 57.
1899,408, § 11.
R. L, 90, § 9.
1902. 116, § 3.
1912, 60S, § 4.
Section 6. Sheriff's, constables and police officers shall upon request 1
of the director or an inspector assist him in the performance of his duties 2
and shall have the same powers and protection, while so engaged, as 3
peace officers. i9i3. 329. 1919, 350, §§ 40, 44. 4
Entry on
premises.
1894, 491, § 13.
1899, 108, § 28.
R. L. 90, § 23.
1902, 116, § 3.
1911,381,
§§1,3.
1912, 608,
1913. 329.
1918. 257.
§314.
1919. 5: 350.
§§ 40. 44.
1920. 2.
:4.
Section 7. For the purpose of inspecting or examining animals or 1
the places where they are kept, the director, any of his agents or an 2
inspector, duly qualified, may enter any building or part thereof or any 3
enclosure or other place, and may examine or inspect such animals or 4
places. Whoever prevents, obstructs or interferes with such director, 5
agent, inspector or other person having like authority in the performance 6
of any of his duties, or whoever hinders, obstructs or interferes with his 7
making such inspection or examination, or whoever secretes or removes 8
any animal, for the purpose of preventing it from being inspected or 9
examined, shall be punished by a fine of not more than one hundred dol- 10
lars or by imprisonment for not more than two months, or both. 11
Hospitals and
quarantine.
1860, 221, § 3.
1878. 24. § 1.
P. S. 90. § 14.
1887,252, §11.
1894.491, §41.
1899. 408. § 6.
R. L. 90. § 5
1902, 116. § 3.
1912. 60S, §4.
1913. 329.
Section 8. The director may establish hospitals or quarantine sta-
tions, with proper accommodations, wherein, under prescribed regula-
tions, animals selected by him may be confined and treated for the pur-
pose of determining the characteristics of a specific contagion and the
methods by which it may be disseminated or destroyed, and he may
direct inspectors to enforce and carry into effect all regulations made from
time to time for that purpose. wi^' 350, §§ 40, 44.
1
2
3
4
5
6
7
Chap. 129.] anlm.\l industry. 1305
1 Section 9. The agents of the Massachusetts Society for the Pre- Duties of
2 vention of Cruelty to Animals may visit all places at which neat cattle, Ma"uchusctts
3 sheep, swine or other animals are delivered for transportation or are Prevention of
4 slaughtered, for the purpose of preventing violations of aiiy law and of AlSnlSs"*
5 detecting and punishing the same; with power to prosecute any such laio. s'JO-
6 violation coming to their notice. Any person who prevents, obstructs or
7 interferes with any such agent in the performance of such duties shall be
8 punished by a fine of not more than one hundred dollars or by imprison-
9 ment for not more than two months, or both.
1 Section 10. The director may examine on oath all persons who are Examinations
2 believed to possess knowledge of material facts relative to the existence iss^iTs, § i.
3 or dissemination, or danger of dissemination, of contagious diseases among l^^i.'io.'i-k.
4 domestic animals, or relative to any other matter within the provisions }||f; 2II; | fy,
5 of this chapter, and, for the purposes of this chapter, shall have all the J^gg' 49?; 1 1|
6 powers vested in justices of the peace by chapters two hundred and issn! 4bs. § 10.
7 twenty-two and two hundred and thirty-three to take depositions, to ino2: nh, § 3.
8 compel witnesses to attend and testify before him and to administer lolsiS
9 oaths. Witnesses shall receive the same fees for attendance and travel §§'^^6.^44*.'
10 as witnesses before the superior court. The expense of procuring the
11 attendance of such witnesses shall be paid by the commonwealth. Copies
12 of the records of the division, or of any order, rule or regulation issued
13 by the director, if duly certified by the clerk, and any certificate by the
14 clerk of the issuing, recording, delivering or publishing of such orders,
15 rules or regulations under this chapter, shall be competent evidence of
16 such fact in any tribunal.
1 Section 11. If the director, or one of his agents, by examination of a isolation, etc.,
2 case of contagious disease of domestic animals, except foot and mouth animal's'
3 disease, is of opinion that the public good so requires, he shall cause the lfl%^if' ^ ^'
4 diseased animal to be securely isolated or to be killed without appraisal 1^78,^24. § 1.
5 or payment. An order for killing shall be issued in writing by the direc- jg«' J^o-
6 tor, may be directed to an inspector or other person, and shall contain Pj^'^O'
7 such direction as to the examination and disposal of the carcass and the i887.'252,
8 cleansing and disinfection of the premises where such animal was con- 1892,195, § 3.
9 demned as the director considers expedient. A reasonable amount may Jl^; I??; 1 15.
10 be paid from the treasury of the commonwealth for the expense of such }^^g; |[||; | ^°-
11 killing and burial. If thereafter it appears, upon post mortem examina- jy^ i?i,\''3
12 tion or otherwise, that such animal was free from the disease for which 1912,' ms! § 4.
13 it was condemned, a reasonable amount therefor shall be paid to the 1917! 121,
14 owner by the commonwealth, except as otherwise provided in section
15 fourteen relative to foot and mouth disease.
1919, 350. §§ 40. 44. 152 Mas.s. 540. 30p. A. G. 208.
1 Section 12. If under the preceding section any cattle affected with Compensation
2 tuberculosis are killed, the full value thereof at the time of condemna- c°nie '"^
3 tion, not exceeding sixty dollars each, shall be paid to the owner by the tuberculosis.
4 commonwealth if such animal was owned within the commonwealth for six }|^3; l^[ | f
5 consecutive months next prior to its killing or was inspected within such {fpl' 491;' f to
6 time and satisfactory proof has been furnished to the director by certifi- ism, 40s. § s.
7 cate or otherwise that it was free from disease, and if the owner has r. l'oo.Is.
8 not prior thereto in the opinion of the director by wilful act or neglect lOp. a. g
9 contributed to the spread of tuberculosis. ^^*' ^^°' ^^^'
1306
ANIMAL IXDrSTRY.
[Chap. 129.
Compensation
for killing
animals
affected
with glanders.
1913. 646, § 1.
1919. 350.
§§ 40. 44.
Section 13. If under section eleven anj- horse, mule or ass affected 1
with glanders is killed, the full value thereof at the time of condemna- 2
tion, not exceeding fifty dollars, shall be paid to the owner by the com- .3
monwealth if such animal was owned within the commonwealth for 4
twelve consecutive months next prior to the killing thereof, and if tlie 5
owner thereof has not in the opinion of the director contributed to the (>
spread of glanders by any wilful act or neglect. 7
Extermination
of foot and
mouth disease.
Appraisals of
and payments
for property
destroved. etc.
1917, 121.
§§1.2.
1919. 330,
§§ 40, 44.
Section 14. All neat cattle and other domestic animals, which are 1
affected with, or have been exposed to, foot and mouth disease, shall be 2
destroyed when, in the opinion of the director, the public good so re- 3
quires, and their carcasses shall be buried or otherwise disposed of. An 4
order for killing and for the disposal of carcasses shall be issued in writing 5
by said director, and may be directed to an agent, an inspector, or other 6
person. The said director shall also issue such directions for the cleansing 7
and disinfection of buildings, premises and places in which foot and 8
mouth disease exists or has existed, and of property which may be on or 9
contained therein, as in his opinion may be necessary or expedient. Any 10
property on such premises which may be, in the opinion of the director 11
or of his agents, a source of contagion may be destroyed by order of the 12
director. The necessary expenses incurred in carrying out this section 13
may be paid from the annual appropriation for the extermination of con- 14
tagious diseases among domestic animals. The director may appoint 15
persons to make appraisals on live stock and other property the destruc- 16
tion of which is ordered under this section, and fifty per cent of the full 17
value of such live stock and other property, as determined by the ap- 18
praisal, may be paid from the annual appropriation aforesaid. If the 19
United States government makes an appropriation for payment of a cer- 20
tain portion of the value of any animals and property destroyed under 21
this section, the payment by the commonwealth for such animals or 22
property shall be limited to the difference between such portion and the 23
full value thereof determined as herein provided, which shall not be in 24
excess of fifty per cent of such value. 25
Appointment
of^nispector
of animals.
1S72. 231. § 1.
1875. 29. § 1.
1870, ISO, 5 1.
P. S. 58, § 1
1892, 195, § 1;
432
1893, we, s r,.
1894, 491, § 1.
Section 15. The mayor in cities, except Boston, and the selectmen
in towns shall annually, in March, nominate one or more inspectors of
animals, and before April first shall send to the du-ector the name, address
and occupation of each nominee. Such nominee shall not be appointed
until approved by the director. In cities at least one such inspector shall
be a registered veterinary surgeon. is99. 408. § i". r. l. 90, § 12.
1902. 116, §3. 1911,143. 1913,329. 1 Op. A. G. 74.
1908. 378.
1912, 60S, |§ 4, 6.
1919, 350, §§ 40, 44.
4 Op. A. G. 146.
Penalty for
refusal or
neglect of town
to appoint
insjjoctora.
Appointment
by director.
189.3. 306,
l§ 5. 0.
1894, 491, S 2.
1899, 408, S 18,
R. L. 90. § 13.
1902, 116. § 3.
Section 16. A town shall, for each refusal or neglect of its officers
to comply with the requirements of the preceding section, forfeit not
more than five hundred dollars. The director may appoint one or more
inspectors for such town, and may remove an inspector who refuses or
neglects to be sworn or who, in the opinion of the director, does not prop-
erly perform the duties of his office and may appoint another inspector
for the residue of his term.
1912, 608, I 4. 1913, 329. 1919. 350, §§ 40, 44.
S>* cto"/ "com- Section 17. Each inspector shall be sworn to the faithful performance 1
p|5.f tj™ 5 J of his official duties, and shall receive from the town for which he is ap- 2
1875, 29. 1'l. pointed reasonable compensation, if appointed by the town, or such com- 3
Ch.\P. 129.] .VNIMAL INDUSTRY. 1307
4 pensation as shall be fixed by the director, but not in excess of five istb, :so. 5 1.
5 hundred dollars a year, if appointed by the director. Towns having a isss, 301;, § 5.
6 valuation of less than two and one half million dollars shall be reimbursed Hit] tye,.' ^ ^'
7 by the commonwealth for one half of such compensation, not exceeding jf^n.^^f'so
8 two hundred and fifty dollars for each inspector in any one year. k.qL. 9o^§ w-
1912, 608, § i. 1913, 329. 1919. 350, §§ 40, 44.
1 Section 18. Each inspector shall comply with and enforce all orders Duties of
2 and regulations directed to him by the director. If he refuses or neglects ism! «i',
3 so to do, he shall be punished by a fine of not more than five hundred isog.tos,
4 dollars. n. l. 90. § 10. « 21, 31.
1902, 116, § 3. 1912, cos, § 4. 1913,329. 1919, 350, §§ 40, 44.
1 Section 19. Inspectors shall make regular and thorough inspections inspection of
2 of all neat cattle, sheep and swine found within the limits of their respec- anCiMis."
3 tive towns. Such inspections shall be made at such times and in such ligf^lgillf;
4 manner as the director shall from time to time order. They shall also [Hq- ^qI | 22
5 from time to time make inspections of all other domestic animals within {go^neS^s'
6 the limits of their respective towns if thev know, or have reason to sus- ws! 60s! i 4.
. .* 1913 329
7 pect, that such animals are affected with or have been exposed to any 1919! 350!
8 contagious disease, and they shall immediately inspect all domestic s'op.'A. b.
9 animals and any place where any such animals are kept whenever di- ^°^'
10 rected so to do by the director; but this section shall not apply to the
11 inspection of sheep or swine slaughtered in wholesale slaughtering estab-
12 lishments, or to the obtaining of a license for the slaughtering of such
13 sheep or swine.
1 Section 20. An inspector who is satisfied, upon an examination of he'atthr'^ °'
2 any neat cattle, sheep or swine, that they are free from contagious ^gg^'^^g"- 5 g
3 disease, shall deliver to the owner or to the person in charge thereof a }?Qn'loS'| I,
4 written certificate of their condition, in such form as the director shall r. l! 90, '§ is. '
5 prescribe, signed by the inspector, and shall enter a copy of said certificate 1912! eos! 1 4'.
6 upon liis records. 1913, 329. 1919, 350, §§ 40, 44.
1 Section 21. An inspector who, upon an examination of a domestic Quarantine of
2 animal, suspects, or has reason to believe, that it is afl^ected with a con- Lnimau.
3 tagious disease shall immediately cause it to be quarantined or isolated ilre! 24^§ i.^'
4 upon the premises of the owner or of the person in whose charge it is 189^,491^ §'7.
5 found, or in such other place as he may designate, and shall take such ^ ^l go^'s^g^'
6 other sanitary measures to prevent the spread of such disease as may be 1902, no, § 3.
7 necessary or as shall be prescribed by any order or regulation of the direc- 1913! 329!
8 tor. He shall also deli-\'er to the owner or person in charge of such animal, §s 46, 44.'
9 or to any person having an interest therein, a %\Titten notice or order of p- - ■ — •
10 quarantine signed by him, in such form as the director shall prescribe,
11 'and shall enter a copy of said notice upon his records.
1 Section 22. Such notice or order may be served by an inspector or service of
2 officer qualified to serve ci^•il process, by delivery in hand to, or lea\ing quarantine.
3 at the last and usual place of abode of, the owner or person having an 1399! 40s,' § 25.
4 interest in or in charge of the animal concerned, or by posting upon the fgi^^] uhfis.
5 premises where said animal is quarantined or isolated. A copy thereof, }^}|' ^^^; ^ *•
6 with the return of said officer or inspector thereon that such service has J?^^^g^4^.f'
7 been made, shall be competent evidence in any court that such quarantine
8 has been imposed. If an animal has been so quarantined, it shall remain
9 in quarantine until the further order of the director.
1308
ANIMAL INDUSTRY.
[ClIAP. 129.
Examinat
ion
of barns. <
etc.
1899,
,408,
§29.
R. L,
90,
24.
1902,
116,
§3.
1912,
608,
§ 4.
1913,
329.
1919,
,350.
§§ 40, 44.
Notice of
quarantine.
1894,
491,
§9.
1899,
408,
§27.
R. L.
90. i
§22.
1902,
116,
§3.
1912,
608,
§ 4.
Records o
f
inspectors of
animals.
1894,
491,
§5.
1899,
408,
§ 19.
R. L.
90,
§15.
1902,
IIG,
§3.
1912,
608,
§4.
1913,
329.
1916,
147.
1919,
350,
§§40
1, 44.
Provisions
!
applying to
Boston.
1912,
608,
§7.
Quarantine
of imported
animals.
1887,
252,
§20.
1894,
491,
§63.
1899,
408,
§12.
R. L.
90, § 10.
1902,
116,
§3.
1912,
608,
§4.
Notice of
contagious
diseases.
1860,
219,
§9;
221, § 5.
1878,
24.
1879,
178.
P. S.
90, §§ 9,
15.
1885,
148,
§§1.
2.
1887,
252,
§§6,
7.
1894,
491.
§§29
,30.
1899,
408,
§§14
, 15.
R. L.
90, § 11.
1902,
116,
§3.
1908,
515,
§ 1.
1912,
60S,
§§4,
5.
1913,
329.
Expense o
f
quarantine.
1860,
219,
§1.
1878,
24, § 1.
P. S.
90, § 1.
1887,
252,
§ 1.
1894,
491,
§ 27.
1895,
496,
§9.
1899,
408,
§ 26.
Section 2.3. Inspectors shall, in addition to their inspections of ani-
mals for contagious diseases, examine the places in which neat cattle are
kept, with reference to their situation, cleanliness, light, ventilation and
water supply, and the general condition and cleanliness of the said neat
cattle, and shall make a detailed report, with names and residences of
owners, to the director.
Section 24. An inspector who has caused a domestic animal to be
quarantined, as provided in section twenty-one, shall immediately give a
written notice thereof, with a copy of the order of quarantine, to the
director, and shall give such information to no other person.
1913.329.
1919,350, §§40,44.
Section 2.5. Each inspector shall keep a record of all inspections made
by liim and of his doings therein, and shall make regular returns thereof
to the division, but such returns need not be retained for more than two
years, and may then be destroyed or disposed of by their lawful cus-
todian, and any proceeds received in the course of their disposal shall be
paid to the commonwealth. The director shall prescribe the form in
which and the times at which such records and returns shall be made,
and may at any time inspect them and make copies thereof.
Section 27. Animals brought into this commohwealth from places
which in the opinion of the director are infected, may be seized and quar-
antined by the director at the expense of their owners or consignees, so
long as the public safety requires; and, if in his opinion safety so requires,
he may cause such animals to be killed without appraisal or payment.
1913, 329. 1919, 350, §§ 40, 44.
Section 26. The provisions of this chapter relative to the duties of 1
inspectors shall apply to persons officially performing the functions of 2
inspectors in Boston. 3
Section 28. The board of health of a town, any member or agent 1
thereof or any other person who has knowledge of or reason to suspect 2
the existence of any contagious disease among any domestic animals in 3
the commonwealth, or that any domestic animal is affected with a con- 4
tagious disease, whether such knowledge is obtained by personal exaini- 5
nation or otherwise, shall immediately give written notice thereof to the 6
director, or to an inspector for the town where the animal is kept. ^Vho- 7
ever fails to give such notice shall be punished by a fine of not more than 8
one hundred dollars. Upon the receipt of such notice by said inspector, 9
he shall proceed as provided in sections twenty-one, twenty-two, twenty- 10
four and twenty-nine. Upon receipt of such notice by the director he shall 1 1
inspect or cause his agent to inspect such animal, and thereafter shall 12
proceed as provided in section eleven or fourteen, as the case may be. 13
1919, 350, §§ 40, 44.
Section 29. If animals have been quarantined, collected or isolated 1
upon the premises of the owner or of the person in possession of them at 2
the time such cjuarantine is imposed, the expense thereof shall be paid by 3
such owner or person; but if specific animals have been quarantined or 4
isolated under section eight or twenty-one for more than ten days upon 5
Chap. 129.] animal industry. 1309
6 such premises, as suspected of being affected with a contagious disease, R. l oo, § 21.
7 and the owner is forbidden to sell any of the product thereof for food, or 1 Op. a. g. 372.
8 if animals have been quarantined, collected or isolated on any premises
9 other than those of such owner or person in possession thereof, the ex-
10 pense of such quarantine shall be paid by the commomvealth.
1 Section 30. An animal which has been quarantined or isolated by Quarantine.
2 order of the director or of his agent, or of an inspector, shall, during the aiUes.
3 continuance of such quarantine or isolation, be deemed to be affected with I'sra! its!
4 a contagious disease. Whenever an animal has been released from quar- iss^7,^2°52! M4.
5 antine by order of the director the same animal shall not again be quar- J|g|' |gj; ^ *■
6 antined or isolated by an inspector during the period of thirty days ||g9''408
7 immediately following such release except upon order of the director. H 32, ac'
8 Whoever knowingly breaks or authorizes or causes to be broken a quar- §§' 25, 29.
9 antine so imposed, or whoever, contrary to such order of quarantine or 1912', eos! § i.
10 isolation, knowingly removes an animal or authorizes or causes it to be igilisg!''
11 removed from a building, place or enclosure where it is quarantined or ^l^lo^lf'
12 isolated, or whoever, contrary to an order or notice of quarantine, know- 1 Op- ^- '^- "^■
13 ingly places or causes or authorizes to be placed any other animals within
14 a building, place or enclosure where an animal is quarantined, or in
15 contact therewith, or whoever knowingly conceals, sells, removes or trans-
16 ports, or knowingly causes or authorizes to be concealed, sold, removed
17 or tran.sported, an animal, knowing or having reasonable cause to be-
18 lieve that it is affected with a contagious disease, or whoever knowingly
19 authorizes or permits such animal to go at large upon any public way
20 within the commonwealth, or whoever knowingly brings or authorizes
21 or permits to be brought from another country, state, district or territory
22 into this commonwealth, an animal which is affected with or has been
23 exposed to a contagious disease, or whoever disobeys a lawful order or
24 regulation of the director or of any of his agents or of inspectors in the
25 performance of their duty under this chapter, shall be punished by a
26 fine of not more than five hundred dollars or by imprisonment for not
27 more than one year, or both.
1 Section 31. If an owner is entitled to compensation for the killing Assessment
2 of an animal or the destruction of other property under this chapter, i894,49i,|46.
3 and cannot agree with the director as to its value, the director and the iggg; 403! § 33!
4 owner may each select an arbitrator, and if the owner neglects or refuses }902' ne.S^s!
5 to select an arbitrator within twenty-four hours after notice tliat the JgJs'log-
6 director has selected one, the arbitrator selected by the director may jijt,i|j g
7 select another. In each case if the two arbitrators cannot agree as to i9i8!257;
8 the value, they may select a third. The arbitrators shall be sworn to igw.'s; 350,
9 the faithful performance of their duties and shall determine the value i92o%^*'
10 within the limits provided by sections eleven to fourteen, inclusive, and
11 the amount so fixed shall be paid to the owner.
12 If the owner's right to compensation is in dispute, if either party pre-
13 fers to submit the amount of damages to judicial determination, or if the
14 award of the arbitrators is unsatisfactory to either party, the owner or
15 the director may, within thirty days after the killing of such animal or
16 the destruction of such property, or, if arbitrators have been appointed,
17 within thirty days after the date of their award, file a petition for the
18 assessment of damages in the superior court for Suffolk county or for the
19 county where the killing or destruction occurred. A copy of the petition
1310
ANIMAL INDUSTRY.
[CiLiP. 129.
shall be served upon the adverse party. If upon such petition it appears 20
that the owner is entitled by law to compensation, the damages shall be 21
assessed under chapter seventy-nine within the limits provided by sec- 22
tions eleven to fourteen, inclusive, of this chapter. The damages, costs 23
and expenses incurred by the director in prosecuting or defending the peti- 24
tion shall be paid by the commonwealth. 25
Use of tuber-
culin restricted,
1S95, 49G, § U.
1896, 270.
1897, 105.
1899, 408, § 42.
R. L. 90, § 31.
1903, 322.
No compen-
sation in cer-
tain cases for
animals tested
with tuberculin.
1S97, 499.
1899, 408, § 43.
No compen-
sation to
violators of
regulations.
1899, 408, § 44.
R. L. 90, § 33.
Section 32. Tuberculin as a diagnostic agent for the detection of 1
tuberculosis in domestic animals shall be used only upon cattle brought 2
into the commonwealth and upon cattle in quarantine stations at Brigh- 3
ton, Watertown and Somerville; but it may be used as such diagnostic 4
agent on any animal in any other part of the commonwealth, with the 5
written consent of the owner or person in possession thereof, and upon 6
animals which have been reported as tuberculous upon physical exam- 7
ination by a competent veterinary surgeon. Such tests by the use of 8
tuberculin shall be made without charge to citizens of the commonwealth, 9
and in all other cases the expense of such tests shall be paid by the owner 10
of such animals or by the person in possession thereof. 1 1
Section 33. A person who has animals tested with tuberculin shall 1
not be entitled to compensation from the commonwealth for any animals 2
which react to the tuberculin test unless they have been tested by the 3
director or his agents, acting in their official capacity. R- l. 9o, § 32. 4
1902, 116, § 3. 1912, 008. § 4. 1913, 329. 1919, 350, §§ 40, 44.
Section 34. No compensation shall be allowed by the common- 1
wealth to an owner of condemned cattle who has failed to comply with 2
the reasonable regulations of the director relative to cleanliness, ventila- 3
tion, light, disinfection and water supply. An owner of cattle who re- 4
fuses to comply with anj' such regulation shall be punished by a fine of 5
not more than fifty dollars. 6
Certain ca
ttle
not tc
.bed
riven
on streets,
etc.
1870,
137.
P. S. '
90.
§§20
-28.
1887,
252,
M21
-33.
1894,
491,
§§54
-50.
1899.
408.
§§ 38-40.
R.L.
90, §
SO
1902,
116,
§3.
1912,
COS,
§4.
Notice to
be gi-
ven of
contagious
s
diseases-
1894,
491,
§35.
1899,
408,
§34.
R.L.
90, i
)27.
1902,
110,
§3.
1908,
515,
§ 2.
1912,
608,
§■4.
1913,
329.
1919,
3.50,
§§ 40, 44.
Section 35. Texan, Mexican, Cherokee, Indian or other cattle,
which the director has reason to believe may spread contagious disease,
shall not be driven on any public way or road, or outside the stockyards
connected with any railroad in the commonwealth, contrary to an order
of the director, and they shall be kept in dift'erent pens from those in
which other cattle are kept in all stockyards in the commonwealth.
Whoever violates any provision of this section shall be punished by a
fine of not less than twenty nor more than one hundred dollars.
1913, 329. 1919, 350, §§ 40, 44.
Section 36. Whoever kills an animal or causes it to be killed, with 1
the consent of the owner or person in possession thereof, upon suspicion 2
that it is affected -nath or has been exposed to a contagious disease, and 3
who, upon the inspection of the carcass thereof, finds or is of opinion 4
that it is affected ^\^th a contagious disease, shall forthwith notify such 5
owner or person in possession thereof, and the director or an inspector 6
for the town where such animal was kept, of the existence of such dis- 7
ease, and of the place where the animal was found, the name of the 8
owner or person in possession thereof and of the disposal made of such 9
carcass. Wlioever \-iolates any proNasion of this section shall be pun- 10
ished by a fine of not more than one hundred dollars or by imprison- 11
ment for not more than two months, or both. 12
ClL-lP. 130.] POWDERS, ETC., OF DIVISION OF FISHERIES AND GAME. FISHERIES.
1311
1 Section 37. The superior court shall have jurisdiction in equity to Enforcement
2 enforce this chapter and restrain violations thereof. °' provisions.
189-1,491, § 58.
1899, 408, § 41.
R. L. 90, § 34.
Section 38. The commissioner of conservation shall make an annual f'sTy^'^'s^Tig'
report of the acts of the director, including therein the information ob- i*^;*' ^sii § si-
tained from inspectors under section twenty-three. §§3,29. '
R. L. 90. §§ 3, 24.
1902, 116, § 3.
1912, 008, § 4.
1913, 329.
1919, 350, §§ 8, 40, 44.
REFERENCE.
Examination of sheep at demonstration sheep farms. Chap. 128, § 10.
CHAPTER 130
POWERS AND DUTIES OF THE DIVISION OF FISHERIES AND GAME.
FISHERIES.
Sect.
1. Definitions.
GENERAL PROVISIONS.
2. Enforcement of fish and game laws,
etc.
3. Penalty.
4. Powers of director, wardens and depu-
ties.
5. May arrest without warrant.
6. Search may be made for fish or game
illegally taken.
7. Search warrants.
8. Persons taking, killing, etc., birds,
etc., to display them for inspection.
9. Duties in respect to forest fires, etc.
10. Certain old documents may be de-
stroyed.
11. Directormay investigate as to fisheries
and game.
12. Penalty for entering, without right,
buildings, etc., used by the director
in scientific investigations.
13. Disposition of certain fines, etc.
14.
FISHING LAW.
Director may take fish for fish culture.
15. Stocking brooks with food fish.
16. Discharge of waste material into cer-
tain streams prohibited.
Director may examine dams, make
and serve orders. Courts may en-
force orders.
Penalty for not keeping fish way open.
Director may build fish ways, etc.
20. Compensation for land taken.
21. Screening ponds and rivers.
17
18.
19.
Sect.
22. Director may enter on land, etc.
FISHING LICENSE.
23. License to fish in stocked waters.
FISHERIES IN GREAT PONDS.
24. Certain ponds public.
25. Director may control certain ponds.
26. Notices of such occupation.
27. Penalty.
28. Stocking pond with food fish.
29. Fishing in MUl pond.
30. County commissioners to measure
great ponds.
31. Selectmen may measure certain ponds.
32. Exclusive fishery of riparian owners.
33. Acquisition of exclusive fishery.
34. Penalty for taking fish in certain
ponds.
35. Use of nets in ponds regulated.
CONTROL OF
RIPARIAN
FISHERIES BT
PROPRIETORS.
36. Enclosure of unnavigable streams.
37. Ownership of fish artificially propa-
gated.
Penalty for fishing where fish are arti-
ficially propagated.
Definition of navigable streams.
Governor may define tidal bounds and
mouths of streams.
Governor may limit fishing in certain
waters. Penalty.
42. Owners of certain streams to control
fisheries.
43. Fishing with sweep seines.
38.
39
40
41
1312
POWERS, ETC., OF DIVISION OF FISHERIES Airo GAME. FISHERIES. [ChAP. 130.
Sect.
herring, alewives and shad.
44. Towns may open ditches, etc., to
create herring fisheries.
45. Towns shall own such fisheries.
46. Penalty for fishing in such fisheries
without permission.
47. Rights under contracts, etc., not af-
fected.
48. Penalty for illegal taking of shad or
alewives.
TROUT.
49. Provisions as to possession or sale of
trout.
60. Provisions as to fishing for trout.
51. Limit of catch.
52. Artificially propagated trout. License.
53. Penalty.
54. Establishing rearing stations for trout
in certain counties.
55. Trout and spawn, conditions of
furnisliing.
56. Commissioner to make regulations for
taking salmon.
57. Protection of salmon fry.
PICKEREL.
5S. Close season for pickerel. Penalty.
59. Taking, etc., short pickerel. Penalty.
60. Taking, etc., of pickerel may be regu-
lated, etc.
WHITE PERCH.
61. Restrictions on the taking of white
perch. Penalty.
PIKE PERCH.
62. Possession of certain pike perch pro-
hibited. Seizure without warrant,
and sale. Penalty.
POLLOCK AND MACKEREL.
63. Seining of pollock and spike mackerel.
Penalty.
BLACK BASS.
64. Close season for black bass. Limit of
length.
65. Granting, etc., of licenses for propaga-
tion.
66. Penalty.
SMELTS.
67. Penalty for selling, etc., smelts be-
tween certain dates.
68. Permits to take smelts in great ponds.
69. Penalty for taking smelts except with
hook and line.
70. Prohibition not to extend to certain
counties, etc.
71. Use of net, seine, etc., for catching
smelts in Boston harbor, etc., pro-
hibited.
Sect.
72. Possession of net, etc., prima facie evi-
dence.
73. Penalties.
74. Searches ; seizure and libelling of prop-
erty.
MISCELLANEOUS PROVISIONS RELAXrVE TO
FISH.
75. Shiners may be taken for bait.
76. Forfeiture of fish, boats and appa-
ratus.
77. Keepers of fish markets, etc., to give
information of unlawful taking.
Penalty.
78. Introduction of fish into state waters.
CERTAIN SHELLFISH AND EELS.
79. Taking of scallops regulated.
80. Not to be taken between April first
and October first, etc.
81. Taking Umited.
82. Modification of close season, etc.
S3. Penalty.
84. City and town officers may regulate
the taking of certain fish, etc.
85. Cities and towns may grant licenses
for the planting, etc., of quahaugs.
86. Additional license may be granted to
bed quahaugs, etc.
87. Na\dgable water not to be obstructed.
Hearing. Contents of and record-
ing licenses. Survey, etc.
88. No person except the Hcensee to take
quahaugs, etc.
89. Superior court may appoint a com-
mission to determine if licensee is
acting in good faith, etc.
90. Licensee to have exclusive use.
Action and penalty for taking, etc.,
without licensee's consent.
LOBSTERS.
91. Penalty for taking female lobsters.
92. Director may purchase lobsters, mth
eggs attached, caught along the
shore of the commonwealth, etc.
93. Purchased lobsters to be marked;
possession of such lobster, etc.,
prohibited.
94. Sale of lobsters, etc., regulated.
95. Penalty for unlawfully selling, etc., lob-
ster meat.
96. Penalty for imlawful transportation of
lobster meat.
97. Lobster meat unlawfully sold, etc.,
may be confiscated.
98. Not to affect sale of certain lobsters,
etc.
99. Penalty for selling, etc., small lobsters.
100. Penalty for mutilation.
101. State police to enforce.
102. Right of search.
Chap. 130.] powers, etc., of division of fisheries and game, fisheries.
1313
Sect.
103. Protection of lobster industry. Pen-
alty.
104. Licenses.
105. Revocation of license.
106. Report by licensee, etc.
107. Hours for drawing lobster pots.
lOS. Penalty.
109. Investigation of habits of lobsters, etc.
110. Transportation of lobsters regulated.
111. Penalties.
112. Enforcement of sections 110 and 111.
113. Proceedings in case of seizure of lob-
sters.
FISHING FOR LOBSTERS, TAUTOG, ETC., IN
CERTAIN W.ITERS.
114. Prohibition of taking lobsters, etc., in
certain waters.
115. Boundaries defined.
116. Penalty if certain statutes have been
accepted.
117. Prohibition of taking lobsters in wa-
ters of Provincetown.
OYSTERS.
118. Penalty for unlawfully destroying oy.s-
ters.
119. Selectmen may give permits to take
oysters.
120. Granting of licenses for the cultiva-
tion of oysters in Barnstable, Bris-
tol, Dukes and Nantucket. Boun-
daries, etc.
121. Licensees to make annual report, etc.
122. Application for license, etc.
123. Fees.
124. License number to be displayed.
125. Taking of oysters between certain
hours prohibited.
126. Penalty for injuring boundary marks,
etc.
127. Penalty for injuring or unlawfully tak-
ing planted oysters.
128. Penalty for placing stones, scoopings,
etc., on oyster beds, etc.
129. Arrest and detention of offenders.
130. No territory to be granted in polluted
waters.
131. Granting of licenses in counties not
covered by section 122. Revocation.
Penalties.
132. Hours for taking oysters.
133. Penalty for taking oysters from li-
censed flats without permission.
.Sect.
134. Penalty for using dredge, etc., upon
private oyster beds.
GENER.\L PROVISIONS RELATIVE TO SHKLL-
FISH.
135. Pen.alty for taking shellfish, other
than oysters, except, etc.
136. Indians not within prohibition of sec-
tions 118, 119 and 135.
137. Taking of shellfish from contaminated
waters regulated.
138. Local boards of health may grant per-
mits to take clams or ciuahaugs for
bait, etc.
139. Person holding permit to keep the
same on his person, etc. Penalty.
140. Penalty for violation of permit.
141. Penalty for sale, etc., of clams, etc.,
taken from polluted waters.
142. Penalties for taking oysters, etc., from
prohibited waters, etc.
143. Cities and towns may make appro-
priations for cultivation, etc., of
shellfish. May declare close season,
etc.
144. Penalty, etc.
REGULATION OF FISH WEIRS, NETS, PURSES
AND SEINES.
145. Town officers may authorize fish
weirs, etc.
140. Penalty for injuring such fish weirs.
147. Penalty for constructing unauthorized
fish weirs.
148. Owners of fish weirs, lobster pots, etc.,
to make returns. Lobster cars to
be marked. Penalty.
MISCELLANEOUS PROVISIONS.
149. Penalty for taking fish, etc., from
traps, etc. •
1.>11. Penalty for taking certain fish excejjt
with hook and line.
151. Penalty for poisoning fish.
152. Officers to prosecute.
153. Prosecutions under this chapter lim-
ited.
154. Town officers to enforce certain sec-
tions.
155. Bounty on seals. Certificate. Penalty.
KELP AND SE.AWEED.
156. Kelp, etc., adrift.
157. Special laws not repealed.
1 Section 1. In this chapter, the following Mords shall have the fol- Definitions.
2 lowing meanings:
3 "Angling", fishing with hand line or rod, with naturally or artificially
4 baited hook.
5 "Deputy", a deputy fish and game warden appointed under section nm.wr.
6 seven of chapter twenty-one.
7 "Director", director of the division of fisheries and game of the lom, .3.-.0,
8 department of conservation.
1314
POWERS, ETC., Ill'' DniSKiN OF FISHERIES AND GAME. [ClIAP. 130.
iftu'. 4r„-,, § ,. « Warden ", a fi.sh and game warden
chapter twenty-one.
iippointed under section seven of 9
10
Enforcement
of fish and
game laws,
etc.
1S69, 3S4, § .•!.
P. S. fll, §:i,
1SS4. 212. § :i.
1S97, 2SS. 5 1,
R. L. 01, §;i
1905, 407.
1908, 417,
5« 1,3.
1910, 575, § 1.
1912, 4fi5, I 1.
19i:!. 2.i0.
1917, 271, § I.
1919, 3,50.
§§ 43, 102.
GENERAL PRtlVISIONS.
Section 2. Thq director, wardens, deputies aiul state police shall 1
enforce the laws relating to fish, birds, mammals and game. They may 2
seize and remove, summarily if need be, at the expense of the owner 3
using or maintaining the same, all illegal obstructions, except dams, mills 4
or machinery, to the passage of migratory fish. The wardens and depii- .5
ties, when on duty, shall wear and display a metallic badge bearing the 6
seal of the commonwealth and the words "fish and game warden" or 7
"deputy fish and game warden", as the case may be. Th6 director, 8
with tjie approval of the governor, may in writing authorize any warden 9
to have in his possession and carry a re^'olver, club, billy, handcufi^s and 10
twisters, or such other weapon or article required in the performance of 11
his official dutv. 12
Penalty.
1908. 417
5 2 Section 3. Whoever, not being a warden or deputy, possesses or 1
191''' 4^5' 1 1 '^^'Cfirs the badge described in the preceding section shall be punished by 2
ii)i.3: 2.w: '' a fine of ten dollars. 3
Powers of
dirertor.
wardens and
deputies.
lilOS, 417. 5 1.
1910, 57.J, § 1.
1912, 4lo. § 1
Section 4. The director, wanlens and deputies shall have and exer-
cise throughout the commonwealth, for the enforcement of the laws
relating to fish, birds, mammals, game and dogs, all the powers of con-
stables, except the service of ci\'il process, and of police officers.
1913, 2.50. 1917, 271, § 1. 1919, 350, § 43.
May arrest
without
warrant.
1880, 270, § 8.
1893, lO.'i.
1897,288, § 1.
R. L. 91, § 4.
1905, 407.
1910,57.5. § 1.
1912. 4115. § 1
191.-5, 250.
Section 5. The director, wardens, deputies, state police and all
officers qualified to serve criminal process may arrest without a warrant
any person found violating any of the fish or game laws, except that
persons engaged in the business of regularly dealing in the buying and
selling of game as an article of commerce shall not be so arrested for
ha\'ing in possession or selling game at tlieir usual place of business.
1919. 350, §§ 43, 102. 158 Mass. 149. 193 M.iss. 280. Op. A. G. (1920) 215.
Search nia.v
be made for
fisli or game
illeffallv taken
1904, 3l'i7. § 1.
1910, .54S;
575, § 1
1912,40
1913, 2.50.
1919. 350,
§102.
203 Mass.
Op. A. G.
(1920) 177
R5. 5 1.
Ifi.
Section (3. The director, a warden, deputy or state police officer, 1
may, without a warrant, search any boat, car, box, locker, crate or 2
package, and any building, where he has reason to believe any game or 3
fish unlawfully taken or held mn\ be found, and may seize any game 4
or fisli so taken or held, which shall be disposed of in such manner as the 5
director deems for the best interests of the commonwealth; provided, 6
that this section shall not authorize entering a dwelling house, or apply 7
to game or fish passing through this commonwealth under authority of 8
the laws of the United States. 9
Searcli
warrants.
1904, 3IJ7, § 2.
Section 7. A court or justice authorized to issue warrants in crim- 1
inal cases shall, upon a sworn complaint that the complainant believes 2
that any game or fish unlawfully taken or held is concealed in a par- 3
ticular place, other than a dwelling house, if satisfied that there is rea- 4
sonable cause for such belief, issue a warrant to search therefor. Tlie 5
warrant shall designate and describe the place to be searched and the G
articles for which search is to be made, and shall be directed to any 7
officer named in the preceding section commanding liim to search the 8
place where the game or fish for whicli he is recjuired to search is believed 9
to be concealed, and to seize such game or fish.
10
C'[IAP. loO.] POWERS, ETC., (IF DRISION OF FISHERIES AND GAME. 1315
1 Section 8. The director or a warden may request any person whom Persons
2 he reasonably believes to be engaged in unlawfully taking, killing, hunt- etc.'.°bi'rds!'efc..
3 ing or snaring fish, birds or animals to forthwith display for inspection 'orlnTpec^tion™'
4 all fish, birds and animals then in his possession; and said director or }a?ol75 § i
5 warden may arrest without warrant a person refusing to comply \\ith JjjJ^. ^ss, § i.
6 such request. i9i9, soo, § 43. 203 Wass. sie.
1 Section 9. The director, a warden or deputy may arrest without Duties in
2 a warrant any person found unlawfully setting a fire and may require foresTfires,
3 assistance according to section ten of chapter forty-eight. They shall 1907.299;
4 take precautions to prevent the progress of forest fires, or the improper {afo^sys 5 j
5 kindling thereof, and upon the discovery of any such fire shall imme- j^}^' ^|| | ^
G diately summon the necessary assistance, and notify the local forest 1013! 250!
7 \\arden. The warden and deputies shall report to the state fire warden
8 monthly their doings under this section; they shall report to him the
9 situation and extent of any forest fire occurring within their respective
10 districts.
1 Section 10. The director may de.stroy from time to time license Certain oU
o
books, stubs, licenses and license blanks, after the same have been nmy b™ '^
3 properly audited by the state auditor, and also old examination papers, i913,°2B9.'
4 old applications for himters' licenses, old applications for fish, quadru-
5 peds and birds, and such other like documents as the director deems
G advisable, after the same have been noted on the official records.
may-
investigate as
1 Section 11. The director may investigate questions relating to fish, Dircetor
2 fisheries or game, and may, personally or by assistants, institute and to^Shlfnes
3 conduct inquiries pertaining to such questions. 1902. its. '""' ^''""''
1 Section 12. Whoever \\ ilfidly and without right enters in or upon Penalty lor
2 an\- building or other structure or any area of land or water set apart ™thou't'right,
3 and used by or under authority of the director for conducting scientific et^'.'fS by
4 experiments or investigations after the director has caused printed 'j^ seleSfe
5 notices of such occupation and use and the purposes thereof to be placed ''"„«?'''r,'l*'°"^-
6 in a conspicuous position adjacent to any such areas of land or water
7 or upon any such building or other structure, and whoever wilfully and
8 maliciously injmes or defaces any such building or other structure or
9 any notice posted as aforesaid, or injures or destroys any property used
10 in such experiments or investigations, or otherwise interferes therewith,
1 1 shall be punished by a fine of not more than two hundred dollars or by
12 imprisonment for not more than six months. The director, wardens
l-'J and deputies may arrest without warrant any person found violating
14 any provision of this section.
1 Section 13. All fines, penalties and forfeitures recovered in prosecu- Disposition
2 tions under the laws relative to fisheries or to birds, animals and game, finer'etc"
3 except as provided in section ninety-nine, shall be equally divided be- H^] }°x- ^ ^^
4 tween the county where such prosecution is made and the common- ^^j %^i7,
5 wealth; provided, that if the prosecuting officer is a warden receiving ||jj'3S4'|33
G compensation from the commonwealth, such fines, penalties and for- 'So'ijjg'l^,
7 feitures shall be paid to the commonwealth. isso, ei, § 3.
1881, 276. § 3.
1890, 390.
190.5, 44,-1.
1912, 465, § 1.
P. S. 91. §§Sd,
104;
1.S9S. 20."S.
1907, 300.
1913, 250.
92. § 11.
1899, .jlJO.
1908, 330.
108 Mass. 139.
18811, 2715, § 9.
R l.,91,§137i
; 92, §20.
1910, 575,
§1.
Op. A. G. (1920) 87.
1316
FISHERIES.
[Chap. 130.
FISHING LAW.
SlTfish "^^ Section 14. The director may take fish at any time or in any manner 1
cuUure, eto ^^^ puTposes Connected with fish cultm-e or scientific observation. 2
ISfiS, 130, § 3; 1809, 76, § 2; P. S. 91, § 20,
179, § 2. 384, § 5. R. L. 91, § U.
Stocking
brooks witii
food fish.
1900, 284.
R. L. 91, 5 5.
Section 15. If the owner of land where a brook is wliolly or partly
situated agrees that such brook or part thereof shall be open to the
public after the expiration of three years as hereinafter provided, the
director may, upon petition of thirty or more inhabitants of a town
where such brook is wholly or partly situated, including such owner, or
upon petition of the aldermen or selectmen and such owner, cause such
brook to be stocked with food fish; and shall then make reasonable 7
regulations, to be in force for not more than three years, relative to 8
fishing in such brook, may fix penalties of not more than twenty dol- 9
lars for each violation thereof and shall cause such regulations to be 10
enforced. 11
Discharge of
waste material
into certain
streams pro-
liibited.
1890, 129.
R. L. 91, § 8.
1901), 350.
1910, 460.
1919, 350, § 40.
189 Mass. 247.
211 Mass. 10,
Section 16. If the commissioner of conservation determines that the
fisheries of any brook or stream may be of sufficient value to warrant the
prohibition or regulation of the discharge or escape of sawdust, shav-
ings, garbage, ashes, acids, sewage, dyestuffs, and other waste material
from any particular sawmill, mamifactm-ing or mechanical plant, or dwell-
ing house, stable or other building, which may, directly or indirectly,
materially injm-e such fisheries, he may by a written order to the owner or
tenant thereof prohibit or regulate the discharge or escape therefrom of
sawdust, Kha\-ings, garbage, ashes, acids, sewage, dyestulTs, and other
waste material into such brook or stream. Such order may be revoked
or modified by him at any time. Before any such order is made the <li-
rector shall, after rea.sonable notice to all parties hi interest, give a public
hearing in the county where the sawmill, manufacturing or mechanical
plant, dwelling house, stable or other building to be affected by the order
is located, at wliich hearing any citizen shall be heard. Upon petition
of any party aggrieved by such order, filed within six months after its
date, the superior court may, in equity, after such notice as it deems
sufficient, hear all interested parties and annul, alter or affirm the order.
If such petition is filed by the party aggriesed within ten days after the
date of said order, it shall not take effect until altered or affirmed as afore-
said. Whoever, having so been notified, discharges sawdust, shavings,
garbage, ashes, acids, sewage, dyestuffs, or other waste material, or suf-
fers or permits it to be discharged or to escape from said plant under
liis control into a brook or stream in violation of the order of the di-
rector, or of said court, it an appeal is taken, shall, for a first offence, be
punished by a fine of not more than twenty-five dollars and for a subse-
quent offence by a fine of fifty dollars.
(3
7
8
9
10
11
12
1,3
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Director may
examine dams,
make and
serve orders.
Courts may
enforce orders.
1735-6, 21,
§§ 1,2.
1741-2, 10,
§§ 1,2,5.
1743-4, 26.
1745-6, 20,
K 1,2, 5.
Section 17. The commissioner of conservation may examine all dams 1
upon rivers where the law requires fish ways to be maintained, or where 2
in his judgment fish ways are needed, and he shall determine whether 3
the fish ways, if any, are suitable and sufficient for the passage of the fish 4
in such rivers, or whether a fish way is needed for the passage of fish over 5
any dam; and shall prescribe by written order what changes or re- 6
pairs, if any, shall be made therein, and where, how and when a new fish 7
Chap. I'M).] fisheries. 1317
S way must be built, and at what times the same shall be kept open, and j|ii~ivi*§ 4""
9 shall serve a copy of such oriler upon the owners of the dams. A cer- Jf''|'P^'
10 tificate of the commissioner that service has been so made shall be suf- isef, 344, § 1.
11 ficient proof thereof. The supreme judicial or superior coiu-t shall, on p.'s.'qi,
12 petition of the director, have jurisdiction in equity or otherwise to en- iggg, los.
13 force any such order and to restrain any violation thereof. 1*5 9_i®J'
1904, 365. 1919, 350, §§ 40, 43. 104 Mass. 446.
1 ' Section IS. Any owner of such a dam who refuses or neglects to Penalty for
2 keep open or maintain a fish way at the times prescribed by the director fi°h way'open.
3 shall forfeit fifty dollars for each day of such refusal or neglect. Ifht ^^'
1741-2, 16, §§ 1, 3. 1867,344, §2. 1919, 350. § 43.
1745-6,20,14. P. S. 91, §6. 5 Pick. 199.
1811, 175, § 4. R. L. 91, § 11. 10 Pick. 383.
1866, 238, § 15.
1 Section 19. If the director deems that a passage for edible fish should P^j[f|*^J^"^^y^
2 be provided or if he finds that there is no fish way or an insufficient fish ff^^^ 21 ? 2
3 way in or around a dam where a fish way is required by law to be main- 1741-2! in! § 4.
4 tained, he may enter with %\orkmen and materials upon the premises of isu, iVs, § 4.
5 the person required to maintain a fish way there and may, at the expense §§ 7's. 12.
6 of the commonwealth, if in his opinion the per,son required by law to \l%[ |^' ^ ^•
7 construct or maintain such fish way is unable to afford such expense, ^9(^' |4:j^ ^■
8 improve an existing fish way, or cause one to be constructed if none J'gia' I55 ^s'js
9 exists, and may, if necessary, take the land of any other person who is
10 not obliged by law to maintain said fish way; and if a fish way has
11 been constructed in accordance with this section, he shall not require
12 the owner of the dam to alter such fish way within five years after its
13 completion.
1 Section 20. All damages caused by taking land under the preceding Compensation
2 section shall, upon the application of either party, be recovered from taken"
3 the commonwealth under chapter seventy-nine. The amount so recov- jfy,'!.^*'
4 ered shall be a charge against the person required by law to construct p**s.'9^i^i8.*'
5 and maintain such fish way and shall be recovered in contract in the ^- ^- ^i' 5 1^.
6 name of the commonwealth, with costs and with interest at the rate of
7 twelve per cent per annum.
1 Section 21. The commissioner of conservation may screen such screening
2 ponds and rivers of the commonwealth not used as sources of water supply mere.""
3 by towns as he deems necessary for the protection of fish therein. This ^®" '
4 section shall not affect any right existing on April thirtieth, nineteen
5 hundred and twenty, to use such waters for mercantile or manufacturing
6 purposes.
1 Section 22. The director ma^•, in the performance of his duties, enter Director may
^ 1 J 1 1 ^ • ^ enter on
-' upon and pass through or over prnate property. is69, 384, § a. und, etc.
P. S. 91, 5 9. R. L. 91, § 14 1919. 350, § 43.
fishing license.
1 Section 23. No person shall, except as provided in section three of gshTn staked
2 chapter one hundred and thirty-one, fish in any of the inland waters of jg^i^l'lgg, 5 1.
3 the commonwealth stocked by the director or his predecessors since Jan- p^^^,j
4 uary first, nineteen hundred and ten, unless he has obtained a certificate chap. isi. § 14.
5 of registration as required by said section.
1318
FISHERIES.
[Chap. 130.
Certain ponds
public.
B. L. 16.
C. L. 90. § 2.
1SI59, 384, § 8.
P. S. 91. § 11.
R. L. 91, § 15.
FISHERIES IN GREAT PONDS.
Section 24. The fishery of a pond, the area of which is more than
twenty acres, shall be public, except as hereinafter provided; and all
persons shall, for the purpose of fishing, be allowed reasonable means
of access thereto.
7 .\llen, 158. 170 Mass. 509. 2 Op. A. G. 239. Op. A. G. (1920) 233.
Director may
control certain
ponds.
18C,9, 384, § 9.
1876, 62, § 1.
P. S. 91.
5§ 12, 17.
1886, 248, § 2.
R. L. 91, 5 ii;.
1919, 350, § 43.
108 Mass. 441.
110 Mass. 175.
119 Mass. 300.
146 Mass. 5.
Section 25. The director may occupy, manage and control not 1
more than six great ponds, except such as have revested in the common- 2
wealth for breach of the terms and conditions of any lease thereof, for '■]
the purpose of cultivating useful fish and of distributing them \\ithin the 4
commonwealth; and may occupy not more than one tenth part thereof 'i
with enclosures and appliances for such cultivation; but this privilege 6
shall not affect any public rights to such ponds, other than the right of 7
fishing, and the appliances and enclosures shall be so placed as not to S
debar ingress to or egress from such ponds at proper places. 9
Notices of
such occupa-
tion.
1876, 62, § 2.
P. S. 91, § 18.
R. L. 91, J 17.
1918, 257,
§ 315.
1919, 5; 350,
5 43.
1920, 2.
Section 26. If the director determines so to occupy and improve any 1
such pond, he shall post a notice of such purpose in a public place in the 2
towns where said pond is situated and file a like notice in the office of the 3
clerk of each of said towns and in the office of the state secretary. The 4
affidavit of an officer qualified to serve civil process that such notice has 5
been posted shall be deemed full proof thereof. 6
Penalty.
1876, 62, I 3.
P.S. 91.§ 19.
R. L. 91, § IS.
Section 27. After such notice has been so filed and posted, any
violation of any of the rights of said director under section twenty-five
shall for a first offence be punished by a fine of not less than one nor
more than twenty dollars and for each subsequent offence by a fine of
not less than five nor more than fifty dollars.
Stocking pond
with food
fish.
1897, 208.
R. L. 91, § 19.
1903. 274.
1907, 308.
1911,285,
"": 1,2.
223, 552.
Section 28. The director, on petition of the aldermen of a city or 1
the selectmen of a town where a great pond or a part thereof is situated, 2
shall cause the pond to be stocked with such food fish as he judges best 3
suited to the waters thereof; provided, that a public hearing upon the 4
matter has previously been given within such city or town by the mayor 5
2 Op. a!°g.^ *^' and aldermen, or by the selectmen, notice of which, at least ten days 6
before the day of the hearing, has been posted in three or more public 7
places and published in a newspaper in such city or town where the pond S
is situated. If a town at a meeting has instructed the selectmen to file 9
such petition, such hearing need not be given. When a great pond is not 10
situated wholly within a city or town, the director shall not proceed under 1 1
this section with respect to that pond, unless a majority of the cities and 12
towns bordermg upon that pond have filed petitions as aforesaid. The 13
director sliall thereupon prescribe for a period not exceeding three years, 14
and enforce such reasonable regulations relative to fishing in the pond 1.5
and its tributaries, with such penalties not exceeding twenty dollars for 1(1
each offence, as he deems for the public interest; but this section shall 17
not apply to ponds used as sources of public water supply. The director IS
may restock such ponds and may extend such reasonable regulations 19
for periods not exceeding three years each whenever he receives a petition 20
therefor as herein provided. 21
Chap. 130.] fisheries. 1319
1 Section 29. The director may occupy and control ]Mill pond, in ^{^'''nE'";
2 Yarmouth, for tlie purpose of culti\'atin,<; food fish for distribution within isso. io7.
3 the commonwealth. Whoever, without his written consent, fishes in •■'■-•
4 said pond in any other manner than by angling, shall for a first offence
5 be punished by a fine of not less than fifty nor more than two hundred
6 dollars, and for a subsequent ofi'ence by a fine of not less than one hundred
7 nor more tlian two hundred dollars.
1 Section 30. The countv commissioners shall, in July, upon the county
, ' „ I • • i I • *j. i 1 • commissioners
2 request and at the expense t)t any persons clannmg to be niterested m a to measure
3 great pond, cause a measurement thereof to be made which shall be fseg^ss", s n.
4 recorded in the office of the city or town clerk of each city or town within ^ l. m',\^2i.
5 the limits of which any part of such pond is situated; and no arm or ^^j^*,;^^^'
6 branch shall be included as a part of a pond unless it is at least fifty feet i9i9. 5-
7 in width and one foot in depth. 1920, 2.
1 Section 31. The selectmen of a town may measure ponds which are .Selectmen may
2 wholly within their town, in the manner pro\'ided in the preceding sec- certain pon.is.
3 tion, and such measurement shall be recorded in the office of the town p.s/91, §22.
4 clerk. R- l- 9i. § 22.
1 Section 32. The riparian proprietors of any pond, other than a Exclusive
2 great pond, and the proprietors of any pond or parts of a pond created npaHan"
3 by artificial flowing shall have exclusive control of the fisheries therein. i8H9,'^3S4,
p. S. 91, §10. R. L. 91,§23. 119 Mass. 300. §§".12.
1 Section 33. A pond other than a great pond, bounded in part by land ^("^^"jlf^^i""
2 belonging to the commonwealth or to a countv, city or town shall be- S"y^, . ,,,
,,. p, , '. ir»i* loo9. 384, § 13,
3 come the exclusive property of the other proprietors as to the nshenes p. s. 91, § 23
4 therein only upon payment to the state treasurer, or county, city or i9i8!25'7.
5 town treasurer of a just compensation for their respective rights therein, loiV/s,
6 to be determined by three arbitrators, of whom one shall be appointed by ^^^°' -
7 the director, one shall be an individual riparian proprietor of said pond,
8 or an officer of a corporation which is such proprietor, and one shall be
9 the chairman of the comity commissioners of tlie county where the pond,
10 or the largest part of the area thereof, is situated, if the riparian pro-
11 prietors include the commonwealth, or one or more counties, or two or
12 more cities or towns, or one or more cities and one or more towns, or the
13 mayor or chairman of the board of selectmen, respectively, if one city,
14 or one town, is such proprietor.
1 Section 34. Whoever, without the written consent of the proprietor Penalty for
2 or lessee of a natural pond, not a great pond, or of an artificial pond of certain ponds.
3 any size, where fish are lawfully cultivated or maintained, takes any §§'i,'2. '
4 fish therefrom, shall be punished by a fine of not more than twenty-five i?'>?'9i'/i 24.
5 dollars. r. L.91, §25.
1 Section 35. Except as provided in chapter two hundred and thirty- use of nets
2 two of the acts of nineteen hundred and four and in sections sixty-nine regulated.
3 and seventy-three, whoever draws, sets, stretches or uses a drag net, §5 i.'s. '
4 set net, purse net, seine or trawl, or whoever sets or uses more than ten J903; 294^ ''''
5 hooks for fishing, in any pond, or aids in so doing, shall be punished by a J^^f/ |°y^ ^ ,.
6 fine of not less than twenty nor more than fifty dollars. This section 191S.257, §318.
1320
FISHERIES.
[Chap. 130.
1919,5.
1920, 2.
Additional
penalty. § 76.
shall not affect any rights conferred by section thirty -two or the corporate 7
rights of any fishing company and shall not apply to a person taking 8
fish other than shiners by means of the apparatus described in section 9
seventj'-five if such other fish are immediately returned alive to the 10
water.
11
Enclosure of
unnavigable
streams.
1869, 384, § 16.
P. S. 91. § 25.
R.L. 91, §27.
CONTROL OF FISHERIES BY RIP.\RIAN PROPRIETORS.
Section 36. A riparian proprietor of an unnavigable stream may, 1
within the limits of his own premises, enclose the waters thereof for the 2
cultivation of useful fish if he furnishes a suitable passage for migratory 3
fish naturally frequenting such waters. 4
Ownership
of fish
artificially
propagated.
1869, 384,
§§ 18, 20.
P. S. 91, § 20.
R. L. 91, § 28.
Section 37. Fish artificially propagated or maintained shall be the
property of the person propagating or maintaining them. A person
legally engaged in their cultm-e and maintenance may take them in his
ovm waters at pleasure, and may haxe them in his possession for pur-
poses properly connected with said culture and maintenance, and may
at all times sell them for these piu-poses, but shall not sell them for food
at seasons when their capture is prohibited.
Penalty for
fishing where
fish are arti-
ficially propa-
gated.
1869, 384, § 19.
P. S. 91, § 27.
Section 38. Whoever, without the permission of the proprietors, 1
fishes in that portion of a pond, stream or other water where fish are law- 2
fully cultivated or maintained shall be subject to the penalties provided 3
in section twentv-seven. R. l. 9i, § 29. 4
108 Mass, 441.
110 Mass. 175.
119 Mass. 300.
130 Mass. 469.
Additional penalty, § 76.
142 Mass. 71.
162 Mass. 219.
Definition
of navigable
streams.
1869, 384, I 14.
P. S. 91, § 28.
U. L. 91, § 30.
Section 39. For the piu-poses of this chapter, no tidal stream shall 1
be considered navigable above the point where, on the average tlu-oughout 2
the year, it has a channel less than forty feet wide and four feet deep 3
during the three hours nearest the hoiu- of high tide. 4
Governor
may define
tidal bounds
and mouths
of streams.
1869, 384. 8 17.
P. S. 91, § 29.
Section 40. The governor, with the advice and consent of the 1
council, may, for the purposes of this chapter, arbitrarily fix and define 2
the tidal bounds and mouths of streams upon recommendation of the 3
director. R. l. 9i, § 3i. 4
Governor
may limit
fishing in
certain waters.
Penalty.
1869, 3"84, § 15.
P. S. 91, § 30.
R. L. 91, § 32.
Additional
penalty, § 76.
Section 41. The governor may, in like manner, limit or prohibit,
for not more than five years at any one time, fishing in the navigable
tidal waters and in the unnavigable waters of specified streams, except
in such portions as may be enclosed as provided in section thirty-six;
and whoever fishes in streams where the right of fishing is thus limited
or prohibited shall for the first offence be punished by a fine of ten dol-
lars, and for a subsequent offence by a fine of fifty dollars.
Owners of
certain streanis
to control
fisheries.
1871, 281, § 2.
P. S. 91, § 31.
1890, 231.
R. L. 91, §33.
119 Mass. 526.
Additional
penalty. § 76.
Section 42. The riparian proprietor on an unnavigable tidal stream, 1
enclosed or unenclosed, in which fish are lawfully cultivated or main- 2
tained shall have the control of the fishery thereof within his owii prem- 3
ises and opposite thereto to the middle of the stream, and a riparian 4
proprietor at the mouth of such stream shall also have control of the 5
fishery thereof beyond and around the mouth of the stream so far as 6
the tide ebbs, if it does not ebb more than eighty rods; and wlioever 7
Chap. 130.] fisheries. " 1321
S fishes within these hmits without permission of the owner shall be sub-
9 ject to the penalties provided in section twenty-seven.
1 Section 43. Whoever uses a sweep seine or combination of sweep Fishing with
2 seines in such a manner as at an\- moment to close or seriously obstruct isegfs'lirpa.
3 more than two thirds of the wi<lth of a stream at the place where used, K^'gi^'jl^
4 or delays or stops in paying out or hauling a sweep seine, or hauls a sweep ^^\ gi^j^sl:
5 seine within one half mile of a point where such seine has been hauled Additional
6 within an hoiu-, shall for a first offence be piu;ished by a fine of twenty- penalty, § 76.
7 hve dollars and for a subsequent offence by a fine of fifty dollars; but this
8 section shall not apply to seines lawfully used in the smelt fisheries, or
9 to the fisheries for shad or alewives in the Taunton Great river, or to the
10 fisheries in Noj'th river in Plymouth county.
HERRING, .\LEWIVES AND SHAD.
1 Section 44. A town may open ditches, sluiceways or canals into Towns nmy
2 any pond within its limits for the introduction and propagation of herring etc^^to'creats
3 or alewives, and for the creation of fisheries for the same; and may take fiSenfa.
4 by eminent domain land within its limits for such ditches, sluicewaj^s p*s''9i^''| H;
5 or canals. r. l. 9i,§34. lOTMass. iis,
1 Section 45. A town creating such fishery shall own it, may make Towns shaii
2 regulations concerning it and may lease it for not more than five years, fish"rie3.
3 on terms agreed upon. A town may lease for a like period, and on like p^s!'9i*^§ It'
4 terms, any fishery owiied by it or any public fishery regulated and con- ^- ^- ^^' ^ ^^■
5 trolled by it.
1 Section 46. Whoever takes, kills or hauls on shore any herring or Penalty for
2 alewives in a fishery created by a town, without its permission or that of fishenes"wkh-
3 its lessees, or in a fishery created by a corporation, without the permission isG(ri87?'"°°
4 of such corporation, shall be piuiished by a fine of not less than five nor p^l'gi^
5 more than fifty dollars. Prosecutions under this section shall be com- ^ ^'gi'i sg
6 menced within thirty days after the commission of the offence.
1 Section 47. The three preceding sections shall not impair the rights Rishts under
contracts etc
2 of any person under any law passed before AprU twenty-fifth, eighteen not affected. '
3 hundred and sixty-six, or under any contract then existing, or authorize p. s!'9i. § 67.'
4 a town to enter upon or build canals or sluiceways into a pond which is ' ®^
5 pri^•ate property.
1 Section 48. Whoever takes shad or alewives, except in the Con- P™a'ty for
2 necticut, Taunton Great, Nemasket and Merrimack rivers and their tribu- of si.ad or
3 taries in any other manner than by angling on Sunday, Tuesday or Thurs- i-sV-s^si, § i.
4 day and whoever between June fifteenth and March first takes shad, 5§''i'~f6.^n.
5 except in the Connecticut and Merrimack rivers, or alewives, shall forfeit |§f4^^||'
0 for each shad five dollars, and for each alewife twenty-five cents. i^^i' ^s^-
p. S. 91, § 55. 1S95, 88. § 2. R. L. 91, § 42. Additional penalty, § 76.
TROUT.
1 Section 49. No person shall at any time buy or sell or offer for sale Provisions as
2 a trout taken or held in possession contrary to this cliapter, or take or or sale of
3 have in possession trout between August first in any year and April i862, loi
1322
FISHERIES.
[Chap. 130.
1866, 24(1,
H 1.3.
1869, 384,
1874. 181).
1876, 221.
1880, 86.
fifteenth of the year following; or ha^•e in possession at any time a trout 4
less than six inches m length, unless taken by a person la\^'fully fishing, 5
and immediately returned alive to the water whence it was taken. 6
i 51, 53.
P. S. 91. §
1S84, 171.
1888, 276.
1890, 193.
1891, 138.
1892, 252.
1895, 277, I
1901, 121; 142.
E. L. 91, §§ 62-64.
1902, 137; 544, § 11.
1905, 190.
1906, 263; 314, §§ 1, 2.
1909, 377, §§ 1, 4.
1910, 469.
1916, 25.
1918, 30, |§ 1. 6,
160 Mass. 157.
164 Mass. 477.
Op. A. G. (1920) 107
Provisions as
<o fishing for
trout.
R. S. 55,
§§ 2. 3.
Section 50. It shall be unla'u-ful to take trout other than by angling,
or at any other time than between one hour before sunrise and two
hours after sunset. is57, 30. i859, loe. g. s. 83, 5 2.
1869, 384, § 28.
1874, 186.
P. S. 91, §§ 49.51.
R. L. 91, §§ 61, 62.
1906, 314, § 1.
1909, 377, |§ 1, 4.
1910, 469.
1917, 188, I 1.
1918,30, §§2,6;
257, §319.
1919. 5.
1920, 2.
Limit of catch.
1917, 188, § 1.
1918, 30,
51 3, 6.
Section 51. No person shall in any one day take a total of more
than twenty-five trout of any or all species, and when two or more per-
sons are angling from the same boat or raft they shall take for a like period
not more in the aggregate than thirty trout.
Artificially
propagated
trout.
License.
1895. 277, § 1.
1901, 121.
R. L. 91,
§§ 64, 66.
1902, 544, § 11.
Section 52. Upon written application to the director, permission 1
may be granted to any person to buy and sell or have in possession, at 2
any season of the year, trout artificially propagated and maintained, 3
imder such rules and regulations, approved by the governor and council, i
as may be made by the director. i905, 190. 5
1907, 296. 1909, 377, §§ 2, 4. 191.8. 30, §§ 4, 6. 1919, 350, § 43.
Penalty.
R. S. 55,
5§ 2, 4.
G. S. 83,
§§2,3.
18.57, 30.
1866,249,
1869, 384,
1874, 186.
1876, 221,
§11,2.
§ 1.
§ 28.
Section 53. Violation of any provision of the four preceding sections,
or any rule or regulation made under the preceding section, shall be pun-
ished by a fine of not less than ten nor more than twenty-five dollars,
and the director may, in case of a ^•iolation of any rule or regulation
made by him, suspend or revoke any license or permit granted under
authority of the preceding section. p. s. 49, §§ so, 51, 53.
4.
1890, 193.
1891, 138.
1895, 277, § 2.
1901, 121; 142.
R. L. 91. §§ 62-64.
1902, 137; 544, § 11.
1905, 190.
1906, 314, §§ 1. 2.
1909, 377, §§ 3,
1917, 188, § 2.
1918, 30. §§ 5, 6.
1919, 350, § 43.
Establishing
rearing
stations
for trout in
certain
counties.
1917, 228.
Section 54. The director may establish and maintain one or more
rearing stations, situated at such places, within the counties of Hamp-
shire, Franklin and Berkshire as he may select, for the piu-pose of rearing
to fingerling size the surplus trout fry produced by fish hatcheries.
1919, 350, § 43.
Trout and
spawn, con-
ditions of
furnishing.
1S93, 59.
R. L. 91, § 65.
Section 55. No person shall be pro\ided by the commonwealth with 1
trout or trout spawn to stock waters owned or leased by him or under liis 2
control unless he first agrees in wTiting with the director that waters so 3
stocked shall be free for the public to lawfidly fish therein. 4
SALMON.
to°m^'freg" Section 56. The commissioner of conservation may make, with the
lations for approval of the governor and council, such rules and regulations as he may
taking salmon. t't' , . "„ , , . „ . ,. i • ^i • j
1869, 384 § 27. deem expedient for the taking of any species oi salmon in the rivers and
R. L. 9i, § 58. coastal waters and great ponds of the commonwealth and in any pri\'ate
Chap. 130.] fisheries. 1323
5 waters which have been stocked by the commonwealth under an agree- i909, 377,
6 ment with the owner. The commissioner shall conspicuously post such isid, 469, § 1.
7 rules and regulations on the shores of such inland ponds or waters and ||^i'*.'4*'
8 shall file with the town clerks of the towns which border on such ponds §§^i%^,^®'
9 or waters a copy thereof for public inspection. Whoever violates said
10 rules and regulations shall be punished by a fine of not less than twenty
11 nor more than fifty dollars.
1 Section 57. The director shall, dm-ing April, May and June, for the Protection of
2 better protection of salmon fry in the Merrimack river, cause wire screens IsM^iisi*''
3 to be erected and maintained at the entrance of the canals in Lowell and ^gjg- 350,^^43.
4 Lawrence at the expense of the companies owning and operating said
5 canals.
pickerel.
1 Section 58. No person shall take pickerel between March first and ciose reason
2 May first in any year, or, diuing said period, sell or ofi'er or expose for 1912, 110.
3 sale or have in possession a pickerel taken in this commonwealth. Who-
4 ever violates any provision of this section shall be punished by a fine
5 of not more than ten dollars. The possession of a pickerel during said
6 period shall be prima facie evidence of such unlawful taking.
1 Section 59. Whoever takes from the waters of the commonwealth Taking, etc.,
2 a pickerel less than ten inches in length, or sells or offers for sale, or has Pen'a'it'y'^
3 in possession any such pickerel, shall be punished by a fine of one dollar ^^f[ }^^-^ 57
4 for each pickerel so taken, held in possession, sold or offered for sale; JgJ^'g"^'
5 and in prosecutions under this section the possession of pickerel less than
6 ten inches in length shall be prima facie evidence of such unlawful taking.
1 Section 60. A town may by by-law forbid the taking of pickerel in Takins, etc.,
2 any river, stream or pond therein in any other manner than by angling, may be regu-
3 and may provide a suitable penalty for its violation. " '^ "'
1822, 21. G. S. 83, § 2. R. L. 91. § 68.
1824. 127. P. S. 91, § 48. 1904, 3M.
R. S. 55, § 2. 1888, 331. 1905, 417, | 1.
WHITE PERCH.
1 Section 61. No person shall take from waters stocked by the director Restrictions on
2 or his predecessors with white perch any white perch otherwise than by white perch.
3 angling or less than seven inches long or ha\'e the same in possession nor igj's. 54'.
4 shall he take therefrom a total of more than ten pounds in any day, i^i'''-"-
5 except that if the last fish caught increases the total weight of the fish
6 caught to more than ten pounds, the last fish so taken may be kept;
7 provided, that when two or more persons are angling from the same
8 boat or raft they shall not take more in the aggregate than fifteen
9 pounds, except that if the last fish caught increases the total weight of
10 the fish caught by such persons to more than fifteen pounds, the last fish
11 so taken may be kept. This section shall not ' apply to waters now or
12 hereafter held under lease by the commonwealth or by the commissioner
13 of twnservation. Violation of any provision of this section shall be pun-
14 ished by a fine of not more than twenty-five dollars and five dollars adtli-
15 tional for every fish so unlawfully taken or had in possession.
1324
FISHERIES.
[Chap. 130.
Possession of
certain pike
perch pro-
hibited.
Seizure with-
out warrant,
and sale.
Penalty.
1906, 179.
1908, 488.
1910, 575, § 1.
1912, 465, I 1.
1913, 250.
1919, 350, § 43.
PIKE PERCH.
Section 62. No person shall have in possession any pike perch 1
caught in that part of Lake Champlain or its tributaries known as INIissis- 2
quoi bay, lying and being in the province of Quebec, or in the Richelieu 3
ri\-er, which is the outlet of said lake, between February first and June 4
first. The director, wardens and deputies may search for, seize., and con- 5
fiscate, without a warrant, pike perch held in possession in violation of 6
tliis section, and every other officer mentioned in section five shall with- 7
out a warrant search for and seize pike perch so held in possession, and 8
report the seizure to the director. The director shall authorize the sale 9
of such fish; and the proceeds of such sale shall be paid to the common- 10
wealth. Whoever violates this section shall be punished by a fine of 11
fifty dollars, and ten dollars additional for each pike perch so unlaw- 12
fully held in possession. 13
Seining of
pollock and
spike
mackerel.
Penalty.
1915, 49.
POLLOCK AND MACKEREL.
Section 63. No person shall seine in the harbors and rivers of the
commonwealth pollock weighing less than three quarters of a pound, or
spike mackerel weighing less than one quarter of a pound. Violation of
any provision of this section shall be punished by a fine of not less than
twenty-five nor more than fifty dollars or by imprisonment for not less
than one nor more than two months, or both.
Close season
for black bass.
Limit of
length.
1896, 229.
R. L. 91, § 70.
1912, 129,
§§ 1,4.
BL.\CK BASS.
Section 64. No person shall take, sell, offer for sale, or have in pos-
session a black bass or any part thereof between April first and June
twentieth following, both dates inclusive, or at any time have in posses-
sion a black bass less than eight inches in length unless such bass was
taken by a person lawfully fishing and is immediately returned alive to
the water whence it was taken.
Granting, etc.,
of licenses for
propagation,
1912, 129. § 2.
1919, 350. I 43.
Section 65. Upon written application to the director, he may grant
a license to any person to buy and sell or have in possession, at any
season of the j-ear, black bass artificially propagated and maintained,
imder rules and regulations made by him and approved by the go\'-
ernor and c-ouucil. A license may be revoked by him.
Section 66. ^\Tioever violates any provision of the two preceding 1
Penalty.
1896, 229.
1912! 129, "■ sections shall be punished by a fine of not more than ten dollars for 2
§§ 3, 4. p.jj^j^ ggj^ jjj respect to which the violation occurs. 3
SMELTS.
Penalty for
selling, etc.,
smelts
between
certain dates.
1874, 153,
§§ 1,2.
P. S. 91. § 57.
1887, 105, § 2.
Section 67. Whoever, between March fifteenth and June first, sells 1
or offers or exposes for sale or has in his possession a smelt taken between 2
said dates in the commonwealth, shall forfeit one dollar for every such 3
smelt; and the possession of a smelt between said dates shall be prima 4
facie evidence of ^•iolation of this section. is90, 3o. r. l. 9i, § 7i. 5
ClIAI'. 1.'50.] FISHERIES. 1325
1 Section 68. The director may permit the taking of smelt in great Permits to take
.„, ., ,*. ■* , 11- 11 smelts in great
2 ponds or the commonwealth, subject to rules and regulations made by ponds.
3 him and approved by the governor and coimcil. Violation of any such 350] §43.
4 rule or regulation shall be punished by a fine of not less than five dollars.
1 Section 69. Except as provided in section seventy-three and in renaity for
2 chapter tliree hundred and six of the acts of nineteen hundred and eleven, except ^Tth'^
3 whoever takes a smelt in any other manner than by angling shall forfeit i8,°s, nl'M-
4 one dollar for each smelt so taken; and in all prosecutions inider this al^^i'^lf
5 section the burden of proof shall be upon the defendant to show that jp?'???-
6 smelts taken by him were legally caught. 1874, 153, 5 2. p. s. 91, § ss.
R. L. 91, § 72. 108 Mass. 452. 151 Mass. GO. 153 Mass. 396.
Additional penalty. § 76.
1 Section 70. Sections sixty-seven and sixty-nine shall not apply to Prohibition
2 smelts taken in a seine or net in Bristol, Barnstable, Nantucket or Dukes to certain
3 county during the time and in the manner in which fishing is allowed for isag,"?!! '"°'
4 perch, herring or alewives, nor to smelts lawfully taken under chapter H^f^ jjg; j o.
5 tlu-ee hundred and six of the acts of nineteen hundred and eleven. ^g|j- ^^^^ ^'■'■
R. L. 91. §73.
1 Section 71. Except as provided in chapter three hundred and six rseofnet,
2 of the acts of nineteen hundred and eleven, no person shall set, draw, fo^citehing
3 use or attempt to set, draw or use any net, seine, trap or device for catch- Boston'harbor.
4 ing smelts, other than a naturally or artificially baited hook, in the fsis^'ioy'''''^'
5 waters of Boston harbor, Hingham harbor. Weir river, Wevmouth Fore i823!4i. § i.
„ . Tir .1 Ti 1 • XT '• /^i 1 ■■ T,r . 1884, 189, § 1.
6 river, Vveymouth Back river, JNeponset rner, Charles river, JNlystic R. l. 9i, § 74.
7 river, or in any co^'C, bay, inlet or tributary thereof; but this section
8 shall not prohibit the use of traps for catching lobsters.
1 Section 72. Possession of any net, seine, trap or device for catching Possession of
2 fish, other than a naturally or artificially baited hook, in or upon said "a'^r'i'e\'vide''nce!*
3 harbors, rivers or tributaries, or on the banks of the same, if adapted r*^l! gu'sVl
4 to and apparently intended for the present catching of smelts, shall be
5 deemed prima facie evidence of a violation of the provisions of the pre-
6 ceding section, and the possession of any fresh smelts, not apparently
7 caught by the use of a hook, in or upon said harbors, ri\-ers or tributaries,
8 or on the banks of the same, after sunset or under other suspicious cir-
9 cumstances, shall be, deemed prima facie evidence that said smelts were
10 caught contrary to such provisions by the person in whose possession
11 they are found.
1 Section 73. Whoever violates any provision of section seventy-one Penalties.
2 or receives smelts knowing or having reasonable cause to believe that the r*^l! 9i?'§y :
3 same have been taken contrary to any pro^'ision of said section shall, Additional
4 for a first oft'ence, be punished by a fine of not less than fifty nor more penalty, § 76.
5 than two hundred dollars or by imprisonment for not less than six nor
6 more than twelve months, or both, and, for a subsequent offence, by
7 both said fine and imprisonment.
1 Section 74. The director, warden, deputy, any member of the Searches;
2 state police, sheriff, deputy sheriiT, police officer or constable, within his fibemng^of
3 jurisdiction, may search for and seize, without warrant, any smelts which 5'^!
property.
'894. 1S9, 5 4.
4 he has reason to suspect were taken contrary to any provision of section \f'l- ^-J^s,
5 seventy-one, and the net, seine, trap or other device and the vessel, boat, i905,'407.
1326
FISHERIES.
[Chap. 1:50.
1912, 4(i5, !
1913, 250.
1919, 350.
§§ -13, 102.
craft or other apparatus used in connection with such receiving, or other G
violation of said section, and the cask, barrel or other vessel or wrapper 7
containing said smelts. Said officer may libel said property according 8
to law, or, at his discretion, sell the same or any part thereof at private 9
sale or by public auction, and libel the net proceeds of such sale according 10
to law, in the same manner and with the same eifect as if such proceeds 11
were tlie property itself. 12
shiners may
be taken for
bait.
190G, 239, § 1.
MISCELL.'USrEOUS PROVISIONS RELATIVE TO FISH.
Section 75. Shiners may be taken for bait in any of the waters of
the commonwealth by means of a circular or hoop net not exceeding six
feet in diameter, or by means of a rectangular net other than a seine, con-
taining not more than thirty-six square feet of net surface.
Forfeiture of
fish, boats and
apparatus.
1869, 384,
§§ 15, 22.
1871, 281,
§1 1,2.
P. S. 91.
S§30,31,41,i;l.
1884, 318, § 1.
1890, 231.
1894, 189, § 3.
R. L. 91.
I§ 78, 79.
Section 76. Whoever takes any fish in violation of any provision of 1
section thirty-five, thirty-eight, forty-one, forty-two, forty-eight or sixty- 2
nine or violates any provision of section thirty-five, forty-two, seventy- 3
three or one hundred and fifty, shall, in addition to the penalties therein 4
provided, forfeit the boat and apparatus used, and whoever violates 5
any provision of section thirty-five, forty-one or forty-three shall, in 6
addition to the penalties therein provided, forfeit the fish taken and the 7
apparatus used. This section shall not apply to fish taken in accordance 8
with the preceding section. 9
Keepers of fish
markets, etc.,
to give in-
formation of
unlawful
taking.
Penalty.
1869, 384, § 25.
P. S. 91, § 62.
R. L. 91, § SO.
Section 77. Every superintendent, clerk or other person having
charge of a market, provision store or other place where fish are sold,
who has reasonable cause to believe that any fish taken in violation of
law has been offered for sale on such premises, shall immediately give
information thereof to a constable or trial justice in the town where
said premises are situated; and for each neglect so to do shall be pun-
ished by a fine of not less than five nor more than fifty dollars.
Introduotion
of fish into
state waters.
1911, 185.
Section 78. Whoe\er puts in any of the public waters, or in any
waters connecting therewith, any species of fish, or the roe, spawni or
fry thereof, without having first secured the WTitten approval of the
director, shall be pimished by a fine of not more than fifty dollars.
Taking of
scallops
regulated.
1887, 96, §
1896, 268,
R. L. 91, §
1906, 288.
1907, 297, i
1909, 403,
§5 1.4.
1910, 177,
S§ 1,5.
1919,334;
350, § 43.
CERTAIN SHELLFISH AND EELS.
Section 79. No person shall take from the flats or waters of the com- 1
monwealth scallops other than adult scallops, or sell or offer for sale or 2
have in possession such scallops so taken. For the purposes of this 3
section an adult scallop shall be a scallop with a well defined raisetl 4
annual growth line. Scallops taken from the tide waters of the common- 5
wealth shall be culled when taken, and all scallops other than adult 6
scallops shall immediately be returned alive to tide water which is at 7
least tliree feet deep at mean low water; but it shall not be unlawful to 8
sell or have in possession scallops other than adult scallops unavoidably 9
left in the catch after it has been culled, to the amount of not more than 10
five per cent of the total catch remaining. All scallops taken in accord- 1 1
ance with this section shall be taken ashore in the shell. This and the 12
following section shall not apply to seed and adult scallops carried by 13
storm and tide from the natural beds and deposited on beaches and flats 14
Chap. loO.] fisheries. 1327
l.j where, in the opinion of the director, they cannot survive, but tlie taking
16 and sale of the said seed and adult scallops may be authorized by him
17 at any season of the year, subject to section eighty-four. The director
18 shall prescribe rules and regulations governing the taking and sale of
19 the said seed and adult scallops by special permits or otherwise, to pre-
20 vent the sale of seed scallops at any time, or the sale of adult scallops
21 betw^een April first and October first, except as authorized herein.
1 Section SO. No person shall take scallops between April first and Skcn°berween
2 October first from the flats or waters of the commonwealth, or buy or ^prii first and
111* • n 111* -1 11 October first,
.3 sell or have ui possession scallops so taken; but this section shall not etc.
4 apply to the taking of scallops for bait in the waters adjacent to the isst^oo, '§ i. '
5 town of Nantucket from April first to May fifteenth, inclusive, nor shall isqo^Sus^ § i.
6 the\- prohibit any person at any time from taking scallops by hand for ^^l; gj^j §3
7 food for his own personal or family use.
1908, 270, § 2. 1909, 403, §§ 2, 4. 1910, 177, §§ 2, 5.
1 Section 81. No person shall take more than ten bushels of scallops Taking
2 including shells in one day. i9io. 177, § 3. ^™'*^-
1 Section 82. The provisions of the two preceding sections in respect Modification of
^ 11 1 • 1 1 i> 11 close season,
2 to the open and close season and m respect to the number or scallops etc
.... 19'^0 139
.3 that may be taken may be modified if, on petition of the aldermen or ' '
4 selectmen to the director, the director, after investigation, determines
5 that, owing to unusual circumstances, such modification is expedient.
() In that case, in his discretion, he may authorize, for a prescribed period,
7 the aldermen or selectmen to issue permits to inhabitants of their re-
S spective cities or towns to take scallops in such quantities and at such
9 times as he deems expedient.
1 Section S3. Whoever violates any provision of the four preceding Penalty.
2 sections shall be punished by a fine of not more than twenty-fi\e dollars. Iss^ige"' *'
3 Possession of scallops, other than adult scallops, except as is otherwise R^'^lg'i*'
4 provided in section seventy-nine, shall be prima facie e\-idence that flos^'als
5 such scallops were unlawfully taken. 1907, 297, 5 3.
190S, 270, §1. 1909, 403, §§'3. 4. 1910, 177, §§ 4, 5.
1 Section 84. The aldermen or selectmen, if so instructed by their City and town
2 cities or towns, may, except as provided in sections seventy-nine to regulate 'the
3 eighty-three, inclusive, control, regulate or prohibit the taking of eels, certain fish, etc.
4 clams, quahaugs, razor fish, so called, and scallops within the same; }||?; 103;
5 and maj^ grant permits prescribing the times and methods of taking eels Fils^pg
G and such shellfisli within such cities and towns and make such other regu- Jg?' s^i- .
7 lations in regard to said fisheries as they deem expedient. But an in- R.i- 91, '§ ss!
• 1913517
8 habitant of the commonwealth, without such permit, may take eels and igisiss."
9 the shellfish above named for his own family use from the waters of his 174 Mass! 29!
10 own or any other city or town, and may take from the waters of his
11 own city or town any of such shellfish for bait, not exceeding three
12 bushels, including shells, in any one day, subject to the general rules of
13 the aldermen and selectmen, respectively, as to the times and methods
14 of taking such fish; provided, that no person shall take scallops exceeding
15 in quantity three bushels in any one week from the waters of any city
16 or town by dredging without first obtaining a written permit from the
17 aldermen or selectmen of such citv or town. This section shall not
1328
FISHERIES.
[Chap. 130.
authorize the taking of fish in violation of the provisions of sections IS
forty-four and forty-five of chapter ninety-one of the Revised Laws. 19
Wlioever takes any eels or any of said shellfish without such permit, 20
and in violation of any provision of this section, shall be punished by a 21
fine of not less than three nor more than fifty dollars. This section 22
shall not afi'ect section one of chapter two hundred and fifty-five of the 2.3
acts of eighteen hundred and ninety-three. 24
Cities and
towns may
grant licenses
for the plant-
ing, etc., of
quahaugs.
1909, 469, § 1.
Section S.j. Upon wTitten application, the aldermen or selectmen
may grant a written license subject to such rules and regulations as are
approN'ed by the city council of a city, or by the voters of a town at a
town meeting, for the piu-pose of planting and cultivating quahaugs
upon and in the flats and creeks of their respective cities and towns
below mean low water mark and within the limits to be specified in the
license, for a term of not less than five nor more than ten years, to any
person who has resided in the commonwealth or has been a taxpayer
in the city or town for not less than one year preceding the date of his
application; and all such licenses may, with the WTitten consent of the 10
aldermen or selectmen, be assigned by the licensee to any person who 11
has been a resident of the commonwealth or a taxpayer in the city or 12
town fur not less than one year preceding the date of the assignment. 13
Additional
license may be
granted to bed
quahaugs, etc.
1909, 409, § 2.
Section 86. The aldermen or selectmen may grant a licensee under
the preceding section an additional license for the purpose of bedding
quahaugs and of gathering the seed from the same between high and low
water mark for such period, not exceeding five years, and under such con-
ditions as they deem proper. The territory to be covered by the said
license shall not include more than one half acre.
Navigable
water not to
be obstructed.
Hearing.
Contents of
and recording
licenses.
Survey, etc.
1909, 4liH,
§§ 3, 5, 6.
Section S7. The licenses provided for in the two preceding sections 1
shall not be granted if their exercise woidd materially obstruct na\igable 2
water. No license shall be granted under said sections, until after a 8
public hearing, due notice of which has been posted in three or more 4
public places, and published in a newspaper, if any, published in the city 5
or town Mhere the premises are situated, at least ten days before the time G
fixed for the hearing, stating the name and residence of the applicant, 7
the date of the filing of the application, and the location, area and de- 8
scription of the grounds applied for. Such a license shall describe by 9
metes and bounds the waters, flats and creeks to which the license is appli- 10
cable, and shall ha\e no force until recorded with the clerk of the city or 1 1
town granting the same, and the licensee shall pay annually to the city or 12
town a fee of rfot less than one nor more than five doDars per acre for the 1 '.i
license, as the aldermen or selectmen determine. A recording fee of fift;\' 14
cents shall be paid to the city or town clerk for recording each license 1.5
or an assignment thereof. Each license and any assignments thereof 16
shall be recorded in a book kept therefor in the office of the said clerk, 17
which shall be open to public inspection. Forms for licenses and assign- 18
ments shall be provided by the aldermen or selectmen at the expense 19
of the city or town. Before granting any such license the aldermen or 20
selectmen shall cause to be made a sur\ey and plan of the territory within 21
which licenses are to be granted, and shall cause to be marked upon a copy 22
of such plan to be kept in the office of the city or town clerk the territory 23
covered by any license issued by them. The licensee upon receiving his 24
CUAP. l:!0.] FISHERIES. 1329
25 license shall cause the territory oo\"ere(l thereby to be plainly marked
26 out by stakes, buoys, ranges or monuments which shall be maintained
27 by him during the term of the license. Failure to place or to maintain
28 the same shall be sufficient cause for revocation of the license.
1 Section 88. No person, except the licensee or his agents or assignees, No person
2 shall dig or take quahaugs or quahaug seed within or remove the same ficensee*to take
3 from territory covered by such a license. 1909, 469, § 4. quahaugs, etc.
1 Section 89. If it appears to the aldermen or selectmen granting a superior court
2 license that the licensee or liis assignee does not actually occupy and TOmnSon'to
3 use in good faith for the purposes specified in sections eighty-five and llccnsre'il '^
4 eighty-six the territory covered by the license, they shall petition the f'.['t'|""(,\" ^""'^
5 superior court of the county where the territory is situated to appoint a i90y,'4G9', § 7.
(J commission of one or more persons to in\estigate and report to the court
7 as to the use and occupancy of such territory; and the court shall appoint
8 a commission of one or more persons \\ho, after twelve days' notice to
9 the petitioners and the respondent, shall hear the petitioners and respond-
10 ent and shall transmit their findings to the court. If the court finds that
11 the said territory is not used and occupied in good faith for the pm-pose
12 stated in the license, the court may order that use of the territory shall
13 revert to the city or town and that all stakes or buoys or other appli-
14 ances marking the same shall be removed. The costs upon said petition
15 shall be assessed as the court may direct.
1 Section 90. The licensee, his heirs or assigns shall for the pur- Licensee to
2 poses described in the license have the exclusive use of the territory tlse.^ Xt"ion "
3 described therein during the term of the license and may in tort recover taifi.fg^eto^ '°^
4 treble damages of any person who, without his or their consent, digs or i\>en°"'
5 takes quahaugs or other shellfish in the territory covered by the license '7"f''°*-„
6 or removes the same therefrom. Whoever so digs, takes or removes qua-
7 haugs or other shellfish shall, in addition, be punished by a fine of twenty
8 dollars.
LOBSTERS.
1 Section 91. Whoever at any time takes or has in possession with Penalty for
2 intent to sell, or sells, any female lobster bearing eggs shall be punished Shste^rf.*""''*
3 by a fine of not less than ten nor more than one hundred dollars or by lfili'°'
4 imprisonment for not less than one nor more than three months; but a j'sli^gs
5 person who takes any such lobster and immediately returns it alive to iss^, 98
0 the waters from which it was taken shall not be subject to such penalty, issa! log! § i!
7 This section shall not apply to lobsters spawning in lobster cars if they r. l!9i, "
8 are immediately returned alive to the waters from wjiich they were immIJs. 278.
9 taken nor to the taking, possession or sale of lobsters as provided in the 2 0p. a. G.321.
10 following section. Exposure for sale or possession otherwise than as
11 herein provided shall be prima facie e^^dence of an intent to sell. Alder-
12 men, selectmen, police officers and constables shall enforce this section
13 in their respective cities and towns.
1 Section 92. The director may purchase to the extent of the money Director may
2 provided therefor, and at a rate not above the market price of other KtCTsfwith
3 lobsters, lobsters with eggs attached taken along the shores of the com- eaughtSong'''
4 monwealth. Whoever takes any such lobsters with eggs attached mav, ^l"' ^^"^"^ °'
r £. Ij.-* -p it (.1 1 V tlie romnion-
o alter obtammg a permit from the du'ector, saieh' store the same in »caith, etc
'^ ^ ' -' 1904. 408.
1330
FISHERIES.
[Chap. 1.30.
1917, 235,
«1, 3.
1918, 257,
§320.
1919,5; 350,
§43.
1920, 2.
lobster cars or sections of cars used for such purpose only, and shall keep 6
them separate from other lobsters until such time as the director or his 7
agents can gather and pay for the same. The director or his agents shall 8
liberate said lobsters in the ^■icinity of their place of taking. The di- 9
rector may also purchase egg bearing lobsters found in the possession of 10
lobster dealers and for such purpose may expend a sum not exceeding 11
that expended as above authorized. 12
Purchased
lobsters to be
marked; pos-
session of such
lobster, etc.,
prohibited.
1917, 235, § 2.
1919, 350, § 43.
Section 93. The director or his agents shall mark in some suitable
manner, and before their release, all lobsters purchased under the pre-
ceding section, and any lobsters so marked shall not again be purchased.
Any person having in possession any lobster so marked, or any lobster
mutilated in such manner as to hide or obliterate the said mark, shall be
punished by a fine of not less than two nor more than two hundred
dollars.
Sale of Section 94. All lobsters or parts of lobsters sold for use in or export 1
lobsters etc. ^
regulated. ' from the commonwealth shall be sold and delivered in the shell, except 2
as provided in section ninety-eight. 3
unraw'tuiir Section 95. No person shall sell, give away, ship or buy lobster meat 1
selling, etc., after the same has been taken from the shell, except as provided in sec- 2
lobster meat. . . . '. , ,, , . , , ,
1913, 643, § 2. tion mnety-eight. Vv hoever Molates this section shall be pumshed by a 3
fine of not more than twenty-five dollars. 4
Penalty for
unlawful
transportation
of lobster meat.
1913, 643, § 3.
Section 96. No common carrier shall carry from one place to another 1
any lobster meat unless the same has been legally taken from the shell; 2
and whoever knowingly violates this section shall be punished by a fine of 3
not more than fifty dollars. 4
uniaUfuib*^*' Section 97. Any lobster meat unlawfully sold, given away, shipped, 1
be'TOnfiscaTed' bought or transported shall be liable to seizure and may be confiscated. 2
1913, 043, § 4.
2fe*of'c^e^tam Section 98. SectioHS ninety-four and ninety-five shall not proliibit 1
i9i3''M3'"r5 ^^^ ^^ °^ lobsters legally canned, or of lobsters sold for food by licensed 2
1919, 350, § 43. victuallers, or of lobsters remo\'ed from the shell on the premises where 3
they are eaten. Said sections shall not prohibit the sale of lobster meat 4
by wdiolesale or retail dealers in lobsters; provided, that the meat is 5
removed from the shell at their regular place of business where lobsters 6
are bought and^sold, and that said dealers have a written permit for such 7
sale from tlie director, and that the lobster meat is so removed and sold 8
under such conditions and regulations as he prescribes; and provided, 9
that the premises where the meat is so removed or sold are at all times 10
open to the inspection of the director, wardens and deputies.
11
Penalty for
selling, etc,
small lobsters.
1874, 110, § 1.
1877, 75.
P. S. 91, §84.
1884, 212,
§§1.2.
1887, 314, § 1.
1900, 428.
R. L. 91. § 88.
Section 99. Whoever sells or offers for sale or has in possession an
uncooked lobster less than nine inches in length, or a cooked lobster less
than eight and three quarters inches in length, measuring from the end
of the bone protruding from the head to the end of the bone of the middle
flipper of the tail of the lobster, extended on its back its natural length,
shall be punished by a fine of not less than two nor more than five dollars
Chap. 130.] fisheries. 1331
7 for every such lobster, one half to the use of the town where the offence i907, sos.
8 is committed and one half to the commonwealth; and in all prosecutions 143 Ma\s. 560.
9 under this section any mutilation of a lobster, cooked or uncooked, which }gf jj^gg; Hf
10 affects its measurement shall be prima facie evidence that the lobster is J'oJ^ a'^g '321
11 less than the required length and the possession of any lobster, cooked
12 or uncooked, not of the required length shall be prima facie evidence of
13 violation of this section. This section shall not apply to common carriers
14 having lobsters in possession for the purpose of transportation.
1 Section 100. Whoever, before a lobster is cooked, mutilates it by Penalty for
2 severing the tail from the body, or has such tail in possession, shall be isgo, 293"
3 punished by a fine of five dollars; and in all prosecutions under this r^^l! 9i^'§ S9.
4 section the possession, by any person, of the tail of any uncooked lobster
5 so severed from the body shall be prima facie evidence of violation of
6 this section.
1 Section 101. The commissioner of public safety, upon written re- state police
2 quest of the director, may detail one or more of the state police to enforce is84^ 212% 4.
3 section ninety-nine. R. l. 91, § 90. 1919, 350, |§ 43, 100, loi.
1 Section 102. To enforce section ninety-nine, the director, a M^arden, Right of
2 deputy, or member of the state police may search in suspected places ilss, 251;.
3 for, seize and remove lobsters unlawfully taken, held or offered for sale, u^l] 9if'§ gl;
1905. 407. 1912, 46.5, § 1. 1919, 350, §§ 43, 102. 2 Op. A. G. 321.
1910, 575, § 1. 1913, 250. 203 Mass. 516.
1 Section 103. No person either as principal, agent or employee shall onlbsi"?
2 at any time catch lobsters in, or take them from any waters within the '^g^jj^fjllf ■
3 jurisdiction of the commonwealth, or place, set, keep, maintain, supervise, js-js, 403.
4 lift, raise, or draw in or from the said waters, or cause to be placed, set, 1960! 230!
5 kept, maintained, super^•ised, lifted, raised or dra^^Ti in or from the said wm, 2m.
6 waters any pot, trap, or other contrivance designed for, or adapted to, §§\.'7.'^'
7 the taking of lobsters, unless licensed so to do as provided in the fol- jl'x";!.^*'
8 lowing section.
1 Section 104. The clerk of any to\\'n in Essex, INIiddlesex, Suffolk, Licenses.
2 Norfolk, Plymouth, Barnstable, Bristol, Dukes or Nantucket county, 1917; 312,'
3 situated on the shores of the commonwealth, shall grant licenses in the igis, 212'.
4 form prescribed and upon a blank furnished by the director, to catch 55^2; l'^'*'
5 or take lobsters from the waters of the commonwealth within three °i^ig)^-
6 miles of the shores of the county where the town lies. Such licenses
7 shall be granted only to citizens of the commonwealth who have resided
8 therein for at least one year next preceding the date of the same. A
9 non-resident temporarily residing in any town granting such licenses
10 may, during June, July, August and September in each year, upon pay-
11 ment of the fee required by this section procure a license to take lobsters
12 for consumption by the licensee and liis family only. Licenses, except
13 those granted to non-residents, shall expire on November thirtieth
14 next succeeding the granting of the same unless sooner revoked as pro-
1.5 vided in the following section. The town clerk granting a license shall
IC) collect therefor a fee of one dollar, which, less fifteen cents to be retained
17 by liim, shall be forwarded to the director on the first Monday of the
18 following month, together with coupons provided by the director for a
19 flescription of the licensee antl liis buoys, and for such other information
1332
FISHERIES.
[ClIAP. 130.
as may be required. All books of forms fm-nished to town clerks under 20
this section shall be returned to the director on January first of each 21
year. Each applicant for a license shall state the color scheme or other 22
special markings of the buoys to be used by liim wliich shall be set forth 23
in liis license, and all buoys used by liim shall be marked accordingly 24
and also with the Ucensee's initials or name which shall be branded or 25
cut into the siuface of the buoy. A licensee under this section shall at 26
all times, while acting in pm'suance of the license, exliibit liis license 27
upon the demand of any officer qualified to serve criminal process. 28
Revocation of
license.
1917,312, §4.
1920,434, 5 4
Section 105. If a licensee under the preceding section is convicted 1
a second time of catching, taking or having in possession egg bearing 2
lobsters or short lobsters, or of interfering with the pots or gear of other 3
fishermen or is convicted once of catching, taking or having in possession 4
egg bearing or short lobsters and once of interfering with the pots or 5
gear of other fishermen, he shall immediately surrender his license to 6
the officer who seemed the second conviction, and the license shall be 7
void, and the licensee shall not receive another such license until after 8
the expiration of one year from the date of the second conviction; 9
provided, that a conviction of having short lobsters in possession shall 10
not be counted as a conviction under this section vmless more than two 11
per cent in count of the lobsters in possession by the licensee were short 12
lobsters. 13
Report by
licensee, etc.
1917,312, § 5.
1919, 350, § 40.
1920, 434, § 5.
Section 106. A licensee under section one hundred and four shall, 1
before receiving a new license, file on or before October twentieth of that 2
year, a report of his catch with tlie director as provided in section one 3
luindred and forty-eight. Any person refusing, or knowingly or wilfully 4
neglecting, to make the said report shall not receive a new license until 5
the report is made. The commissioner of conservation shall state in his 6
annual report the number of licenses granted under section one hundred 7
and four. 8
Hours for
drawing
lobster pots.
1920, 434, § 0.
Section 107. No person shall tend, lift, raise or draw a lobster pot
or trap or take lobsters from such pots or traps except during the period
from one half hour before sunrise until one half hour after sunset except
that traps may be taken up by the owner at any time when they are
endangered by storms.
R^T.'gi, § 92. Section 108. Violation of any provision of sections one hundred and 1
1917' 312' 1 0 thi'^s to one hundred and seven, inclusive, shall be punished by a fine of 2
1920, 434', § 7. not less than ten dollars. 3
Investigation
of habits of
lobsters, etc.
1889, 109,
§1 4, 5.
R. L. 91,
K93, 94.
1919, 350, § 43.
Section 109. The director may occupy and use any small estuaries 1
or creeks within the commonwealth, not exceeding six, for the scientific 2
investigation of the habits, propagation and distribution of lobsters, if 3
such occupation and use does not impair the private rights of any per.son 4
or materially obstruct any navigable waters. Notice of such occupation 5
shall be conspicuously posted and maintained by the director at the 6
nearest points to said estuaries and creeks, and shall be recorded in the 7
registry of deeds in the county where they are situated. 8
Whoever, after the posting and recording of such notice, takes any 9
lobster from any estuary or creek so occupied as aforesaid shall be pun- 10
ished as provided in section ninety-one. 11
Chap. 1.'50.] fisheries. 1333
1 Section 110. All barrels, boxes or other packages in transit con- Transportation
2 taining lobsters shall be marked with the word "LOBSTERS" in capital r'eguiatld°
3 letters at least one inch in length, together with the full name of the ^^' 569. §i.
4 shipper. Said marking shall be placed in a plain and legible manner on
5 the outside of such barrels, boxes or other packages, and in case of seizure
6 by any duly authorized officer of any barrels, boxes or other packages in
7 transit, containing lobsters, which are not so marked, or in case of seizure
8 by any such officer of barrels, boxes or other packages in transit con-
9 taining lobsters less than the prescribed length, such lobsters as are
10 alive and less than the prescribed length shall be liberated, and all such
11 lobsters as are of the prescribed length found in such barrels, boxes or
12 packages shall be held and disposed of as provided in section one hundred
13 and thirteen.
1 Section 111. Whoever ships lobsters without having the barrels. Penalties.
2 boxes or other packages in which the same are contained marked as pre- ^ ^ ' ' ^ '
3 scribed in the preceding section shall for a first oft'ence be punished by a
4 fine of not more than twenty-five dollars, and for a subsequent offence
5 by a fine of not more than fifty dollars; and any common carrier who
6 knowingly carries from place to place lobsters in barrels, boxes or other
7 packages not so marked shall be punished by a fine of not more than
8 fifty dollars, and lobsters shipped in violation of tliis or the preceding
9 section shall be forfeited to the commonwealth.
1 Section 112. In order to enforce the two preceding sections, the Enforcement
2 director, a warden, deputy, or state police officer may, without a war- airii'™' "°
3 rant, search any boat, car, box, locker, crate or package and any building \l\l] 1%' ^ ^■
4 where he has reason to believe any lobsters are being transported or held ^^ *^' '°--
5 for transportation in violation of law, and may seize and hold any lob-
6 sters illegally transported; provided, that this section shall not authorize
7 the entering of a dwelling house, antl shall not apply to lobsters passing
8 tlirough this commonwealth under authority of the laws of the United
9 States.
1 Section 113. When any lobsters are seized by \irtue of the three pre- Proceedings
2 ceding sections, the officer making the seizure shall immediately notify seizure of
3 the shipper thereof, if known, and shall forthwith proceed to enforce, in ^"g'is'^Gg, § 4.
4 accordance with chapter two hundred and fifty-seven, the forfeiture
5 of such lobsters, so seized, as he is not reciuired to liberate. He shall
6 cause the appraisal required by section thirteen of said chapter to be
7 made within twenty-foiu- hours after the time of such seizure, and after
8 said appraisal may sell the said lobsters at such time or in such manner
9 as he deems proper. He shall pay the proceeds thereof into the court
10 before \\hich the libel for forfeiture is pending, and the court may decree
11 a forfeitiu-e of said proceeds, or payment thereof to a claimant, or any
12 other appropriate disposition thereof.
fishing for lobsters, tautog, etc., in certain waters.
1 Section 114. No person living without this commonwealth shall fa'kkig'iob"teL,
2 take any lobsters, tautog, bass or other fish witliin the harbors, streams, ^^'^j'^^ certain
3 or waters of Fairhaven, New Bedford, Dartmouth or Westport for the j^^^^'fj'lg-
4 purpose of carrying them thence in vessels or smacks of any size what- c'. s. 83! 1 4'.
5 ever owned without this commonwealth, nor in anv of more than fifteen r. l. 91, §95.
1334
FISHERIES.
[Chap. 1.30.
tons burden owned M'ithin this commonwealth, under a penalty of ten 6
dollars for each offence and a forfeiture of all fish and lobsters so taken. 7
Boundaries
defined.
1821, 97, § 2.
R. S. 55, § 6.
G. S. 83, § 5.
P. S. 91, § 87.
R. L. 91. § 96.
Section 115. For the purposes of the preceding section, the waters
and shores of the places therein mentioned shall be deemed to extend
from the line of the state of Rhode Island to the line of Plymouth county,
and to include all the waters, islands and rocks lying within one mile of
the main land.
Penalty if
certain statutes
have been
accepted.
1839, 85,
n 1.3.
G. S. 83, § 6.
P. S. 91, § 88.
R. L. 91, § 97.
Section 116. If, ■within the harbors, streams, or waters of any town
on the sea coast which accepts this section or has accepted corresponding
provisions of earlier laws, a person who lives without the commonwealth
takes, for the purpose of carrying thence, any lobsters, tautog, bass,
bluefish or scuppaug, or if a person who lives in tliis commonwealth takes
and carries away from such place any such fish or lobsters in vessels or
smacks of more than fifteen tons burden, he shall forfeit not more than
twenty dollars, and all the fish and lobsters so taken.
Prohibition of
taking lobsters
in waters of
Provincetown.
1821, 102, § 1.
R. S. 55,
§§ 7-9.
G. S. 83,
§§ 7-9.
P. S. 91,
§§ 89-91.
R. L. 91, I 98.
Section 117. No person shall take lobsters witliin the waters and 1
shores of Pro\ancetown for the purpose of carrying them from said waters 2
in a vessel or smack of more than fifteen tons burden, or for the pm-pose of .3
putting them on board of such vessel or smack to be transported to any 4
place, unless a permit is first obtained therefor from the selectmen of said .5
town, who may grant the same for such amount, to be paid to the use 6
of the town, as they deem proper. Whoever violates this section shall 7
forfeit ten dollars; and a fiuther amount of ten dollars for every hundred 8
lobsters over the first hundred taken or found on board of any such vessel 9
or smack, and in that proportion for any smaller number. For the pur- 10
poses of this section, the waters and shores of Provincetown shall be 11
deemed to be as follows: beginning at Race Point, one half mile from the 12
shore, and thence running by said shore to the end of Long Point which 13
forms the harbor of Provincetown, and from the end of Long Point one 14
half mile and including the harbor within the town of Provincetown. 15
Penalty for
unlawfully
destroying
oysters.
1764-5,
25. I 1.
1771-2, 13,
§§1.2.
OYSTERS.
Section 118. Whoever takes oysters from their beds, or destroys
them or wilfully obstructs their growth therein, except as is provided in
the following sections, shall forfeit two dollars for every bushel of oysters,
1795, 71, I 1.
including the shells, so taken or destroyed.
R. S. 55, § 11.
G. S. 83, § 11.
P. S. 91. §93.
R. L. 91, § 100.
13 Allen. 541.
221 Mass. 323.
Selectmen may
give permits to
take ovsters.
1764-6, 25,
§§ 1.2.
1795, 71, § 1.
R. S. 55, § 12.
G. S. S3, § 12.
1879, 105.
P. S. 91, § 94.
1892, 74.
R. L. 91, 5 101.
7 Met. 438.
Section 119. The aldermen of a city or selectmen of a town where
there are oyster beds may grant a written permit to any person to take
oysters from their beds at such times, in such quantities and for such
uses as they shall express in their permit; but e\ery inhabitant of such
city or town, except Yarmouth, may, without such permit, take oysters
from the beds therein for the use of his family, from September first to
June first, not exceeding in any week two bushels, including the shells.
221 Mass. 323.
Hc?nsesfo?^he Section 120. The aldermen of any city, or the selectmen of any town, 1
cultivation of [^ Bamstablc, Bristol, Dukes or Nantucket countv, may, after a public 2
oysters in '' ».'..'a
Chap. 130.] fisheries. 1335
3 hearing, grant to any inhabitant of such city or town, or to a firm com- Bamstabie,
4 posed of inhabitants thereof, or to a domestic corporation, a Ucense for a and Nintucket.
5 period of fifteen years to plant, grow and dig oysters, or to plant shells etc"° ""'"'
6 for the purpose of catcliing oyster seed upon and in any territory below §§\%^.®'^'
7 mean low water mark, within the limits of the city or town, and within the
8 limits specified in the license, on such terms and conditions as they deem
9 proper, not, however, so as materially to obstruct navigable waters. Such
10 license, when granted, may be transferred to any person to whom it
1 1 might originally have been granted, subject to the approval of the author-
12 ities granting it. Any such license may, witliin two years before the
13 expiration of the same, be renewed for a fiu'ther term of fifteen years,
14 after a public hearing. All territory for wliich a license is granted shall
15 be designated by suitable bounds, consisting of stakes or buoys, one at
16 each of the several corners of every grant, so that the boundaries thereof
17 may be evident at high and low tide; and the said boimds shall be main-
18 tained by the licensee under penalty of forfeiture of the license. The
19 aldermen and selectmen shall keep at their offices records open to public
20 inspection of each license, describing by metes and bounds the waters,
21 flats and creeks so licensed, and a map or chart of all such licensed
22 property.
1 Section 121. Every licensee shall be required to submit on oath Licensees to
2 to the aldermen, or selectmen, or to a duly authorized inspector appointed Kportl'et"''
3 by them, an annual report of the total number of bushels of oysters ^''"' ^^^- ^ ^'
4 planted or produced upon the territory covered by the license, and an
5 estimate of the total number of bushels of oysters at that time planted
6 or growing upon said territory, and if the total amoimt falls below fifty
7 bushels per acre, on any grant less than six acres, or if said inspector,
8 after due examination, finds that the quantity of oysters planted or
9 growing is less than fifty bushels per acre on any grant less than six
10 acres, or less than five hundred bushels on any grant over six acres, for
11 three consecutive years, then the license may be declared forfeited and
12 the grant shall revert to the place where situated.
1 Section 122. Any inhabitant, firm or corporation, qualified as pro- Application for
2 \'ided in section one hundred and twenty and desiring to obtain a license i9i4r597,"§ 4.
3 thereunder, shall present to the aldermen or selectmen a WTitten applica-
4 tion setting forth the name and address of the applicant, a reasonably
5 definite description of the desired territory, and shall petition that the
6 applicant be registered, that the territory be surveyed, that a plan or
7 map be made, and that such license be granted to the applicant. When
8 such license is granted, the authorities granting it shall, after the sur-
9 vey is made, locate the corners for the licensee without charge, but the
10 relocation of corners shall be at his expense.
1 Section 123. Every such licensee shall pay an annual fee per acre, Fees.
2 the amount of which shall be fixed for the term of five years according to
3 a just and equitable valuation by the authorities granting such license
4 or by their duly appointed agents, under penalty of forfeiture of the
5 license if the rental is not paid within six months after it becomes due.
6 The money received from the annual fees may be expended, so far as
7 may be necessary, for the protection and surveying of the grants, .and
8 the remainder shall be paid to the city or town.
1336
FISHERIES.
[ClIAP. 130.
Section 124. Everv such licensee shall have the number of his
License
number to be
igw'^sgy § 6 license painted in letters at least two inches in height in a conspicuous
place on his buoys, or on flags attached to stakes.
Jys't'elf between SECTION 125. No licensee or other person shall dig, take or carry 1
"^rowbited"" away any oysters or shells from any waters, flats or creeks, between one 2
1914, 597. § 7. hour after sunset and one hour before sunrise, by any method whatever. 3
Penalty for
injuring
boundary
marks, etc.
1914, 597, § 8.
Section 126. \^Tioever wilfully injures, defaces, destroys or removes 1
any mark or bound used to define the extent of any such license or grant, 2
or places any imauthorized mark thereon, or ties or fastens any boat or 3
vessel thereto, shall be punished by a fine of not less than three nor more 4
than twenty dollars and shall be liable in tort for double damages and 5
costs to the licensee injured by such act. 6
Penalty for
injuring or
unlawfully
taldng planted
oysters.
1914, 597. § 9.
Section 127. Whoever works a dredge, oyster tongs or rakes, or 1
any other implement for the taking of oysters upon any territory offi- 2
cially designated as licensed, or in any way disturbs the growth of planted 3
oysters, without the consent of the licensee during the continuance of 4
such license, or discharges any substance which may directly or indi- 5
rectly injure the planted oysters, shall for the first offence be punished 6
by a fine of not less than five nor more than one hundred dollars, and 7
for a subsequent oft'ence by a fine of not less than one hundred nor more 8
than two hundred dollars or by imprisonment for not more than six 9
months, or both. 10
Penalty for
placing stones,
scoopings. etc.,
on oyster
beds, etc.
1914, 597, § 10.
Section 128. Whoever wilfully breaks up, damages or injures any 1
bed of oysters, or any tract of land leased from the commonwealth or 2
licensed by any town for an oyster bed, by depositing thereon earth, 3
stones or dredging, or scoopings, shall be punished by a fine of not less 4
than twenty-five nor more than five hundred dollars. 5
Arrest and
detention of
offenders.
1914, 597, § 11.
Section 129. The director, a warden, deputy, police officer or con- 1
stable witnessing the commission of any act prohibited by the nine pre- 2
ceding sections shall, without a warrant, arrest the offender and detain 3
him until an application for a warrant may be made. 4
No territory
to be granted
in polluted
waters.
1914, 597, § 12
Section 130. To protect the purity of oysters, no territory in pol- 1
luted water shall be granted for tlie growing of oysters for market. The 2
licensing authorities and inspectors appointed under section one hun- 3
dred and twenty-one may make examinations necessary to ascertain 4
the sanitary condition of the waters over and adjacent to the oyster pro- 5
ducing area, and may give WTitten certificates of the sanitary condition 6
thereof. 7
Granting of
licenses in
counties not
covered by
section 122,
Revocation.
Penalties.
1848, 152.
G. S. 83.
« 16-18.
1869, 172, § 8
P. S. 91,
§§ 97-99.
1884, 284.
Section 131. In cities and to-wns in counties not mentioned in sec- 1
tion one hundred and twenty, the aldermen or selectmen may grant a 2
written license for a term not exceeding fifteen years to any inhabitant 3
thereof to plant, grow and dig oysters at all times of the year, or to plant 4
oyster shells for the purpose of catching oyster seed, upon and in any 5
waters, flats and creeks therein, at any place where there is no natural 6
oyster bed ; not, however, impairing the private rights of any person, nor 7
materiallv obstructing any navigable waters. Such license shall describe 8
Chap. 130.] fisheries. 1337
9 by metes and bounds the waters, flats and creeks so appropriated and |f*f'|^°"
10 shall be recorded by the city or town clerk before it shall have any force, J|||' |P' § i-
1 1 and the licensee shall pay to the aldermen or selectmen, to the use of R- l' 9i.
12 the city or town, two dollars, and to the clerk fifty cents. The shore i9i3.549. '
13 line of such licensed premises shall be the line of mean low water for iss Mass' 120'
14 the planting and growing of oysters, and the line of high water for the 224 Masslso?!
15 planting of oyster shells, but this section shall not authorize the placing iop'^A^G.'lli.
16 of such shells upon the land of a riparian owner between high and low p^^^^ .
1 7 water mark without his written consent. Such license shall not be granted §§ 1^2, isa.
18 until after a public hearing, due notice of which shall have been posted
19 in three or more public places in the cit;j' or town where the premises
20 are situated at least seven days before the time fixed for such hear-
21 iiig, and shall be granted, assigned or transferred only to inhabitants
22 of the city or town where the licensed premises are situated, and shall
23 not be assigned or transferred without the written consent of the alder-
24 men or selectmen. The licensee, his heirs and assigns shall, for the pur-
25 poses aforesaid, have the exclusive use of the waters, flats and creeks
26 described in the license during the time therein specified; and may, in
27 tort, recover treble damages of any person who, without his or their
28 consent, digs or takes oj'sters or oyster shells from such waters, flats
29 or creeks during the continuance of the license. If the licensee fails
30 for two years after the license has been granted to plant and grow oysters
31 or to plant oyster shells in the waters, flats or creeks described in the
32 license, it shall be revoked by the officers who granted it and the revo-
33 cation shall be recorded by the city or town clerk.
1 Section 132. No person shall dig, take or carry away any oysters Hours for
2 or oyster shells between one hour after sunset and one hour before sun- isrsl^iToTl""'
3 rise, by any method whatever, from any waters, flats or creeks for which fsl4,l84! IT'
4 a license has been granted under the preceding section. A licensee vio- If^l'l^®'
5 lating said section shall, in addition to the other penalties pro\-ided, for- is^^', 282 § i
6 feit his license and the oysters remaining on the licensed premises. 229 Mass. is5.'
1 Section 133. ^^^loever -v-iolates the preceding section, or whoever. Penalty for
2 without the consent of the licensee, digs or takes any oysters or oyster fromfi°enseT
3 shells from any waters, flats or creeks described in any license granted permllsioS"'
4 under section one hundred and thirty-one diuing the continuance of p* s^'gi^j fo^i
5 such license, shall be punished by a fine of not more than one hundred is8|. 284, 1 1.
6 dollars or by imprisonment for not less than one nor more than six r. L!9i,'§iii.
-7 ,1 L XL 136 Mass. 456.
/ months, or both.
1 Section 134. 'Whoever works a dredge, oyster tongs or rakes, or any Penalty tor
2 other implement for the taking of shellfish of any description, upon any etcl'.^uto'i?*'''
3 oyster grounds or beds covered by a license imder section one hundred gej™'^ °*'*"^''
4 and thirty-one, without the consent of the licensee, lessee or owner Jf l'9i°§\i2
5 thereof, or whoever, while upon or sailing over any such grounds or beds,
6 casts, hauls, or has overboard any such dredge, tongs, rake or other im-
7 plement for the taking of shellfish of any description, under any pretence
8 or for any purpose whatever, without the consent of the licensee, lessee
9 or owner, shall, for the first offence, be punished by a fine of not more
10 than twenty dollars or by imprisonment for not more than one month,
1 1 and for a subsequent oft'ence, by a fine of not more than fifty dollars or
12 by imprisonment for not more than six months.
1338
FISHERIES.
[Chap. 130.
Penalty for
taking shellfish
other than
oysters,
except, etc.
1771-2, 13, I 3.
1795, 71, I 2.
1798, 14, I 1.
1799, 19, I 1.
1808, 28.
1830, 2.
R.S. S5, § 13.
1838, 110; 113.
1839, 84.
1840, 9.
1842, 10.
G. S. 83, 5 13.
P. S. 91, § 95.
GENER.\L PROVISIONS REL.\TIVE TO SHELLFISH.
Section 135. Whoever takes any shellfish, other than oysters, from 1
their beds, or destroys them or wilfully obstructs their growth therein, 2
except as is provided in this chapter, shall forfeit one dollar for every 3
bushel of such shellfish, including the shells. But the aldermen of a 4
city or selectmen of a town may at any time give a written permit 5
to any person to take such shellfish from their beds therein, at such 6
times, in such quantities and for such uses as they shall express in their 7
permit; but every inhabitant of each of said places may, without such 8
permit, take such other shellfish from the beds therein for the use of 9
his family. R. l. 9i, § 102. 7 Met. 43s. 10
13 Allen, 541. 155 Mass. 10. 221 Mass. 323. 224 Mass. 39.
Indians not
within pro-
hibition of
sections 118,
119 and 135.
1795, 71, I 5.
1798, 14, I 2.
R. S. 65. § 1,5.
G. S. 83, § 15.
1867, 70.
1872, 40, § 2.
Section 136. Sections one hundred and eighteen, one hundred and
nineteen and one hundred and thirty-five shall not deprive native
Indians of the privilege of digging shellfish for their own consumption,
or prevent a fisherman, an inhabitant of the commonwealth, from tak-
ing shellfish which he may need for bait, not exceeding at any one
time seven bushels, including the shells.
p. S. 91, § 96. R. L. 91, § 103. 13 Allen, 541.
Taking of
shellfish from
contaminated
waters
regulated.
1901, 138,
§§1,2.
1919! 350, § 9(i. if necessary, mark such bounds. It may also, in writing, request the
221 Mass. 323. (jjppp^Qp ^q prohibit the taking from such contaminated waters and flats
of any shellfish. Upon receipt of such request, the director shall prohibit
the taking of shellfish from such contaminated waters or flats for such
Section 137. The department of public health may examine all
complaints brought to its notice relative to the contamination of tidal
waters and flats in the commonwealth by sewage or other causes, may de-
termine, as nearly as may be, the bounds of such contamination, and.
period of time as said department may prescribe.
Local boards
of health may
grant permits
to take clams
or quahaugs
for bait, etc.
1907, 285, § 1.
Section 138. When the director has so prohibited the taking from
contaminated waters or flats in any city or town of any shellfish, the
local board of health may grant written permits to any person to take
from such waters clams or quahaugs to be used for bait only, and in
such quantities and upon such conditions as it shall express in the
permit.
pcmntto'keep SECTION 139. Whocvcr holds a permit under the preceding section
"er-on^et*" ""'^ shall kccp it in his possession, and on his person, Avhile acting there-
igm'lss *" under, and shall at all times display it upon the request of any person
authorized to enforce sections one hundred and thirty-eight to one hun-
dred and forty-one, inclusive. Violation of this section shall be punished
by a fine of not less than ten nor more than fifty dollars, and m addition
the permit shall be revoked and shall not thereafter be issued within one
.vear.
Section 140. Whoever violates any provision of such permit shall 1
Penalty for
violation of
i9OT,'285, § 3. forfeit the permit and shall be punished by a fine of not more than one 2
hundred dollars or by imprisonment for not more than three months, 3
or both. 4
Chap. 130.] fisheries. 1339
1 Section 141. Whoever sells, or exchanges, or exposes or offers for Penalty for
2 sale or exchange, or buys any clams or quahaugs, taken from waters or dams?etc.°
3 flats proscribed as contaminated under section one hundred and thirty- ponTtedwlters.
4 seven shall be punished by a fine of not more than one hundred dollars J9J3; ggf' ^ *•
5 or by imprisonment for not more than three months, or both.
1 Section 142. Whoever not having a permit therefor takes any shell- f^a'ties for
-,,„ .,, ^ Ml • 11' taking oysters,
2 fish from tidal waters or flats proscribed as contaminated under section ''*'=v//°"\
3 one hundred and thirty-seven shall for the first offence forfeit not less waters, etc.
4 than five nor more than ten dollars and for a subsequent offence forfeit r. l!9i.§'ii4.
5 not less than fifty nor more than one hundred dollars; but such penalties "^ ^^'^^^' ^'^'
6 shall not be incurred until one week after the director has caused notice
7 of such proscription, with a description, or the bounds, of the tidal waters
8 or flats to which such proscription applies, to be published in a newspaper
9 published in the town or county in which or adjacent to which the tidal
10 waters or flats to which such proscription applies are situated.
1 Section 143. Cities by a two thirds vote of the city council, and towns may
2 towns by a two thirds vote at a town meeting, may appropriate money "J.^sltiora'?"
3 for the cultivation, propagation and protection of shellfish. Tlie alder- ^"'^■'J*'?",',^ ^
4 men or selectmen, when so authorized by their respective cities or towns, way declare
5 may declare from time to time a close season for shellfish for not more etc^'^ '"='"'°"'
6 than three years in such waters or flats within the limits of their respective ^^°*' ^^' ^ ^"
7 cities and towns as they deem proper, and may plant and grow shellfish
8 in such waters and flats; provided, that no private rights are impaired,
9 and provided, that when any close season, declared as aforesaid, shall
10 have ended, the flats and waters so closed shall be opened subject to
11 section eighty-foiu- and any special laws.
1 Section 144. WTioever takes shellfish in violation of the preceding Penalty, etc.
2 section shall be punished by a fine of not less than three nor more than
3 fifty dollars. Any officer qualified to serve criminal process, and con-
4 stables designated imder section one hundred and fifty-two, shall, with
5 all the powers conferred by said section, enforce this section.
REGULATION OF FISH WEIRS, NETS, PURSES AND SEINES.
1 Section 145. The aldermen of a city and the selectmen of a town Town officers
„ , . J.- J J. • -J.- J.1 • J. ™^y authorize
2 lying upon tide water, may, m writing, authorize any person to con- e^h woirs. etc
3 struct weirs, pound nets or fish traps in tide water in locations not only p s!'9i.'§ 76.
4 where no harbor lines exist but also in locations beyond established it''L!9?^§\i6.
5 harbor lines, within the limits of such city or town, for a term not exceed- }^J^' g-*-
6 ing five years, but no authority so given shall be valid unless approved i-Jjs, 27.^
7 in writing by the division of waterways and public lands of the depart- §113. ^
8 ment of public works, upon such terms and subject to such conditions 2 bp. a. g. 2.5,
9 as it may, in its discretion, impose. 3 Op. a. g. is. '
1 Section 146. Whoever wilfully destroys or injures any such w'eir. Penalty for
2 pound net or fish trap, or takes fish therefrom without the consent of the iish'wefrs""
3 owner, shall forfeit not more than twenty dollars to the use of the owner, r si'aT.'Ir^i.
4 and shall be liable in an action to the person injured. R. l. 9i, § 117.
1340
FISHERIES.
[Chap. 1:3().
Penalty for
constructing
unauthoriEed
fish weirs.
1877, 119.
P.S. 91, §72.
R. L. 91, § 118.
Owners of fish
weirs, lobster
pots, etc., to
make returns.
Lobster cars
to be marked.
Penalty.
1876, 104.
1881, 28.
P.S. 91,
{§ 73-75.
1889, 109,
§§ 2, 3.
1901, 290.
R. L. 91, §119.
Section 147. Whoever constructs or maintains a weir, pound net
or fish trap in tide water without the authority mentioned in section one
liundred and forty-five and, if from an island in tide water, witliout
written authority from the aldermen of every city and the selectmen
of every town which is distant not over two miles from said island, shall
forfeit ten dollars for each day he maintains such weir, pound net or
fish trap; and he may be enjoined therefrom.
Section 148. The owner of every pound net, weir, fyke net or 1
similar contrivance, of every fishing pier, seine, drag or gill net, lobster 2
pot or trap used in any of the waters of the commonwealth for fishing .3
purposes, shall annually, on or before October twentieth, make a written 4
report, on oath, to the director of the number of pounds and the value 5
of each kind of edible fish caught by his pound net, weir, fyke net or 6
similar contrivance, pier, seine, drag or gill net, and the number and 7
value of lobsters taken by him in pots or traps, during the year last 8
preceding the date of said report, and the number and value of the de- 9
vices used in such catching or taking, and the number of persons em- 10
ployed therein; and for such purpose, the director shall annually, on or 11
before ]\Iarch fifteenth, provide him, upon his application, with suitable 12
blank forms for such reports, so arranged that each month's catch may l.j
be separately recorded thereon; and, in filling out such reports, such 14
owner shall give the results of each month's fishing, so far as practicable. 15
Such owner shall apply to the director for such blank forms. The owner Ifi
of any cars or other contrivances used for keeping lobsters shall have his 17
name and residence legibly marked thereon. ^Yhoeve^ knowingly and 18
wilfully violates any provision of this section shall be punished by a fine of 19
not less than ten nor more than one hundred dollars. 20
Penalty for
taking fish,
etc., from
traps, etc,
1882, 53.
R.L. 91, § 131
MISCELLANEOUS PROVISIONS.
Section 149. Whoever takes any fish or lobster from a trap, trawl
or seine set for catching fish or lobsters, without the consent of the owner
thereof, and whoever wilfully molests or interferes with such trap, trawl
or seine, shall, for the first offence, be punished by a fine of not less than
five nor more than twenty-five dollars or by imprisonment for one month,
or both; and for a subsecpient offence, by a fine of not less than twenty
. nor more than fifty dollars or by imprisonment for two months, or both.
Penalty for
taking certain
fish except
with hook and
line.
1741-2,
20, § 1.
1754-5,31,
§§1,2.
1764-5, 34,
§§1,2,
1822, 21.
R. S. 55, § 2.
1857, 30.
G. S. S3. § 2.
1869, 384, § 26.
P.S. 91, §48.
R. L. 91,§ 132.
1908, 492.
1917, S3.
1919, 33.
Additional
penalty, § 7G.
Section 150. Whoever takes any fish which at any season frequent
fresh water, except as otherwise allowed in this chapter, in any other
manner than by angling, shall forfeit not less than five nor more than
fifty dollars; but towns may permit the use of nets and seines for taking
herring and alewives or pots for the taking of eels; and this section shall 5
not prohibit spearing eels, carp or those species of fish commonly known 6
as eels and "suckers". The possession by any person in or upon fresh 7
waters or upon the banks of the same, except as allowed by this sec- 8
tion, of any net, trap, trawl, or other device adapted for taking fish 9
shall be prima facie evidence of a violation of this section. This section 10
shall not apply to ponds or waters now held under lease or which may 1 1
hereafter be leased by the commonwealth or by the commissioner of 12
conservation. 13
poi"sonmg"fish. SECTION 151. Whoever puts or throws into any waters for the pur- 1
|830,43 ^ pQgg of taking or destroying fish therein any poisonous substance, simple, 2
Chap. 130.] fisheries. 1341
3 mixed or compound, or whoever kills or destroys fish by the use of dyna- g. s. 83, § i.
4 mite or other explosive, or explodes dynamite or powder in fishing waters, r. L.gV.I m.
5 shall be punished by a fine of not more than five hundred dollars or by J9?|;4|9'
6 imprisonment for not more than one year. This section shall not apply
7 to operations of the United States, the commonwealth or a town, nor
8 to the use of explosives for raising the body of a drowned person.
1 Section 152. The mayor of a city or the selectmen of a town may Officers to
2 designate one or more constables for the detection and prosecution of iss5!'22o,' § 6.
3 any violation of the laws of the commonwealth relative to shellfisheries. ig's^Mas's^ilo.'
4 Such constables may arrest without a warrant any person found violat-
5 ing such laws, and detain him until a warrant for arrest for such viola-
6 tion may be applied for; and may seize any boat or vessel used in such
7 violation, and her tackle, apparel, fm'niture and implements, which
8 shall be forfeited.
1 Section 153. Actions and prosecutions under the laws relative to Prosecutions
2 fisheries shall, unless otherwise expressly provided, be commenced chai"er'"^
3 within one year after the time when the cause of action accrued or the iglaj'xbs, § 4.
4 offence was committed. ises, 179, § 3. ]869,3S4, § 32.
1873, 137, § 1. P. S. 91, § 103. R. I.. 91, § 135.
1 Section 154. The aldermen, selectmen, police officers and consta- Town officers
2 bles shall cause the provisions of sections sixty-seven and sixty-nine tain'se'ctions.'^'
3 to be enforced in their respective cities and towns. is74, 153, 5 3.
1876, 221, § 2. P. S. 91, §§ 54, 60. R. L. 91, § 1.36.
1 Section 155. A bounty of two dollars shall be paid to every person Bounty
2 killing a seal in the ct)mmonwealth pro\ided that within ten days there- CerUficate.
3 after he exhibits to any town treasurer the whole skin of the seal, with the fiss.'SsV.
4 nose in the same condition as at the time of the killing, and signs and \f^l\ gf^j jgg
5 makes oath to a certificate stating the date and place of killing, that Jgjg'lo^
6 he killed the seal and that it was killed in this commonwealth. Tiie treas-
7 urer shall thereupon cause to be cut off and burned the nose of the seal,
8 wholly destroying it, and shall pay the said bounty, taking the claim-
9 ant's receipt therefor and shall then forward to the state treasurer the
10 said certificate with a statement that he has paid the said bounty in
11 accordance herewith, and that the claimant personally appeared before
12 him and made oath as aforesaid. The state treasurer shall then pay to
13 the town treasurer the sum of two and one half dollars, of which sum
14 fifty cents shall be retained by the town treasurer as a fee for his serv-
15 ices hereunder. Whoever obtains tiie bounty herein provided for by
16 a false representation, or whoever brings into the commonwealth a
17 seal, whether alive or dead which was not taken or killed in this com-
18 monwealth or in the waters thereof, for the purpose of obtaining the said
19 bounty, shall be punished by a fine of not less than fifty nor more than
20 fi^e hundred dollars.
KELP AND SEAWEED.
1 Section 156. Any person may take and carry away kelp or other Keip, etc
2 seaweed between high and low water mark while it is actually adrift in 1859,247.
3 tide waters; but for such purpose no person shall enter on upland or on p.s.'gi.'s ioa
4 lawfully enclosed flats without the consent of the owner or lawful oecu- 2 AUeSI'slg.*"'
5 pant thereof. This section shall not apply to any town where the sub-
6 ject matter thereof is regulated by special laws.
1342
PKESERVATION OF BIRDS AND .\NIMALS, ETC. [Cll.\P. 131.
Special laws
not repealed.
G. S. 83, I 2.
1869, 384,
§§ 7, 22, 26.
Section 157. Tlais chapter shall not affect any pro\isions or penalties 1
contained or any privileges granted in any special statutes relating to 2
fisheries in particular places. p. s. 9i, § los. r. l. qi, § i38. 3
REFERENCES.
Provisions relating to fishing licenses, Chap. 1.31, §§ 3 to 14, inclusive.
Leasing Tisbury Great pond, 1910, 529, as amended by 1919, 39.
Leasing Oyster pond, 1916, 193.
Special provisions for taking shad or alewives from the Connecticut or Merrimack
rivers, R. L. 91, §§ 38 to 41, inclusive.
Taking alewives in Dukes county, R. L. 91, § 43.
Taking clams and quahaugs in certain towns in Barnstable county, 1915, 128;
as to other towns, 1904, 269, as amended 1905, 265, § 1.
Taking clams and quahaugs in Plymouth county, 1916, 35, and 1912, 57.
Taking clams in Essex county, 1912, 710.
Weirs, nets, etc., in Buzzards bay, R. L. 91, §§ 121 to 126, inclusive.
There are many other laws relating to particular localities.
CHAPTER 131.
PRESERVATION OF CERTAIN BIRDS AND ANIMALS.
FISHING LICENSES.
HUNTING AND
Sect.
1. Definitions.
2. Powers and duties of the director.
3. Registration of hunters, trappers and
fishermen.
4. Certificates, form, term, etc.
5. Certificates for fishing.
6. Certificates to minors.
7. Certain unnaturalized foreign born per-
sons entitled to certificate.
Registration fee for citizens.
Registration fees for non-residents.
City or town clerk's fee.
11. Duplicate certificate may be issued.
12. Record of certificates to be kept.
Non-resident licensees entitled to carry
game from the commonwealtli.
Penalty for false representation, etc.
List of waters stocked by commission to
be given clerks.
Certain unnaturalized foreign born resi-
dents prohibited from hunting, etc.
17. Director to be notified of seizure of fire-
arms, etc.
18. Arrests.
19. Penalty for killing mid birds.
20. Protection of certain wild fowl.
21. Protection of loons and eagles.
22. Possession of body or feathers of birds
penalized.
23. Protection of gray, European or Hun-
garian partridges.
24. Protection of prairie chickens.
25. Protection of homing pigeons.
26. Protection of upland plover, wood duck,
etc.
27. Protection of heath hen.
8.
10.
13.
14.
15.
16.
Sect.
28. Protection of heron or bittern.
29. Close season for game may be pro-
claimed in times of drought.
30. Violations of preceding section penal-
ized.
31. Proclamation to be published, etc.
32. Sunday to be close season.
33. Close season for woodcock and ruffed
grouse.
34. Close season for quail.
35. Possession prima facie evidence of vio-
lation.
36. Bag limit for ruffed grouse, woodcock
and quail.
37. Close season for swans, ducks and
geese.
38. Bag limit for black ducks.
39. Close season for shore birds.
40. Permit to bring birds into the common-
wealth.
41. Wild turkeys.
42. Pheasants.
43. Open season for pheasants.
44. Pheasant doing damage may be killed.
45. Close season, etc., for gray squirrels.
Bag limit.
46. Hares and rabbits.
47. Hares in certain counties.
4S. Rabliits not to be trapped, etc.
49. Rabbits may be trapped by farmers.
50. Penalty for taking, etc., hares or ralj-
bits.
51. Close season for certain fur-bearing
animals.
52. Buj-ing, selling and possession of such '
animals.
Chap. 131.1
HUNTING, ETC., LICENSES.
1343
Sect.
53. Training dogs by pursuit of game birds
and animals in close season allowed.
54. Restrictions as to setting traps.
55. Setting traps to protect farms.
56. Penalties.
57. Birds, not to be taken by snares, etc.
58. Poison or wire snares not to be used.
59. Certain traps not to be used.
60. Traps not to be used without permis-
sion of owner of land.
61. Scented bait not to be used.
62. Deer not to be killed except when doing
damage.
Open season for deer.
Moose not to be killed.
Dogs chasing deer.
Birds or quadrupeds not to be killed
with rifle, etc., in deer season.
Damages by deer to be paid by com-
monwealth.
Hunting in pubUc parks prohibited.
Reservations for protection of birds or
animals.
Close season on restricted areas.
Regulations for reservations, etc.
Enforcement of regulations.
63
64
65
66,
67,
68,
70.
71.
72.
Sect.
73. Publication of notice establishing reser-
vation, etc.
74. Penalty for hunting on reservation.
75. Possession of firearms on reservation
prima facie eWdence of violation.
Protection of birds by towns.
Birds illegally killed not to be sent out
of state.
78. Extermination of English sparroiv.
79. Posting land.
SO. Ownership of artificially propagated
game.
81. Sale of wild birds and game forbidden.
82. Rules for propagation of wild birds or
game.
83. License for rearing and sale of such
birds and game for food.
84. Revocation of licenses.
Market man's license.
Same subject.
87. Licenses revocable.
88. Penalties for breach of sections 81 to 86.
89. Museums, etc., exempt from certain
sections. Application of certain sec-
tions.
90. Canada lynx.
76.
77.
85.
86.
1 Section 1. In this chapter the following words shall ha\e the follow- Definitiomi.
2 ing meanings:
3 "Commissioner", the commissioner of conservation.
4 "Department", the department of conservation.
5 "Deputy", a deputy fish and game warden appointed under section
6 seven of chapter twenty-one.
7 "Director", the director of the division of fisheries and game.
8 "Division", the division of fisheries and game.
9 "Warden", a fish and game warden appointed under section seven of
10 chapter twenty-one.
1 Section 2. The director, wardens and deputies shall have and ex- Powers and
2 ercise the same powers as to the propagation, protection and preserva- the dfrector.
3 tion of birds and animals which they have as to fish, subject, however, Hgs] lei'' ^ '^^
4 to the supervision and control of the commissioner.
R. L. 92. § 19. 1919, 350, §§ 39, 43. 153 Mass. 171.
1 Section 3. No person shall, except as provided in section forty-
2 four, forty-nine, sixty-two, eighty-two or eighty-three, during the open
3 season for any bird or quadruped protected under this chapter, hunt,
4 pursue, take or kill any such bird or quadruped, or fish, except as here-
5 inafter provided, in any of the inland waters of the commonwealth
6 stocked by the director or his predecessors since January first, nineteen
7 hundred and ten, without first having obtained a certificate of registra-
8 tion as hereinafter provided; provided, that nothing in sections three to
9 fourteen, inclusive, shall be construed as afi'ecting in any way the general
10 laws relating to trespass, or as authorizing the hunting, pursuing, taking,
11 wounding or killing, or the possession of birds or quadrupeds contrary
12 to law. But said sections shall not prohibit any person who is a legal
13 resident of the commonwealth from hunting on land owned or leased by
Registration
of hunters,
trappers and
fishermen,
100.5,317, § 1.
1907, 198,
§§ 1. 2.
190S, 402. § 1;
484. §§ 1. 3.
1909, 202,
§1;325.
1910,614, § 1.
1911.235. § 1:
614, §§ 1,13.
1919, 296,
§§ 1, 14:
350, § 43.
Penalty, § 14.
1344
HUNTING, ETC., LICENSES.
[Chap. 1.31.
Certificates,
form, term,
etc.
1905, 317, § 2.
1907, 19S,
§§3,4.
1908, 402, § 2:
484, § 2.
1910,614, § 3.
1911, 235, §2;
614, §§ 2. 1.3.
1917, 26.
1919, 296,
§§ 2, 14.
him or from fishing in any inland waters bordered by such land, pro- 14
vided that he is actually domiciled thereon, and that the land is used 1.5
exclusively for agricultural purposes, and not for club, shooting or fish- 16
ing purposes. 17
Section 4. The clerk of any toAvn shall, upon the application of any 1
person entitled to receive a certificate of registration under any of the 2
classes hereinafter described, upon payment of the registration fee here- 3
inafter specified, and the furnishing of an affiilavit by any non-resident 4
desiring to be classified under clauses one, two and tliree of section nine, 5
register and issue to such person a certificate in the form prescribed upon 6
a blank furnished by the division. The certificate shall bear the name, 7
age, occupation, place of residence, and signature and identifying de- 8
scription of the person thus registered, and shall authorize him to hunt 9
birds, to hunt and trap quadrupeds and to fish, subject to existing laws. 10
Said certificate shall be valid for use to and including the following 11
December thirty-first, shall not be transferable and shall be produced 12
for examination upon the demand of any person. Failure or refusal to 1-3
produce said certificate upon such demand shall be prima facie evidence 14
of the violation of sections three to fourteen, inclusive. 15
Certificates
for fishing.
1919, 296, § 3.
Section 5. Certificates of registration to fish only may be granted 1
in any town by any resident thereof designated for the purpose by the 2
clerk. A person so designated shall be known as deputy registrar for 3
fishing licenses, in sections three to fourteen, inclusive, called the deputy 4
registrar, and shall hold office for the term of one year. The deputy 5
registrars may exercise in their respective towns all the powers of clerks 6
in respect to fishing certificates, and all the provisions of sections three 7
to fourteen, inclusive, in relation to the issue of such certificates by clerks 8
shall apply to their issue by deputy registrars. Upon issuing a certifi- 9
cate e\ery deputy registrar shall forthwith make return tliereof, witli the 10
fee, to the clerk. 11
Certificates
to minors.
1911, 235, § 2;
614, §§ 7, 13.
1916, 74.
1919, 296,
§§8,14.
1920, 300.
Op. A. G.
(1920) 176.
Section 6. No certificate of registration to hunt and trap shall be 1
granted to minors under fifteen, but any clerk may issue a certificate to 2
any minor between twelve and eighteen who is a citizen of the United 3
States authorizing him to take wild quadrupeds by trap only, in con- 4
formity with law. Twenty-five cents shall be paid to each clerk for each 5
certificate to trap issued by him. The clerk of any town may, but need 6
not as a matter of right, issue a certificate to hunt and trap to a minor 7
l)etween fifteen and eighteen if he applies therefor in writing and files a 8
statement signed by his parents or guardian consenting to the granting 9
thereof, which shall be preserved by the clerk. Minors under eighteen 10
and women shall not be required to take out a certificate to fish.
11
Certain un-
naturaUzeri
foreign born
persons en-
titled to
certificate.
1905, 317, § 2.
1908, 402, § 2.
1910,614. § 3.
1911,614,
§§ 3, 13.
Registration
fee for
citizens.
1908,484, § 3.
Section 7. An unnaturalized foreign born resident owning real estate
in the commonwealth assessed for taxation at not less than five hundred
dollars may be granted a certificate of registration. He shall pay for such
registration a fee of fifteen dollars to the clerk of the town where he resides,
or for a certificate to fish only a fee of one dollar to the clerk or a deputy
registrar. I9i5, 240. 1919, 296, §§ 4, 14.
Section 8. Every citizen of the United States who has been a resident 1
of the commonwealth for six months next prior to the date of his applica- 2
Chap. 131.] hunting, etc., licenses. 1345
3 tiou shall pay for such registration a fee of one dollar to the clerk of the woo, 32.5. § 1.
4 town from whom he procures his certificate, except that if he desires a louieu,'
5 certificate to fish only, he shall pay for his registration the sum of fifty 1919, 296,
6 cents to the clerk or to a deputy registrar. ^^ •*■ ^*-
1 Section 9. Every citizen of the United States, not a resident of the Registration
2 commonwealth or not ha\'ing resided therein for a period of six months relkie°nt"°°"
3 preceding his application for registration, shall pay for said registration ||°2','7.^*'
4 a fee of ten dollars to the clerk of the town from Avhom he procures his }g°"' f^f
5 certificate, except that, if he desires a certificate to fish only, he shall pav 5* 1. 13- '
• 1913 4 79
6 to the clerk or a deputy registrar one dollar, or, if he comes within one of loipi 296,'
7 the three following classes and resides in a state extending similar exemp-
8 tion to citizens of this commonwealth, he shall pay the fees required by
9 section eight.
10 (1) A non-resident citizen of the United States owning real estate
1 1 situated in the commonwealth assessed for taxation at &ve himdred dollars
12 or more, or, subject to section six, any minor child of such non-resident.
13 (2) A non-resident citizen of the United States who is a member of
14 any association incorporated prior to nineteen himdred and seven for the
15 purpose of hunting or fishing upon land owned by such corporation;
16 provided, that such corporation owns real estate in this commonwealth
17 assessed for taxation at a sum equal to fi^e hundred dollars for each
18 member and that the membership list of the association shall be filed
19 with the clerks of the towns where such real estate is situated.
20 (3) A non-resident citizen of the United States who, on the written
21 invitation of a member of an association incorporated under the laws of
22 the commonwealth, attends the meeting of the association for the pur-
23 pose of hunting foxes only, during a period not exceeding six days; pro-
24 vided, that the membership list of the association shall be filed with the
25 clerk of the town where the hunt takes place.
1 Section 10. The clerk of the town where the registration is recorded SeSks'fee""
2 may retain fifteen cents from each such registration fee, including fees };|og' *f^*' 5 3-
3 paid to the deputy registrar imder section five and fees for certificates wioieUiii.
4 to trap under section six.
1911. 614, §§ 6, 13. 1919. 296, §§ 7, 14. 1920, 300.
1 Section 11. Whoever loses or by mistake or accident destroys his Duplicate
2 certificate of registration may, upon application to the director accom- may'bTissueti.
3 panied by an affidavit fully setting forth the circumstances of the loss, Jglg'^e'lfg
4 receive without charge a duplicate certificate. I4;3o0, §43.
1 Section 12. The clerk of every town shall record all registrations Record of
2 in books kept therefor, including records of certificates issued by deputy brkcpt""^ '"
3 registrars and reported under section five and certificates to trap under Jfio?; j', J; 1 1;
4 section six, one coupon of which shall be retained by the clerk or deputy ^"J'V""' ^ ^•
5 registrar as his record. The said books shall be supplied by the division, J;/',?'!'*'
6 shall be the property of the commonwealth, shall be open to public ii)fi. 614,
7 inspection during the usual office hours of the clerk, and shall be subject iiii's.'ii^, § 1.
8 at all times to audit and inspection by the director, by the state auditor, |§\o,TI;'
9 or by their agents; and every such clerk shall, on the first Monday f|°' ^^ ^®' '^"^
10 of every month, pay to the division all moneys received by him for the 4 6p a. g. 152.
11 said registrations issued during the month preceding, except the record-
12 ing fee, together with a receipted bill for fees retained under section ten.
1346
HINTING, ETC., LICENSES.
[Chap. 131.
All remittances shall be made by certified check. United States post- 13
office money order, ex]3ress money order or in lawful money of the Ignited 14
States; and every clerk shall, within thirty days succeeding January first 15
of each year, return to the division all registration books used diu-ing 16
the year preceding, including all stubs and unused and Aoid certificates. 17
The director shall furnish the state treasurer with a list of the number IS
and kind of registrations recorded by each clerk during the pre\ious 19
month. 20
ifo°ense^'ra°-' SECTION 13. A non-rcsIdent certificate of registration shall entitle 1
game fronTthe ^he holder thereof to carry from the conmionwealth into any state accord- 2
^""monweaith. Jng sJniilar pri\ileges not more than ten birds, the ex]:)ortation of which is 3
wiijeii; ■ otherwise proliibited by law, and ten pounds of brook trout in any one 4
year; p^o^^ded, that he shall carry them open to view for inspection, 5
shall present his certificate for inspection upon demand, and shall have 6
informed by letter or otherwise the director or the warden in whose dis- 7
trict he is hunting or fisliing as to the number and kinds of such birds 8
and fish. 9
§8 10, 13.
1919,296.
§§ 11.14;
350, § 43.
Penalty for
false repre-
sentation,
etc.
190,5, .317,
§§3,6.
1907. 198,
§§ 1, 5.
190S,4.S4, §
1911,23.1,
§3; 614.
1912,379.
1913,24'.),
1919, 29t;,
350, J§ 39, 40
43.
3 Op. A. G. 514
Op. A. (1.
(1919) 96, lOr.,
11.
12;
Section 14. Whoever makes a false representation as to birthplace, 1
requirements for identification, or of facts relati^■e to property qualifica- 2
tions, or natiu^alization, or otherwise violates any provision of sections 3
three to fourteen, inclusi^•e, or is in any way directly or indirectly a party 4
thereto, shall be punished by a fine of not less than ten nor more than 5
fifty dollars or by imprisonment for not more than one month, or both. 6
The certificate of any person convicted of a \'iolation of the fish and 7
game laws or of any pro\'ision of sections three to fourteen, inclusi^•e, 8
shall be void, and shall immediately be surrendered to the officer securing 9
such con^•iction. The officer shall forthwith forward the certificate to 10
the director, who shall cancel the same and notify the clerk issuing the 11
certificate of the cancellation thereof, and no person shall be given a 12
certificate during the period of one year from the date of con\'iction. 13
Any certificate issued to such person within one year of his con\'iction as 14
aforesaid sliall be Aoid, and shall be surrendered on demand of any 15
officer authorized to enforce the fi.sh and game laws. No fee received for 16
a certificate cancelled under this section shall be returned. 17
Section 15. The director shall furnish all clerks with a list of inland
List of waters
stocked by
be'eiven'°° '" "^^'^ters stocked by him or his pretlecessors with fish since January fii-st,
igig^izqe 5 is- ^1""^^*^^" hundred and ten, and annually on or before January first a list
350,|§39,'40,43; of inland waters stocked by him with fish diu-ing the preceding year.
Certain un-
naturalized
foreign born
residents pro-
hibited from
hunting, etc.
1915, 240,
§ 1,2.
232U,S. 13S.
Op. A. G.
(1920) 87.
Section 16. No unnaturalized foreign born person who has resided 1
■ftitliin the commonwealth for ten consecutive days, who does not own 2
real estate in the commonwealth to the value of fi\-e hundred dollars or 3
more, shall hunt, capture or kill any wild bird or animal of any descrip- 4
tion, excepting in defence of the person, and no such person shall, within 5
the commonwealth, owti or have in his possession or under his control 6
a shotgun or rifle; any shotgun or rifle owned by him or in his possession 7
or under his control shall be forfeited to the commtrnwealth. \'iolations 8
of this section shall be punished by a fine of fifty dollars or by imprison- 9
ment for not more than one month, or both. 10
Chap. 131.] preservation of birds and animals. 1347
1 Section 17. Notice of the seizure of any firearm owned by or found P're'^to'- .^ ^
,, . -. IP •!• .. tobe notined
2 in the possession or under the control or any person violating any provision of seizure ot
3 of the preceding section shall he sent to the director by the officer making ims^wf §'^3.
4 the seizure immediately after the guilt of such person shall be established §§'39,\a'43.
5 by a final adjudication in any prosecution brought against him for such
6 violation, and any firearm so seized shall be sold, at the discretion of the
7 director, who shall pay the proceeds to the commonwealth.
1 Section IS. The director, wardens, deputies, members of the state Arrests.
2 police, and all other officers qualified to serve criminal process shall ion', mV. 1 13.
3 arrest, without warrant, any person found with a shotgun or rifle in his Ji^Jg' Is"; ^ *'
4 possession if they have reason to believe that he is a foreign born per- || ^^^ *^^^
5 son described in section sixteen. If the arrest be made upon Sunday, W2.
6 the person so arrested may be committed for safe keeping to a jail or
7 lockup for that day; but he shall be taken before a magistrate and
8 proceeded against on the next day; and any such officer may, if he has
9 reason to believe that a shotgun or rifle is being concealed by a foreign
10 born person described in section sixteen, apply to any court having juris-
11 diction of the ofi'ence, and the court, upon receipt of proof, made by affi-
12 davit, of probable cause for believing that there is such concealment by
13 such person, shall issue a search warrant and cause a search to be made
14 in any place where such shotgun or rifle may be concealed; and to that
15 end the said officer may, after demand and refusal, cause any building,
16 room, enclosure or car to be broken open and entered, and any receptacle
17 to be opened and its contents examinefl.
1 Section 19. Whoever, except as provided in section thirty-three, Pmaity for
2 thirty-four, thirty-seven, thirty-nine, forty-three, forty-four or se-\^enty- birds^ "'
3 two, takes or kills or has in his possession a wild or undomesticated bird J'g'70; 304; 1 1'.
4 except an English sparrow, crow blackbird, crow, jay, starling, the fol- Jg79'|oi,\''5
5 lowing named birds of prey, — sharp-shinned hawk, cooper's hawk, gos- p s 92, § e.
6 hawk, red-tailed hawk, red-shouldered hawk, duck hawk, pigeon hawk, isise] arb, § 4.
7 barred owl, great horned owl and snowy owl, • — and fresh M'ater or sea loosi 2S7.
8 fowl not named in said sections, or wilfully destroys, disturbs or takes a \l°l] |o°' ^ '"
9 nest or eggs of any wild or undomesticated bird, except such as are not 55^39^/0 '43
10 protected by this section, shall be punished by a fine of ten dollars for i9-o. 20s'.
11 each bird taken, killed or had in possession or for each nest or egg dis-
12 turbed, destroyed or taken; but a person OA'er twenty-one, who has a
13 certificate from the commissioner or from the president of the Boston
14 Society of Natural History that he is engaged in the scientific study of
15 ornithology or is collecting in the interests of a scientific institution, may
16 at any season take or kill a wild or undomesticated bird, except woodcock,
17 ruffed grouse and quail, or take the nests or eggs of such bird; but this
IS section shall not authorize a person to enter upon private grounds with-
19 out the consent of the owner thereof for the purpose of taking nests or
20 eggs or killing birds. The commissioner or the president of said society
21 may at any time revoke said certificate. The provisions of this section
22 as to certificates shall not apply to the birds mentioned in sections
23 twenty-one, twenty-three, twenty-four, twenty-six and twenty-seven.
1 Section 20. Wlioever, except as provided in section thirty-three, protection of
2 thirty-four, thirty-se^'en, thirty-nine, forty-three, forty-four or seventy- {Xi°' '"''^
3 two, captures or has in possession a wild or unrlomesticated bird except }gof'25o' § 2
4 those specified in section nineteen, and birds not found wild within the
1348
PRESERVATION OF BIRDS AND ANIMALS.
[ClL\P. 131.
commonwealth, shall be punished by a fine of ten dollars. Possession of 5
the wild or undomesticated birds specified in this section shall be prima 6
facie evidence that they have been captured and are held in possession 7
contrary to law. 8
^oma'nd""' SECTION 21. Whoever hunts, captures, wounds or kills a loon in or 1
eae'es- upon fresh water, or an eagle in any place, shall be punished by a fine of 2
twenty dollars. 3
Possession of
body or
feathers of
birds penalized.
1897, 524.
1898, 339.
R. L. 92, § 8.
1903, 329.
1 Op. A. G. 478.
Section 22. Whoever, except as pro\ided in section eighty-nine,
has in possession the body or feathers of a bird, the taking or killing
of which is prohibited by section nineteen, whether taken in tlie com-
monwealth or elsewhere, or wears such feathers for the purpose of dress
or ornament, shall be punished by a fine of ten dollars; but this section
shall not apply to non-residents of the commonwealth passing through
it or temporarily dwelling therein.
Protection of
gray, European
or Hungarian
partridees.
1911, 19,
§§ 1. 3.
Section 23. No person, except as provided in sections eighty-two,
eighty-three and eighty-six, shall hunt, pursue, take or kill, sell or offer
for sale, or have in possession the bird known as perdix cinerea, com-
monly called Hungarian partridge, gray or European partridge. Viola-
tions of this section shall be punished by a fine of not more than fifty
dollars for each bird or part thereof in respect to which such violation
occurs.
Protection
of prairie
chickens.
1906, 304.
Section 24. No person shall buy, sell or otherwise dispose of or
have in possession a prairie chicken, scientifically known as tympanuchus
Americanus and as pedioecetes phasianellus, or any part thereof, when-
ever or wherever taken. Violations of this section shall be punished by
a fine of twenty dollars for each bird or part thereof in respect to which
the violation occurs.
Protection of
homing
pigeons.
1911, 198.
Section 25. No person, except the owner, shall catch, detain, shoot
or kill, injure or in any way interfere with a homing or carrier pigeon,
or remove any identification mark, band or other thing from it. Viola-
tions of this section shall be punished by a fine of not less than twenty-
five nor more than fifty dollars for each bird in respect to which the Aiola-
tion occurs.
Protection
of upland
plovei,
wood duck,
etc.
1817, 103, §
1821, 10, § 1
Section 26. Whoever takes or kills a Bartramian sandpiper, also
called upland plover, a wood duck, a Carolina or mourning do\e, a gull
or a tern shall be punished by a fine of not less than ten nor more tiian
fifty dollars for every bird so taken or killed.
1835, 136, § 1.
R. S. 53, §§ 1,5.
1849, 158, §§ 2-4.
1850, 29B.
G. S. 82, §§ 5, 10.
1809, 241), § 4.
1870, 3CM, § 4.
1877, 95, § 3.
1S79, 209, §§ 3, 4.
1881, 297, § 3.
P. S. 92, §§ 4, 5.
1888, 27«, § 2.
1901, 178.
R. L. 92, § 5.
1903, 162.
1905, 414.
1900, 274.
1907,99.
1909, 508, § 3.
1910, 472.
1916, 15.
Protection of
heath hen.
1900, 141.
1911, 18.
1916, 15.
Section 27. Whoever takes or kills a heath hen shall be punished by 1
a fine of not less than twcnty-fi\'e nor more than one hundred dollars for 2
every bird so taken or killed. 3
Chap. 131.] preservation of birds .^nd .animals. 1349
1 Section 28. Whoever, except as provided in section eighty-nine, Protection
2 takes or kills a heron or bittern, or has in possession any such bird or part bitter™ ""^
3 thereof, whenever or wherever taken, shall be punished by a fine of not ^^'^^•^*^--
4 more than ten dollars for every bird so taken or killed, or bird or part
5 thereof so had in possession. Nothing in this section shall prevent the
6 owner or keeper of any trout pond or trout hatchery from killing any
7 heron or bittern engaged in the act of destroying fish.
1 Section 29. Whenever, during an open season for the hunting of Sr°game may
2 any kind of game, it shall appear to the governor that by reason of extreme -Jf t'J™^,"''^™'^'*
3 drought the use of firearms is likclv to cause forest fires, he mav, by proc- drought.
. ' ^ ' i' ' i' Jr 1909 422 § 1
4 lamation, suspend the open season and make it a close season for the
5 shooting of birds and wild animals of every kind for such time as he may
6 designate, and may prohibit the discharge of firearms on or near forest
7 land during the said time.
1 Section 30. During the time designated as above by the governor, violations of
2 all laws relating to the close season shall be in force, and whoever violates section'^^
3 any provision thereof shall be subject to the penalty prescribed therefor. i9S9j'|22', § 2.
4 Whoever, during a close season proclaimed as aforesaid, discharges a
5 firearm on or near forest land, or shoots any wild animal or bird, as to
6 which there is no close season other-s\-ise provided by law, shall be pmiished.
7 by a fine of not more than one hundred dollars.
1 Section 31. A proclamation issued under section twenty-nine shall fjbe'"ub^'°°
2 be published in such newspapers and posted in such places antl in such lished, etc.
3 manner, under the direction of the department, as the governor may i9i9[ 350,' § 39.
4 order.
1 Section 32. Sunday shall be close season. No person shall set traps, Sunday to be
2 hunt or destroy birds, wild animals or game of any kind on Sunday, isll, m°°'
3 except that animals caught in traps may be removed provided said traps ^04! 1*76.^ ^'
4 are not reset or baited. Whoever violates this section shall be punished i9is,53.
5 by a fine of not less than ten nor more than twenty dollars in addition to
6 any penalties for taking, killing or having in possession birds, wild animals
7 or game protected by law.
1 Section 33. Except as pro\-ided in section fifty-three, no person, close seaBon
2 except between the twentieth of October and the twentieth of November, and^rufled"^
3 both inclusive, shall hunt, pursue, take or kill a ruffed grouse, commonly i8°i7rio3, § 1.
4 called partridge, or a woodcock, or have the same, or any part thereof, fs'J'.^ilsf §'2.
5 in possession, whenever or wherever the same may have been taken or J|50' 296. ^
6 killed; and no person, except as pro\-ided in section thirteen, shall at g. s.'s2 §1.
7 any time transport or cause to be transported out of the commonwealth ises! 126!
8 the above named birds, or have in possession any such bird ^-ith intent is-b! 304] § i.
9 so to do. 1S74, 77, 5 1. 1877, 95, § 1. 1879, 209, § 1.
1881, 297, § 1. 1S9S. 195. 1912, 203.
P. S. 92. §§ 1,2. 1900,379, §§ 1,2, S. 1917, 170, § 1.
1886, 270, §§1,3. R. L. 92, §§ 2, 21. 1919, 153, § 1.
1888, 292. 1903, 206. 128 Mass. 410.
1890, 240, § 12. 1908, 441, §§ 1,4. Op. A. G. (1920) 107.
1891, 142. 1909, 272.
1893, 189. 1910, 30.5. Penalty, § 34.
1894, 205. 1911, 236, §§ 1, 2.
1 Section 34. Except as pro\4ded in section fifty-three, no person, Close season
2 except between the twentieth of October and the twentieth of November, isu^ios, § i.
3 both inclusive, shall hunt, pursue, take or kill a quail, or have the same fsss, i97,\^i.
1350
PRESERVATION OF BIRDS AND ANIMALS.
[Chap. 131.
G.S.
1865,
1867,
1868,
1869,
1871,
1879,
1S81,
P. S.
1886,
§§1,
1888,
1890,
1893,
1894,
1S98,
82. § 1.
158.
257.
.126.
246, § 2.
260.
, 209, § 1.
297, § 1.
92, § 1.
,276,
3.
292.
, 249, § 1.
189; 398.
,205.
195.
or any part thereof in possession, except as pro\-ided in section eighty- 4
two, eighty-tliree or eighty-six; and no person, except as pro\'ided in 5
section thirteen, shall at any time transport or cause to be transported 6
out of the commonwealth a cjuail taken or killed within the common- 7
wealth, or have in possession quail with intent so to do, except quail arti- 8
ficially propagated as provided in section eighty-two or eighty-three. 9
Whoever violates this or the preceding section shall be punished by a 10
fine of twenty dollars for each bird or part thereof in respect to which 11
the violation occurs. i9oo, 379, §§3,5. r. l. 92, §§ 2, 3, 21. 12
1902. 165.
1903, 206.
1905, 406.
1906, 303.
1908, 441,
i 1.3,4.
1909, 272.
1910, 365.
1911, 356, |§ 1, 4, 5.
1912, 270.
1917, 170, § 2.
1919, 153, § 2.
128 Mass. 410.
161 U. .S. 519.
Op. A. G. (1920) 107
Possession
prima facie
evidence of
violation.
1906, 303, § 3.
1908, 441,
§§3,4.
1911, 236, 5§ 2,
3; 356, §§4.5.
Section 35. The possession contrary to either of the two preced-
ing sections of ruffed grouse, woodcock or cjuail during the season when
taking or killing is prohibited by law shall be prima facie evidence that
the person having possession has violated some provision of the two
preceding sections.
Bag limit for
ruffed grouse,
woodcock and
quail.
1912, 523,
§§1.2.
Section 36. No person shall take or kill more than three ruffed 1
grouse in one day, or more than fifteen in one year; more than four wood- 2
cock or quail in one day, or more than twenty in one year, ^'iolations of 3
this section shall be punished by a fine of twenty dollars for each bird 4
in respect to which the violation occurs. 5
Close season
for swans, ducks
and geese.
1830, 69.
R. S. 63, § 1.
1837, 170. § 1.
1844, 156, § 1.
G. S. 82, § 6.
1869, 246, § 3.
1870, 304,
§§2,3.
1875, 172.
1877, 95,
§§2,7.
1879, 209,
§§2,9.
1881, 297,
§§ 1. 2.
Section 37. Whoever, except as provided in sections forty and eighty- 1
nine, kills a swan at any time, or pursues, hunts, takes or kills any other 2
of the anatidse, commonly known as wild geese, brant, ducks and teal, 3
between January sixteenth and September thirtieth, both inclusive, in 4
Barnstable, Bristol, Dukes or Nantucket county, or between December 5
thirty-first and September fifteenth in any other county, or buys, sells, 6
offers for sale or has in possession any such bird or part thereof during 7
the time when the taking or killing of them is prohibited by law, when- 8
ever or wherever said birds may be taken or killed, shall be punished by 9
a fine of not less than twenty dollars. 10
P. S.92, §§ 1,3.
1886, 276, §§ 1, 3.
1888, 292.
1890, 249, I 1.
1891, 142.
1893,189; 398.
1894, 205.
1S98, 195.
1900, 379, §§ 4, 5.
R. L. 92, § 4.
1906, 301, §§ 1-3.
1909,421, §§ 1,4.
• 1917, 73, § 1.
128 Mass. 410.
Bag limit
for black
ducks.
1911, 188.
Section 38. No person shall take or kill more than fifteen black 1
ducks in one day. Violations of this section shall be punished by a fine 2
of not less than twenty dollars for each bird in respect to which the 3
violation occurs. 4
Close season
for shore birds.
1817, 103, § 1.
1821, 10, § 1.
1835, 136, § 1.
R. S. 53,
§§1,5.
1849, 158,
§§ 2-4.
1850, 290.
G. S. 82,
§§ 5, 10.
1867, 257.
1869, 246, § 4.
Section 39. Whoever, except as provided in sections forty and 1
eighty-nine, takes, kills or pursues with intent to kill, or has in possession 2
any of the limicolce, known as peeps, plover, snipe or sandpipers, or 3
any of the rallidie known as rails, gallinules and quarks or mud hens, all 4
of which birds are known collectively as shore, marsh or beach birds, 5
between December thirty-first and August first, or a piping plover or a 6
kildeer plover at any time shall be punished by a fine of not less than 7
twenty dollars. isvo, 304, § 4. 8
1877, 95, § 3.
1879, 209, §§ 3, 4.
ISSl, 297, I 3.
P. .S. 92, § 4.
R. I,. 92, § 5.
1903, 162.
1905, 414.
1907, 99.
1909, 508, §1 1, 3, 4.
Chap. 131.] preservation of birds and animals. 1351
1 Section 40. Any resident of the commonwealth may apply to the Permit to
2 director for a permit to bring into the commonwealth any of the species intSlhc'^com-
3 of birds named in sections tliirty-seven and thirty-nine, during the close 5'909*42'i',''§ 2;
4 season above provided, to a number not exceeding fifty birds in one J^gigfg^,-,,
5 year, and the director may grant such permits upon such conditions §'§39, 4o,'43.
6 and for such terms as he may deem expedient, and he may suspend or
7 revoke a permit so granted.
1 Section 41. Whoever imports into or liberates within the common- wiid turkeys.
2 wealth aiiy wild turkey infected with the disease termed coccidiosis or §§ 2,'3. '
3 entero-nepatitis, commonly known as " black head", or imports any living §§'^|9,^|o;43.
4 wild turkey except under a special written permit from the director shall
5 be punished by a fine of twenty dollars.
1 Section 42. No person shall hunt, pursue, take or kill, sell or offer Pheasants.
2 for sale, or have in possession, a pheasant of any kind, or the flesh of any 1900! 64!
3 pheasant, except as provided in the two following sections or in section JlosiTl, ^ '*''
4 fifty-three, eighty-three or eighty-five. Whoever violates tliis section JgoH^f;
5 shall be punished by a fine of not more than fifty dollars for each bird or §§ !• 3. ■»•
6 part thereof in respect to which the violation occurs. 1909,309, §§ 1,3,4.
1 Section 43. The commissioner may declare an open season on Open season
. , , 1 • I 1 1 for pheasants.
2 pheasants m any county where such open season seems advisable, and loos, 477, § 2.
3 may make such rules and regulations relating to bag limit, time and §'§2,' 4. '
4 length of open season and varieties to be taken, and all other matters §'"|;|'^'''
5 connected with such open season as he may deem necessary or expedient; jfY'a"''
6 provided, that any person may hunt, pursue, take or kill pheasants ||'|^_^|o'
7 artificially propagated under section eighty-two or eighty-three on land
8 owned or leased by him. Whoever violates any such rule or regulation
9 shall be punished by a fine of not more than fifty dollars for each bird
10 or part thereof in respect to which the violation occurs.
1 Section 44. A person may capture, pursue, wound or kill, upon land ^0^^^ ^"'^^^^5
2 owned or occupied by him, a pheasant which he finds in the act of doing JJf^^ ''/gj'"'^-
3 damage to any crop on cultivated land or may authorize a member of §| 2,' 3.
4 his family or person permanently employetl by him on such land so to do. §'§ 39, 40.'
5 The person by whom or under whose direction a pheasant is so captured,
6 wounded or killed shall within twenty-four hours make a written report
7 to the director, stating the time, place and the number of pheasants so
8 captured, wounded or killed. Failure to make such report shall be pun-
9 ished by a fine of not more than fifty dollars.
1 Section 45. Whoever, except between October twentieth and No- ciose^season,
2 vember twentieth, both inclusive, hunts, takes or kills a gray squirrel, squirrels.
3 or takes or kills at any time a gray squirrel by means of a trap, net or is-g.'m 5 8.
4 snare, or for the purpose of killing a gray squirrel constructs or sets a fsse.^re! §5.
5 trap, snare or net shall be punished by a fine of not less than ten nor }9oi;^o2.
C) more than twenty-five dollars. This section shall not apply to the '/,Jo^- ^jr^^ "•
7 owner or occupant of any dwelling house or other building finding any ifioo' 4B6' § 2.
8 gray squirrel doing substantial damage to the same, or to any fruit tree, 191 1', 172.
9 grain or other growing cultivated crop. Whoever takes or kills more iglilMo.
10 than five gray squirrels in one day or more than fifteen in one year shall J^JJ' J™; | f
11 be punished by a fine of twenty dollars for each squirrel so taken or killed.
1352
PRESERVATION OF BIRDS AND ANIMALS.
[Chap. 131.
Hares and
rabbits.
1879, 209, § 8
P. S. 92. § 9.
1888, 276, § 5
1894, 97.
1901, 102.
R. L. 92, § 9.
1907, 166.
1908,413.
1909, 466,
§§1,2.
1911, 118,
§§1,4.
1914, 120.
1917, 170, § 4
196.
1919, 1.53, § 4
1920, 425,
§5 1, 3, 5.
Section 40. No person, except as provided in sections forty-nine, 1
fifty-tliree and eigiity-two to eighty-eight, inchisive, shall hunt, take, 2
kill or have in possession a hare or rabbit except between October .3
twentieth and January thirty-first, both dates inclusive, or diu-ing 4
the open season take or kill more than two northern varying hares, 5
otherwise known as Canada hares, snow-shoe rabbits or white rabbits, 6
or more than five rabbits in any one day, or have in possession more 7
than two of the said hares or five of the said rabbits taken or killed in 8
any one day; nor shall any person at any time buy, sell, offer for sale or 9
have in possession for the purpose of sale a hare or rabbit taken or killed 10
in this commonwealth, but during the open season in tliis common- 11
wealth hares or rabbits lawfully taken without the commonwealth may 12
be sold; provided, that the sale thereof is lawful in the state or country 13
in which they were taken. This section shall not apply to European hares 14
in the county of Berkshire which may be taken or killed at any time. 15
Hares
in certain
countiea.
1920, 425,
§§ 2, 5.
Section 47. In Barnstable, Dukes, Nantucket and Norfolk coun-
ties, hares may not be taken, killed or had in po.ssession except as
provided in sections forty-nine and eighty-two to eighty-eight, inclusive,
till April twentieth, nineteen hundred and twenty-three, except that
they may be had in possession in such counties if they were taken or
killed in another state or country without violating the laws thereof.
Rabbits not
to be trapped,
etc.
1874, 57.
1879, 209, § 6.
1881, 297, § 4.
P. S. 92, § 7.
1886, 276, § 6.
1891, 254.
1898, 124.
R. L. 92. § 11.
1906, 241,
1909, 328.
1910, 533.
§§ 2, 4, 5.
1911, 118,
§§ 2,4.5.
1919, S3.
1920, 425, § 4.
Section 48. No person shall remove or attempt to remove a hare 1
or a rabbit from any hole in the ground, stone wall, from under any ledge, 2
stone, log or tree, and, except as provided in the following section, 3
no person shall take or kill a hare or a rabbit by a trap, snare or 4
net, or for that purpose construct or set a trap, snare or net, or use a 5
ferret. The possession of a ferret in a place where hares or rabbits might 6
be taken or killed shall be prima facie evidence that the person ha^■ing 7
the ferret in possession has used it for taking and killing hares or rab- 8
bits contrary to law. Ferrets used in violation hereof shall be confis- 9
cated. Whoever, except as provided in section fifty, violates tliis section 10
shall be punished by a fine of not less than five nor more than fifty dollars. 11
bj'tra*^ ed^by Section 49. The tliTce preceding sections shall not be construed to
i^'i^'^^nn prohibit farmers and fruit growers from trapping rabbits in box traps at
i9oo', 379', § 1. any time during the year; provided, first, that such trapping is done on
R. l! 92, § 12. land owned or leased by the person setting the trap and used for the raising
i9io!633; of fruit, vegetables or other products by the person so trapping; second,
19U, us, § 3 that the person so trapping shall first have made an affida\'it before a jus-
1919, 350, § 43. i[(.Q of the peace that hares or rabbits have injured fruit, ^'egetables or
other products on his said premises and shall have forwarded the affida\it
so made to the director; and tliird, that the said director has issued to
him a permit so to trap. No person shall barter or sell hares or rabbits
trapped in accordance here\nth. Wioever violates this section shall be
punished by a fine of not more than ten dollars.
1
2
3
4
5
6
7
8
9
10
11
12
Penalty for
taking, etc.,
hares or
rabbits.
1.874, 57.
1879, 209,
§§ 6, 8.
Section 50. Wlioever takes, kills or has in possession a hare or rab- 1
bit contrary to any provision of section forty-six, forty-seven or forty- 2
eight shall be punished by a fine of not more than twenty dollars for 3
every animal so taken, killed or had in possession. 4
P. s.
92, §§ 7, 9.
1894,
97.
1886,
,276, §§5,6.
1901,
102.
1S91,
254.
R. L.
92,
(9, 11.
1906, 241.
1907, 1611.
1909, 328; 466, §§ 2, 3.
1910, 533, §§ 4. 5.
1911, lis, §§ 4, 5.
1920, 425, I 4.
ClL-VP. 131.] PRESERVATION OF BIRDS AND ANIMALS. 1353
1 Section 51. Except in Dukes and Nantucket counties, no person ciose season
2 .shall, except as provided in the two following sections and in sections fur-beaHng
•3 eighty-one to eighty-eight, inclusive, hunt, take or kill or have in pos- iSlg'^'ge, § i.
4 session the living or dead bodies or parts thereof of minks, otters, musk- JFf'o^J'
5 rats, skunks or raccoons except between November first and March first,
6 both dates inclusive, by shooting or trapping, provided that muskrats
7 may also be so taken in April and raccoons may also be taken with the
8 aid or by the use of dogs or guns in October, but not more than twenty-
9 five raccoons shall be taken by one person in one season.
1 Section 52. The bodies or skins of such animals which have been Buj-ing,
2 legally taken or legally propagated in the commonwealth or legally taken posLe?sL"n of
3 and transported from any other state or country which does not prohibit i92o,''437l''§\
4 their sale or export may be bought, sold or had in possession at all times.
1 Section 53. For the purpose of training hunting dogs which are duly Training dogs
2 licensed, no person duly licensed to hunt or trap shall be deemed guilty of gan'e bir'il"^
3 a violation of the game laws forbidding the hunting or pursuing of wild fn eio"™'''^
4 birds or wild quadrupeds by reason of the fact that he trains said dogs on |ffJ;°.J|j
5 said birds and quachupeds between September first and March first, both i92o, 437, § e.
6 dates inclusive; provided, that no birds or animals protected by law are
7 killed or injm'cd and that no firearm is had in possession by any person
8 so training dogs or by any person accompanying him.
1 Section 54. No person shall set or maintain any trap on the im- Restrictions
2 proved land of another, or on land posted as proA'ided in section seventy- t^apl*""'"^
3 nine, ^^■ithout the written consent of the owner or occupant, nor shall ^^"°' *^^' ^ ^•
4 any trap be placed in a public \\ay, cart road or path commonly used
5 as a passageway for human beings or domestic animals. No trap shall
6 be placed within ten feet of a muskrat house, nor shall a muskrat house
7 be torn open, disturbed or destroyed. Every trap shall be marked
8 with the name of the owner in such a manner that it shall be legible at
9 all times. All traps shall be removed at the close of the open season
10 on fur-bearing animals provided in section fifty-one. Any trap set in
1 1 \iolation of law shall be confiscated by any officer empowered to enforce
12 the fish and game laws and shall be declared forfeited and sold by
13 the director, or at his order, and the proceeds shall be paid to the
14 commonwealth.
1 Section 55. Owners of property, wliich has been damaged or injured foprofecr"^
2 or which the owners reasonably belie\e is likely to be injured by any jgog^^j^ . ^
3 wild quadruped, except deer, may, at any time and in such manner as
4 may be necessary to protect said property from said animals, place traps
5 of the size and kind not forbidtlen by section fifty-nine on the said land,
6 provided that the carcasses and skins of all animals so taken during
7 other than the open season shall not be sold.
1 Section 56. Violation of any provision of sections fifty-one to fifty- Penalties.
2 five, inclusive, shall be punished by a fine of not less than ten nor more 1920] 437,
3 than one hmidred dollars, in addition to any other penalty or forfeiture ^* '^' ^'
4 which may be imposed for taking, killing or ha\'ing in possession any
5 birds or animals at times or bv means contrarv to law.
1354
PRESERVATION OF BmDS AND ANIMALS.
[Chap. 1.31.
Birds, not to
be taken by
snares, etc,
1835, 136, § 2.
R. S. 63, § 6.
1855, 197, § 2.
G. S. 82,
§§2,11.
1870, 304, § 6.
1877, 95. § 5.
1879, 209, § 6.
1881. 297, § 4.
P. S. 92, § 7.
1886, 276. § 6.
1891, 254.
1892, 102. § 2.
1897, 184.
1901, 174.
R. L. 92. I 11.
1906, 241.
Section 57. Wlioever takes or kills a wikl bird or water fowl, for 1
^vhich a close season is provided, by means of a trap, net or snare, or, for 2
the purpose of killing a wild bird or water fowl, so protected by law, .3
constructs or sets a trap, net or snare, or pursues, shoots at or kills any 4
wild fowl, or any of the so called shore, marsh and beach birds, with a 5
swivel or pivot gun, or by the use of a torch, jack or artificial light, or 6
by the aid or use of any ^'chicle, boat or floating de\ice propelled by 7
steam, naphtha, gasoline, electricity, compressed air, or similar motive 8
power, or mechanical means other than sails, oars or paddles, except 9
such boats or floating de\'ices Avhen at anchor, shall be punished by a fine 10
of not less than five nor more than fifty dollars. i909, 328. 1 1
1, 4.
1910, 533,
1911, 101.
1916, 110.
1919, 65; 83.
1920, 437.
3 Op. A. G. 189.
Poison or wire
snares not to
be used.
1913,626, § 1.
Section 58. Whoe\er places poison in any form whatsoever for 1
the purpose of killing any animal, or constructs, erects, sets, repairs or 2
tends any wire snare for the purpose of catching or killing any animal, 3
shall be punished by a fine of not more than one hundred dollars; pro- 4
vided, that this section shall not prohibit any person from placing in or 5
near his house, barns or fields poison intended to destroy rats, woodchucks 6
or other pests of a like nature, or insects of any kind. 7
Certain traps
not to be used.
1913. 626, § 2.
Section 59. Whoever sets, places, maintains or tends a steel trap 1
with a spread of more than six inches, or a steel trap with teeth jaws, or 2
a "stop-thief" or choke trap with an opening of more than six inches, 3
shall be punished by a fine of not more than one hundred dollars. 4
Traps not to
be used witli-
out permission
of owner of
land.
1913, 626, 5 3.
Section 60. Whoever sets, maintains or tends a steel trap on enclosed 1
land of another, without the written consent of the owner thereof, or 2
whoever fails to visit at least once in twenty-four hours a trap set or main- 3
tained by him shall be punished by a fine of not more than twenty dollars. -4
Scented bait
not to be
used.
1911, 215.
Section 61. Whoever sets, places or locates a trap or snare of any
kind with scent or scented bait upon or near the premises of another,
without the consent of the owner or occupant of said premises, shall be
punished by a fine of not more than fifty dollars or by imprisonment for
not more than one month, or both.
Deer not to
be killed
except when
doing damage.
1898, 151.
R. L. 92, § 17.
1903, 245.
1905,419.
1907, 307.
1908. 377.
190'J, 396.
1910,545,
§§ 1.4,5.
1913, 529.
§§ 1.4,5.
1914.453.
1919, 350,
§§ 39, 40, 43.
lOp.A.G.
523.
4 Op. A. G.
512.
Section 62. Whoever, except as provided in tliis and the following 1
section, hunts, pursues, wounds or kills a deer, or sells or offers for sale, or 2
has in possession for the purpose of sale, a deer or the flesh of a deer cap- 3
tured or killed in the commonwealth shall be punished by a fine of not 4
more than one hundred dollars; provided, that this section shall not 5
apply to a tame deer belonging to any person and kept on his own prem- G
ises; and provided, further, that any farmer or other person may, on land 7
owned or occupied by him, or, witli the consent of the owner, upon land 8
adjacent thereto, pursue, wound or kill any deer which he has reasonable 9
cause to believe has damaged or is about to damage crops, fruit or or- 10
namental trees, except grass growing on unculti\'ated land; and he may 11
autliorize any member of his family, or any person employed by him so 12
to pursue, wound or kill a deer under the circumstances abo\'e specified. 13
In the event of the wounding or killing of a deer as aforesaid, the person 14
by whom or under whose direction the deer was wounded or killed shall, 15
within twenty-four hours thereafter, send to the director a written report, 16
Chap. 131.] preservation of birds and anim.^ls. 1355
17 signed by him, of the facts relative to the said wounding or killing, includ-
18 ing the time and place thereof, and the kind of tree or crop injured or
19 destroyed, or about to be injured or destroyed, by the deer. Whoever
20 sells or offers for sale the whole or any part of a deer killed under the afore-
21 said provision shall be punished by a fine of not more than one hundred
22 dollars.
1 Section 63. Any person duly authorized to hunt in the common- open season
2 wealth may, between sinirise of tiie first INIonday of December and sunset mo.^Ms,
3 of the following Saturday, hunt, pursue, take or kill by the use of a shot- flil'^'sg
4 gun, a wild deer, subject to the following restrictions and provisions: J?',?!^-*-
5 No person shall, except as provided in the preceding section, kill or have 1917. i39.
6 in possession more than one deer. No deer shall be hunted, taken or §§39, 40.' 43,
7 killed on land posted in accordance with section seventy-nine, or on land
8 under control of the metropolitan district commission, or in violation of
9 any city ortlinance or town by-law, or in any state reser\'ation. No
10 person shall make, set or use any trap, salt lick or other device for the
11 purpose of ensnaring, enticing, taking, injuring or killing a deer. Who-
12 ever wounds or kills a deer shall make a written report, signed by him,
13 and send it within twenty-four hours of such wounding or killing, to the
14 director, stating the facts relative to the wounding or killing. Violations
15 of this section shall be punished by a fine of not more than one hundred
16 dollars.
1 Section 64. '\^^^oever hunts, pursues, takes, wounds or kills a moose. Moose not
2 or sells, offers for sale or has in possession the flesh of a moose captured %i^ ^29,'^'
3 or killed in the commonwealth, shall be punished by a fine of not more ^ ^'' "^*-
4 than one hundred dollars.
1 Section 65. The director, wardens, deputies, any member of the Dogs chasing
2 state police, or any officer cjualified to serve criminal process, may kill a "ims-A. 10,
3 dog found chasing or himting deer at any time, if the dog is used for such ||g|' |j®; , ^,3
4 purpose with the knowledge and consent of his owner or keeper, and the H'J"i *•
5 owner or keeper shall be punished by a fine of fifty dollars. If a dog has 1730-40, 3. § 1.
6 twice been found chasing or hunting deer, and the owner or keeper of the 17B3-4! 2s, § 2.
7 dog has been notified on each occasion by the director, if the same dog is iso6[45!
8 thereafter found chasing or hunting deer, it shall be prima facie evidence Jsos!??!
9 that such chasing or hunting was with the knowledge and consent of 9'oo^?J?>'',',
10 the said owner or keeper. isgq, 246, § s.
1870, 304, §§ 7, S. 1881. 297, § 5. 1905, 245.
1871, 320. P. S. 92. §§ 8, 10. 1913, 552.
1874, 77, I 2. 1882, 199. 1919, 350, §§ 39, 40, 43,
1877, 95, §§ 6, S. R. L. 92, § 18. 99, 101, 102.
1879.209. §§ 7, 10. 1902,154. 1 Op. A. G. 523.
1 Section 66. Whoever during the open season for deer hunts, wounds Birds or quad-
2 or kills a bird or quadruped with a rifle, revolver or pistol, or in pursuit bekiifeS with
3 of birds or quadrupeds has in possession in any wood or field, or on any de'i.'r' le'as'on"
4 highway, a rifle, revolver or pistol shall be punished by a fine -of not less JgJ|' y^^' ^ ^•
5 than ten nor more than fifty dollars.
1 Section 67. Whoever sufi'ers loss by the eating, browsing or tramp- Damages by
2 ling of his fruit or ornamental trees, vegetables, produce or crops by wild paw by "
3 deer, if the damage is done in a city may inform the officer of police ^eaUh!""
4 thereof, who shall be designated to recei\'e such information by the mayor, i|j°i5' ^°^-
5 and if the damage is done in a town may inform the chairman of the
1356
PRESERVATION OF BIRDS AND AXIilALS.
[Chap. 131.
selectmen of the town where the damage was done, who shall proceed to 6
tlie premises and determine whether the damage was inflicted by deer, 7
and, if so, appraise the amount thereof if it does not exceed twenty dol- 8
lars. If, in the opinion of the ofBcer or chairman, the amount of said 9
damage exceeds twenty dollars, he shall appoint two disinterested per- 10
sons, who, with himself, shall appraise, under oath, the amount thereof. 11
The officer or chairman shall return a certificate of the damages found, 12
except in Suffolk county, to the treasurer of the county in which the 13
damage is done, within ten days after such appraisal is made. The 14
treasurer shall thereupon submit the same to the county commissioners, 1.5
who, within thirty days, shall examine all bills for damages, and if any 16
doubt exists, may summon the appraisers and all parties interested 17
and make such examination as they may think proper. The bills prop- 18
erly appro\ed with the cost of appraisal shall be sent by the county 19
treasurer to the state auditor, and they shall be paid by the common- 20
Mealth. In Suffolk county the certificate of damages shall be returned 21
to the treasurer of the town where the damage is done, who shall exer- 22
cise and perform the rights and duties hereby conferred and imposed 23
upon the county commissioners in other comities. The appraisers shall 24
receive from the commonwealth one dollar each for every such exami- 25
nation made by them, and shall receive twenty cents a mile, one way, 26
for their necessary travel. 27
Hunting in
public parks
prohibited.
1909, 362.
1920, 604, § 4.
Op. A. G.
(1920) 72, 215.
Section 68. No person shall hunt, pursue, take, kill or in any man- 1
ner molest or destroy any wild bird or game within the boundaries of any 2
state reservation, park, common or any land held in trust for public use, 3
except that the authorities or persons having the control and charge of 4
such reser\'ations, parks, commons or otlier lands may, with such limita- 5
tions as they may deem advisable, authorize persons to hunt, take or kill 6
within said boundaries any wild birds or animals not protected by law. 7
Such authorizations shall be by written license, revocable at the pleasure 8
of the authorities or persons granting it. The boards, officials and per- 9
sons ha^'ing charge of reservations, parks, commons and lands held for 10
public use shall enforce this section. Whoever violates this section shall 1 1
be punished by a fine of not more than twenty-five dollars. This section 12
shall not apply to state forests acquired under section thirty-three of 13
chapter one hundred and thirty-two. 14
Reservations
for protection
of birds or
animals.
1911,410, § 1.
1919, 350,
§§ 39, 40.
Section 69. For the purpose of protecting any species of useful
wild birds or quadrupeds and for aiding the propagation thereof the
commissioner may accjuire in fee by piu-chase, gift or devise, or may
lease, or, with the consent of the owners, may control any land, water
or shore or the right to use the same, including the right of the public in
such land or on such water or shore, as a bird and game preserve.
close season
on restricted
areas.
1911.410, § 2.
1910, 3S0,
§5 39, 40, 43.
Section 70. For the purposes aforesaid the commissioner, upon a 1
petition filed with him by the aldermen or the selectmen, or by one or 2
more owners of land, water or shore, if satisfied of the suitable character 3
and situation of the same, may, with the consent of the owners, order a 4
close season for one or more periods, not exceeding five years each, on 5
all wild birds and ciuadrupeds within the area or any part thereof specified 6
in the petition. But before making any such order, the director shall 7
give a public hearing upon the matter at some place in or near the territory 8
Chap. 131.] preservation of bird.s and ,\nimals. 1357
9 under consideration ; notice of said hearing shall be given by publication
10 once a week for two successive weeks in one or more newspapers pub-
11 lished in the counties embracing the territory, the last publication to be
12 at least seven days prior to the time fixed for the hearing.
1 Section 71. In respect to any territory mentioned in the two pre- Regulations for
2 ceding sections, the director may make such use of the land, water or shore ^^f"^^^°°'^'
.3 within the territory as he deems best for the purpose of improving the §§ V'g^"'
4 feeding and nesting en\droimient of birds or game, and may from time to ij'|9^4o'43
5 time make such rules and regulations relating to such territory as he
6 deems proper, and such rules and regulations when approved by the
7 governor and council shall have the force of law. The director may
8 liberate birtls within the limits of the said territories, and, when in his
9 opinion such action is advisable, co-operate with land owners within
10 such territory in experiments in the propagation of birds or quadrupeds.
11 Whoever violates any such rules or regulations shall be punished by a
12 fine of not more than one hundred dollars or by imprisonment for not
13 more than two months, or both.
1 Section 72. The director may appoint wardens or deputies to en- Enforcement
2 force sections sixty-nine to seventy-five, inclusive, and any rules and ignffio',"!"!;
3 regulations made thereunder, and may authorize in wxiting any such §|'|g^/o'43
4 warden or deputy or the owner or occupant of any land within any such
5 territory to himt, pursue, trap, snare or kill within the said territory and
6 under the direction of the director any quadrupeds or birds which he may
7 consider harmful to birds and game or to agriculture, or to take or re-
8 mo\'e the nests or eggs of any such birds.
1 Section 73. If an order is made by the commissioner establishing Publication
2 a close season or a preserve, as provided in section sixty-nine or seventy, ^tawishing
3 he shall cause a copy of the order to be published once a week for two ^esenation,
4 successive weeks in one or more newspapers published in the counties J^Ji' *^°j 5 s.
5 embracing the territory, and shall cause copies of the order to be posted §§ 39, 40.'
6 in conspicuous places within the towns where the territory is situated,
7 and also within the limits of the territory itself. If a great pond or
8 any part thereof, or any seashore, is included within the territory as to
9 which a close season is ordered as aforesaid, a copy of the order shall be
10 filed in the office of the clerk of any town bordering upon the pond or
11 seashore., and also in the office of the state secretary. An order made by
12 the commissioner in accordance herewith shall take effect, when posted
13 as aboA'e provided. Any order made in accordance herewith shall contain
14 a full description of the territory so established, and the period for which
15 it is closed.
1 Section 74. Whenever such preserve has been established or a close Penalty for
2 season has been established upon a territory by an order as above pro- re^J^Ttion.
3 vided, no person, except as provided in section seventy-two, shall molest, J^'yi'^i"'
4 himt, pursue, take or kill any bird or quadruped within the said territory,
5 or disturb or injure any nest, eggs or young, or remove the eggs or young
6 from the nest. Violations of this section shall be punished by a fine of not
7 more than one himrlred dollars or by imprisonment for not more than
8 two months, or both.
1358
PRESERVATION OF BIRDS .\ND .\NIMALS.
[Chap. 131.
Possession of
firearms on
reservation
prima facie
evidence of
violation.
1911, 410, § S.
Section 75. The entrance of any person with a firearm or any device
adapted for killing or injuring birds or quadrupeds or with a trap or snare
upon any territory established as a preserve or upon which a close season
has been established, shall be prima facie evidence of a violation of the
provisions of the preceding section.
Protection
of birds by
towns.
1913, 296.
Section 76. IMoney may be appropriated by a city council or a 1
town for the protection and encouragement of birds which li\'e upon 2
insects injurious to crops and trees. Such protection and encourage- 3
ment may include the appointment and payment of bird wardens. 4
Section 77. Whoever transports or causes to be transported out of
Birds illegally
killed not to
ofstete.""' the commonwealth any bird or animal protected by this chapter which
r*l'I™s 22°' ^^^^ illegally been taken or killed therein, or has in possession any such
1902, 236. bird or animal with intent so to do, shall be punished by a fine of twenty
dollars for each bird or animal so transported or had in possession.
Extermination
of English
sparrow.
1890, 4-13.
R. L. 92, § 24.
Section 78. Officers in charge of public buildings in cities and such 1
officers as the selectmen designate and appoint in towns shall take such 2
reasonable means and use such appliances, except poison, as in their 3
judgment will effectively exterminate the English sparrow in such cities 4
and towns, but nothing herein shall authorize an officer to enter on private 5
property without the consent of the owner or occupant thereof. Whoever 6
wilfully resists such officers while engaged in such duties or knowingly 7
interferes with the means used by them for such purpose shall be pun- 8
ished by a fine of not more than twentv-five dollars. 9
Posting land.
1S84. 303,
§§1.3.
R. L. 92, § 14.
4 Op. A. G.
518.
Section 79. Whoever, for the purpose of shooting or trapping, goes
on land without permission of the owner thereof, after such owner has
conspicuously posted thereon notice that shooting or trapping thereon
is prohibited, shall be punished by a fine of not more than twenty dollars.
arTifidaUy °^ Section SO. A pcrsou wlio artificially propagates and maintains 1
^l'^^^'^^^^ game upon land so posted shall have exclusi\'e property thereof. 2
1884. 308, I 2. R. L. 92, § 15.
Sale of wild
birds and
game for-
bidden.
1817, 103, §
1830, 69.
R. S. 63, § 1
1849, 158, §
1850, 296.
1855, 197, §
G. S. 82, § 1
Section 81. No person, except as provided in sections forty-six, fifty- 1
two and eighty-two to eighty-nine, inclusive, shall buy, sell, barter, ex- 2
change, or in any way deal in or trade with respect to, the dead or li^■ing 3
bodies, or any part thereof, of wild birds or game quadrupeds, protected 4
l)y law in any part of the United States, whene^•er and where\er taken 5
or killed. is69,246, §i. 6
1870, 304, § 1.
1877, 95, § 1.
1879, 209, § 1.
1881,297, § 1.
P. S. 92, §1 2, 4.
1884, 308, §§ 2, 3.
1886, 276, §1 3, 5.
1893, 189; ,398.
1894, 97: 205.
1898, 195.
1900, 379, §§ 2, 5.
1901, 102.
R. L. 92, §§ 2, 3, 6, 9, 15.
1902, 105.
1903, 206.
1904, 369.
1905, 406.
1906, 303, §§ 1, 2.
1907, 166.
1908,441, §§2,4.
1910,564, § 1.
1911, 172, § 1;
356, §§ 3, 5.
1912, 203; 567, §1
1913,270.
1917, 170, §§ 1. 3
1919,153, §§ 1,3.
4 Op. A. G. 518.
Penalty, § 88.
236, §§ 1, 2;
§§ 1, 9.
Rules for propa-
gation of wild
birds or game.
1906,301, 5 1.
1909,309, §2;
421, §§ 1,3.
1911, 19, §2;
3.56, § 2.
1912, 567,
§§2,9.
1919. 3.50,
§§ 39, 40, 43.
Section 82. Upon written application to the director, a license may
be granted, without charge, to any person to engage in the rearing within
an enclosure of any wild birds or game quadrupeds, and to dispose of the
same alive for purposes of propagation under such rules and regulations
as may be made by the director, which, when approved by the go\'ernor
and council, shall luu'e the force of law. Such artificially propagated wild
ClIAP. 131.] PRESERVATION OF BIRDS AND ANIMALS. 1359
7 birds or game quadrupeds, if alive, may be bought, sold and had in pos-
8 session at any season of the year for purposes of propagation.
1 Section 83. Upon written application to the director, a license may License for
2 be issued, without charge, to any person desiring to engage in the rear- ll"'oUuch
3 ing for sale as food of any of the species known as cervidfe (commonly gamlfw food.
4 known as deer or elk), pheasants, quail, European or gray partridge, igos^frr.'fo
5 wild geese, wild ducks of all species, and such other birds or quadrupeds ^s°2'4°4''i
6 as may appear to the director to be expedient, upon such terms and §§ h 3.
7 conditions as he shall prescribe. Such birds and quadrupeds killed § 2; sso.j 2.
8 and tagged in accordance with this section may be bought, sold and had §§3,' 9. ''
9 in possession. To each carcass of each bird or quadruped, and to each §1^39,^40,' 43.
10 quarter of those species known as cervidBe, reared under this section, shall Penalty. § ss.
11 be affixed a numbered tag, to be supplied by the director at a cost
12 of fi\'e cents each; and an accurate accoiuit of birds and quadrupeds
1.'^ so killed and tagged shall be kept by the licensee and submitted to
14 the director upon the first and fifteenth of each month during which
1.5 the killing of such birds and quadrupeds is permitted, together with the
16 names of any persons to Avhom they were sold or transported. EAcry
17 package containing birds or quadrupeds killed under this section shall be
18 plainly labelled with the name of the licensee by whom such birds or
19 quadrupeds were reared and killed, with the name of the consignee, and
20 with a statement of the nimiber and kind of birds or quadrupeds con-
21 tained therein. All carcasses or parts thereof shall remain entire and
22 unphicked until the time when they are prepared for consumption as
23 food. The sale of any carcass, or part thereof, not having at the time
24 affixed thereto the tag required by this section, shall be a \aolation of
2.5 sections eighty-one to eighty-six, inclusive.
1 Section 84. Any person holding a license under section eighty-two, Revocation
2 eighty-three or eighty-six, convicted of any violation of the fish and i9i2,'567!'§ 4.
3 game laws, shall forfeit such license and be debarred from securing a new |jgP- ^- °-
4 license for a period of one year from the date of conviction, in addition to
5 being subject to the penalties pro\ided in section eighty-eight. No pcr-
6 son and no corporation of which he is a member shall be eligible to hold
7 such a license if he has been convicted of any violation of the fish and
8 game laws within one year prior to application therefor.
1 Section 85. Any person licensed under section eighty-sLx may have Market man's
2 in possession and sell the unphicked entire bodies of tlie following i9i2!667. § 5.
3 species of birds imported from without the United States, namely, ^^^^' ^°°- ^ *^-
4 pheasants, mallard ducks, Scotch grouse, European black game, European
5 black plover, red-legged partridge, and Egyptian or migratory cjuail.
6 Any such person may buy, sell and have in possession deer, moose,
7 caribou and elk legally killed outside of the commonwealth and legally
8 transported therein; provided, that there is attached to some part of the
9 body of such deer, moose, caribou or elk the game warden's tag allowing
10 the same to be shipped from the state or country in which it was killed;
11 and provided, further, that before each bird is sold in the common-
12 wealth, there shall be affixed to each carcass or body, or part thereof, a
13 numbered tag to be supplied at a cost of five cents each by the director,
14 and said tag shall be affixed to said body or carcass upon its entry into
15 the commonwealth and be kept thereon while the same is mthin the
16 commonwealth.
1360
PEESERVATION OF BIRDS .^'D ,\NIMALS.
[Chap. 131.
Same subject.
1886, 276, § 3.
1391, 142, § 1.
1S93. 39S.
1894, 205.
1900, 379,
l§3,4.
Section 86. A dealer's license allowing the holder thereof to engage
in the business of selling and offering for sale wild birds or game quafl-
rupeds reared or imported under section eighty-three or eighty-five may
be granted without charge by the director to any person.
3, 4, 6.
R. L. 92, §i
1902, IBS.
1904, 369.
1905, 406.
1906, 301, §§ 1, 2;
303, §§ 1, 2.
1908,441, § 2.
1909,421, §§ 1, 3; 508, § 1.
1911, 356, § 3.
1912, 567, §§ 6, 9.
1919, 350, §§ 39, 40, 43.
Licenses
revocable.
Section 87. Licenses issued by the director may be revoked by him.
1912, 567, § 8. 1919, 3.50, §§ 39. 40, 43.
Penalties for
breach of sec-
tions 81 to 86.
1817, 103, § 1.
R. S. 53, § 1.
1837, 170, s 1.
1S44, 150, § 1.
1855, 197, I 1.
G. S. 82,
§§1,5,6.
1869. 246,
§§1,3.
Section 88. Whoever violates any provision of sections eighty-
one to eighty-six, inclusive, or any rule or regulation made thereunder,
or counterfeits or uses again any tags used as therein pro\ided, shall be
punished by a fine of not less than twenty nor more than fifty dollars for
each bird or quadruped, or part thereof, in respect to which the violation
occurs, and for a subsequent offence by imprisonment for not more than
three months. i870, 304, §§ 1-4. is77, 95, §§ 1-3.
1879,209, §§ 1-3.
1881,291, § 1.
P. S. 92, §§H.
1884, 308. § 3.
1886,276, §§3.5.
1893, 189.
1894, 97; 205.
1898, 195.
1900, 379, § 5.
1901, 102.
R. L. 92. §§2-4, 0, 9, 15.
1902, 165.
1903, 206.
1904, 369.
1905, 406.
1906,301, §§2, 3; 303, §§2,3.
1907, 166.
190.8,441, §§3, 4; 477, §3.
1909, 309, S§ 3, 4; 421,
§§3,4; 508, §§3, 4.
1910, 564, § 3.
1911, 19, § 3; 172, §§ 3, 4;
236, §§ 2, 3: 356, §§ 4, 5.
1912, 567, §§ 9, 10.
Museums,
etc., exempt
from certain
sections.
Application
of certain
sections.
1897, 524.
1898, 339.
Section 89. Sections twenty-two, twenty-eight, thirty-seven, thirty- 1
nine and eighty-one shall not apply to natural history associations 2
and museums nor to holders of the certificates provided for in section 3
nineteen, and sections eighty-one to eighty-six, inclusive, shall not apply 4
to the sale of feathers or fur. R. l. 92, §8. 5
1903. 244, § 2; 329.
1909, 421, § 1; 508, § 1.
1912, 567, § 7.
1917, 73.
Canada lynz.
1903, 344.
Section 90. Whoever in any town kills a wild cat, Canada lyiLx or
loupcervier not being in captivity shall, upon producing satisfactory evi-
dence of such killing, be entitled to recei^'e from the treasury of the town
the sum of five dollars; and all sums so paid out shall be repaid to the
town treasurer by the treasurer of the county where the town is situated :
provided, that a sworn statement thereof shall be transmitted by the
town treasurer to the county treasurer.
REFERENCES.
Bonds of city clerks relative to fees for hunter's certificate, Chap. 140, § 14S.
Dogs, Ucensing of. Chap. 130, § 137 el seq.
Fines, disposition of, under game laws. Chap. 130, § 13.
§§ 37, 39, 40 are affected by the act to carry out the treaty between the United
States and Great Britain as to migratory birds (40 U. S. Sts. at L. 755) and regula-
tions made thereunder.
Special Acts.
R. L. 92, § 13, Plymouth harbor and adjacent waters, kilhng of certain aquatic birds
restricted.
R. L. 92, § 23, Dukes county, killing of foxes, etc., in.
1905, 273, Dukes count}', shooting of ducks in waters restricted.
1907, 264, Dukes county, shooting of ducks restricted.
1907, 504, Martha's Vineyard, shooting heath hen.
1908, 331, Edgartown, shooting of wild fowl restricted.
1917, 40, Muskeget island, possession of live cats prohibited.
1917, 157, Hampden county, shooting quail in, regulated.
1917, 157, Middlesex county, shooting quail in, regulated.
1919, 40, Essex, Dukes and Nantucket counties, protection of quail.
1920, 273, Nantucket, use of decoys.
There are other special acts.
Chap. 132.]
FORESTRY.
1361
CHAPTER 132.
FORESTRY.
Sect.
1. Duties of state forester.
2. Gifts and bequests.
3. Payment of forest warden.
4. Report.
5. Management of forest land.
6. Advice to owners of forests.
7. Labor on state forests.
Agents destroying gypsy moths may
enter on any land.
Nurseries of forest trees.
Land for experiments in forest manage-
ment.
GjTJsy and brown tail moths declared
public nuisances. Regulations for
their suppression.
Penalty for interfering with moth
work.
13. Local gypsy moth superintendents.
14. Reimbursement of cities and towns.
15. Accounts.
16. Sums to be spent by cities and towns.
17. Same subject.
8.
9.
10.
11
12
Sect.
18. Notice to land owners. Assessment of
cost of work.
19. Assessment of special benefits.
20. Appeal.
21. Abatement of assessment.
22. Application for abatement.
23. Abatement.
24. Record of abatement.
25. Tent caterpillar, leopard moth and elm
beetle.
26. Entry on land. Assessment for cost of
work.
27. Arsenate of lead furnished at cost.
28. Collection of amount charged.
29. Forester to furnish arsenate of lead.
30. State forests.
31. Management of state forests.
32. Appropriation.
33. Additional lands for state forests.
34. Rules as to use of state forests.
.35. Forests in cities and towns.
36. Appropriation.
37. Duties of local forest wardens.
Section 1. The state forester, in this chapter called the forester, Duties ot
shall act for the commonwealth in suppressing the gypsy and brown tail igol, 409!§ 2.
moths; shall promote the perpetuation, extension and proper manage- igooiiesiii'
ment of the public and private forest lands of the commonwealth; Jg^g; ^l' * '■
shall give such a course of instruction to the students of the Massa- |5 1- 2-,
...,.^,, -. .. ™« iyi7, bd.
6 chusetts Agricultural College on the art and science of forestry as mav i^is' ssb, § 42.
224 Mass 28
7 be arranged by the trustees of the college and the forester; and shall
8 perform such other duties as may be imposed upon him by the governor
9 and council.
1 Section 2. The commissioner of conservation, in this chapter called p'f'= "P'^
n 1 *■ •!! ipi 1-1 bequests.
2 the commissioner, with the approval 01 the governor and council, may isos, 4Ts, § 3.
accept on behalf of the commonwealth bequests or gifts to be used for isia! 3,50!
the purpose of advancing the forestry interests of the commonwealth,
under the direction of the governor and council, in such manner as to
carry out the terms of the bequests or gifts ; and he may, subject to the
approval of the deed and title by the attorney general as provided in
8 section ten, accept on behalf of the commonwealth gifts of land to be
9 held and managed for the purpose provided in said section. A donor
10 of such land may reserve the right to buy back the land in accordance
11 with said section; but in the absence of a provision to that effect in his
12 deed of gift he shall not have such right.
3
4
5
6
7
1 Section 3. The forester shall from the money appropriated annually payment of
2 for the expenses of his office recompense the forest wardens for the time ig^.^""'*'^'''
3 spent by them in making investigations under his direction, as required [1*^^ I^q^ | 43
1362
FORESTRY.
[ClLiP. 132.
by section thirty-seven of tliis chapter and section twenty-five of chapter 4
forty-eight; provided, that he shall not be liable to make any such pay- 5
ment except upon the presentation of a duly itemized account or to pay 6
for such investigations at a rate greater than that approved by him or 7
in excess of the appropriation available for such pajTnent. He may also 8
expend such sums as are annually appropriated in making necessary 9
arrangements for conventions of forest wardens to be held at a place 10
within the commonwealth and in paying wholly or in part the traveling 11
expenses to and from their towns of such forest wardens who attend these 12
conventions; provided, that no money shall be expended in pajing the 13
traveling expenses of any one warden to or from more than one convention 14
in one year. 15
Report.
1904, 409. 5 5.
1905, 381. § 2.
1909, 263, § 2.
1911. 722. § 2.
1914. 720, § 3.
1916, 97.
1919, 350.
§§ 8, 39. 42.
Section 4. The commissioner shall make an annual report of the acts 1
of the forester. The report shall separate so far as practicable the expend- 2
itures on work against the gypsy moth from those on work against the 3
brown tail moth in each town. It shall include the account of all money 4
invested in each state forest and of the annual income and expense thereof, 5
and the report of the state fire warden required by section twenty-eight 6
of chapter forty-eight. 7
oflores^Uand SECTION 5. The forcstcr shall replant or otherwise manage all land 1
J2?S':JTo' t ?\ acquired by the commonwealth and held bv it under section ten in such 2
manner as will produce the best forest growth both as to practical forestry 3
4
results and protection of water supplies.
Advice to
owners of
forests.
1904. 409. § 2.
1919. 350. § 42.
224 Mas3. 28.
Section 6. The forester may give to any person owning or controlling 1
forest lands aid or advice in the management thereof. Any recipient of 2
such aid or advice shall be liable to the commonwealth for the necessary 3
expenses of travel and subsistence incurred by him or his assistants. The 4
forester may publish the particulars and results of any investigation made 5
by him or his assistants as to any lands within the commonwealth, and 6
the advice given. 7
Labor on
state forests.
1914. 720, I 4.
1919, 350, § 42.
Section 7. The forester, in the reforestation, maintenance and
development of lands purchased under section tliirty or thirty-three,
shall, so far as practicable, obtain the labor necessary therefor under
sections eighty-three and eighty-four of chapter one hundred and
twenty-seven.
Agents
destroying
gypsy moths
may enter on
any land.
1905, 381, 5 3.
1906, 268, § 1.
1908, 591,
§§ 1. 2.
1909, 263. § 2.
1915, 124.
1919, 350, § 42.
Section 8. The clerks, assistants and agents employed by the for- 1
ester may, for the purpose of carrying out the provisions of this chap- 2
ter relative to the suppression of gypsy and brown tail moths, enter 3
upon any land; and any local superintendent appointed as provided in 4
section thirteen or any agent or employee of such superintendent may 5
enter upon any land within the said town for the purpose of determin- G
ing if such land is infested with said moths or the extent to which such 7
land is so infested. 8
Nurseries of Section 9. The forestcr may establish and maintain nurseries for the 1
1904, 409"§ 3. propagation of forest tree seedlings upon such lands of the commonwealth 2
1919! 35o! § 42. at any state institution as the superintendent or trustees thereof may set 3
apart for this purpose. Superintendents of institutions where land is 4
CllAP. 132.] FORESTRY. 1363
5 set apart therefor may furnish without charge the labor of their inmates
6 necessary to estabUsh and maintain said nurseries. Seedlings from these
7 nurseries shall be furnished to the commonwealth without expense for use
8 upon reservations set aside for the propagation of forest growths for other
9 than park purposes. All stock grown in nurseries established under this
10 section shall be used within the commonwealth and shall be furnished to
11 state institutions without charge. The forester may distribute seeds and
12 seedlings to land owners, citizens of the commonwealth, under such con-
13 ditions and restrictions as he may determine, subject to the approval of
14 the governor and council.
1 Section 10. The commissioner, with the advice and consent of the Land for ex-
2 governor and council, for experiment and illustration in forest manage- For™m'an'a°ge-
3 ment and for reforestation as set forth in this section may expend annu- igos%78,
4 ally such sum as is appropriated by the general coiu't in purchasing ||o9' I'h^'
5 lands situated within the commonwealth and adapted to forest produc- J?i|i^°i''
6 tion. Land so acquired shall be under the control and management
7 of the forester, who may, subject to the approval of the governor
8 and council, cut and sell trees, wood and other produce therefrom. The
9 price of such land shall not exceed in any instance five dollars per acre,
10 nor shall more than eighty acres be acquired in any one tract in any one
1 1 year, except that a greater area may so be acquired if the land purchased
12 directly affects a source or tributary of water supply in any town of the
13 commonwealth. All such lands shall be conveyed to the commonwealth,
14 and no lands shall be paid for nor shall any money be expended in im-
15 provements thereon until all instruments of conveyance and the title to
16 be transferred thereby have been approved by the attorney general, and
17 until such instruments have been executed and recorded. For assisting
18 in reforestation a portion, not exceeding twenty per cent of the money
19 authorized to be expended under this section may be used by the forester
20 for the distribution, at not less than cost, of seeds and seedlings to land
21 owners who are citizens of the commonwealth, under such conditions
22 and restrictions as the forester, subject to the approval of the governor
23 and council, may impose. The owners of land purchased under this sec-
24 tion, or their heirs and assigns, may repurchase the land within ten years
25 after the purchase, upon paying the price originally paid by the com-
26 monwealth, with interest at the rate of four per cent per annum,
27 together with the amount expended in improvements and maintenance.
28 The commissioner, with the approval of the governor and council, may
29 execute in behalf of the commonwealth such deeds of reconveyance as may
30 be necessary; provided, that there shall be included in such deeds a restric-
31 tion that trees cut from such property shall not be less than eight inches
32 in diameter at the butt.
1 Section 11. The forester may, subject to the approval of the gov- Gypsy and
2 ernor, make rules and regulations governing all operations by towns or motiisde^'
3 persons for the purpose of suppressing the gypsy and brown tail moths, nuSat^es''''"
4 their pupse, nests, eggs and caterpillars, which are hereby declared public ^r^h^'r""^
5 nuisances. He may make contracts on behalf of the commonwealth; jngFlgj™-
6 may act in co-operation with any person, any other state, the United §§ i.'s.
7 States, or any foreign government; may conduct investigations and gather igos! 591! § 1'.
8 and distribute information concerning said moths; may use and require i9?9!35o!
9 the use of all other lawful means of suppressing said moths; may lease ^^ '*''^^'
1364
FORESTRY.
[Chap. 132.
2 0p. A. G.589. real estate M'lien he deems it necessary, and, with the approval of the 10
^- ■ ■ ■ authority in charge, may use any real or personal property of the com- 11
monwealth; may at all times enter upon any land, and may use all reason- 12
able means in suppressing said moths; and, in the undertakings aforesaid, 13
may, in accordance with this chapter, expend the funds appropriated or 14
donated therefor; but no expenditure shall be made or liability incurred 15
in excess of such appropriations and donations. No owner or occupant 16
of an estate infested by the aforesaid nuisances shall by reason thereof be 17
civilly or criminally liable except to the extent and in the manner and 18
form set forth in this chapter. 19
Penalty for
interfering
with moth
work.
1902, 57. § 3
1905, 381, §
1906, 268, I
1909, 263, I
1919, 350,
§§39,41.
Section 12. Whoever wilfully resists or obstructs the forester or any 1
ofHcer of a town, or a servant or agent duly employed by said forester or 2
by any of said officers wliile engaged in suppressing the gypsy and brown 3
tail moths, elm leaf beetle, or any other tree or shrub destroying pest, 4
or knowingly fails to comply with any of the rules or regulations issued 5
by the forester, shall be punished by a fine of not more than twenty-five 6
dollars. 7
moth^^enn- SECTION 13. The mayor in cities and the selectmen in towns shall 1
ilostssi, § 4. annually in the month of January appoint a local superintendent for 2
1907' 52i' I f *^^^ suppression of gypsy and brown tail moths. Said superintendents 3
i9io! i5o'. shall, under the advice and general direction of the forester, destroy 4
1919] 35o! § 42. the eggs, caterpillars, pupae and nests of the gypsy and brown tail moths 5
within their limits, except in parks and other property under the control 6
of the commonwealth, and except in private property, save as other- 7
wise provided herein. The appointment of a local superintendent 8
shall not take effect unless approved by the forester; and when so 9
approved notice of the appointment shall be given by the mayor or the 10
selectmen to the person so appointed. 11
Reimbiurse-
ment of cities
and towns.
1905, 381,
§§ 4, 12.
1906, 268, § 2.
1907, 521,
§§ 1,2,4.
1909, 263. § 2.
1910, 150.
1911,474.
1913, 600, § 2.
1919, 350, § 42
Section 14. When any city or town in which one twenty-fifth of 1
one per cent of the assessed valuation of real and personal property is 2
more than five thousand dollars shall have expended within its limits 3
city or town funds to an amount in excess of five thousand dollars in 4
any one year ending November thirtieth in suppressing gypsy or brown 5
tail moths, the commonwealth shall reimburse such city or town to 6
the extent of fifty per cent of such excess above said five thousand 7
dollars. 8
Cities or towns where one twenty-fifth of one per cent of the assessed 9
valuation of real and personal property is less than five thousand dollars, 10
and where the assessed valuation of real and personal property is greater 1 1
than six million dollars, shall be reimbursed by the commonwealth to the 12
extent of eighty per cent of the amount expended by such cities or towns 13
of city or town funds in suppressing said moths in any one such year, 14
in excess of said twenty-fifth of one per cent. 15
In towns where the assessed valuation of real and personal property 16
is less than six million dollars, after they have expended in any one such 17
year town funds to an amount equal to one twenty-fifth of one per cent 18
of their assessed valuation of real and personal property, the common- 19
wealth shall expend within the limits thereof for the suppression of said 20
moths such an amount in addition as the forester, with the advice and 21
Chap. 132.] forestry. 1365
22 consent of the governor, shall determine. The commonwealth shall reim-
23 burse cities and towns every sixty days.
24 No city or town shall be entitled to any reimbursement from the com-
25 monwealth until it has submitted to the state auditor itemized accounts
26 and vouchers showing the definite amount expended by it for the purpose
27 of suppressing said moths, nor shall any money be paid out of the state
28 treasury to cities or towns until said vouchers and accounts have been
'29 approved by the forester and the state auditor.
30 For the purposes of this section and section sixteen the valuation of
31 the previous year shall be taken as a basis.
1 Section 15. Every city or town in rendering the account required nSs^ali; § 7.
2 by the preceding section shall deduct from such amount as it has expended }^o^' ^^s. | s.
3 the total amount it has assessed for work performed under section eighteen
4 during the term covered by the account, if such work was performed
5 under such conditions as require reimbursement in whole or in part by
6 the commonwealth.
1 Section 16. When, in the opinion of the forester, any city or town sums to be
2 is not expending a sufficient amount for the abatement of said nuisance anTto'wns.""^^
3 or is not conducting the necessary work in a proper manner, the forester Jggf,; HI] | 3;
4 shall, with the advice and consent of the governor, order such city or J^°^' |f;^' 1 1
5 town to expend such an amount as the forester shall deem necessary, Jn'Mlii' 540
6 and in accordance with such methods as the forester, with the consent of 2 Op! a. g. 594!
7 the governor, shall prescribe; provided, that no city or town where the
8 assessed valuation of real and personal property exceeds six million
9 dollars shall be required to expend, exclusive of any reimbursement re-
10 ceived from the commonwealth, during any one full year more than one
11 fifteenth of one per cent of such valuation, and that no town where the
12 assessed valuation of real and personal property is less than six million
13 dollars shall be required to expend, exclusive of any reimbursement
14 received from the commonwealth, during any one full year more than one
15 twenty-fifth of one per cent of such valuation.
1 Section 17. Any city or town failing to comply with the directions Same subject.
2 of the forester in the performance of said work within the date specified Itae. las, 1 3.
3 by him shall pay a fine of one hundred dollars a day for failure so to do, {gog; 263] 1 2.
4 said fine to be collected by information brought by the attorney general }g}g' Hq , ^3
5 in the supreme judicial court for Suffolk county.
6 In case of emergency, or where there is great or immediate danger of
7 the increase or spread of moths due to the neglect of any city or town
8 to comply with the pro\isions of this chapter relating to the suppression
9 of gypsy and brown tail moths, the forester, with the consent of the
10 governor, may initiate or continue the work of suppression within such
1 1 city or town for such a period as he may deem necessary. The cost of
12 such work, including that done on private estates, less any sum due from
13 the commonwealth by way of reimbursements on account of said work,
14 shall be certified by the forester to the state treasurer, and be collected
15 by him as an additional state tax upon the city or town so failing to
16 comply with the requirements of the law. The forester may also in case
17 of emergency, subject to the approval of the governor, carry on wholly
18 or in part such operations as may be necessary to check the spreading of
1366 FORESTRY. [ChAP. 132.
the gj^psy or brown tail moth in parks not under the control of the com- 19
monwealth, and in cemeteries, woodlands and other places of public 20
resort. The amount to be so expended in any one year shall not exceed 21
ten per cent of the appropriations made for the year by the commonwealth 22
for the purpose of suppressing said moths. The forester may also take 23
complete control of the work of suppressing the gypsy and brown tail 24
moths in such cities and towns as may through the proper officials request 25
it. The cost of such work shall be certified by the forester to the state 26
treasurer, and shall be collected by him as an additional state tax upon the 27
city or town wherein such work is performed; provided, that no city or 28
town shall be required to pay more for such work than would have been 29
its liability as defined by section fourteen. 30
landown" SECTION 18. The mayor of every city and the selectmen of every 1
Assessment of towu shall, ou OF bcfoFC Novcmbcr first in each year, and at such other 2
1905, 381, § '6, times as he or they shall see fit or as the forester may order, cause a notice 3
1908] 59i! 1 2. to be sent to the owner, so far as can be ascertained, of every parcel of land 4
1915; 124! ^ ^' therein which is infested with said moths; or, if such notification appears 5
mVs^ss! 394^' to be impracticable, by posting such notice on said parcels of land, re- 6
2 Op. A. G. 594. quiring that the eggs, caterpillars, pupse and nests of said moths shall be 7
destroyed within a time specified therein. The publication of the notice 8
in newspapers published or circulated in the city or town at least three 9
times during the month of October shall be deemed a compliance with the 10
law, if in the opinion of the mayor or selectmen such publication will be 1 1
a sufficient notice. 12
When, in the opinion of the mayor or selectmen, the cost of destroying 13
such eggs, caterpillars, pupse or nests on land contiguous and held under 14
one ownership in a city or town shall exceed one half of one per cent of 15
the assessed value thereof, a part of said premises on which said eggs, 16
caterpillars, pupae or nests shall be destroyed may be designated in such 17
notice, and such requirement shall not apply to the remainder of said 18
premises. The mayor or selectmen may designate the manner in which 19
such work shall be done, but all work done under this section shall be sub- 20
ject to the approval of the forester. 21
If the owner shall fail to destroy such eggs, caterpillars, pupte or nests 22
as required by said notice, the city or town, acting by the local superin- 23
tendent appointed under section thirteen, shall, subject to the approval 24
of the said forester, destroy the same, and the amount actually ex-pended 25
thereon, not exceeding one half of one per cent of the assessed valuation 26
of said lands, as heretofore specified in this section, shall be assessed upon 27
the said lands; and such an amount in addition as shall be required shall 28
be apportioned between the city or town and the commonwealth in 29
accordance with section fourteen. The amounts to be assessed upon 30
private estates as herein provided shall be assessed and collected, and 31
shall be a lien on said estates, in the same manner and with the same 32
effect as in the case of assessments for street watering. 33
rflp^cTaT' Section 19. If, in the opinion of the assessors of a city or town, any 1
1905^^81 5 7 '^^"^ therein has received, by reason of the abatement of said nuisances 2
1909] 20:5; I i. thereon by said forester or bv said city or town, a special benefit bevond the 3
1919 350 § 42. *".. ^ r ^v
' general advantage to all land in the city or town, then the said assessors 4
shall determine the value of such special benefit and shall assess the 5
amount thereof upon said land; provided, that no such assessment on lands 6
Chap. 132.] forestry. 1367
7 contiguous and held under one ownership shall exceed one half of one per
8 cent of the assessed valuation of said lands; and provided, that the owner
9 or owners shall have deducted from such assessment the amount paid and
10 expended by them during the twelve months last preceding the date of
11 such assessment toward abating the said nuisances on said lands, if, in the
12 opinion of the assessors, such amount has been expended in good faith.
13 Such assessment shall be a lien upon the land for three years from the
14 first day of January next after the assessment has been made, and shall
15 be collected under a warrant of the assessors to the collector of taxes of
16 such city or town, in the manner and upon the terms and conditions
17 and in the exercise of the powers and duties, so far as they may be ap-
18 plicable, prescribed by chapter sixty, and real estate sold under such '
19 warrant shall be subject to the provisions of said chapter relative to
20 land sold for taxes.
1 SectiojST 20. A person aggrieved by such assessment may appeal to Appeal,
2 the superior court for the county where the land lies, by entering a com- ^°°^' ^^^' ^ ^'
3 plaint in said court within thirty days after he has had actual notice
4 of the assessment, which complaint shall be determined as other causes
5 by the court without a jury. The complaint shall be heard at the first
6 sitting of said court for trials without a jury after its entry; but the court
7 may allow further time, or may advance the case for speedy trial, or may
8 appoint an auditor as in other cases. The court may revise the assess-
9 ment, may allow the recovery of an amount wrongfully assessed which
10 has been paid, may set aside, in a suit begun within three years from the
11 date thereof, a collector's sale made under an erroneous assessment, may ^
12 award costs to either party, and may render such judgment as justice and
13 equity require.
1 Section 21. If, in the opinion of the assessors, the owner of an estate Abatement of
2 upon which an assessment has been made is, by reason of age, infirmity or igoTssT.*! v.
3 poverty, unable to pay the assessment, they may upon application abate Jgof; goj; 1 3;
4 the same.
1 Section 22. A person aggrieved by the taxes assessed upon him for Application for
2 the suppression of gypsy and brown tail moths, pursuant to section i9ii°243,'§ 1.
3 eighteen or nineteen, may, within six months after the date of the first tax
4 bill issued on account of the taxes complained of, apply to the assessors
5 for the abatement thereof, who may make such abatement as they deem
6 reasonable.
1 Section 23. The assessors shall not abate a tax under the preceding Abatement
2 section except upon the written recommendation of the local superin- ^^^'' ^''~' ^ ^"
3 tendent who certified the assessment in question to the assessors or pro-
4 vided them with the information as to the work performed, upon which
5 such tax was assessed, unless the error or excess complained of originated
6 in the work of the assessors who laid the tax.
1 Section 24. The assessors shall keep a record of all such taxes abated Record of
2 and shall preserve for three years all written recommendations received 1911,242, §3.
3 under the preceding section. They shall fift-nish the collector of taxes
4 with a certificate of each abatement, which shall relieve him from the
5 collection of the sum abated.
1368
FORESTRY.
[Chap. 132.
Tent cater-
pillar, leopard
moth and elm
beetle,
1902, 57, § 1.
1914, 404, § 1.
Section 25. The city forester, superintendent or other person having 1
charge of the suppression of gji)sy and brown tail moths in each city and 2
town in the commonwealth, or, where there is no such person, the tree 3
warden may destroy within the limits of his city or town the tent cater- 4
pillar, leopard moth and elm beetle or any other tree or shrub destroying 5
pest, if authorized so to do by the mayor and city council or by the select- 6
men in towns. 7
Entry on land.
Assessment for
cost of work.
1902,57, § 1.
1914, 404, § 2.
Section 26. The city forester or other officer designated in the 1
preceding section may enter upon private land, and the owners of private 2
land may be taxed for work done under said section as provided by 3
sections eighteen and nineteen; provided, however, that nothing con- 4
tained in this section shall require the commonwealth to pay any part of 5
any such expense other than for the suppression of the gypsy and brown 6
tail moths, that no land shall be assessed hereunder which has been 7
assessed the maximum amount provided by said sections eighteen and 8
nineteen for the suppression of the gypsy and brown tail moths, and 9
that the aggregate assessment on any parcel of private land for the sup- 10
pression of the tent caterpillar, leopard moth, elm beetle and gypsy 11
and brown tail moths shall not exceed the maximum provided by said 12
sections. 13
Arsenate of
lead furnished
at cost.
1913, 605, § 1.
1915, 80.
Section 27. To assist in exterminating gj^psy and brown tail moths,
the local moth superintendent in any city or town may furnish, at cost,
to any owner of real estate situated within such city or town arsenate of
lead. It shall be used only for the suppression of gypsy and brown tail
moths and only upon land of the purchaser.
Collection
of amount
charged.
1913, 605, § 2.
Section 28. The amounts due for material furnished under the
preceding section shall be charged by the local moth superintendent to
the owners of private estates, and shall be collected in the same way as
amounts a.ssessed for private work, and shall be a lien on said estates in
the same manner as said assessments. The amount thus charged shall
be deducted from the total amount expended in each city or town in the
suppression of the gypsy and brown tail moths as provided in section
fifteen.
1
2
3
4
5
6
7
8
Forester
to furnish
arsenate
of lead.
1915, 171.
1919, 350, § 42.
Section 29. To assist in exterminating insect pests the city forester, 1
local moth superintendent or tree warden in any city or town may obtain 2
from the forester, at cost, arsenate of lead. It shall be used only for the 3
suppression of gypsy and brown tail moths, the tent caterpillar, leopard 4
moth and elm beetle, and only upon lands owned or controlled by the 5
city or town. The cost of said material shall be certified by the forester 6
to the state treasurer, and shall be collected by him as an additional state 7
tax upon the city or town making such purchase. 8
state forests.
1914, 720, § 2.
1916, 130.
1919. 350,
§§39-42.
Section 30. The commissioner may, subject to the approval of the
advisory council of the department of conservation, acquire for the
commonwealth, by purchase or otherwise, and hold, any woodland or
land suitable for timber cultivation within the commonwealth, and, with
the approval of the governor and council, may take such lands in fee by
eminent domain under chapter seventy-nine. The commissioner may,
Chap. 132.] forestry, 1369
7 subject to the approval of the advisory council of the department of
8 conservation, after a public hearing, sell or exchange any land thus ac-
9 quired which in his jlidgment can no longer be used advantageously for
10 such purpose. The average cost of land so purchased by the commis-
11 sioner shall not exceed five dollars an acre.
1 Section 31. Lands acquired under the preceding section shall be Management
2 known as state forests, and shall be under the control and management of i9H^72o°r3'^'
3 the forester. He shall reforest and develop such lands, and may, subject '®^'*' ^''°' ^ *^-
4 to the approval of the commissioner and advisory council of the depart-
5 ment of conservation, make all reasonable regulations which in his opinion
6 will tend to increase the public enjojTnent and benefit therefrom and to
7 protect and conserve the water supplies of the commonwealth.
1 Section 32. The forester, subject to the approval of the commissioner Appropriation.
2 and advisory council of the department of conservation, may expend 1919; 350, \ 42.
3 such sums as are annually appropriated for the necessary expenses in-
4 curred under section thirty-one.
1 Section 33. In 'addition to lands acquired under section thirty the Additional
2 commissioner may purchase or take by eminent domain and hold for it a S" forests.
3 state forests lands within the commonwealth suitable for the production ||"{':3^°'''
4 of timber to the extent of not more than one hundred thousand acres.
5 The land shall be purchased before August fifth, nineteen hundred and
6 thirty-five, at a rate not exceeding an average cost of five dollars per
7 acre or at such price as the general court may from time to time deter-
8 mine. The forester shall reclaim the said lands by replanting or other-
9 wise in order to produce timber and to protect the water supply of the
10 commonwealth.
1 Section 34. The commissioner may make rules and regulations Rules as to
2 relative to hunting and fishing or other uses of any such land, provided forests^
3 that such rules and regulations shall be consistent with all laws in rela- ^^^°' '^°*' ^ *'
4 tion to the protection of fish, birds and quadrupeds.
1 Section 35. Towns may acquire by purchase, gift or bequest lands Forests
2 for the purpose of forestation at a rate not exceeding an average cost of towns^^^°
3 five dollars per acre and may reclaim and plant such lands. The said ^^^°' ^°*' ^ ^'
4 department may upon application in such form as the forester may pre-
5 scribe furnish such towns free of charge with seedlings for the planting
6 of their lands.
1 Section 36. To meet the expenditures authorized by sections thirty- Appropriation.
2 three to thirty-five, inclusive, the said department may expend before ^^"°' ''°*' ^ "'
3 August fifth, nineteen hundred and thirty-five, such simis not exceed-
4 ing three million dollars as the general com-t may from time to time
5 appropriate.
1 Section 37. Every local forest warden, in addition to his duties pre- Duties of
2 scribed by chapter forty-eight, shall investigate the values of forest lands, wa^dinr^'
3 the character and extent of woodcutting operations, the prevalence of Jgjgj 350, 1 42.
1370 FORESTRY. [CrAP. 132.
insect pests injurious to forest growths, and other matters affecting the 4
extent and condition of woodlands in his town, and shall report thereon 5
to the forester at such times and in such form as he requires. 6
REFERENCES.
Setting fires in the open air, and state forester's power in relation thereto, Chap.
48, §§ 13-15.
Taxation of forest land, Chap. 61.
Certain duties of forest wardens, Chap. 48, §§ 9, 10.
Reimbursement of towns for providing protection against forest fires. Chap. 40,
§11- . . ^
Fish and game deputies to give notice of fires. Chap. 130, § 9.
Ch.\p. 133.]
DISPOSITION OF OLD A>rD IXFIRM .^^EMALS.
1371
TITLE XX.
PUBLIC SAFETY AND GOOD ORDER.
Chapter 133.
Chapter 134.
Chapter 135.
Chapter 136.
Chapter 137.
Chapter 138.
Chapter 139.
Chapter 140.
Chapter 141.
Chapter 142.
Chapter 143.
Chapter 144.
Chapter 145.
Chapter 146.
Chapter 147.
Chapter 148.
Disposition of Old and Infirm Animals.
Lost Goods and Stray Beasts.
Unclaimed and Abandoned Property.
Observance of the Lord's Day.
Gaming.
Intoxicating Liquors and Certain Non-Intoxicating
Beverages.
Common Nuisances.
Licenses.
Supervision of Electricians.
Supervision of Plumbing.
Inspection and Regulation of, and Licenses for.
Buildings, Elevators and Cinematographs.
Tenement Houses in Cities. ■
Tenement Houses in Towns.
Inspection of Boilers, Air Tanks, etc. Licenses of
Engineers, Firemen, and Operators of Hoisting
Machinery.
State and Other Police, and Certain Powers and
Duties of the Department of Public Safety.
Fire Prevention.
CHAPTER 133.
DISPOSITION OF OLD AND. INFIRM ANIMALS.
Sect.
1. Powers and duties of certain officers
relative to disabled animals, etc.
2. Payment of value of animals taken.
Costs, etc.
Sect.
3. Value of infected animal.
4. Disposition of certain horses owned by
cities or towns.
1 Section 1. Any officer or agent of any society incorporated under Powers and
2 the laws of the commonwealth for the prevention of cruelty to animals tain"^officerf '
3 or for the care and protection of homeless or suffering animals, provided abfedTnimfll'
4 he is also a special police officer appointed under section ten of chapter i88i_283.
5 one hundred and forty-seven, or a constable, sheriff or deputy sheriff', or a g- 1- ^|' |i|-
6 police officer of any town, may take possession of any old, maimed, dis- JM^. sijs, § i".
7 abled, diseased or injiu-ed animal and apply to a district court, ■within
8 whose district the animal is taken, for process to cause it to be killed
9 humanely. If the owner is known, and can after reasonable search be
10 found, a copy of such application shall be served upon him in hand with
11 an order of court to appear at a time and place named to show cause
12 why such animal should not be killed and its value determined. If he
1915, 125.
1372
LOST GOODS AND STRAY BEASTS.
[Ch.\p. 134.
Payment of
value of ani-
mals taken.
Costs, etc.
18S1, 283.
P. S. 96, § 15.
R. L. 95, § 13.
Value of in-
fected animal.
1907, 363, § 3.
is unknown, or cannot after reasonable search be found, the court 13
shall order notices to be posted in two public places in the town where 14
the animal was taken, stating the facts of the case, and giving twenty- 15
four hours' notice of a hearing on said application. At such hearing, if 16
it appears that such animal is so old, maimed, disabled, diseased or in- 17
jured as to be unfit for humane use, the court shall issue process directing 18
any officer designated herein to kill the same humanely, and shall deter- 19
mine its value. If the owner is aggrieved by such determination he may 20
petition the superior coiu"t for the assessment of his damages under chapter 21
seventy-nine. 22
Section 2. The value or damages, if any, determined under the pre- 1
ceding section, and the reasonable costs and expenses incurred by said 2
officer and approved by the court, shall be paid by the society whose 3
officer or agent made the application for process. i907. 363, § 2. 4
Section 3. If the animal taken possession of as aforesaid has any 1
infectious or contagious disease, or, for any reason, might lawfully be 2
destroyed as an abatement of a public nuisance, that fact shall be prima 3
facie evidence that the animal has no value. 4
Disposition of
certain horses
owned by
cities or
towns.
1908, 133.
Section 4. Whenever any horses used in any department of any 1
town shall, by reason of disability or disease, become unfit for use therein, 2
the officer in charge of such department, in cities with the approval of 3
the mayor, and in towns with the appro^•al of the selectmen, instead of 4
causing such horses to be sold, may transfer them to the custody of the 5
Red Acre Farm, Incorporated, or any charitable society incorporated 6
in the commonwealth for the prevention of cruelty to animals, or for the 7
care and protection of dumb animals, if the society is willing to accept 8
the custody thereof, to be disposed of as the society may deem best; 9
provided, that the society' upon recei\"ing any such horse shall give a 10
written agreement not to sell the horse or let the same for hire. If any 11
horse so received shall thereafter be sold or let for hire, the proceeds of 12
such sale or letting shall be the property of the town, and custody of the 13
horse shall revert thereto. 14
CHAPTER 134.
LOST GOODS AND STRAY BEASTS.
Sect.
1. Finder of lost money or goods to give
notice, etc.
2. When stray beasts are taken up,
notice to be given.
3. Restitution of property.
Finder of lost
money or goods
to give notice,
etc.
C. L. 142, § 1.
1698,9, § 1.
1727-8. 6, § 1.
1788, 55, § 1.
R. S. 56, § 1.
G. S. 79, § 1.
P.S.95, § 1.
R. L. 94, § 1.
1918,237,1324.
Sect.
4. Rights of finder if no owner appears.
5. Sale of strays.
6. Eights of owner and finder of strays.
7. Penalty for taking away strays.
Section 1. Any person who finds lost money or goods of the value 1
of three dollars or more, the owner of which is unknown, shall within 2
two days report the finding thereof to the officer in charge at a police 3
station in the town where said property was found, or, if tiiere is no 4
police station, post notice thereof in two public places therein, or, in- 5
stead of such report or posting, cause notice thereof to be advertised 6
in a newspaper published therein. i9i9, 5. 1920, 2. 7
105 Mass. 163. 106 Mass. 286. 116 Mass. 42. 130 Mass. 176.
Chap. 134.] lost goods and stray beasts. 1373
1 Section 2. Except as otherwise provided in chapter one hundred ^^st" aretLken
2 and thirty-three, any person who takes up a stray beast shall report, "p. "oti'^e to be
3 post or advertise the finding thereof, in the manner provided in the c. l 142, § i.^
4 preceding section, giving a description of the color and the natural and nss, 55, § 1.' "'
5 artificial marks of such beast; otherwise he shall not be entitled to com- §! i! 79! § 2.
6 pensation for any expenses which he may incur relative thereto. r. l.94',\ 2,
1918,257, §325. 1919,5. 1920,2.
1 Section 3. If, within three months after the finding of stray beasts. Restitution
2 or within one year after the finding of lost money or goods, the owner c. £™i42,"§'3.
3 appears and, except as otherwise provided in section two, pays all reason- nss! Is, § 3.
4 able ex-penses incurred by the finder in keeping such goods or beasts and ji*^s.'s6,'§V5',7.
5 in complying with this chapter, he shall have restitution of the money, p; |; ^|; || s/i.
6 goods or beasts. R L- o*. § *■
191S.257, §327. 1919,5. 1920,2.
1 , Section 4. If the owner of lost money or goods does not appear Rights of
2 within one year after the finding thereof, they shall enure to the finder, ownir ap°p'ears.
3 provided he has complied with section one. i7ss, 55, § 3. r. s. 56, § e.
G. S. 79, § 6. R. L. 94, § 5. 1919, 5.
P. S. 95, § 6. 1918, 257, § 328. 1920, 2.
1 Section 5. If the owner of stray beasts does not appear within Saie of strays.
2 three months after the finding thereof and prove title thereto, the Hlf, h. §'2.
3 finder may sell them by public auction, first giving notice of such sale, §; 1 79; § g.'
4 at least four days before the time of sale, in two public places in the r.l.m',|1).
5 town where the beasts were found.
1918,257, §329. 1919,5. 1920,2.
1 Section 6. If the owner of stray beasts appears within one year Rights of
2 after the finding thereof, and proves title thereto, he shall, if they have findlrof"strays.
3 not been sold under the preceding section, have restitution thereof upon fra^;"^!/''
4 payment, except as provided in section two, of all reasonable expenses Jgis'^fg^'
5 incurred by the finder in keeping such beasts and in complying with |f^|'||'||-
6 this chapter; but if they have been sold he shall be entitled to receive c.g^railg.
7 the proceeds of the sale after deducting the ex-penses aforesaid. If no r'. l. 94, § 7.
8 such owner appears within said. year the beasts, or the proceeds, shall 1919; 5. '
9 enure to the finder, provided he has complied with this chapter. ^^^°' ^■
1 Section 7. Any person who takes away a beast taken up as a stray. Penalty for
2 without paying all lawful charges in relation thereto, shall forfeit to the stray!. "^"^
3 finder double the amount of such charges, but not more than the value f698',9!§'i*'
4 of the beast at the time of such taking away.
1788, 55, § 5.
P. S. 95, § 11.
1919, 5.
R. S. 56, § 11.
R. L. 94, §9.
1920, 2.
G. S. 79,§ 11.
1918,257, § 332.
REFERENCES.
Provisions prohibiting the leading, riding, driving, or sale by auction of certain
horses on any public way, Chap. 272, § 78.
Provisions as to disposition of old and infirm aniinals by certain societies, Chap. 133.
Disposition of money, goods or other property that comes into the possession of a
member of a city police department, Chap. 135, §§ 7-11.
Disposition of money, goods or other property that comes into the possession of
a public officer or other employee of the metropohtan district commission, Chap.
92, §§ 89-94.
1374
UNCLAIMED AND AB.\NDONED PROPERTY.
[Ch.U'. 135.
CHAPTER 135,
UNCLAIMED AND ABANDONED PROPERTY.
Sect.
1. Publication of unclaimed effects of
passengers.
2. Sale of unclaimed articles.
3. Proceeds to be paid to commonwealth.
4. Penalty for failure to comply with
certain provisions.
6. Perishable articles maj' be sold.
6. Sale of unclaimed goods carried by a
railroad or vessel or by express.
Sect.
7. Disposition of stolen, etc., property by
police officers.
8. Sale of such property, etc.
9. If perishable, etc., how sold.
10. Proceeds, disposal of.
1 1 . When owner to be paid if he applies.
12. Timber carried away by flood may be
taken by owners, etc.
Publication of
unclaimed
effects of
passengers.
1851, 147, § 1.
G. S. 80, § 1.
P. S. 96. § 1.
R. L. 95, § 1.
6 Allen, 240.
Sale of tin-
claimed articles.
1851, 147, § 2.
G. S. 80. § 2.
P. S. 96, § 2.
R. L. 95, § 2.
Section 1. Railroad corporations and proprietors of steamboats en- 1
gaged in the transportation of passengers shall semi-annually, on the 2
first Mondays of January and July, publish, in one newspaper at least 3
in every county where such corporation or proprietors have a pas- 4
senger station or office, a descriptive list of all trunks, bags, valises, 5
parcels and passengers' effects which have been left and then remain 6
unclaimed at any passenger station or office, or in the possession of any 7
such corporation, proprietors or their agents, and the list shall indicate 8
all such specific marks as may serve to identify the same. 9
Section 2. If at the expiration of six months after such advertise- 1
ment any of the articles so advertised remain unclaimed, said corpora- 2
tion or proprietors having possession thereof shall give notice to the 3
aldermen of the city or selectmen of the town where the articles may 4
be, who shall cause them to be examined, and may order them to be 5
sold by public auction upon publication, in the manner set forth in the 6
preceding section, of notice of the time and place of sale, or may order 7
them to be again advertised and to remain another six months before 8
being sold. 9
Proceeds to
be paid to
commonwealth.
1851, 147. § 3.
G. S. 80, § 3.
Section 3. The proceeds of all articles so sold, after deducting costs 1
of storage and all expenses incurred in complying with sections one and 2
two, shall be paid to the commonwealth. P. s. 96, § a. r. l. 95, § a. 3
Penalty for
failure to _
comply with
certain pro-
visions.
1851. 147, § 4.
G. S. SO, § 4.
Section 4. Any such corporation or proprietor neglecting or omit- 1
ting so to advertise and cause any such effects to be examined shall be 2
liable for all damages caused thereby, and shall also forfeit one hundred 3
dollars. p. s. 96, § 4. r. l. 95, § 4. 4
Perishable
articles may
be sold.
1857, 237.
G. S. SO, § 5.
P. S. 96, § S.
R. L. 95, § 5.
Section 5. When a common carrier has transported fresh meats, 1
fresh fish, shellfish, fruit or vegetables to theu* destination, such carrier 2
may, in the exercise of a reasonable discretion, after notice to the owner 3
or consignee thereof of the arri\-al of such goods and his refusal or omis- 4
sion to pay the freight and proper charges thereon and to receive and 5
take them away, or without such notice and refusal or omission if such 6
owner or consignee thereof cannot, on reasonable inquiry, be found, sell 7
the same at public or private sale without advertising. The proceeds 8
thereof, after deducting the amount of the freight thereon and the 9
charges and expenses of sale, shall be paid to tlie owner or consignee. 10
Chap. 135.] uncl.\imed and ab.andoned property. 1375
1 Section 6. If goods carried by a railroad company, by express or Saieofun-
2 in a vessel are not called for by the owner or consignee within one year carried by°a
3 after the date of their receipt at the place of consignment, they may be vessei'or°by
4 sold by public auction, notice of the time and place of sale, containing a ilSffsg.
5 descriptive list of all such goods with all such specific marks as may p^ s''9g^^s§ e-g
6 serve to identify the same, first being published once a week for three R- l. 95,
7 successive weeks in a newspaper, if any, published in the town where lais, 257,
8 such sale is to take place, and also in the town to which they were igig.'s.
9 consigned, otherwise in the newspaper published nearest thereto. The 2oiVass. 564.
10 proceeds, after deducting costs of transportation, storage, advertising ^°^ ^'^^'^^- *^^-
11 and sale, shall be paid to the owner, upon demand and satisfactory
12 proof of ownership, within three years after the sale; otherwise to the
13 commonwealth.
1 Section 7. If property which has been stolen, lost, abandoned or Disposition of
2 taken from a person imder arrest comes into the possession of a member property by
3 of the police department of a city by virtue of his office, he shall deliver issorisfrri'.
4 the same to the officer or member of the department designated by the ^- ^ ^^j \ ^^■
5 rules thereof, and shall thereupon be relieved from further responsibility
6 therefor. The officer or member to whom such property is so delivered
7 shall give notice as provided in section one of chapter one hundred and
8 thirty-fom-.
1 Section 8. If such property remains unclaimed in the possession of prope/ty^ete.
2 such police department or member thereof for six months, and the ^f^j's^*'
3 owner thereof or his place of abode or business is unknown, such de- P- s. 9| § 11.
4 partment may sell the same, excepting money unclaimed, by public
5 auction, notice of the time and place of sale, with a description of the
6 property to be sold, first being given by publishing the same once in
7 each of three successive weeks in a newspaper published in such city.
1 Section 9. Such property, if perishable or liable to deteriorate if perishable.
2 greatly in value by keeping or the value of which will probably be less isso, 155, § 4.
3 than the ex-pense of keeping the same, may be sold by public auction r. l. 95, § w.
4 within said six months in accordance with the rules of the department,
5 reasonable notice of the time and place of sale first being given by pub-
6 lishing the same in a newspaper published in such city.
1 Section 10. The proceeds of such sale, or the balance of such un- Proceeds, dis-
2 claimed money, after deducting all reasonable charges and expenses ilEo, 155, § 5.
3 incurred on such property, shall be paid into the city treasury. r.l.95,Vu.
1 Section 11. If, within two years and six months after such money when owner
2 has come into the possession of a member of the police department of 1,° appifes. '
3 a city or within two years after such sale of other property, the owner J.* f^'gl^^j \i;
4 claims and proves ownership thereof, the unclaimed balance of such ^- ^- ^^' 5 12.
5 money or the proceeds of such sale, after deducting all reasonable
6 charges and expenses, shall be paid to him, upon the order of the head
7 of such department.
1 Section 12. The owner of a log, mast, spar or other timber carried J^^"y bygood*
2 by flood into land adjoining any river, stream or pond may, within six "y^o^ners'^etc.
3 months, remove the same from said land upon paying or tendering to i^so, 31.
1376
OBSERV.\NCE OF THE LORD S DAT.
[ClLiP. 136.
1793. 42,
§§ 4, 6.
1S04, 5.
R. S. 62. § 1.
1841. 26.
G. S. 78. § 1.
P. S. 94, § 1.
the owner or occupant thereof such reasonable damages as may be 4
caused by such removal; and if he does not so remove it within said six 5
months, or otherwise agree with the owner or occupant of such land, 6
it shall be the property of such owner or occupant. 7
E. L. 93. § 1. lOG Mass. 286.
REFERENCES.
Provisions where lost money or goods or stray beasts are retained by the finder
other than a member of city police. Chap. 134.
Disposition of old and infirm animals, Chap. 1.33.
Disposition of money, goods or other property that comes into the possession of
a police officer or other employee of the metropohtan district commission, Chap.
92, §§ 89-94.
Carrier not to be liable for failure to deliver goods when sold to satisfy a carrier's
lien or when sold because unclaimed, perishable or hazardous, Chap. 108, § 25.
CHAPTER 136.
OBSERVANCE OF THE LORD'S DAY.
Sect.
1. "Lord's day" defined.
2. Being present at or taking part in
certain entertainments on Lord's day
prohibited.
3. Maintaining certain public exhibitions
prohibited.
4. Certain public entertainments may be
licensed. Revocation.
5. Keeping open ahop, etc., and doing
certain work, etc., prohibited.
6. Limit of operation of preceding section.
7; Sale of certain articles on Lord's day
licensed.
8. Pro\4sions of licenses. Fee. Revocation.
9. Certain work may be performed on
Lord's day.
10. Certain parades with music allowed on
Lord's day.
Firemen may parade with music on
second Sunday of June.
Persons keeping places of entertain-
ment, etc., to entertain only travelers,
etc.
13. Civil process not to be served on
Lord's day.
11
12.
Sect.
14. Penalty for rude behavior.
15. Limitation of the commencement of
prosecutions.
16. Sheriffs, etc., to inform of offences.
17. Penalty for discharging firearms, etc.,
on Lord's day.
18. Innholders who permit implements of
gaming to be used, etc.
19. Department of public utilities may au-
thorize running trains and steam-
boats on Lord's day.
20. This chapter not a defence.
CERT-IIN SPORTS AND GAMES PEKMITTED ON
THE lord's D.\Y.
21. Certain sports and games permitted.
22. To be held only on licensed places.
23. To be conducted under regulations,
etc.
24. No admission to be charged, etc.
2.5. Revocation of permit.
26. Manner of accepting sections 21 to 28,
inclusive.
27. Resubmission of said sections.
28. Limit of application of said sections.
"Lord'sday"
defined.
1782, 23, § 6.
1791,58, § 4.
Being present
at or taking
part in certain
entertainments
on Lord's day
prohibited.
1760-1,20, §9.
1782. 23,
§§1,7.
1791, 58,
U I. 5.
1796. 89, § 1.
R. S. 50, § 5.
1858, 151.
Section 1. The Lord's day shall include the time from midnight to 1
midnight. R- s. so, § 4. i844, leo, § 2. 2
G. S. 84, § 12. p. S. 98, § 16. R. L. 98, § 16.
Section 2. Wlioever on the Lord's day is present at a game, sport,
play or public diversion, except a concert of sacred music, a public
entertainment duly licensed as provided in section four or a free open
air concert given by a town, or by license of the mayor or the selectmen,
upon a common or public park, street or square, shall be punished by
a fine of not more than five dollars. Whoever on the Lord's day takes
part in any game, sport, play or public diversion, except as aforesaid,
shall be punished by a fine of not more than fifty dollars. This and the
Chap. 13(3.] observ.^nce of the lord's day. 1377
9 following section shall not apply to sports or games conducted in ac- g. s. s4, § 4.
10 cordance with sections twenty-one to twenty-eight, inclusive. issv, 391, ii.
1895. 434, 5§ 1,4. 1908, 38.5, § 1. 1919,5.
R. L. 98, §§ 1. 2, 5. 1918, 257, §§ 330. 338. 1920, 2; 240.
1904, 460, §§ 1-3.
1 Section 3. Whoever offers to view, sets up, establishes, maintains. Maintaining
2 or attempts to set up, establish or maintain, or promotes or assists in exhibUiSns '"
3 such attempt, or promotes, or aids, abets or participates in offering to c.'l.''i33'
4 view, setting up, establishing or maintaining any public entertainment 1B92-3, 22, § 1.
5 on the Lord's day, except a concert of sacred music, or a free open air Jyoy-s'.^'Vi''
6 concert given as provided in the preceding section, unless such public H''.°"g'-'^'
7 entertainment shall be in keeping with the character of the day and not 1782, 23,
8 inconsistent with its due observance and duly licensed as provided in iroi. ss,
9 the following section, or whoever on the Lord's day acts as proprietor, 1796, Iq, § 1.
10 manager or person in charge of a game, sport, play or public diversion, f^ f |°'
11 except a public entertainment licensed under the follo\Aing section, a con- ^-^^ ^*- ^^ ^•
12 cert of sacred music, or a free open air concert given as aforesaid, shall i*';^' '■^^■
13 be punished by a fine of not more than five hundred dollars.
p. S. 98, §H,2. 1904, 4fi0, §§ 1-3. 1919,5.
1887, 391. mOS, 385, § 1. 1920, 2.
1895, 434, §§1,2, 4. 1918, 257, §§ 336, 338. 185 Mass. 551.
R. L. 98, §§ 1,2,5.
1 Section 4. Except as provided in section one hundred and five of ^n"*ftainments
2 chapter one hundred and forty-nine, the mayor of a city or the selectmen pay be
3 of a town may, upon written application describing the proposed enter- Revocation
4 tainment, grant, upon such terms or conditions as they may prescribe, a 1909! 189!
5 license to hold on the Lord's day a public entertainment, in keeping
6 with the character of the day and not inconsistent with its due observ-
7 ance, to which admission is to be obtained upon payment of money
8 or other \aluable consideration; provided, that no such license shall be
9 granted to have effect before one o'clock in the afternoon, nor shall it
10 have effect unless the proposed entertainment shall, upon application
11 accompanied by a fee of one dollar, have been approved in writing by
12 the commissioner of public safety as being in keeping with the character
13 of the day and not inconsistent with its due observance. Any such
14 license may, after notice and a hearing given by the mayor or selectmen
15 issuing the same, or by said commissioner, be suspended, revoked or
16 annulled by the officer or board giving the hearing.
Whoever on the Lord's day keeps open his shop, Keeping open
2 warehouse or workhouse, or does any manner of labor, business or doing certain
3 work, except works of necessity and charity, shall be punished by pmhibfted.
4 a fine of not more than fifty dollars. c. l. 133, §§ 1,2.
1692-3, 22, § 1. 7"Gray, 164. 128 Mass. 148, 594.
1716-7, 13, § 1. 8 Gray, 384, 553. 131 Mass. 156, 546.
1727-8, 5, §§ 1,4. 11 Gray, 308. 135 Mass. 113.
1760-1, 20, §§ 2, 9. 15 Gray, 433. 130 Mass. 384.
1782, 23, § 1. 9 Allen. 118,452. 139 Mass. 74.
1791, 58, § 1. 10 Allen, 18. 140 Mass. 199.
1796, 89, § 1. 11 Allen, 209. 143 Mass. 28, 167.
R. S. 50, § 1. 12 Allen. 187. 144 Mass. 359, 362, 363.
G. S. 84, § 1. 13 Allen, 559. 145 Mass. 353.
1862, 152. 14 Allen, 20, 165, 475, 4,85. 155 Mass. 543.
P. S. 98, § 2. 97 Mass. 45, 166, 407. 411. 159 Mass. 101.
1895, 434, §§ 2, 4. 101 Mass. 30, 366. 168 Mass. 519.
R. L. 98. §§2,5. 103 Mass. 188. 170 Mass. .560.
1904, 460, § 2. 105 Mass. 399. 176 Mass. 5, 104.
1909. 423, § 4. 107 Mass. 251,439. 185 Mass. 551.
1918, 257, §§ 336, 338. 108 Mass. 517. 190 Mass. 578.
1919, 5. 109 Mass. 398. 194 Mass. 151.
1920, 2. 112 Mass. 368, 467. 199 Mass. 534.
6 Mass. 76. 115 .Vlass. 326. 200 Mass. 514.
13 Mass. 324. 117 Mass. 65, 142. 208 Mass. 528.
12 Met. 24. 118 Mass. 195. 213 Mass. 207.
13 Met. 284. 120 Mass. 490. 221 Mass. 70.
2 Cush. 556. 121 Mass. .301. 225 Mass. 445.
4 Cush. 243. 122 Mass. 40. 125 U. S. 555.
10 Cush. 257. 127 Mass. 123.
1378
OBSERVANCE OF THE LORD S DAY.
[Chap. 136.
Limit of
operation of
preceding
section.
R. S. SO, § 10.
G. S. 84, §9.
P. S. 98. § 13.
1886, 82.
1887, 391, § 2.
1893, 41.
1895, 434, § 2.
1900. 440.
1901.80.
R. L. 98,
§§ 3.4.
1902.414, § 1.
1908. 126, § 1;
273, § 1; SS.'i;
343.
1909,420, § 2;
423, § o.
1910. 327.
1911,328, § 1.
1914,757, § 1.
1916, 148, § 1.
1917, 207.
13 Allen, 559.
122 M.iss. 40.
144 Mass. a.TO.
145 Mass.
99, 430.
149 Mass. 68.
176 Mass. 104.
194 Mass. 151.
221 Mass. 70.
Section 0. The preceding section .shall not prohibit the manu- 1
facture and distribution of steam, gas or electricity for illuminating 2
purposes, heat or motive power; the distribution of water for fire or 3
domestic purposes; the use of the telegraph or the telephone; the 4
retail sale of drugs and medicines, or articles ordered by the prescription 5
of a physician, or mechanical appliances used by physicians or surgeons; 6
the retail sale of tobacco in any of its forms by licensed innholders, 7
common victuallers, druggists and newsdealers whose stores are open 8
for the sale of newspapers every day in the week; the retail sale of ice 9
cream, soda water and confectionery by licensed innholders and druggists, 10
and by such licensed common victuallers a.s are not also licensed to sell 11
certain non-intoxicating beA-erages, as defined in section one of chapter 12
one hundred and thirty-eight, and who are authorized to keep open their 13
places of business on the Lord's day; the sale of ice cream, soda water, 14
confectionery or fruit by persons licensed under the following section or 15
the keeping open of their places of business for the sale thereof; work 16
lawfully done by persons working under permits granted under section 17
nine; the sale by licensed innholders and common victuallers of meals IS
such as are usually served by them, consisting in no part of intoxi- 19
eating liquors, which meals are cooked on the premises but are not 20
to be consumed thereon; the operation of motor vehicles; the letting 21
of horses and carriages or of boats; unpaid work on pleasure boats; 22
the running of steam ferry boats on established routes; the running 23
of street railway cars; the running of steamboat lines and trains or 24
of steamboats, if authorized under section nineteen; the preparation, 25
printing and publication of newspapers, or the sale and delivery 26
thereof; the wholesale or retail sale and delivery of milk, or the 27
transportation thereof, or the delivery of ice cream; the making of 28
butter and cheese; the keeping open of public bath houses; the mak- 29
ing or selling by bakers or their employees, before ten o'clock in the 30
forenoon and between the hours of four o'clock and half past six o'clock 31
in the afternoon, of bread or other food usually dealt in by them; the 32
selling of kosher meat by any person who, according to his religious 33
belief, observes Saturday as the Lord's day by closing his place of busi- 34
ness during the day until six o'clock in the afternoon or the keeping open 35
of his shop on the Lord's day for the sale of kosher meat between the 36
hours of six o'clock and ten o'clock in the forenoon; the performing of 37
secular business and labor on the Lord's day by any person who con- 38
scientiously believes that the seventh day of the week ought to be ob- 39
served as the Sabbath and actually refrains from secular business and 40
labor on that day, if he disturbs no other person thereby; the carrying 41
on of the business of bootblack before eleven o'clock in the forenoon; 42
the digging of clams; the icing and dressing of fish; the cultivation 43
of land, and the raising, harvesting, conser^4ng and transporting of 44
agricultural products during the existence of war between the United 45
States and any other nation and until the first day of January following 46
the termination thereof; the sale of catalogues of pictures and other 47
works of art in exhibitions held by societies organized for the purpose 48
of promoting education in the fine arts or the exposure of photographic 49
plates and films for pleasure, if the pictures to be made therefrom are 50
not intended to be sold and are not sold. 51
Sale of certain
articles on
Uransed.^'^ tliis aud the following section or has accepted corresponding provi-
Section 7. In Bcston, and in any other city or town which accepts 1
Chap. 13G.] observ.vnce of the lord's day. 1379
3 sions of earlier laws, in a city by its city council or in a town by the 1909, 42.3. §§ 1,
4 voters of the town at an annual town meeting, the licensing board or 1918,257,
5 officer in such city or town, or if there is no such board or officer the H^.'s.
6 aldermen of a city, or if there are no aldermen the city council, with 225°Mass. 104.
7 the approval of the mayor, or the selectmen of a town, may grant,
8 to any reputable person who on secular days is a retail dealer in ice
9 cream, confectionery, soda water or fruit and who does not hold a
10 license for the sale of certain non-intoxicating beverages, as defined in
11 section one of chapter one hundred and thirty-eight, a license to keep
12 open his place of business on the Lord's day for the sale of ice cream,
13 confectionery, soda water or fruit.
1 Section 8. Every license granted under the preceding section shall ^f™™^""*
2 specify the street or place and the number, if anv, or if there is no f^e.
3 number, the location of the place of business in which the license is i909, 423, § 2.
4 to be exercised, and the license shall not be valid in any other place.
5 A license if granted prior to May first in any year shall take effect on
6 that day, but if granted thereafter it shall take effect on the date thereof,
7 and all licenses shall ex-pire on April thirtieth of each year. The fee for
8 such license shall not be more than five dollars a year, and it may be sus-
9 pended or revoked by the officer or board granting the same.
1 Section 9. The police commissioner of Boston, or any member of ^"^J^jj" '^"/}
2 the police department having a rank not lower than that of captain formed on
11- 11 • 1 • • 1 1 ' p p !• I Lord s day.
3 and designated by said commissioner, or the chief 01 police or other 1909, 420. § 1.
4 officer in charge of the police department of any other city or of any
5 town, upon such terms and conditions as he deems reasonable, may
6 issue a permit for the performance on the Lord's day of necessary work
7 or labor which in his judgment could not be performed on any other
8 day without serious suffering, loss, damage or public inconvenience.
9 Such permit shall cover not more than one day and shall not be issued
10 more than six days prior to the day for which it is issued.
1 Section 10. Any post of the Grand Army of the Republic, camp of p^^''^^^"
2 the United Spanish War Veterans or post of the American Legion may «;i'h music
,•1. I'll I •! allowed on
3 parade with music on the day designated by tlie national encampment Lord's day.
4 of the grand army as memorial Sunday next preceding Memorial Day, 1920', hi!
5 for the special purpose of attending divine service on that day; pro-
6 \dded, that the music shall be suspended while passing -within two
7 hundred feet of any place of public worship where ser\'ices are being held.
1 Section 11. Any company or association of firemen, whether in Firemen may
2 active service or former members of a fire department, may parade mj^ic^on'
3 with music on firemen's memorial day, the second Sunday of June in ofXne. "" "^
4 each year, for the special purpose of decorating the graves of deceased ^^°^' ^^®-
5 firemen; provided, that the music shall be suspended while passing
6 within two hundred feet of any place of public worship where services
7 are being held.
1 Section 12. Whoever, keeping a house, shop, cellar or place of klip?"! places
2 public entertainment or refreshment, entertains therein on the Lord's ofentertain-
01 1 11 ir ment, etc., to
3 day any persons other than travelers, strangers or lodgers, or sutlers entertain only
4 such persons on said day to remain therein or in the yards, orchards or 1692-3,22, §3.
5 fields appertaining thereto, drinking or spending their time idly or at 1727-8, .5, § 3.
1380
OBSERVANCE OF THE LORD S DAY.
[Chap. 13(5.
1760-1,20, §4.
1782, 23,
§§ 4, 7.
1791, 5S, § .3.
1796, 89, § 1.
1832, 166, § 5.
R. S. 47, § 13;
50, § 3.
1837, 242, § 1.
play, or in doing any secular business, shall for a first offence be pun- (i
ished by a fine of not more than fifty dollars for each person so enter- 7
tained or suft'ered so to remain; and for a subsequent offence by a fine 8
of not more than one hundred dollars; and if convicted three times, he 9
shall thereafter be disqualified to hold a license. i844, leo. 10
G. S. S4, § 3. p. S. 98, § 4. 2 Pick. 139.
1864, 79. R. L. 98, § 6. 117 Mass. 116.
Civil process
not to be
served on
Lord's day.
17S2, 23, § 11.
1791, 58, § 9.
R. S. 50, § 7.
Section 1.3. A civil process shall not be served or executed on the
Lord's day, and such ser\-ice if made shall be void, and the person who
serves or executes it shall be liable in damages to the person aggrieved
in like manner as if he had no such process. g. s. 84, § a.
p. S. 98. § 6. R. L. 98, § 8. 140 Mass. 147.
rude"beha°vior. SECTION 14. Whocvcr ou the Lord's day bchaves rudcly or iudcccntly 1
i79i'ss'§7 i'^ ^'^.V house of public worship shall be punished by a fine of not more 2
R. s.'50,'§8. than ten dollars. g. s. 84, §7. p. s.9s, §7. r. l. 98, §9. 3
tiJrcommenie- SECTION 15. Prosccutions for penalties incurred under the preceding 1
mentotpros- provisious of this chapter shall be commenced within six months after 2
ecutions. ^ rt> • i
1815,135. the oitence was committed. r. s. so, §ii. 3
G. S. 84. § 10. ^ p. S. 98, § 8. R. L. 98, § 10.
Sheriffs, etc.,
to inform of
offences.
1727-8, 5, § 5.
Section 16. Sheriffs, constables and grand jurors shall inquire into 1
and inform of all violations of this chapter, and cause it to be enforced. 2
R. L. 98, § 11.
1791. 58. S§ 10. 12
R. S. 50, J 9.
G. S
P. S.
84. § 8.
98, § 9.
Penalty for
discharging
firearms, etc.,
on Lord's day.
1865, 253.
P. S. 98, §§ 10-
12.
R. L.98, § 12.
1908, 123.
Section 17. Whoever on the Lord's day discharges any firearm
for sport or in the pursuit of game, or attempts to take or catch any
fish by using any hook, line, net or spear, shall be punished by a fine of
not more than ten dollars. Prosecutions hereunder shall be commenced
within thirty days after the offence was committed.
Innholders who
permit imple-
ments of
gaming to be
used, etc.
1854, 450. § 1.
G. S. 84. § 11.
P. S. 98, 5 14.
R. L. 98, § 13.
Section 18. Any innholder, common \ictualler or person keeping 1
or suffering to be kept in any place occupied by him implements such 2
as are used in gaming, in order that the same may for hire, gain or 3
reward be used for purposes of amusement, who, on the Lord's day, 4
uses or suffers to be used any such implements upon any part of his 5
premises, shall for a first offence be punished by a fine of not more than 6
one hundred dollars or by imprisonment for not more than three months; 7
and for a subsequent offence by imprisonment for not more than one year; 8
and in either case shall further recognize, with sufficient siu-eties, in a 9
reasonable sum for his good behavior, and especially that he will not be 10
guilty of any violation of this section for three months after the date of 1 1
his recognizance. 12
Department
of public utili-
ties may
authorize
running
trains and
steamboats
on Lord's day.
1881, 119.
P. S. 98, § 15.
1887, 391, § 3.
1897, .389.
R. L.98, §§14,
15.
Section 19. The department of public utilities may authorize the 1
running, on the Lord's day, of such steamboat lines and of such trains 2
on any railroad, as in its opinion public necessity and convenience require, 3
having regard to the due ob.servance of the day; and may, if public neces- 4
sity, con\enience, health or welfare so requires, authorize the running of 5
steamboats on said day upon such conditions as it deems judicious to 6
prevent disorderly conduct or the disturbance of public worship, and it 7
may at any time revoke such authority. I9i3, 784. 1919,350. §ii7. S
Chap. 136.] observ.vnxe of the lord's day. 1381
1 Section 20. The provisions of tiiis chapter shall not constitute a This chapter
2 defence to an action for a tort or injury suffered by a person on the 1877* 23?°'^^'
3 Lord's day.
p. S. 98. § 3.
128 Mass. 594.
165 Mass. 346.
1884, 37.
131 Mass. 156.
209 Mass. 135.
R. L. 98. § 17.
140 Mass. 199.
125 U. S. 555.
CERTAIN SPORTS AND GAMES PERMITTED ON THE LORD S DAY.
1 Section 21. In any city or town which accepts sections twenty-one Certain sports
2 to twenty-eight, inclusive, in the manner provided in section twenty-six, pefmitted^
3 or has accepted corresponding provisions of earlier laws in the manner §§"f;7.*°'
4 provided therein, it shall be lawful to take part in or witness any athletic n^jo)' 1^9
5 outdoor sport or game, in which the contestants do not receive and have
fi not been promised any pecuniary reward, remuneration or consideration
7 whatsoever directly or indirectly in connection therewith, on the Lord's
8 day between the hours of two and six in the afternoon as hereinafter
9 provided.
1 Section 22. Such sports or games shall take place on such play- To be held
2 grounds, parks or other places as may be designated for that purpose in urens^
3 a license or permit issued by the city council, \nth the approval of the i92a^240. § 2.
4 mayor, or by the selectmen; provided, that if, under any statute or
5 ordinance, a public playground or park is placed under the exclusive
6 charge and authority of any other officials, such officials shall, for that
7 playground or park, be the licensing authority; and provided, that no
8 sport or game shall be permitted in a place, other than a public play-
9 ground or park, within one thousand feet of any regular place of worship.
1 Section 23. Such sports or games shall be conducted subject to Tobecon-
2 such regulations and restrictions as shall be prescribed by the city coun- regulations.*"^
3 cil or selectmen, and the same shall be stated in the license or permit. 1920, 240. § 3.
1 Section 24. Xo admission fee shall be charged directly or indirectly. No admission
2 and no business or other enterprise shall be conducted, and no collection etc. ^"^ ^'^ '
3 shall be made at any such sport or game. 1920, 240. § 5.
1 Section 2.5. The licensing authorities described in section twenty-two Revocation
2 may at any time and without previous notice revoke permits to conduct iglo.'aio. § 6.
3 the said sports or games if they have reason to believe that any provision
4 of sections twenty-one to twent.y-eight, inclusive, or of any regulation
5 or restriction prescribed under section twenty-three, is being or will be
6 violated.
1 Section 26. In a city, the question of accepting sections twenty-one Manner of
2 to twenty-eight, inclusive, shall be submitted at a city election, but only secSons 21 to
3 upon a petition signed by not less than ten per cent of the voters and i92o°^24o!'rs.
4 filed with the city clerk not less than thirty days before the election, and
5 said sections shall take effect therein upon their acceptance by a majority
6 of the voters voting thereon at such election. In a town, said sections
7 shall take effect upon their acceptance by a majority of the voters voting
8 thereon at an annual or special town meeting, and the selectmen of a town
9 shall, upon the petition of not less than ten per cent of the registered
ID voters thereof, call a special town meeting for the purpose of voting upon
11 such acceptance.
1382
GAMING.
[CH-\P. 137.
Resubmission
of said sec-
tions.
1920, 240. § n.
Limit of
application
of said
sections.
1920, 240, § 4.
Section 27. In any city or town in which the pro\asions of sec- 1
tions twenty-one to twenty-eight, inclusive, are in force, said sections 2
shall be resubmitted to the voters at a municipal election, if a petition 3
to that effect, signed by not less than ten per cent of the voters, is filed 4
with the city or town clerk not less than thirty days before the election. 5
If, upon such resubmission, a majority of the voters voting thereon vote 6
against said sections, they shall cease to have effect in that city or town 7
until reaccepted by the voters as hereinbefore provided. 8
Section 28. Sections twenty-one to twenty-eight, inclusive, shall 1
not prohibit participation at other hours on the Lord's day in other out- 2
door exercise not involving the element of contest, nor shall they permit 3
horse racing, automobile racing, boxing, or hunting with firearms. 4
REFERENCES.
Disposal of applications to the commissioner of public safety under this chapter.
Chap. 147, § 6.
Use of any building as a theatre, special hall, place of pubhc resort, etc., prohibited
unless licensed by commissioner of public safety and mayor of Boston, Chap. 143,
§ 52.
One day's rest in seven for employees, Chap. 149, §§ 47-52, wherein it is expressly
stated that neither act shall authorize any work on Sunday not now authorized by
law.
Innkeepers and common victuallers allowed to keep their places, if licensed, open
on Sunday, Chap. 140, § 8 f221 Mass. 70).
Hunting or destroving birds, wild animals or game of any kind on Sunday pro-
hibited, Chap. 131, §32.
Baseball or football games between 1 and 6 p..m. on Sunday, in which all players
are in United States military or naval service, and to which no admission is charged,
allowed during the world war (special and temporary), 1918, 134.
Mayor or selectmen may grant licenses for certain exhibitions, etc., but not to
be held on Sunday, except that they may grant licenses for public entertainments
on that day as provided in § 4 of this chapter, Chap. 140, § 181.
Parades with firearms regulated. Chap. 33, § 64.
CHAPTER 137
GAMING.
Sect.
1. Recovery of money, etc., lost at gaming.
2. Liability of owner of gaming house.
3. Notes, conveyances, etc., for gaming,
\'oid.
4. Dealing in securities without actual
sale.
Sect.
5. Stolen, etc., property, recovered by
whom.
G. Prima facie evidence of intent not to
receive and deliver.
7. "Securities" and "commodities" de-
fined.
Recovery of
money, etc .
lost at gaming.
1736-7, 17. S 2.
1742-3. 27, § 2.
17S5, .58, § 2.
R. S. SO, § 12.
G. S. 8.5, § 1.
P. S.99, § 1.
1895,419, § 11.
R. L. 99, § 1.
17 Mass. SCO.
3 Pick. 446.
S Gray, 243.
1 Allen, £63.
116 Mass. 272.
129 Mass. 407.
133 Mass. 466.
Section 1. Whoever, by playing at cards, dice or other game, or by
betting on the sides or hands of those gaming, loses to a person so play-
ing or betting money or goods, and pays or delivers the same or any part
thereof to the winner, or whoever pays or delivers money or other thing
of value to another person for or in consideration of a lottery, policy or
pool ticket, certificate, check or slip, or for or in consideration of a chance
of drawing or obtaining any money, prize or other thing of value in a
lottery or policy game, pool or combination, or other bet, may reco\"er
such money or the value of such goods in contract; and if he does not
within three months after such loss, payment or delivery, without covin
Chap. 137.] g.iming. 1383
11 or collusion, prosecute such action with effect, any other person may sue 134 Mass. iso,
12 for and recover in tort treble the value thereof. i36 Mass. 52.';, 564.
143 Mass. 2S0, 149 Mass. 124. 170 Mass. 146. 226 Mass. 409.
1 Section 2. The owner, tenant or occupant of a house or building Liawuty.of
2 where money or goods are lost, paid or delivered in any form of gaming gam?ng°house.
3 referred to in the preceding section, or by betting on the sides or hands a^s.'s™! 2.
4 of those gaming, with the knowledge or consent of said owner, occupant rs9^5',®4%^ f 12.
5 or tenant, shall be liable in the same manner and to the same extent as ?,■/'; r^"' ^„2.;„
r» I • • I' • T T 1 !• • 116 Mass. 272.
6 the wuiner or receiver tliereoi is liable under the preceding section. 129 Mass. 407.
' ^ 1.34 Mass. 150.
143 Mass. 2S0. 154 Mass. 346. 226 Mass. 409.
non-
ances, etc.,
gaming,
1 Section 3. Notes, bills, bonds, mortgages or other securities or con- Notes.
2 veyances the whole or part of the consideration of which is money or Jor]_
3 goods won by gaming or playing at cards, dice or any other game, or by [ygfiLy n ^ i.
4 betting on the sides or hands of persons gaming, or for repaying or re- "ll'lj^I'/ ^'
5 imbursing money knowingly lent or advanced for gaming or betting, or i8oo;s7;§ s.
6 lent and advanced at the time and place of such gaming or betting to a g'. s. 8.< § 4. '
7 person so gaming or betting, shall be void as between the parties thereto, r'. l. 99. § 3.
8 and as to all persons except such as hold or claim under them in good l^iw^"^'
9 faith and without notice of the illegality of the consideration. Jgoo; 2.
3 Cush. 448. 120 Mass. 271. 151 Mass. 118. 226 Mass. 409.
1 Section 4.' Whoever upon credit or upon margin contracts to buy Dealing in
2 or sell, or employs another to buy or sell for his account, any securities or »Tthou'f actual
3 commodities, intending at the time that there shall be no actual purchase ^islo, 437, § 2.
4 or sale, may recover in contract from the other party to the contract, or R.'Liogfsc^'
5 from the person so employed, any payment made, or the value of any- Jgl^j^f^^gg' |/'
6 thing delivered, on account thereof, if such other party to the contract los Mass. 232,
7 or person so employed had reasonable cause to believe that said inten- 174 Mass. 23s.
8 tion existed; but no person shall have a right of action under this section 3S2.
9 if, for his account, such other party to the contract or the person so em- Its, sooTsel.^'
10 ployed makes, in accordance with the terms of the contract or employ- 251.^^"^^' ^"^'
1 1 ment, personally or by agent, an actual purchase or sale of said securities p^ ^'^^^- ^''^'
12 or commodities, or a valid contract therefor. If a purchase or sale of the '** ^'^^s- ^is,
13 securities or commodities ordered to be bought or sold is made by the issMass. iss.
14 person so employed on a stock exchange or board of trade, and other pur- 191 Mass! 117.
15 chases or sales of such securities or commodities are made on the same igsMassillei
16 day on such exchange or board by such person for others in due course of ingMnss. 242.
17 business, and the balance of such purchases or sales of securities or com- ;Jj° jjjjfjjj-
18 modities is received or delivered by such person by direction of the clear- 206 Mass. 275.
19 ing house of such exchange or board on the day when such purchase or 214 Mass! iso!
20 sale or contract therefor is made, or on the regular clearing day of such 221 Mass! 495!
21 exchange or board next thereafter, which shall not be more than four 226 Mass! 46^'
22 days after the making of such purchase or sale, or contract therefor, 232 Mass! 117.
23 such purchases and sales shall be deemed actual purchases and sales fjg ^Im- 'Hf
24 within the meaning of this section.
1 Section 5. If, in a case under the preceding section, the money or .stolen, etc.,
2 property paid or delivered has been stolen, embezzled or fraudulently recovered
3 or wrongfully used by the party entitled to recover under said section, i.sgo.'Ts?! § 3.
4 the person to whom it rightfully belongs may in his own name recover loo^ji^a^s's^aw.
5 it in contract.
1384
INTOXICATING LIQUORS, ETC.
[Chap. KiS.
Prima facie
evidence of
intent not to
receive and
deliver.
1890,437. 5 4.
1901,459, § 2.
R. L. 99. § U.
1919.247,8 2.
ISl Mass. 251.
182 Mass. 321.
195 Mass. 419.
200 Mass. 307.
206 Mass. 27.').
217 Mass. 451.
221 Mass. 49.i.
226 Mass. 4(1.
230 Mass. 49.
234 Mass. 23l'i.
236 Mass. 454.
"Securities"
and "com-
modities"
de6ned.
1890.437,5 1.
R. L. 99. § 7.
Section 6. In a proceeding under either of the two preceding sections, 1
if the person so employed does not make an actual transaction relieving 2
him from liability under section four, the fact that the seller or the per- 3
son employing another to sell for his account did not own the securities 4
or commodities at the time of the contract of sale or of the giving of the 5
order to sell, and the fact that settlements were made without completion 6
of the purchase or sale of the securities and commodities bought or sold 7
or ordered to be bought or sold, shall each be prima facie e\idence that 8
within the meaning of section four there was an intention that there 9
should be no actual purchase or sale, and that there was reasonable 10
cause to believe that said intention existed; and the parties liable to an 11
action under said section shall be jointly and severally liable. 12
Section 7. In the three preceding sections, the word "securities"
shall include all evidences of debt or property and options for the pur-
chase and sale thereof, shares in any corporation, joint stock company
or association, bonds, coupons, scrip, rights, choses in action and other
evidences of debt or property and options for the purchase or sale thereof;
and the word "commodities" shall include everything movable that is
bought and sold.
REFERENCE.
Criminal provisions for bucketing, etc., Chap. 271.
CHAPTER 138.
INTOXICATING LIQUORS AND CERTAIN NON-INTOXICATING
BEVERAGES.
Sect.
definitions and sale.
1. Definitions.
2. Regulation of sales.
3. Definition of intoxicating liquor.
LICENSING BOARDS.
4. Appointment.
5. Terms of oflice. Removal.
6. Cliairman. Quorum. Vacancies.
7. Office, salaries, etc.
8. Powers to vest in aldermen in no li-
cense cities.
9. Record and report.
10. Certain cities exempt.
GRANTING OF LICENSES.
1 1 . Granting of licenses.
12. Information relative to applications and
licenses.
1.3. Applications to be received during
March and April.
14. Number of licenses limited, etc.
15. Notice of application to be published.
16. Licenses may be refused to unfit per-
CONDITIONS OF LICENSES.
17. Conditions.
Sect.
classes of licenses.
18. Five classes of licenses.
FEES FOR LICENSES.
19. Fees.
20. Death of licensee, new license, etc.
REGULATION OF LICENSED PREMISES.
21. Entrances and screens.
22. License of premises near school forbid-
den.
23. License in dwelling house or store con-
nected with it forbidden.
24. Hours of closing for common victuallers.
DRUGGISTS.
25. Sale by druggists.
26. Licenses to druggists.
27. Certificate of fitness for licen.sc.
2S.. Sale of alcohol by pharmacists regu-
lated.
29. Druggist's license to become void in
certain cases.
30. Sale only on certificate.
31. Record book for sales of liquor. Cer-
tificate.
Chap. 138.]
INTOXICATING LIQUORS, ETC.
1385
Sect.
32. Books, etc., open to inspection.
33. Penalty for sale of liquor in name of
pharmacist.
SALE OF WOOD ALCOHOL.
34. Manufacture, sale, etc. , of wood alcohol,
etc., without license by other than
registered druggist forbidden.
35. Licenses to manufacture, sell, etc.,
wood alcohol, etc.
36. Form of label on containers of wood al-
cohol, etc. Penalty.
37. Offence of unlawful sale of wood
alcohol, etc.
38. Penalty.
LICENSES TO DEALERS IV PAINTS AND CHEM-
ICALS.
39. Licenses to dealers in paints, etc.
40. License to become void in certain cases.
41. Record book for sales.
42. Refilling of bottles.
BONDS AND TRANSFEKS OF LICENSES.
43. Payment of fee and bond.
44. Sureties on bond.
45. Transfer of licenses.
46. One quarter of fees to be paid to com-
monwealth. Penalty.
PENALTIES FOR ILLEG.AL SALE. SEIZURE.
CIVIL DAMAGES.
47. Entry on licensed premises for exam-
ination and taking samples.
4S. Forfeiture of license.
49. Civil liability for damages caused by
an intoxicated person.
50. Action by owner paj^ng money for ten-
ant.
51. Minors under eighteen not to handle
liquor.
52. Penalty for furnishing liquor to minors.
53. Penalty for false statement of age in
order to procure liquor.
54. Analysis of liquor bj' department of
public health.
55. Certificate to accompany sample.
56. State secretary to pro\dde forms. Cer-
tificate to be evidence.
57. Tampering with samples forbidden.
,Sect.
58.
59.
60.
Court may order analysis.
Delivery of liquor prima facie evi-
dence of sale in certain cases.
Signs prima facie evidence of keeping
for sale in certain cases.
61. Search warrant.
62. Search of dwelling house.
63. Designation of place to be searched.
64. Search of premises and seizure of
liquor.
65. Notice to keeper of liquors seized.
66. Form and service of notice.
67. Postponement of trial.
68. Claimant of liquors may be admitted as
party. Judgment.
69. Disposition of forfeited liquor.
70. Liquors not forfeited to be returned.
71. Forfeiture of furniture, etc.
72. Costs.
73. Appeal.
74. Superior court to have jurisdiction
when liquors worth more than one
thousand dollars.
75. Arrest without warrant in certain cases.
76. Charter of club where liquor is ille-
gally sold, etc., may be declared
void.
77. Disposition of prosecution regulated.
78. Licensing authorities to be notified of
conv-iction.
79. Owner of building to be notified of
conviction.
SO. Forms for prosecution.
81. Liquors illegally kept, etc., common
nuisances.
82. Clubs u.sed for selling liquor common
nuisances.
S3. Penalty for illegal sale, etc., of certain
non-intoxicating beverages.
84. Conviction of licensee of violation of
law or of conditions of license ren-
ders license void.
So. Certain pro^nsions not to apply to sales
on a physician's prescription.
S6. General penalty.
87. Penalty for ^'iolation of certain sec-
tions.
88. Penalty for false certificates or prescrip-
tions.
89. Penalty for -iiolation of section 42.
DEFINITIONS AND SALE.
1 Section 1. The following words as used in this chapter, unless a Definitions.
2 contrary meaning is required by the context, shall have the following ^""°" '^^°' ^ '"
3 meanings:
4 "Certain non-intoxicating beverages", all beverages containing not
5 less than one half of one per cent and not more than two and three
6 fourths per cent of alcohol by weight at sixty degrees Fahrenheit. Such
7 beverages shall be deemed not to be into.xicating liquor.
8 "Licensing board", the board appointed under section four or the
9 board described in section ten.
1386
INTOXICATING LIQUORS, ETC.
[Chap. 138.
"Licensing authorities", all boards or officers having power to grant 10
licenses for the sale of intoxicating liquor or of certain non-intoxicating 11
beverages. 12
Regulation of
sales.
U, S. Const.
Amend. IS
Section 2. No person shall sell, or expose or keep for sale, spirituous 1
or intoxicating liquor or certain non-intoxicating beverages, except as 2
1920, 630. authorized by this chapter.
236 Mass. 281.
Penalty, §§ 83, 86.
Definition of
intoxicating
liquor.
236 Mass. 448.
Section 3. Any beverage containing more than two and three 1
quarters per cent of alcohol by weight at sixty degrees Fahrenheit, and 2
distilled spirits, shall be deemed to be intoxicating liquor within the 3
meaning of this chapter. 4
Appointment.
1875, 99, § 20.
187S, 244, § 2.
P. S. 100, § 28.
1894, 428.
HI, 2.
1895, 379.
1896, 396.
R. L. 100, § 3.
1920, 630, § 2.
184 Mass. 238.
LICENSING BOARDS.
Section 4. In each city which is not exempt by the provisions of 1
section ten there shall be a licensing board appointed by the mayor, con- 2
sisting of three persons, who shall not be engaged, directly or indirectly, 3
in the manufacture or sale of intoxicating liquors or of certain non- 4
intoxicating beverages, who have been residents of the city in which 5
they are appointed for at least two years immediately preceding their 6
appointment, and who shall not hold any other public office except that 7
of notary public and justice of the peace. One member shall be ap- S
pointed from each of the two leading political parties and the third 9
member may also be appointed from one of said parties. If any member 10
of said board engages directly or indirectly in such manufacture or 11
sale, his office shall immediately become vacant. 12
Terms of
office. Re-
moval.
1894.428, § 2.
lS9fi, 396.
R.L. 100, §4.
1912,389.
1920, 630, § 2.
223 Mass. 542.
223 Mass. 196.
Section 5. The terms of office of the members first appointed shall 1
commence at the date of their appointment, and shall be so arranged as 2
to expire at the end of two, four and six years from the first Monday in 3
June in the year of their appointment, the date of expiration to be speci- 4
fied in their respective commissions; and thereafter a member sha,ll be 5
appointed for a term of six years from the first Monday in June of the G
year in which the previous term expires. All members shall hold office 7
until their respective successors are qualified. They may be removed by 8
the mayor for cause, after charges preferred, reasonable notice thereof, 9
and a hearing thereon; and the mayor shall, in the order of removal, state 10
his reasons therefor. Any member of said board may, within seven days 1 1
after notice of his removal, apply to the superior court for a review of 12
the charges, of the evidence submitted thereunder, and of the findings 13
thereon by the mayor. Notice of the entry of such application shall be 14
given to the mayor by serving upon him an attested copy thereof. The 15
entry fee, costs, and all proceedings upon such application shall be ac- 16
cording to the rules regulating the trial of civil causes. The court, after 17
a hearing, shall affirm or revoke the order of the mayor removing such 18
member, and there shall be no appeal from the decision. 19
If any member of said board who has been removed from office shall 20
apply to the superior court for the review provided for in this section, 21
the removal shall not take effect until the court shall have affirmed 22
the order removing the member; and until such order is affirmed the 23
member shall continue to exercise the powers and perform the duties of 24
his office. 25
Chap. 138.] intoxicating liquors, etc. 1387
1 Section 6. The mayor shall designate one naember as chairman, chairman.
2 who shall also act as secretary. Two members shall be a quorum for the Vacandes.
3 transaction of business. If a member ceases to be a resident of the city j^'i*; too. 1 1'.
4 for which he is appointed or becomes unable to perform his official duties, ^^"°' ^^°' ^ ^'
5 there shall be a vacancy in the board. All vacancies shall be filled by the
6 mayor for the residue of the unexpired term in the manner p^o^•ided for
7 an original appointment.
1 Section 7. Each city which has such a board shall provide it with office,
2 suitable rooms, properly furnished, heated and lighted, shall pay such i'sm,' «!. s 6.
3 salaries as the city council, subject to the approval of the mayor, may J920; 030. 1 2.
4 from time to time establish, and shall also pay all expenses incurred
5 by said board for blank books, printing and other necessary expenses
6 approved by said board, not exceeding one thousand dollars in any one
7 year.
1 Section S. If, at any annual city election, a city in which such Powers to
2 board has been appointed shall not vote to authorize the granting of men in no ^'
3 licenses for the sale of certain non-intoxicating beverages, all obligations i894!428,'r'7.
4 imposed upon said city by the preceding section shall cease from and ^920,' eso,' § 2.'
5 after the first Monday in June next following such vote and, from and i^o -'^laas. isi.
6 after said date, the powers and duties granted to and imposed upon said
7 board in respect to third and fourth class licenses and licenses of inn-
8 holders and common victuallers shall vest in the aldermen of said city.
9 If said city shall, at a subsequent annual city election, again vote to
10 authorize the granting of licenses for the sale of such beverages, the obli-
11 gations imposed by the preceding section shall be revived and shall
12 attach to said city from and after March first next following such vote
13 and, from and after said date, the powers and duties of the aldermen
14 relative to licenses of the third and fourth classes and licenses of inn-
15 holders and common victuallers shall revest in the licensing board ap-
16 pointed in said city.
1 Section 9. Each board shall keep a record of its doings and hearings Record ana
2 and shall make a quarterly report of its doings to the mayor. It may 1194^428,
3 prescribe the forms of applications for licenses, may require any state- f^ l.%o, § 8.
4 ment which may be made before it and papers which may be filed with '"-°' ''^°' ^ ^•
5 it relative to applications for licenses to be sworn to, and for such pur-
6 pose, any member may administer oaths.
1 Section 10. The following cities shall be exempt from the opera- Certain cities
2 tion of the six preceding sections: First, Cities having a licensing board i894,'42s, f 10.
3 created by special statute or under the provisions of a charter. Second, 1920; iaS; §2.
4 Cities which have not at any annual city election before this chapter
5 takes eft'ect voted to authorize the granting of licenses for the sale of
6 certain non-intoxicating beverages; but if any such city hereafter, at an
7 annual city election, votes to authorize the granting of such licenses, a
8 board shall, thereupon, in the February following, be appointed for such
9 city as above provided, and the provisions of the six preceding sections
10 shall thereafter apply to said city.
1388 IXTOXICATIXG LIQUORS, ETC. [Ch.\P. 138.
GR'tNTING OF LICENSES.
Granting of SECTION 11. In a citv OF town whicli at its annual election votes to 1
licenses. ,., .»,. piip • ...
1875 99. authorize the granting of hcenses tor the sale or certain non-mtoxicating 2
1878, 244, § 2. beveragcs, as hereinafter provided, licenses of the first two classes men- 3
§§ i.'l. ' tioned in section eighteen may be granted annually to applicants therefor 4
5*5 1; 28°' by the licensing boards in cities and by selectmen in towns, and in any 5
323^'§*2.' city or town, licenses of the third, fourth or fifth class mentioned in 6
1896' 397' I \o ^^^^ section may be granted annually to applicants therefor by the licens- 7
IS97', 398. 1 1. ing board in cities having such boards, by the aldermen in other cities, and 8
1920.' 630.' § 3. ■ by the selectmen in towns. Every license shall be signed by the licensing 9
136 Mass! 50 ' board in cities having such boards, in other cities by the mayor and city 10
221 MaS: 395: clerk, and in towns by the chairman of the selectmen and town clerk, and 1 1
it shall be recorded in the office of the licensing board in cities having 12
such boards, and in other cities and towns in the office of the city or 13
town clerk, and the licensee shall pay the recording officer one dollar for 14
recording the license. It shall name the person licensed, shall set forth 15
the nature of the license and the building in which the business is to be 16
carried on, and shall continue in force until the first day of the May 17
next ensuing, unless sooner forfeited or rendered void. The aldermen 18
and selectmen, respectively, shall insert in the warrant for the annual 19
city election or town meeting an article providing for a vote upon the 20
question, "Shall licenses be granted for the sale of certain non-intoxicat- 21
ing beverages in this city (or town)?" The clerk of each city or town 22
shall, within thirty days after such vote is taken, transmit a true state- 23
ment thereof to the state secretary; and shall annually, in November, 24
make a return to said secretary, showing the number of licenses of each 25
class issued, the amount received for the same by classes and the number 26
revoked if any. 27
reMve^to" SECTION 12. The licensing board shall certify to the city clerk, the 1
anS'uc^'nsel ^ity trcasurcr and the chief of police or city marshal the name of each 2
1894. 428, 1 5.^ applicant for a license, the name of each person to whom a license is 3
19201 o3o', ^ 2. issued, the date when each license goes into effect, the premises on which 4
it is to be exercised, the class of the license, each change of location by a 5
licensee and each transfer of a license ordered by it. 6
ufberec'eh!.! SECTION 13. The licensing authorities of a city or town which has 1
during -March yotcd to authorlzc the granting of licenses for the sale of certain non- 2
and April. . ... ° i-titi i»'i • i- n
1883.93. ^ intoxicatmg beverages may, during iVlarcn and April, recen'e applica- 3
i92o; 63o'. § i" tions for such licenses, publish, investigate and act thereon, and may, 4
in April, grant such licenses, to take effect on the first day of May 5
following. . 6
Number of SECTION 14. In citics and towns whicli vote to authorize the granting 1
limited, etc. of liccuses for the sale of certain non-intoxicating beverages the number 2
1892] 28o! of places licensed for the sale of such beverages shall not exceed one 3
1899! 248'; for each one thousand of the population as ascertained by the last preced- 4
R. L.*iw. ing national or state census, but one such place may be licensed in any 5
1909 371 § s town having a population of less than one thousand. In Boston, one 6
1915 67^' ^"^*^^^ place may be licensed for each five hundred of the population, but 7
^IJ^^'^o'l in no event shall the total number of licensed places therein exceed one 8
1919 350
§§25.26.' thousand. Nowhere in the commonwealth shall a first class license be 9
("hap. 138.] INTOXICATING LIQUORS, ETC. 1389
10 granted to be exercised upon the same premises with a license of the 1020, ist;
11 second class, except that a licensed innholder, who has a license of the lu/Mass. 290.
12 first class may likewise be granted a license of the second class for the
13 purpose of supplying said non-intoxicating beverages to guests who have
14 resorted to his inn for food or lodging. No more than one license shall
15 be granted by any one vote of the licensing board. Such licenses shall
16 be numbered in regular order as granted, and any license granted con-
17 trary to, or in excess of, the provisions of this section shall be void; but
18 in a town voting as aforesaid at its last annual town meeting which has
19 less than five thousand permanent residents according to the last pre-
20 ceding state or national census but has an increased resident population
21 during the summer months, the selectmen may, on or before May fifteenth
22 in any year, apply to the state secretary to have an enumeration made
23 of the temporary or summer residents of such town. Said secretary
24 shall thereupon make such enumeration, between June twenty-third
25 and twenty-eighth next following, under such rules as he shall establish.
26 A person who has not been a resident of such town for at least three
27 days preceding the enumeration shall not be regarded as a temporary or
28 summer resident thereof. The secretary may employ, for such enumera-
29 tion, such persons as may be necessary, who shall in all cases be resi-
30 dents of the town if suitable and competent persons can be found ; other-
31 wise, non-residents may be employed. The secretary shall report the
32 total number of such temporary or summer residents to the selectmen
33 of the town on or before said June twenty-eighth. The expenses incurred
34 in making such special enumeration shall be paid by the common-
35 wealth. The state treasurer shall thereupon issue his warrant, as pro-
36 vided in section twenty of chapter fifty-nine, requiring the assessors of
37 such towns to assess a tax to the amount of the expense incurred in
38 making this special enumeration, and such amount shall be collected and
39 paid over to the state treasurer in the same manner as other state taxes.
40 The selectmen may, in April, recei\e applications for such licenses and
41 investigate and publish the same; and may grant one such license for
42 each five hundred of such temporary resident population, not including
43 the permanent inhabitants of such town, as ascertained by said special
44 enumeration, to take effect on July first and to expire on October first
45 next follo^\■ing. And in the towns of Hull and Nahant it is further pro-
46 vided that when either of said towns has voted to authorize the granting
47 of licenses for the sale of certain non-intoxicating beverages at its last
48 annual town meeting, and such special enumeration has been made in
49 the calendar year last preceding said last annual town meeting, the
50 selectmen may, in April, receive applications for such licenses and in-
51 vestigate and publish the same, and may grant one such license for each
52 five hundred of such temporary resident population, not including the
53 permanent inhabitants of the town, as ascertained by said special enumer-
54 ation taken in said last preceding calendar year, to take effect on INIay
55 fifteenth and to expire on October first next following. A selectman,
56 member of a licensing board or census enumerator who violates any
57 provision of this section shall be punished by a fine of five hundred
58 dollars.
1 Section 15. Notice of all applications for licenses shall, at the ex- Notice of
2 pense of the applicant, to be paid in advance, be published in the follow- b?'^pubiVshed°
3 ing manner: in Boston by the licensing board in two or more daily p'.'s.' wo.' i d.'
4 newspapers published therein; and in the Charlestown, East Boston, }||5;3i3;5 2
1390
IXTOXICATIXG LIQUOKS, ETC.
[Ch.\p. 138.
r^lIoo'Iu South Boston, Dorchester, Roxbury and Brighton districts of said city, 5
1920, 6.30,' § 6. respectively, in at least one weekly newspaper published in the district G
ISO Mass! 389. in whicli the premises for which the license is asked are situated, if any 7
201 Mass.' 204. is there published ; in other cities and towns by the licensing authorities 8
thereof, in such newspapers, printed therein and published at least once 9
a week, as they may designate; or if no such newspaper is printed 10
therein, then by posting such notice in a conspicuous place on the premises 1 1
described in the application for the license and in two or more places in 12
which public notices are usually posted in the neighborhood. Such notice 13
shall set forth the name of the appHcant in full, the class of the license 14
applied for, a particular description of the premises on which the license 15
is to be exercised, designating the building or part of a building to be 16
used, and, if practicable, the street and number, and shall be published at 17
least ten clays before the licensing authorities act thereon. If a license is 18
granted without such previous publication, any citizen of the city or 19
town within which such license is issued may make complaint to the 20
district court haxing jurisdiction therein; and if, after due hearing, it 21
appears that such notice was not given, the court shall revoke the license 22
and give notice thereof to the authorities which issued it. 23
beTrfused'to SECTION 16. The licensing authorities may at any time refuse to
i87s.99?r5 issue a license to a person whom they consider mifit to receive the same;
R l\°ooV'io but this chapter shall not be so construed as to compel said licensing
1920, fi30, 1 7. authorities to grant licenses.
CONDITIONS OF LICENSES.
fsTs^'og^le Section 17. Each license of the first two classes shall be expressed 1
p. s.'ioq, §9. to be subject to the following conditions: 1906,395. 1913, sss, §6. 2
1920, 630, § S. 126 Mass. 542. 150 Mass. 272.
R. L. 100,
§§ 17,41.
145 Mass. 464.
1S85, 90; 216.
1889, 186; ,361.
1893, 417, § 9.
1898, 548, § 6.
R. L. 11. § 6.
1907, 468; 560,
§§ 6, 456.
1913, S35,
§503.
140 Mass. 289.
145 Mass. 244.
152 Mass. SOS.
177 Mass. 221.
182 Mass. 22.
1891, 369.
217 Mass. 507.
First, That the provisions in regard to the nature of the license, and 3
the building in which the business may be carried on under it, shall be 4
strictly adhered to. 5
Second, That spirituous or intoxicating liquor shall not be sold, ex- 6
changed or deli\ered, or exposed, offered or kept for sale, exchange or 7
delivery, upon the licensed premises. 8
Third, Certain non-intoxicating be\-erages shall not be sold between 9
the hours of eleven at night and six in the morning, or on the Lord's 10
day or on a legal holiday or any day on which a national, state, city or 11
annual town election is held in the city or town in which the licensed 12
premises are situated; but if the licensee is also licensed as an inn- 13
holder, he may, between the hours of six in the morning and eleven at 14
night, on the Lord's day, a legal holiday or such election day, supply 15
such be\'erages to persons who ha^•e resorted to his inn for food or 16
lodging. 17
Fourth, That there shall be no disorder, indecency, prostitution, 18
lewdness or illegal gaming on the licensed premises, or any premises 19
connected therewith by an interior communication. 20
Fifth, That the license, or a copy thereof, certified by the recording 21
officer of the licensing board or by the clerk of the city or town by which 22
it is issued, shall be displayed on the premises in a conspicuous position, 23
where it can easily be read. 24
Sixth, That the license shall be subject to forfeiture, as herein pro- 25
Aided, for breach of its conditions, and that, if the licensee is convicted 26
Chap. 138.] intoxicating liquors, etc. 1391
27 of a violation of any of such conditions, his Hcense shall thereupon be-
28 come void.
29 Each license of the first class shall be subject to the further con-
30 dition that the licensee shall hold a license as an innholder or common
31 \'ictualler.
32 Each license to a common victualler shall specify the room or rooms is9i, 369.
33 in which certain non-intoxicating beverages shall be kept or sold, and iso MaS: issi
34 the holder of such license shall not keep, sell or deliver any such bever- ^~'
35 ages in any room or part of a building not so specified.
36 Licenses of the third, fourth or fifth classes shall be expressed to be
37 subject to the first, fourth, fifth and sixth paragraphs of this section.
38 Each license of the third or fourth class shall be subject to the fur- is90, 272.
39 ther condition that all spirituous or intoxicating liquors which are sold,
40 exchanged or deli\-ered, or which are exposed or kept for sale, exchange
41 or delivery, shall be of the quality required for their sale as drugs under
42 the laws relative to food and drugs.
CLASSES OF LICENSES.
1 Section 18. Licenses shall be of the following classes: Five classes
2 First class. To sell malt beverages, cider and light wines containing i86's,Tli!'§4;
3 not more than two and seventy-five one-hundredths per cent of alcohol 1875, 99, § 7.
4 by weight at sixty degrees Fahrenheit, to be drunk on the premises. r'.l.\w).Vi8
5 Second class. To sell, or manufacture and sell, malt beverages, cider ^^~°' ''^o. § 9-
6 and light wines containing not more than two and seventy-five one-
7 hundredths per cent of alcohol at sixty degrees Fahrenheit, not to be
8 drunk on the premises.
9 Third class. Licenses to retail druggists to sell liquors of any kind Jlge,' 397, § 13
10 for medicinal, mechanical or chemical purposes only, and to such persons
1 1 only as may certify in WTiting for what use they want them.
12 Fourth class. To sell, to any person holding a third or fifth class
13 license, or a certificate of fitness imder section twenty-seven, or to any
14 person lawfully authorized by the laws of the L^nited States and the
15 regulations made thereunder to purchase intoxicating liquors, intoxicat-
16 ing liquors of any kind for other than beverage pm-poses, not to be used
17 on the premises.
18 Fifth class. Licenses to dealers in paints or in chemicals to sell alcohol ^^'^''- ^^^' § '
19 for mechanical, manufacturing or chemical purposes only.
FEES FOR LICENSES.
1 Section 19. The fees for licenses shall be as follows: Fees.
2 For a license of the first, second or fourth class, not less than two p. s^"iod. 5 ii.
3 hundred and fifty dollars.
ISSS, 341. R. L. 100, § 19. 1920, 030, § 10.
4 For a license of the third or fifth class, one dollar.
1 Section 20. If a licensee of the first, second or fourth class dies be- Death of
2 fore the expiration of the term of his license, or if a license has been ucensretc^."
3 surrendered and cancelled, the authorities issuing the license may issue r^^l! loo, ^ '
4 another license of either of such classes, and the two licenses shall count ^^zo. ^_^^
5 as one license; and said authorities shall require as a license fee for such 52°^' ^°'''
6 second license a part of the license fee required therefor for the whole year 1920,' esb.
1392
INTOXICATING LIQUORS, ETC.
[CH.4P. 138.
1S9 Mass. 260.
217 Mass. 233.
proportionate to the unexpired term of the license. Said authorities may 7
in their discretion, in cases where two Hcenses of the first, second or fourth 8
class have been issued in the same year, give a certificate to the party 9
to whom the first hcense was issued, or, in case of his death, to his ad- 10
ministrator or executor, stating that a part of the fee paid therefor pro- 1 1
portionate to the unexpired term of the Hcense is to be refunded to such 12
party, or to such administrator or executor, by the treasurer of the city 13
or town from the fees thereafter received by said treasurer for licenses 14
imder this chapter. Said treasurer shall comply with the requirements 15
of such certificate, and shall retain one quarter of the amount so paid 16
from any money thereafter due from him or the city to the common- 17
wealth on account of such licenses. If a licensee dies before the expira- 18
tion of the term of his license, the city or town by which it was granted 19
may refund to his executor or administrator a part of the license fee 20
proportionate to the unexpired term of the license, and the proportionate 21
part of the percentage which has been paid to the commonwealth shall 22
be refunded to the city or town. 23
REGULATION OF LICENSED PREMISES.
Entrances
screens.
1S80, 239,
1881,225.
P. S. 100,
1882, 259,
R. L. 100,
1906, 374,
1917,36.
1920, 630,
133 Mass.
404.
134 Mass.
197.
138 Mass.
140 Mass.
447.
141 Mass.
5S, 321.
143 Mass.
145 Mass.
150 Mass.
.504.
158 Mass.
and
§2.
§12.
§ 1.
§34.
§1.
§12.
192,
511.
441,
28,
92.
244.
320,
Section 21. The authorities which grant a license of the first two
classes may require a licensee to close permanently all entrances to the
licensed premises except those from the public street or streets upon
which said premises are situated, and may so specify in the license. In
such case the construction or opening of any such entrance shall of
itself make the license void. A licensee holding a license of the first class
shall not place or maintain or permit to be placed or maintained, in any 7
public room used by him for the sale of certain non-intoxicating bever- S
ages under the provisions of his license, any screen, blind, shutter, cur- 9
tain, partition, or painted, ground or stained glass window, or any other 10
obstruction, in such a way as to interfere with a view of the business 11
conducted on the premises, and the placing or maintaining of any of 12
said obstructions shall of itself make the license void, except that the 13
licensing authorities in their discretion may, upon application of a 14
licensed innholder who also holds a license to sell such beverages, per- -15
mit screens, curtains, or such other obstructions as they may designate 16
to be placed at the windows of the dining rooms of the hotel maintained 17
by said innholder and said authorities shall have the power to revoke 18
such privilege. 19
p?^lls°near SECTION 22. No liccnsc of the first class shall be granted for the 1
wdden'" ^^'^ '^^ Certain non-intoxicating be\'erages in any building or place on 2
1I94' 1^9' ^^^ same street as, and within four hundred feet of, any building occupied 3
R. l! 100, § 35. in whole or in part by a public school; but this section shall not prevent 4
1920,' 63o', § 13. the granting of such license to be exercised on premises fitted up and 5
occupied as a place for selling such beverages under a license and by a G
licensee of a corresponding class of the preceding year although said 7
premises are within four hundred feet of a building used temporarily 8
in whole or in part for school purposes, if such use will cease permanently 9
within one year after the granting of said license; nor shall this section 10
prevent the granting of such a license to be exercised in any hotel on the 11
same street as, and having its bar more than four hundred feet from, 12
a building occupied in whole or in part by a public school; provided, 13
that there is no public bar in such hotel. 14
Chap. 13S.] intoxicating liquors, etc. 1393
1 Section 23. No license of the first two classes shall be granted to License in
2 be exercised in a dwelling house or in any room or shop having any orTtOT^con-'**
3 interior connection or means of communication with a dwelling or tene- "o^'iddra"' ''
4 ment of any family, and the opening or maintaining of any such con- if^f'j^^®'
5 nection or means of commmiication shall render the license void.
K. L. 100, §§36, 37. 1920, 030, §§ 14, IS. 150 Mass. 270.
1 Section 24. A common victualler who holds a license under this Hours of
2 chapter shall keep the licensed premises closed between the hours of common"'^
3 twelve at night and five in the morning. victuallers.
1S82, 242, § 1. R. L. 100, § 40. 1020, 630, § 16.
DRUGGISTS.
1 Section 25. Druggists having a third class license may sell pure saie by
2 alcohol for medicinal, mechanical or chemical purposes without a phy- isrlfgg^i 2.
3 sician's prescription, the said sales to be recorded in the manner pre- J^§f ^^{ ||
4 scribed in section thirty-one. isga, 397, § 10.
R. L. 100, § 21. 1907, 190. 1913, 410, § 1. Op. A. G. (1918) 6.
1 Section 2C. No license for the sale of spirituous or intoxicating Licenses to
2 liquor, except of the third class, shall be granted to retail druggists. One issffwi, § i.
3 or more licenses of the third class may be granted annually by the li- {goo; loe." ^ '"'
4 censing authorities of a city or town to retail druggists who are regis- J^qo' J27' | f ^'
5 tered pharmacists actively engaged in business on their own account, J-jo®! 525; § 3.
6 or on the account of the widow, executor or administrator of a deceased i9i3;4io! § 2.
7 registered pharmacist, or of the wife of one who has become incapacitated, i9i8!257i
8 upon presentation to said authorities of the certificate prescribed by the fg^igl's.
9 following section, if it appears that the applicant is a proper person to isIVass. 273.
10 receive such license, and is not disqualified to receive it under the pro- ^-^ ^^^''^- ^^■
11 visions of section eighty-four. A registered pharmacist who owns stock
12 of the actual value of at least five hundred dollars in a corporation
13 which has been incorporated for the purpose of carrying on the drug
14 business, and who conducts in person the business of a store of such
15 corporation, shall be considered as actively engaged in business on his
16 own account and as qualified to receive a license for such store. The
17 licensing authorities may refuse to grant any and all such licenses.
1 Section 27. The board of registration in pharmacy may, upon the Certificate of
2 pajTnent of a fee of not more than five dollars by an applicant for a license. "'^
3 license of the third class, issue to him a certificate of fitness, which shall Jswil™!
4 not be valid after one year from its date, stating that in the judgment of ^'■'l' ^qq' | 23
5 said board he is a proper person to be intrusted with such license and J^oii, 281, § 2.
6 that the public good will be promoted by the granting thereof. The mob, 261, § 1.
7 board and the licensing authorities of the cities and towns mentioned in
8 the following section may, after giving a hearing to the parties inter-
9 ested, revoke or suspend such certificate for any cause which they may
10 deem proper, and such revocation or suspension shall re\'oke or suspend
1 1 the third class license granted thereon.
1 Section 28. In any city or town where licenses of the first two saie of aicohoi
2 classes are not granted, registered pharmacists to whom a certificate of riguiated.'"'"''^
3 fitness has been issued as provided by the preceding section may sell J9?.3; ffs,' ^ ''
4 pure alcohol for medicinal, mechanical or chemical purposes without a M'^'q
5 physician's prescription, such sales to be recorded in the manner pro- 09i9) 72.
1394
INTOXICATING LIQUORS, ETC.
[Chap. 138.
vided in section thirty-one, and may sell intoxicating liquors or certain 0
non-intoxicating beverages upon the prescription of a registered physician 7
practicing in such city or town, provided that the prescription is dated, 8
contains the name of the person prescribed for, and is signed by the 9
physician. All such prescriptions shall be retained and kept on file in 10
a separate book by the pharmacist filling the same, and shall not be 11
filled a second time. Such prescription book shall be open at all times 12
to the inspection provided by section thirty-two. 13
Druggist's
license to be-
come void in
certain cases.
1893, 472, § S.
1896, 397, § 12.
R. L. 100, § 24.
Section 29. A license of the third class shall become null and void
without any process or decree, if the registered pharmacist to whom it
has been granted ceases to conduct his business in person and on his
own account, or upon the revocation of his certificate of registration as a
pharmacist, unless the registered pharmacist has been unable to so con-
duct his business or has died, and his business is continued by his ■wife,
Andow, executor or administrator under another registered pharmacist.
Sale only on
certificate.
1838, 157, § 2.
1SS5, 215, § 2.
G. S. 86. § 26.
1869,415, §28.
1870, 389. I 4.
1875, 99, § 2.
P. S. 100, § 2.
18S7, 431. § 2.
1896, 397, § 13.
Section 30. Retail druggists shall not sell intoxicating liquor of any
kind or certain non-intoxicating beverages for medicinal, mechanical or
chemical purposes except upon the certificate of the purchaser, which
shall state the use for which it is wanted, and which shall be immedi-
ately cancelled at the time of sale in such manner as to show the date
of cancellation. R. l. loo, § 25, i48 Mass. 160.
156 Mass. 233.
158 Mass. 482, 499.
Penalty, § 87.
Record book
for sales of
liquor. Cer-
tificate.
1855. 215, § 2.
G. S. 86, § 26.
1869, 415. § 28.
1872.271.
1878, 203, § 2.
P. S. 100, § 3.
1887,431, §3.
1896, 397, § 14.
1901,91.
R. L. 100, § 26.
155 Mass. 291.
Op. A. G.
(1918) 6.
Op. A. G.
(1919) 71.
Penalty, § S7.
Section 31. Every retail druggist shall keep a book in which he 1
shall enter, at the time of every such sale, the date thereof, the name of 2
the purchaser, the kind, quantity and price of said liquor or beverage, 3
the purpose for which it was sold, and the residence by street and number, 4
if any, of said purchaser. If such sale is made upon the prescription 5
of a physician, the book shall also contain the name of the physician 6
and shall state the use for which said liquor or be\erage is prescribed 7
and the quantity to be used for such purpose, and the prescription shall 8
be cancelled in the manner provided in the preceding section with refer- 9
ence to certificates. Said book shall be in form substantiallv as follows: 10
Date.
Name of
Purchaser.
Residence.
Kind and
Quantity.
Purpose
of Use.
Price.
Name of
Physician.
The certificate mentioned in the preceding section shall be a part of 11
said book and shall not be detached therefrom, and shall be in form sub- 12
stantially as follows : 13
Certific.A-TE.
I wish to purchase and I certify that I am not a minor and
that the same is to be used for * Mechanical * Chemical * Medicinal purposes.
(* Draw a line through the words which do not indicate the purpose of the purchase.)
Signature
Cancelled
Books, etc.,
open to
inspection.
1855, 215, § 2. _
?869 ^'s^Im °"® ^'^^^^ ^^ ^'^ times be open to the inspection of the board of regis- 3
1872! 271.' tration in pharmacy, the licensing board in cities ha\'ing such boards 4
Section 32. The book, certificates and prescriptions provided for in
the two preceding sections and the book pro^•ide(^ for in section forty-
Chap. 138.] intoxicating liquors, etc. 1395
5 and in all other cities and towns, to the inspection of the aldermen, is78. 203, § 2.
6 selectmen, overseers of the poor, sheriffs, constables, police officers and rs87,43i'.|4.
7 justices of the peace. isoe, 307, § 15. is97, 39s, § 4. r. l. 100, § 27.
1918, 257, §341. 1919,5. 1920,2. Penalty, § 87.
1 Section 33. A person, not a registered pharmacist, who procures Penalty for
2 a third class license for the sale of intoxicating liquors in the name fn'nameot"'^
3 of a registered pharmacist who is dead, or in the name of a registered 5'893"4''72'''§ 4
4 pharmacist by borrowing, hiring or purchasing the use of his certificate, Jf^j^' 397, 1 17.
5 and, being himself the owner or manager of the place, personally or
6 by his servants sells intoxicating liquor, shall be punished by a fine
7 of not less than fifty nor more than five hundred dollars and by im-
8 prisonment for not less than one nor more than six months. Section
9 eleven of chapter tM'o hundred and seventy-nine shall not apply to a
10 conviction under this section.
SALE OF wood ALCOHOL.
1 Section 34. No person other than a registered druggist shall en- Manufacture,
2 gage in the business of manufacturing, buying, selling or dealing in woo/aic'ohoi,
3 methyl alcohol, or wood alcohol, so called, or denatured alcohol, or any ficensTby""'
4 preparation used for manufacturing or commercial purposes which con- °*j|ter'^d°
5 tains more than three per cent of any of the said alcohols and is intended f™b1f['|*„
6 for use other than as a beverage, without being licensed so to do by the i9i9,36o,'§ 1.
7 board of health of the town where the business is conducted.
1 Section 35. The board of health of each town may issue licenses Licenses to
2 under the preceding section, upon the paj-ment of a fee of one dollar, to sefiretcl'wo^t^
3 such persons as it shall find to be properly qualified to carry on the said i9''°9''°36o*s'2
4 business. The licenses shall expire on April thirtieth of each year, and
5 may at any time be suspended or revoked, for cause, by the board. The
6 board shall keep a record of all such licenses.
1 Section 36. Every barrel or keg containing methyl alcohol or wood on TOnfa'nera
2 alcohol, so called, or denatured alcohol containing methyl alcohol, or "f^^hof etc
3 any drug or medicine intended for external use containing methyl alcohol, Penalty.
4 shall bear in capital letters not less than three fourths nor more than i9io;54i:§i;
5 one and one half inches in height, stencilled thereon or printed upon a 1920,' isi' ^ ^'
•6 label affixed thereto, the words "POISON, NOT FOR INTERNAL
7 USE". Every other container of any such alcohol, drug or medicine
8 shall bear a label of white paper on which shall be printed in red capital
9 letters not less than one fourth of an inch in height, the words " DEADLY
10 POISON", the name and place of business of the vendor, and the state-
11 ment that he is a registered druggist or the number of his license under
12 the two preceding sections, and, in legible tvpe, the words "NOT FOR
13 INTERNAL USE, CAUSES BLINDNESS. KEEP FROM THE
14 EYES." Whoever, himself or by his servant or agent, sells, exchanges
15 or delivers any such alcohol, drug or medicine in any container not con-
16 forming to this section shall be punished by a fine of not less than fifty
17 nor more than two hundred dollars.
1 Section 37. The sale of methyl alcohol, wood alcohol, so called, de- osence of
2 natured alcohol, or any preparation containing alcohol as described in ""wood "^^ ^
3 section thirty-four, by a person not licensed as required by sections loTg'llJeo.'M.
4 thirty-four and thirty-five, or by a licensee to a minor or to any person
1396
INTOXICATING LIQUORS, ETC.
[Chap. 1.38.
without reasonable investigation and inquiry to determine that the same .5
is not to be used for drinking purposes, shall constitute the offence of 6
unlawful sale of alcohol and may be described as such in any complaint 7
or indictment without more; but a person so charged shall be entitled 8
to a bill of particulars in accordance with section forty of chapter two 9
hundred and seventv-seven. 10
Penalty.
1919, 360, § ,^.
Section 38. Except as otherwise provided in section thirty-six, vio- 1
lation of any provision of sections thirty-four to thirty-seven, inclusive, 2
shall be punished by a fine of not more than one hundred dollars or by 3
imprisonment in the house of correction for a term not exceeding six 4
months, or both. 5
LICENSES to dealers IN PAINTS AND CHEMICALS.
deaferein" Section 39. The licensing authorities of a city or town may annu-
i897!398!'§ 1. 'I'ly grant a license of the fifth class, for the sale of pure alcohol for
R. L. 100, § 30. mechanical, manufacturing or chemical purposes only, to a dealer in
paints or in chemicals who applies therefor, if it appears that the appli-
cant is a proper person to recei^•e such license and that he is actually
carrying on business as a dealer in paints or chemicals.
cdmrvoid in Section 40. A license of the fifth class shall become null and ^•oid 1
is97,'39s!T2. '^^'ithout any process or decree if the licensee ceases to carry on the 2
R. L. 100, § 31. business of dealing in paints or chemicals. 3
for's°ak3:'°°'' Section 41. E\-ery dealer in paints or chemicals to whom such
sfes'eftio'n^.^l l'<^dse is granted shall keep a book in which he shall enter, at the time
R. L. 100, § 32. of every sale of alcohol, the date thereof, the name and residence of
Penalty, § 87. the purchascr, his residence by street and number, if any, the quantity
and price of the alcohol sold, and the purpose for which it is to be used.
Said book shall be in form substantially as follows:
Date.
Name of
Purchaser.
Residence, giving
Street and Number,
if Any.
Quantity.
Price.
Purpose of
ReBlIing of
bottles.
1917, 150,
S§1,2.
Penalty, § 89.
Section 42. All persons holding licenses to sell intoxicating liquors 1
shall, immediately upon the emptying, within the limits of the licensed 2
premises, of the original contents of a bottle containing liquors other 3
than malt liquors, and before refilling the same, destroy all labels or 4
printed marks thereon. There shall not thereafter be placed on such 5
bottles any label or printed mark so similar to the original as to promote 6
fraud or deceit, or as to be likely to be mistaken for the original label or 7
mark. This section shall not be construed to prohibit the lawful refilling 8
of such bottles ^\^th liquors true to label by the persons entitled to use the 9
original label or mark or their agents. 10
Payment of fee
and bond.
1875, 99, § 9.
P. S. 100, § 13.
18.S2, 259, § 2.
1885,83;
323, § 2.
BONDS AND TRANSFERS OF LICENSES.
Section 43. A license shall not be issued until the license fee has
been paid to the treasurer of the city or town by which it is to be issued,
nor until he has received a satisfactory bond, payable to him as such
treasurer, in the sum of five hundred dollars, signed by the licensee and
221 Mass. 395.
Chap. 138.] intoxicating liquors, etc. ' 1397
5 sufficient surety or sureties, who shall be jointly and severally liable, and il94'f2s'§4
6 conditioned for the payment of all costs, damages and fines which may f^.^- joo. § 42.
7 be incurred by a Nnolation of the provisions of this chapter. Separate 127 Mass'. 497.
8 actions may be brought on such bond by any person at his own expense. i77Mkss.i97:
9 Such bond, after approval, shall be filed in the office of the city or town 217 Mass! 507!
10 clerk, and a certified copy thereof shall be admissible in ev'idence. No
11 such bond shall be accepted or appro \ed until each surety has made and
12 subscribed a statement under oath that he is worth not less than one
1.3 thousand dollars over and above all liabilities and indebtedness, and the
14 statement so made shall designate sufficient property, real or personal,
15 to cover the requirement of the bond and shall be kept on file with the
16 bond. The bond may be in the following form:
KNOW ALL MEN BY THESE PRESENTS, that we, A. B., of
as principal, and C. D. and E. F. of , as sureties, are
held and firmly bound unto the treasurer of the city (or town) of ,
in the sum of five hundred dollars, to which paj-ment well and truly to be made
we bind ourselves and our legal representatives.
Sealed with our seals this day of , A.D. 19
The condition of this obligation is such, that whereas the above bounden
A. B. has this day been licensed by license No. , by the aldermen (board
of police or licensing board) of the citj' of (or the selectmen of the town of)
, in the countj^ of , now if the said A. B. shall well
and truly comply with all the provisions of law, then this bond shall be void; but
otherwise in force.
Executed in presence of
1 Section 44. No person, except a corporation organized for the pur- sureties
2 pose of acting as surety on bonds and duly qualified to do business in the ?s94?3ss.
3 commonwealth, shall be accepted as surety upon more than ten bonds ^^l[ }q^- 5 43
4 which may be given under the preceding section. Each surety, except as i^^"- '^^°' 5 is-
5 aforesaid, shall make a written statement, under oath, that he is not a
6 surety upon more than nine other bonds given under said section, and
7 such statement shall be kept on file with the bond.
1 Section 45. Licensing authorities may transfer licenses from one Transfer of
2 location to another within the city or town in which such licenses are in issa^s^.
3 force; but such transfer shall be granted only to the original licensee, 1920', oaa I la
4 and like notice shall be given, the same provisions shall apply, and other
5 proceedings shall be the same as are required upon the granting of li-
6 censes, except that no new license fee shall be reciuired.
1 Section 46. The treasurer of a city or town shall, within thirty days One quarter of
2 after the receipt of money for licenses of the first, second and fourth to^commoS-'
3 classes, make a return of the amount thereof to the state treasurer and peniuy.
4 at the same time shall pay to him one fourth of the amount so received, }|75;9"|\J^'
5 and for neglect thereof he shall pay interest at the rate of six per cent P^gS. 100, § 14.
6 per annum on the amount of such receipts from the time they become isgsisoi!
7 due until they are paid. R. l. 100, § 45. 1020, eso, § 20.
213 Mass. 271. 221 Mass. 395. Op. .\. G. (1919) 118.
PENALTIES FOR ILLEGAL SALE. SEIZURE. CIVIL DAMAGES.
1 Section 47. The licensing board of a city, the selectmen of a town. Entry on
2 or any police officer or constable specially authorized by either of them, prlmisea for
3 may at any time enter upon the premises of a person who is licensed under and'taSng"
4 this chapter, to ascertain the manner in which such person conducts his i|o8^'i4i, § i4.
1398 V INTOXICATING LIQUORS, ETC. [Ch.\P. 138.
R s^'ioo.Vi^s. business and to preserve order. Such police officer or constable may at 5
mo' 63o' 1 21' ^^^y time take samples for analysis from any liquors kept on such prem- 6
126 Mass. 269. ises, and the vessel or vessels containing such samples shall be sealed on 7
the premises by the seal of the vendor, and shall remain so sealed until 8
presented to the department of public health for analysis and duplicate 9
samples shall be left with the dealer. 10
oUia-nse" Section 48. The licensing board, after notice to the licensee and 1
§n.'i'"' reasonable opportunity for him to be heard by them or by a committee 2
§§'1^2 ^^6 °^ t^^ aldermen or by the selectmen, if the license was granted by them, .3
p^'i'wo'iie ^^y declare his license forfeited, or may suspend his license for such 4
1885, 323, §2.' period of time as they may deem proper, upon satisfactory proof that 5
R. l! loo', § 47. he has violated or permitted a violation of any condition thereof, or 6
1920,' o3o' § 22. any law of the commonwealth. If the license is declared to have been 7
12s Mass.' 76^' forfeited, the licensee shall be disqualified to receive a license for one 8
163 Mass' 470 -^'^^^ after the expiration of the term of the license so forfeited, and if he is 9
the owner of the premises described in such forfeited license, no license 10
shall be issued to be exercised on said premises for the residue of the 11
term thereof. 12
fc)7da'mages^ SECTION 49. A wife, husband, child, parent, guardian, conservator, 1
fntox^a'tecT" cmploycr or other person who is injured in person, property or means of 2
is-5'"2i- « 22 support by an intoxicated person, or in consequence of the intoxication, 3
G. s.'se, §39. ■ habitual or otherwise, of any person, shall have a right of action in his 4
1869. 415, §41. . . ,, •',,^ .' I U IT C
1875,99, §14. own name, jointly or severally, agamst any person who, by selling or 5
is8o! 239', I i; .giving intoxicating liquor, has caused in whole or in part such intoxica- 6
Rs.^oo. tion; and any person who owns, rents, leases, or permits the occupation 7
R l'ioo § 58 °^ ^'■^y building or premises, and has knowledge that intoxicating liquor 8
^ik^iP- ,co is to be sold therein, or who, having leased the same for other purposes, 9
130 Mass. 158, , . . ', . ' , . ■ .... i ii -p i rv
366. knowingly permits therein the sale of intoxicating liquor, shall, 11 anv 10
132 Mass. 567. I ]• t I • 4-1 • • I, 1 • i 4.1 • 4- • 1 l
133 Mass. 86. sucii liquor sold or given therein causes m whole or in part the intoxi- 11
i52Massl4ol catiou of a person, be liable jointly or severally with the person who 12
157 Mass.' 333. sells Of gives intoxicatiug liquor as aforesaid, for all damages sustained; 13
Jon i}"^'*' f !?■ and the same mav be recovered in an action of tort; but a lessor of 14
180 Mass. 141. i ' t . .1
203 Mass. 37 rcal cstatc shall not be liable for such damages if the occupant holds a 15
license for the sale of such liquor. A married woman may bring such 16
action in her own name, and all damages recovered by her shall enure 17
to her separate use; and all damages recovered by a minor shall be 18
paid either to such minor, or to such person in trust for him, and on 19
such terms, as the court may order. Upon the death of either party, 20
the action and right of action shall survive to or against his executor 21
or administrator. The party injured or his legal representative may 22
bring either a joint action against the person intoxicated and the person 23
who furnished the liquor, or a separate action against either. 24
own'er°ifflying SECTION 50. An owucr or Icssor of real estate who pays money on 1
money for account of liis liabilitv incurred under the preceding section for an act 2
tenant. p -i • .' .. ci lo
1879,297, §3. of his tcuaut may, in an action ot contract, recover of such tenant the o
money so paid. p. s. loo, § 22. r. l. 100, § 59. 4
dgKI'nor Section 51. Whoever employs a minor under eighteen in handling 1
ii°uo"'"'' intoxicating liquors or packages containing such liquors in a brewery 2
Chap. 138.] intoxicating liquors, etc. 1399
3 or bottling establishment in which such liquors are prepared for sale or 1899,413.
4 offered for sale shall be punished by a fine of not less than fifty dollars ' '' '
5 or by imprisonment for not less than three months, or both.
1 Section 52. Whoever, personally or by his agent or servant, sells Penalty for
2 or gives intoxicating liquors to a minor, either for his own use, the use fkfuor'to'^
3 of his parent or of any other person, or allows a minor to loiter upon the frse'l's. § 7.
4 premises where such sales are made, shall forfeit one hundred dollars Jss?' il'g^ f jo
5 for each offence, to be recovered by the parent or guardian of such minor fcnl' ^'^■/^s '■
6 in an action of tort. Actions for penalties under this section shall be ists'qd. §15.
7 commenced within two years after the offence has been committed. issV, 390; § 1. '
R. L. 100, § 62. 171 Mass. 250. 235 Mass. 559.
124 Mass. 277, 578. 207 Mass. 21.
130 Mass. 167. 217 Mass. 507. Druggists excepted, § 85.
145 Mass. 311.
1 Section 53. No minor seventeen years of age or over shall make a Penalty for
2 false statement as to his age in order to procure a sale or delivery of in- mlfnt^o^age
3 toxicating liquor, either for his own use or for the use of another. No Jfrocm" liquor.
4 person shall knowingly make a false statement as to the age of a minor i^i-' °^'^- ^ ^■
5 in order to procure a sale or delivery of intoxicating liquor to such minor,
6 either for the use of the minor or for the use of some other person, or
7 induce a minor to make a false statement as to his age in order to procure
8 a sale or deli\"ery of intoxicating liquor to such minor. Whoever violates
9 this section shall be punished by a fine of not less than ten nor more than
10 one hundred dollars.
1 Section 54. The department of public health shall inspect and if°*^^y°'
2 analyze all liquors sent to it by the licensing board of any city, the select- department
3 men of any town, or by police officers or other officers authorized by health.
4 law to make seizures of liquors, if the department is satisfied that the i872;206,'§2."
5 analysis requested is to be used in connection with the enforcement is7s!244,§'2!
6 of the laws of the commonwealth. It shall return to such licensing ^~i,'ioo.' i 29.
7 board, selectmen, police or other officers, as soon as may be, a certificate r^l wo'leV.
8 signed by it of the percentage of alcohol by weight at sixty degrees i90|. 110
9 Fahrenheit which such samples of liquor contain. Such statement shall 1919', 350', § 96.
10 be prima facie evidence of the composition and quality of the liquors to
11 which it relates.
1 Section 55. A certificate shall accompany each sample of liquor Certificate to
2 sent for analysis by an officer to the department of public health stating samS'e^''"^
3 by whom the liquor was seized, the date of the seizure and the name and 1**1^; 100,' | Is.
4 residence of the officer who seized said liquor. Said department shall JgJj'iflSji
5 note upon said certificate the date of the receipt and the analvsis of said 1919! 350', §96.
n T 11 piiii ■111*' 1' l"*' J^lass. 444.
0 hquors and the percentage 01 the alcohol, as required by the preceding
7 section. Said certificate may be in the following form:
ss.
CiTT OP (or Town of) 19 .
To the Department of Public Health .
Sirs : — I send you herewith a sample of taken from liquors
seized by me (date) 19 .
Ascertain the percentage of alcohol it contains, by weight, at sixty degrees
Fahrenheit, and return to me a certificate herewith upon tlie annexed form.
Constable of
Police officer of
1400
INTOXICATING LIQITQRS, ETC.
[Chap. 1.38.
COMMONT\"EALTH OF MASSACHUSETTS.
Department of Public Health,
Boston, 19 .
This is to certify that the received by this Department with the
above statement and anal_vzed by me contains per cent of alcohol,
by weight, at sixty degrees Fahrenheit.
Received 19 .
Analysis made 19 .
Department of Public Health,
By
Analyst.
to protide'^"^^ SECTION 56. The State secretary shall pro\-ide and cause officers to
Certfficateto ^® Supplied with a suitable number of the forms prescribed by the pre-
heevidence. ceding sectiou. The certificate of the department of public health, given
R. l! loo', § 69. substantially in the form hereinbefore set forth, shall be admitted as
evidence on trials for the forfeiture of intoxicating liquors as to the com-
position and quality of the liquors to which it relates.
Ifth^frJfpks Section 57. No person shall tamper with samples of liquor taken as 1
is8'''22i'' § 4 pro\'ided in section forty-seven or alter the statements made upon the 2
R. L. loo', § 70. forms or certificates aforesaid. Penalty, { 87. 3
Court may
order analysis.
1882, 221, § 5.
R. L. 100, § 71.
Section 58. Any court or trial justice may cause liquors which have
been seized under this chapter to be analyzed by a competent chemist,
and the reasonable expense thereof, including a fee of not more than
five dollars for each analysis, shall be taxed, allowed and paid hke other
expenses in criminal cases.
Delivery of
liquor prima
facie evidence
of sale in cer-
tain cases.
1855, 215, § 34.
G. S. 86, § 33.
1868, 141, § 20.
1869,415, I 35.
1875, 99, § 17.
P. S. 100, § 26.
Section 59. The delivery of intoxicating liquor in or from a building, 1
booth, stand or other place, except a private dwelling house, or in or 2
from a private dwelling house if any part thereof or its dependencies is 3
used as an inn, eating house or shop of any kind, or other place of com- 4
mon resort, such deli\ery in either case being to a person not a resident 5
therein, shall be prima facie evidence that such delivery is a sale. 6
231 Mass. 65.
R. L. 100, § C4.
12 Gray, 127.
14 Gray, 47.
7 Allen, S2S.
103 Mass. 58.
219 Mass. 37.
fafie^e''v'id"nce Section 60. If any placard, sign or advertisement is exposed from, 1
saieln^ceftlTn maintained in or permitted to remain upon any vehicle, shop, stand, 2
ifii'iu s 1 tenement, or any place of common resort, purporting or designed to 3
R. l! loo', § 65. announce the keeping in or upon said vehicle or any of said premises of 4
spirituous or intoxicating liquors, except in drug stores, it shall be prima 5
facie evidence that such liquors are kept in or upon such \-ehicle or prem- 6
ises for sale. 7
Search
warrant.
1S.52, 322, § 14.
1855, 215, § 25.
G. S. 86, § 42.
1869, 415, § 44.
1876, 162, § 1.
1878, 207, I 3.
1879, 305, I 9.
P. S. 100, § 30.
1881, 191; 28U.
1887, 406, § 1.
1888,297.
1897, 487, § 2.
Section 61. If two persons of full age make complaint to a district 1
court or trial justice that they ha\-e reason to believe and do belie\"e that 2
spirituous or intoxicating liquor, described in the complaint, is kept or 3
deposited by a person named therein in a store, shop, warehouse, build- 4
ing, vehicle, steamboat, vessel or place, and is intended for sale contrary 5
to law, such court or justice, if it appears that there is probable cause 6
to believe said complaint to be true, shall issue a search warrant to a 7
sheriff, deputy sheriff, city marshal, chief of police, deputy chief of 8
Chap. 138.] intoxicating liquors, etc. 1401
9 police, deputy marshal, police officer or constable, commanding him to R. l. loo, §72.
10 search the premises in which it is alleged that such liquor is deposited, scray.'ssg.'
11 and to seize such Hquor, the vessels in which it is contained and all im- ida'AiL'si^^s.
12 plements of sale and furniture used or kept and provided to be used in Jofitiassfle
13 the illegal keeping or sale of such liquor, and securely keep the same nsMafts''
14 until final action thereon, and return the warrant with his doings iis Mass. 142,
15 thereon, as soon as may be, to a court or trial justice having jurisdic- iieaiass. 21,
16 tion in the place in which such liquor is alleged to be kept or deposited. 117 Mass. 427.
122 Mass. 8. 36. 135 Mass. 519. 145 Mass. 1.S2. 1(52 Mass. 21.5.
130 Mass. 29. 140 Mass. 2S7. 150 Mass. 164. 203 Mass. 685.
1 Section 62. A warrant shall not be issued for the search of a dwell- ■^«=";^!' °f
.... . , 1 ji dwelling house.
2 ing house, if no tavern, store, grocery, eating house or place oi common is52, 322, § 14.
3 resort is kept therein, unless one of the complainants makes oath that he g. s.' sg, '§ 43. '
4 has reason to believe and does believe that such liquor has been sold isre] 162' § 2.^'
5 therein or taken therefrom for the purpose of being sold by the occupant, r. l.'ioo.V73.
6 or by his consent or permission, contrary to law, within one month next i'/\iien*52'
7 before making such complaint, and is then kept therein for sale con- ^o.^M^I^-g^i^j
8 trary to law by the person complained against. Such complainant shall ssi. 595.
9 state the facts and circumstances on which such belief is founded, and iioKiasslis2.
10 such allegations shall be recited in the complaint and warrant. 122 Kiass! 14'.
142 Mass. 470.
1 Section 63. The complaint shall particularly designate the building. Designation of
2 structure and place to be searched, the liquor to be seized, the person by search^. "
3 whom it is owned, kept or possessed and intended for sale, and shall allege a's'su"'? 11"'
4 the intent of such person to sell the same contrary to law. The warrant }|'i^' *^S' fs^'
5 shall allege that probable cause has been shown for the issuing thereof; ]!■ ^ ^^^- §32^
6 and the place to be searched, the liquor to be seized, and the person be- 97 Mass. 334
7 lieved to be the owner, possessor, or keeper of such liquor, intending to 108 Mass. 290!
8 sell the same contrary to law, shall be designated therein with the same no Mass! II2.
9 particularity as in the complaint and the complainants shall be sum- tis Mass. 13,
10 moned to appear as witnesses. ^°*' ''^^■
116 Mass. 342. 146 Mass. 509. 163 Mass. 42.
1 Section 64. The officer to whom the warrant is committed shall prem'ises'and
2 search the premises and seize the liquor described in the warrant, the seizure of
3 casks or other vessels in which it is contained, and all implements of sale is52, 322, § u.
4 and furnitm-e used or kept and provided to be used in the illegal keeping c^'S'. s«.^§ 45!^'
5 or sale of such liquor, if they are found in or upon said premises, and it?!', ira.'l-t.'''
6 shall convey the same to some place of security, where he shall keep the rss7,406,|l^'
7 liquor and vessels until final action is had thereon.
ISSS, 297. R. L. 100. § 75. 188 Mass. 399.
1 Section 65. If, in the opinion of the court or trial justice before Notice to
2 whom the warrant is returned, the value of the liquor seized and the uquorssLed.
3 vessels containing it does not exceed one thousand dollars, a notice, Istl;!!!,!"!).
4 under seal, and signed by the justice or the clerk of said court, or by the f869,4i'5!|*48
5 trial justice, shall be issued within twenty-four hours after such seizure, p*'|'/oo'||i
6 commanding the person complained against as the keeper of the liquor R^ l. lod, § 76.
7 seized and all other persons who claim any interest therein or in the casks is'Aiienf'si-.L'
8 or vessels containing the same to appear before said court or trial justice, ^^ ^'"^^^ '^°^'
9 at a time and place therein named, to answer to said complaint and
10 show cause why such liquor and the vessels containing it should not be
11 forfeited.
1402
INTOXICATING LIQUORS, ETC.
[Chap. 138.
Form and
ser\'ice of
notice.
1S55, 215, § 26.
G. S. 80, § 47.
1869, 415, § 49.
1873, 328.
1876, 162, § 6.
P. S. 100, § 35.
R. L. 100, § 77.
6 Allen. 599.
97 Mass. 334.
135 Mass. 519.
146 Mass. 509.
Section 66. The notice shall contain a description of the number 1
and kind of vessels, the quantity and kind of licjuor seized, as nearly as 2
may be, and shall state when and where they were seized. It shall, not .3
less than fourteen days before the time appointed for the trial, be served 4
by a sheriff, deputy sheriff, constable or police officer upon the person 5
charged with being the keeper thereof by leaving an attested copy 6
thereof with him personally or at his usual place of abode, if he is an 7
inhabitant of the commonwealth, and by posting an attested copy on 8
the building in which the liquor was seized, if it was found in a building; 9
otherwise in a public place in the city or town in Mdiich the liquor was 10
seized. 11
Tftrfa™''™^"' Section 67. If, at the time appointed for trial, said notice has not
G^i'Uh 48*'' been duly served, or other sufficient cause appears, the trial may be post-
1869,415, §50. poned to some other day and place, and such further notice issued as
p. s.'ioc' § 36. shall supply any defect in the previous notice; and time and opportunity
R. L. 100, § /8. j,^^ ^^j^j ^^^j defence shall be given to persons interested.
Claimant of
liquors may be
admitted as
party.
Judgment.
1852, 322, § 14.
1855, 215, § 27.
G. S. 86, § 49.
1869, 415, § 51.
1870, 162, § 8.
P. S. 100, § 37.
R. L. 100, § 79.
107 Mass. 396.
113 Mass. 23.
142 Mass. 470.
Section 68. At the time and place designated in the notice, the per-
son complained against, or any person claiming an interest in the liquor
and vessel seized, or any part thereof, may appear and make his claim
verbally or in writing, and a record of his appearance and claim shall be
made, and he shall be admitted as a party to the trial. Whether a claim
as aforesaid is made or not, the court or trial justice shall proceed to
try, hear and determine the allegations of such complaint, and ^^•hether
said liquor and vessels, or any part thereof, are forfeited. If it appears 8
that the liquor, or any part thereof, was at the time of making the com- 9
plaint owned or kept by the person alleged therein for the purpose of 10
being sold in violation of law, the court or trial justice shall render 11
judgment that such and so much of the liquor so seized as was so unlaw- 12
fully kept, and the vessels in which it is contained, shall be forfeited to 13
the commonwealth. 14
Disposition of
forfeited
liquor.
1852, 322, § 14.
1855, 215, § 27.
G. S. 86, § 50.
1869, 415, § 52.
1872, 304.
1876, 162, § 9.
1879, 305, I 3.
P. S. 100, § 38.
1887, 53.
Section 69. Any liquor so forfeited shall, by the authority of the
written order of the court or trial justice, be forwarded by common
carrier to the commissioner of public safety, who upon receipt of the
same shall notify said court or justice thereof. The officer who serves
the order above named shall be allowed therefor fifty cents, but shall
not be entitled to receive any traveling fees or mileage on account of
the service thereof. R. L- loo, § so.
kJrleiTedTo'be Section 70. If it IS not provcd on the trial that all or part of the
i85!5"li5 s 28 li^iuor seized was kept or deposited for sale contrary to law, the court
G. s. 86, § 51 or trial justice shall issue a written order to the officer having the same
1869, 415, § 53. . ., 1 J J 1 J 1 p J. Ill
1870, 162, 1 10. in custody to return so much thereof as was not proved to be so kept or
r'.'l. 100, § 8i. deposited and the vessels in which it is containetl, to the place as nearly
103 Mass. 454. ^^ ^^^^^ ^^ from wlucli it was taken, or to deliver it to the person entitled
to receive it. After executing such order, the officer shall return it to the
court or trial justice with his doings endorsed thereon.
hinift'urer °' Section 71. All implements of sale and furniture seized under sec- 1
1888 297 tions sixty-oue and sixty-four shall be forfeited and disposed of in the 2
R. h. 100, § 82. manner provided for the forfeiture and disposition of intoxicating liquors ; 3
Chap. 138.] intoxicating liquors, etc. 1403
4 but the court or trial justice may, if it is deemed to be for the interest
5 of the commonwealth, order the destruction or sale of said property
6 by any officer qualified to serve criminal process and the proceeds of
7 a sale thereof shall be paid over to the county; and said officer shall
8 make return of the order for such destruction or sale and his doings
9 thereon to the court or justice issuing the same.
1 Section 72. If no person appears and is admitted as a partv as costs.
2 aforesaid, or if judgment is rendered in favor of all the claimants who g. s.'se. § 52. '
3 appear, the cost of the proceedings shall be paid as in other criminal {ly"; j,-?; | ft;
4 cases. If only one party appearing fails to sustain his claim, he shall r.l.'ioo.Vss.
5 pay all the costs except the expense of seizing and keeping the liquor,
6 and an execution shall be issued against him therefor. If judgment
7 is rendered against two or more claimants of distinct interests in the
8 liquor, the costs shall, according to the discretion of the court or trial
9 justice, be apportioned among such parties, and executions shall be
10 issued against them severally. If such execution is not forth\^ith paid,
11 the defendant therein named shall be committed to jail, and shall not
12 be discharged therefrom until he has paid the same and the costs of
13 commitment, or until he has been imprisoned thirty days.
1 Section 73. A claimant whose claim is not allowed as aforesaid, fs'52;*322, § 10.
2 and the person complained against, shall each have the same right of 1,^55. |^5, yg.
3 appeal to the superior court as if he had been convicted of crime; but }|^^|]|' ^ ss.
4 before his appeal is allowed he shall recognize to the commonwealth in mr,', wz, § 12.
5 the simi of two hundred dollars, with sufficient surety or sureties, to r. l. 106, § si.
6 prosecute his appeal to the superior court and to abide the sentence of
7 the coiu-t thereon. Upon such appeal, any question of fact shall be tried
8 by a jury. On the judgment of the court after verdict, whether a for-
9 feiture of the whole or any part of the liquor and vessels seized, or
10 otherwise, similar proceedings shall be had as are directed in the five
11 preceding sections.
1 Section 74. If, in the opinion of the com-t or trial justice before superior
2 whom a warrant under which liquor has been seized is returnable, the JuJisdi^c'tira''^
3 value of the liquor seized with the vessels containing it exceeds one ^orJh'Sri^
4 thousand dollars, a notice shall be issued and served as du-ected in jh"°g°^^
5 sections sixty-five and six-ty-six, except that it shall be made return- j'll'Flj^ ,3^
6 able to the sitting of the superior comt for criminal business to be held g.s.'si;, §54./
7 in the county next after the expiration of fourteen days from the time isye; i(i2; § is.
8 of issuing the notice. The superior court shall have jurisdiction of the r.l.'ioo.VIs.
9 case, and may proceed therein in the manner directed in sections sixty- Is^liien^'sKL
10 seven to seventy, inclusive, and sevent>-two, as nearly as may be, and }o^ ^J^|^ ^sb.
11 with the jury, upon any issue of facts presented by the claimant or
12 directed by the court.
1 Section 75. A mayor, alderman, selectman, deputy sheriff, chief iv^rlnfi*''""'
2 of police, deputy chief of police, city marshal, deputy or assistant mar- Jl55'2i'^5''f la
3 shal, police officer or constable, in his city or town, may without a war- g.s.'sb, § 55
4 rant arrest any person whom he finds in the act of illegally selling, isri;! inbi § u!
5 transporting, distributing or delivering intoxicating liquor, and seize the ilrl] 305, § 9.
6 liquor, vessels and implements of sale in the possession of such person, R.L'io'o.Vs'i.
7 and detain them until warrants can be procured against such person, '^°''' '--■
1404
INTOXICATING LIQUORS, ETC.
[Chap. 138.
11 Gray, 36S.
14 Gray. 200
193 Mass. 2S0.
and for the seizure of said liquor, vessels and implements, under this 8
chapter. Such officers shall enforce or cause to be enforced the penalties 9
provided by law against every person who is guilty of a violation of 10
any law relative to the sale of intoxicating liquor of which they can 11
obtain reasonable proof. 12
Charter of
club where
liquor is
illegally sold,
etc., may be
declared void.
1S90, 439, § 2,
1893, 226, § 2,
1894, 542.
Section 76. If any person is con\-icted of exposing and keeping for
sale or selling intoxicating liquor on the premises occupied by any club
or organization described in section two of chapter one hundred and
eighty or of illegal gaming upon said premises, or of being present where
implements of gaming are found upon said premises, the selectmen of
R. L. 100. § 89 ^YiQ town, or the aldermen of the city, in which such club or organization G
is situated, except Boston, and in Boston, the licensing board, shall 7
immediately notify the state secretary, and he shall, upon receipt of 8
such notice, declare the charter of said club void, and shall publish a 9
notice, in at least one newspaper published in the county in which said 10
club or organization is situated, that such incorporation is void and of 11
no further effect. 12
Section 77. A complaint or indictment for the violation of any
Disposition of
prosecution
i855'"i5 § 35 pro\'ision of law relative to intoxicating liquors shall not, unless the
C'-s |B.Jos. purposes of justice require such disposition, be placed on file or dis-
1869! 415', § 60. posed of except by trial and judgment according to the regular course
1885.' 359.' ■ of criminal proceedings. It shall be otherwise disposed of only upon
R. L. 100. § 55. jjjq|-Jqjj Jj, writing stating specifically the reasons therefor and verified
by affidavit if facts are relied on. If the court or magistrate certifies in
writing that he is satisfied that the cause relied on exists and that the
interests of public justice require the allowance thereof, such motion
shall be allowed and said certificate shall be filed in the case.
1
2
3
4
5
6
7
8
9
10
authoritfesto SECTION 78. Upou the convictioii of a holder of a license for the
conv'icS °' sale of intoxicating liquors of the violation of any law relative to the
p^f'foo^ig t'lisiness he is licensed to pursue, the court in which or the magistrate
r.'l. io6."§s6. before whom he has been convicted shall send to the authorities which
issued the license a certificate under seal, showing the time and place of
such conviction.
Owner of
building to^be
notified of
con\'iction.
1876, 162. § 16.
P. S. 100. § 20.
R. L. 100. § 57.
1910.264.
Section 79. Upon the con\-iction of a person of the illegal keeping
or sale of intoxicating liquor, the court or magistrate by -whom he has
been con\'icted shall issue and cause to be served upon the owner of the
building, or agent of such owner in charge of the building, used for such
illegal keeping or sale, if he resides within the commonA\ealth and is not
the person so convicted, a WTitten notice that the tenant of said building
has been con\acted as aforesaid; and a return thereof shall be made to
the court or magistrate issuing it. Such notice, so served, shall be
deemed to be due and sufficient notice under section twenty of chapter
one hundred and thirtv-nine.
1
2
o
O
4
5
(3
7
8
9
10
pr°o™™tTon. Section 80. The forms heretofore in use may continue to be used 1
G^i'W\ 63 ^" prosecutions under this chapter, and if substantially followed shall be 2
1869. 4i'5.' § 66. deemed sufficient to fully and plainly, substantially and formally describe 3
Chap. 138.] intoxicating liquors, etc. 1405
4 the several offences in each of them set forth, antl to authorize the lawful p^'|;ioo"'|4'(;^'
5 doings of the officers acting bv \artue of the warrants issued in sub- 5';-^;,i°°' L",?
, n . .1 1 • * 1 11 111 '^"^ Mass. 17&.
6 stantial conformity therewith; but this section shall not exclude the use uoMass. i82.
7 of other suitable forms.
1 Section 81. All intoxicating Hquors which are kept for sale con- Liquors
2 trary to law and the implements and vessels actually used in selling and L'tcf common
.3 keeping the same are declared to be common nuisances. isss, 215, § 37. "uisances.
G. S. 86. § 60. 1876, 162, § 15. R. L. 100, § 87.
1869, 415, § 62. P. S. 100, § 44. 12 Gray, 89.
1 Section 82. All buildings or places used by clubs for the purpose ciubs used tor
2 of selling, distributing or dispensing intoxicating liquors to their mem- common"""'^
3 bers or others shall be deemed common nuisances. Whoever keeps or 'issT,'226.'
4 maintains, or assists in keeping or maintaining, such a common nuisance, ^^fy 2*06.^ *"'
.5 shall be punished by a fine of not less than fift\' nor more than one R- l- loa, § 88.
6 hundred dollars and by imprisonment for not less than three nor more 137 Mass. 564.
7 than tweh-e months.
152 Mass. 337. 167 Mass. 13. 219 Mass. 37.
1 Section 83. Whoever, not being duly licensed as provided in this Penait.v for
2 chapter, sells, exposes or keeps for sale certain non-intoxicating bever- 'etcrof certain
3 ages as defined in section one shall be punished by a fine of not less .""ifile'eragel'
4 than fifty nor more than five hundred dollars and by imprisonment for ^^~'^' '^^o. § 24.
5 not less than one nor more than six months.
1 Section 84. Con\'iction of a licensee of the ^^olation of any pro- Comiction
2 vision of a license of the first two classes or the fourth or fifth class or ^ioiati'mf 0°
3 of any pro\ision of this chapter shall render such license \oid. conditions of
4 Conviction of a holder of a third class license of a \iolation of any Jl^lnseTOiu'*
5 pro\asion of sections thirty to thirty-two, inclusive, shall render such isjjs. i^i^ § is.
6 license void. ^^T't'q'^'i n
7 Such licensee shall be disqualified to hold a license for one year after p. s.'iod. s is.
8 his conviction, and if he is the owner of the licensed premises, no license 1887! 392!
9 shall be exercised on the premises described in the forfeited license dur- {ffg; ^t; 347.
10 ing the residue of the term thereof. is96, 30s.
1897. 207, § 2: R. L. 100, § 53. 126 Mass. 250.
271, § S; 487, § 1. 1920. 630, § 24. 156 Mass. 233.
1 Section 85. The provisions of section fifty-two shall not apply to Certain pro-
2 sales by the holder of a license of the third class if made upon the writ- appb' to sales
3 ten prescription of a practicing physician. i875, 99, § 2. San^pr^
p. S. 100. §2. 1887,431,5 1. 1896,397,5 10. scription.
1885, 282, § 1. 1889, 390, § 2. R. L. 100, §§ 25, 62, 63.
1 Section 86. A violation by any person of any pro\'ision of this General
2 chapter for which a specific penalty is not imposed or a \iolation by a 1832, lee,
3 licensee of any provision of his license shall be punished by a fine of r.M; 47, § 27.
4 not less than fifty nor more than fi\-e hundred dollars and by imprison- jfTs.'iV^.'
5 ment for not less than one nor more than six months.
G. S. 86, §§ 30, 31. 1880, 239, I 6. 1896, 308.
1868, 141, S 18. P. S. 100. § 18. 1897, 207, §2;
1869, 415, § 32. 1882, 242, § 2. 271, § 5: 487, § 1.
1875, 99, § 13. 1888, 254. R. L. 100, § 53.
1878, 207, § 2. 1889, 114; 347. 1920, 630, § 24.
1406
COMMON NUISANCES.
[Chap. 1.39.
i^ti^on'of 'certeta SECTION 87. Except as provided in the following section, violation
iss''°22i 5 4- ^^ ''^"y provisions of section twentj'-eight, thirty, thirty-one, thirty-
isqr^qy i6 ^^ °' forty-one or fifty-seven shall be punished by a fine of not less than
1897! 398', t) 6. ' fifty nor more than five hundred dollars or by imprisonment for not
R. L. 100, § .54. less than one nor more than six months, or both. A licensee of the
1913; 413,' i 3. fifth class who violates section thirty-two shall be punished as above
provided.
Section 88. Any person who makes or issues a false or fraudulent 1
Penalty for
false cer-
prescrfpt?ons. Certificate or prescription referred to in sections thirty and thirty-one 2
1887,431, §5. shall be punished by a fine of ten dollars. i896.397.§ i6. r. l. loo, 5 2s. 3
Penalty for
violation of
section 42,
1917, 150, § 3.
Section 89. Violations of section forty-two shall be punished bj- a 1
fine of not less than fifty nor more than two hundred dollars. 2
REFERENCES.
Revocation of club charter for illegal keeping of liquor, Chap. ISO, § 27.
Provisions as to druggists' licenses do not apply to physicians, wholesale dealers,
etc., Chap. 112, §3.5.
Screened booths in caffe forbidden. Chap. 272, § 25.
Refilling registered bottles, Chap. 110, § 18.
Registration of pharmacists. Chap. 112, §§ 24-36.
Employment of minors in establishments where liquor is handled or sold, Chap.
149, §§ 62, 64.
§§ 25-27, 2&-33, 88. Not to apply to physicians who put up their own prescrip-
tions, etc., Chap. 112, § 35.
§ 27. Cancellation of certificate. Chap. 112, §§ 61-65.
CHAPTER 139,
COMMON NUISANCES.
Sect.
burnt or dangerous buildings.
1. Burnt or dangerous buildings, how dis-
posed of.
2. Owner aggrieved may appeal to supe-
rior court.
3. Nuisances may be abated, etc.
PL.\CES OF PROSTITUTION, ETC.
4. Buildings, etc., used for prostitution,
etc., to be deemed a nuisance.
5. Penally.
6. Abatement of nuisance.
7. Filing, etc., of bill of complaint.
8. Temporary injunction may be ordered,
etc.
9. Decree of court ordeiing abatement of
nuisance, etc.
10. Fee of officer for removing and selling
property. Application of proceeds
of sale.
11. Order of abatement may be modified
in certain cases, etc.
Sect
12. Bill of complaint not to be dismissed,
except, etc.
13. Persons found in places used for pros-
titution, etc., may be summoned as
witnesses.
PLACES RESORTED TO FOR ILLEGAL GAMING
OK USED FOR THE ILLEGAL KEEPING OR
SALE OF INTOXICATING LIQUOR.
14. Buildings resorted to for illegal gaming.
etc., to be common nuisances.
15. Penalty.
16. Abatement of common nuisance.
17. Evidences of sales.
18. Removal of gambling booths, etc., near
public shows.
GENERAL PROVISIONS.
19. Keeping a nuisance by tenant to make
lease void, etc.
20. Aiding in the maintenance of a nuisance.
Chap. 139.] common nuisances. 1407
BURNT OR DANGEROUS BUILDINGS.
1 Section 1. In a city or town in which the city council or the in- Burnt or dan-
2 habitants of the town accept this and the two following sections or fngs,"howdis-
,3 have accepted corresponding provisions of earlier laws, the aldermen isss'l'^eo,
4 or selectmen, after \\-ritten notice to the owner of a burnt, dilapidated or ^^ g' |v, 5 1
5 dangerous building, or his authorized agent, and after a hearing, may Rf;\°j/l\-
6 make and record an order adjudging it to be a nuisance to the neighbor- isis. 33:i', s 7.
7 hood, or dangerous, and prescribing its disposition, alteration or regu-
8 lation. The city or town clerk shall deliver a copy of the order to an
9 officer qualified to serve civil process, who shall forthwith serve an
10 attested copy thereof in the manner prescribed in section one hundred
11 and twenty-four of chapter one hundred and eleven, and make return
12 to said clerk of his doings thereon.
1 Section 2. A person aggrie\'ed by such order may appeal to the owner ag-
2 superior court for the county where such building is situated, if, within appeai't™''^
3 three days after the service of such attested copy upon him, he pre- is'g^'^o,
4 sents to such court a petition stating liis grievance and the order of ^ |"|-
5 the board. After such notice to the board as the court shall order, trial i**'^*'2ci.'
6 by jury shall be had as in other civil causes. The jury may affirm, s§2-4.
7 annul or alter such order, and the court shall render judgment in con- §§2-4.
8 formity with said verdict, which shall take effect as an original order. If {920,' sJ*^' ^ ^'
9 the order is affirmed, the petitioner shall pay the costs; if it is annulled,
10 he shall recover from the town his damages, if any, and costs; and if it
11 is altered, the court may render such judgment as to costs as justice shall
12 require.
court.
409.
1 Section 3. The aldermen or selectmen shall have the same power to Nuisances may
2 abate and remove any such nuisance as is given to the board of health i855''4e9,'§'2°.'
3 of a town under sections one hiuidred and twenty-three to one hundred p.f.foi.Vs.
4 and twenty-five, inclusive, of chapter one hundred and eleven. ^' ^- *oi' § ^■
PLACES of prostitution, ETC.
1 Section 4. Every building, part of a building, tenement or place Buildings, etc.,
2 used for prostitution, assignation or lewdness, and every place within tuutio^n, ?t°!'
3 or upon which acts of prostitution, assignation or lewdness are held or i°nutsance!'"'
4 occur, shall be deemed a nuisance.
1855, 405, § 1. 0 Gray, 2!)0. Ifi Gray, 18. 145 Mass. 251.
G. S. 87, § 6. 10 Gray, 405. 12 Allen, 177. 213 Mass. 238.
P. .S. 101, §6. 11 Gray, 48, 114 Mass. 281. 232 Mass. 88.
R. L. 101. § 6. 12 CJrav, 326. 118 Mass. 456.
1914, 624, § 1. 13 Gray, 26. 132 Mass. 1. See cases cited
7 Gray, 328. 14 Gray, 406. 134 Mass. 201. under §§ 14, 15.
1 Section 5. Whoe^■er keeps or maintains such a nuisance shall be Penalty.
2 punished by a fine of not less than one hundred nor more than one thou- a's.'s?,''! V"'
3 sand dollars and by imprisonment for not less than three months nor Hoeiisoils:
4 more than three years. P- s. loi, § 7.
R. L. 101, § 7. 1914, 624, § 2. See cases cited under §§ 4, 14, 15.
1 Section 6. ^Yhene\■er there is reason to belie^•e that such a nuisance Abatement of
2 is kept or maintained or exists in any town, either the district attorney iSt^'sso.
3 for the district, or the attorney general, in the name of the common- r.'l; loi', I s°'
4 wealth, or a citizen in his own name, may maintain a bill in equity per- ug^M^it |.5a
5 petually to enjoin the person conducting or maintaining the same, and 201 m.-iss. 204
1408
COMMON NUISANCES.
[Chap. 139.
Filing, etc.. of
bill of com-
plaint.
1914. 624, § 4.
the owner, lessee or agent of tlie building or place in or upon which such 6
nuisance ex'sts and their assignees from directly or indirectly maintain- 7
ing or permitting such nuisance. 8
Section 7. The bill of complaint shall join the owner of record of 1
the premises as a party respondent and shall be filed in the superior 2
court for the county where the nuisance is believed to exist, and shall be 3
verified by oath of the complainant unless filed by the attorney general or 4
a district attorney. The bill shall forthwith after filing be presented to 5
the court sitting in equity within the county, or to any justice thereof 6
if the court is not so sitting, and the proceeding shall have precedence 7
over all other matters upon the docket except criminal proceedings, elec- 8
tion contests and hearings upon petitions for other injunctions. 9
Temporary in- SECTION 8. If upou a hearing, after at least two days' notice to the 1
be ordered, etc. respondents of the time and place assigned therefor, the existence of 2
1914, 624, § 5. ^^^^j^ ^ nuisance is shown to the satisfaction of the court or justice, either 3
through verified complaint or through e\'idencc in the form of affidavits, 4
depositions, oral testimony or otherwise, a temporary injunction shall 5
be ordered to issue forthwith restraining the maintenance of the nuisance 6
and enjoining the occupants, owner and all other persons from remov- 7
ing fixtures, furniture, musical instruments and all other movable prop- 8
erty from the premises until further order of the court. 9
Decree of court
ordering abate-
ment of
nuisance, etc.
1914. 624, § fi.
232 Mass. SS.
Section 9. If upon subsequent hearing the existence of the nui- 1
sance shall be established, the court shall enter a decree permanently 2
enjoining the maintenance thereof, including in such decree an order of 3
abatement directing the sheriff of the county or his deputy to enter the 4
building or place where the nuisance existed and to sell all furniture, 5
musical instruments and movable property used in maintaining the 6
nuisance, in the manner provided for the sale of chattels under execu- 7
tion, and to remove the same. If it shall appear that the bill of com- 8
plaint was filed five or more days after notice to the record owner of the 9
premises, and that he did not proceed forthwith to enforce his rights 10
under section nineteen, such order of abatement shall further direct the 11
effectual closing of the building or the place and the prohibition of 12
its use for any purpose for one year, unless sooner released as provided 13
in section eleven. For the purpose of proving the existence of the nui- 14
sance the general reputation of the place shall be admissible as evidence. 15
Fee of officer
for removing
and selling
property.
Application of
proceeds of sale.
1914, 624, § 7.
Section 10 For removing and selling the mo\-able property in 1
accordance with the decree of the court the officer shall be entitled to 2
the same fees as for levying upon and selling like property on execution, 3
and for closing the premises and keeping them closed, a reasonable sum 4
shall be allowed by the court. The proceeds shall be applied: first, to 5
the fees and costs of removal and sale; second, to the allowances and 6
costs of so closing and keeping closed the premises; third, to the pay- 7
ment of the complainants' costs in such proceeding, including a reason- 8
able attorney's fee to be fixed by the court; fourth, the remainder, if any, 9
to the owner of the property .sold. 10
Order of abate- Section 11. If thc owucr of auy sucli prcmiscs shall pay all costs of 1
modified in cer- tlic procecdings, and file with the court a bond with sureties approved 2
i9i4.''o24!'5''a' by the clerk in the full value of such premises as ascertained by thc 3
Chap. 139.]
COMMON NUIS.\NCES.
1409
4 court, or in \acation by the clerk, payable to the court and conditioned
5 that the owner of the premises found to be a nuisance will immediately
6 abate such nuisance and prevent the same from being established or
7 kept therein within one year thereafter, the court or justice may, if
8 satisfied of the owner's good faith, order the premises so closed to be
9 delivered to such owner and the order of abatement to be so modified
10 as to dissolve the order that the premises remain closed for one year;
11 provided, that such modification shall not release such premises from
12 any judgment, lien, penalty or liability to which it may be subject.
1 Section 12. No bill filed under section six shall be dismissed, except Bin of com-
2 upon a sworn statement made and filed by the complainant and by his dismissed,
3 attorney setting forth the reasons for dismissal thereof and upon ap- i9i4^c2T§ 9.
4 proval of such dismissal by the court in open court. If the court is of
5 opinion that the bill ought not to be dismissed he may direct the dis-
6 trict attorney to prosecute the case to a final decree. If a bill brought
7 by a citizen is continued more than one term of court, any citizen of the
8 comity, or the district attorney, or, if public interest so requires, the
9 attorney general, may be substituted for the original complainant and
10 prosecute the case to a final decree. If the bill was brought by a citizen
11 and the court finds that there was no reasonable ground therefor, costs
12 may be awarded against the complainant.
1 Section 13. All persons found in or upon premises used for prostitu- Persons found
2 tion, assignation or lewdness may be required by a justice of a court of fo/proltiu!-
3 record to recognize, with or ^\■ithout sureties, to ajjpear as witnesses at besummoned'
4 any hearing in an action to punish a person for keeping or maintaining
5 such a nuisance as is described in section four, or for aiding in the main-
6 tenance of such a nuisance in the manner set forth in section twenty,
7 or to enjoin or abate such a nuisance, and a w'arrant may be issued to
8 bring such persons before the justice to recognize as aforesaid.
as witnesses.
1S14, C24, § 1.5.
PL.\CES RESORTED TO FOR ILLEGAL GAMING OR USED FOR THE ILLEGAL
KEEPING OR SALE OF INTOXICATING LIQUOR.
1 Section 14. Every building, place or tenement which is resorted to Buiidinp
2 for illegal gaming, or which is used for the illegal keeping or sale of in- iiicgai gaming,
3 toxicating liquor, shall be deemed a common nuisance. mon nuislnce™.'
1855, 405, § 1.
G. .S. 87, § 6.
P. S. 101, §6.
R. L. 101, § 6.
1914, 024, § 11.
Tenements.
10 Gray, 4(i4, 465.
11 Gray, 4.54, 456.
1-1 Gray, 406.
107 Mass. 212.
112 Mass. 277.
144 Mass. 297.
145 Mass. 104.
148 Mass. 8.
150 Mass. 71.
153 Mass. 5, 483.
154 .Mass. 388.
166 Mass. 377.
205 Mass. 124.
Illegal gaming.
7 Gray, 328.
13 Gray, 26.
14 Gray, 26, 390, 406.
16 Gray, 18.
7 Allen, 304.
145 Mass. 251.
Used for the
illegal keeping
or sale.
7 Gray, 328.
9 Gray, 296, 298.
10 Gray, 9.
11 Gray, 454.
12 Gray, 89, 175,
177, 178.
13 Gray, 26.
14 Gray, 23, 386, 390.
16 Gray. 18. 19.
1 Allen, 1, 592.
2 Allen, 169.
4 Allen, 589.
97 Mass. 122.
102 Mass. 144, 148.
108 Mass. 24,26,
27,480, 482.
109 Mass. 361.
110 Mass. 359,502.
111 Mass. 425,426.
113 Mass. 191.
114 Mass. 252, 255,257,
259 261
lls'Mass. 102.141.
116 Mass. 32,35, 46, 61.
117 Mass. 140.
123 Mass. 401.
124 Mass. 26.
126 Mass. 56, 256.
127 Mass. 452.
132 Mass. 267.
136 Mass. 148, 436.
138 Mass. 496, 498i
508, 511.
141 Mass. 28, 110.
142 Mass. 474.
143 Mass. 468.
144 Mass. 171.
145 Mass. 117,
250. 251.
147 Mass. 161.
148 Mass. 425.
150 Mass. 506.
153 Mass. 211.
167 Mass. 374.
Resorted to.
7 Allen, 304.
12 Allen, 177.
See cases cited
under §§ 4, 15.
1410
COMMON NUISANCES.
[Chap. 139.
Penalty.
1855, 405, § 2.
G. S. 87, § 7.
1865, 269, § 1.
1866, 280, § 3.
P. S. 101, § 7.
R. L. 101, § 7.
Section 15. Whoever keeps or maintains such common nuisance
shall be punished by a fine of not less than fifty nor more than one hun-
dred dollars and by imprisonment for not less than three months nor
more than one year. los Mass. 465.
107 Mass. 212.
138 Mass. 498.
145 Mass. 406.
150 Mass. 506.
154 Mass. lis.
160 Mass. 298.
See cases cited
under §§ 4, 14.
TOmmOT°'°^ Section 16. Upon an information filed by the district attorney for
?s87"3so ^^^ district, or upon the petition of the board or officer having control
1S95. 419, 1 10. of the police of a town or of not less than ten legal voters of a town,
1914; C24! § 12. stating that a building, place or tenement therein is resorted to for
illegal gaming, or is used for the illegal keeping or sale of intoxicating
liquors, the supreme judicial or superior court may enjoin or abate the
same as a common nuisance.
S^afes"^"^ Section 17. Section sixty of chapter one hundred and thirty-eight 1
E *l' loi' I i' ^'^^^^ ^PP'y to all cases relative to the use of any building, place or tene- 2
ment for the illegal keeping or sale of intoxicating liquors in violation of 3
this chapter. 4
Removal of
gambling
booths, etc,
near public
shows.
1850, 291.
1851,91.
G.S. 87, § 10.
P. S. 101, § 10.
R. L. 101, § 12.
Section IS. The aldermen or the selectmen, upon complaint made 1
to them under oath that the complainant has reason to believe and does 2
belie\'e that a booth, shed or other temporary erection, situated within 3
one mile of a muster field, cattle show ground, or other place of public 4
gathering, is used and occupied for the sale of spirituous or fermented 5
liquor, or for the purpose of gaming, may order the owner or occupant 6
thereof to vacate and close the same forthwith. If the owner or occu- 7
pant fails so to do, the aldermen or selectmen may forthwith abate such 8
booth, shed or erection as a nuisance, and may pull down or otherwise de- 9
stroy the same through the agency of any force, civil or military. 10
Keeping a
nuisance by
tenant to
make lea.se
void, etc.
R. S. 130. § 9.
1855, 405, § 3.
G. S. 87, § 8;
165. § 14.
P. S. 101, § 8;
207, § 14.
R. L. 101,
1914, 624.
15 Gray, 312,
6 .Mien, 364.
7 .Mien, 109.
14 Allen, 289.
103 Mass. 381
§ 10.
5 13.
GENERAL PROVISIONS.
Section 19. If a tenant or occupant of a building or tenement, 1
under a lawful title, uses such premises or any part thereof for the pur- 2
poses of prostitution, assignation, lewdness, illegal gaming, or the illegal 3
keeping or sale of intoxicating liquors, such use shall at the election of 4
the lessor or owner annul and make ^'oid the lease or other title under 5
which such tenant or occupant holds and, without any act of the lessor 6
or owner, shall cause the right of possession to revert and vest in him, 7
and he may, without process of law, make immediate entry upon the 8
premises, or may avail himself of the remedy provided in chapter two 9
hundred and thirty-nine. loe Mass. 537. 10
Aiding in the
maintenance of
a nuisance.
1855, 405, § 4.
G. S. 87, § 9.
1866, 280, § 3.
P. S. 101, § 9.
R. L. 101, ? 11.
1914, 624, § 14.
106 Mass. 537.
112 Mass. 277.
135 Mass. 652.
131) Mass. 148.
138 Mass. 181.
146 Mass. 36.
228 Mass. 266.
Section 20. Whoever knowingly lets premises owned by him, or 1
under his control, for the purposes of prostitution, assignation, lewdness, 2
illegal gaming, or the illegal keeping or sale of intoxicating liquors, or 3
knowingly permits such premises, while under his control, to be used 4
for such purposes, or after due notice of any such use omits to take all 5
reasonable measures to eject therefrom the persons occupying the same 6
as soon as it can lawfully be done, shall be punished by a fine of not less 7
than fifty nor more than one hundred dollars and by imprisonment for 8
not less than three months nor more than one year. 232 Mass. 88. 9
Chap. 140.]
LICENSES.
1411
REFERENCES.
Building or structure erected in violation of Chap. 143, § 4, made a common nui-
sance, and its abatement or removal provided for, Chap. 14.3. § 5.
Buildings, etc., resorted to by habitual users of narcotic drugs for the purpose of
using such drugs or for the illegal keeping or sale of the same declared a common
nuisance. Chap. 94, § 210.
Order for the securing or removal of dangerous buildings in cities or to^Tis accepting
§§ 6-12 of Chap. 143, appeal to superior court from such order, restraintof such illegal
construction by injunction in supreme judicial or the superior court, and such court's
jurisdiction to order the removal or abatement of such construction as a nuisance,
Chap. 143, §§ 6-12.
Articles and things placed upon a fire escape or outside means of egress of any
building declared a common nuisance, and seizure and disposal thereof, Chap. 143,
§22.
Certain proceedings in the auction of horses in Boston declared a common nuisance,
and the abatement thereof provided for, 1904, 336, as amended by 1905, 426.
Emission of smoke in certain manner in certain cities and towns declared a nuisance,
and its abatement provided for, Chap. 140, §§ 132-136.
Abatement of smoke in Boston, Cambridge, Somerville, Everett, Chelsea and
Brookline, 1910, 6.51; 1911, 10; 191.5, 50.
Suppression of gypsy and brown tail moths as public nuisances, Chap. 132, §§ 11-24.
Suppression of tent caterpillar, leopard moth and elm beetle. Chap. 132, §§ 25, 26.
Public nuisances of insect pest or plant disease and abatement by director of the
division of plant pest control, Chap. 128, § 24, et seq.
Unauthorized erections or work done in the Connecticut river declared pubUc
nuisances, and the abatement thereof provided for. Chap. 91. § 12.
Unauthorized erections or work done in non-tidal part of Merrimack river declared
public nuisances, and the abatement thereof provided for. Chap. 91, § 12.
CHAPTER 140
LICENSES.
Sect.
1. Definition.
IN>fHOLDERS AND COMMON VICTUALLERS.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
Licen9e.
Form of innholders' licenses.
Contents of license of an iunholder or
common victualler. Term.
Innholders, etc., to have suitable ac-
commodations for travelers.
Refusal of license.
Penalty for refusing to receive trav-
eler.
Penalty for refusing food to traveler.
Revocation of license.
Liability of innholder for loss of prop-
erty.
Liability for loss by fire.
Penalty for fraudulently procuring en-
tertainment at an inn or boarding
house.
Copy of certain sections to be posted.
Disposition of baggage in possession of
innholders.
Disposition of proceeds of sale-
Balance of proceeds of sale to be paid
to owner.
Negligence of guest a defence.
Signs.
Sect.
19. Summary of laws to be furnished
licensees.
20. Penalty on unlicensed innholder, etc.
21. Penalty on tliird conviction.
LODGING HOUSES.
Definition.
Licenses.
Penalty.
Inspection.
26. Penalty for permitting immoral con-
duct.
Register.
Order to keep a register.
Penalty for false entry in register, etc.
Revocation, etc., of licenses.
Posting of laws.
Record of conviction to be sent to
licensing authorities.
22,
23
24
25,
27.
28.
29.
30.
31.
32.
public lodging houses.
33. Definition.
34. Licenses.
35. Inspection of means of escape from fire.
36. Inspection by board of health.
37. Register.
38. Access for purposes of inspection.
1412
LICENSES.
[ClL\P. 140.
Sect.
39. Penalty for keeping public lodging
house without a license.
40. Penalty.
INTELLIGENCE OFFICES.
41. Penalty for keeping unlicensed intelli-
gence office.
42. Licenses for intelligence offices.
43. Keeper not to receive money unless
employment is furnished.
44. Money to be refunded in certain cases.
45. Statutes to be printed on licenses.
46. Penalty.
MISCELLANEOUS PROVISIONS.
47. License for coffee houses.
48. Penalty for receiving gratuity given
to cmploj-ee.
49. Licenses for lunch carts.
50. Same subject.
51. Manicuring, massage or vapor baths.
52. Officers may enter premises.
53. Penalty.
54. Licenses of junk dealers, etc.
55. Penalty.
56. Junk collector.
S.\LE OF SECOND HAND MOTOE VEHICLES.
57. License required e.xcept in certain
cases.
58. Classes of licenses.
59. Licensing authorities. Contents of
license, etc.
60. Rules relative to purchase, etc., of
second hand motor vehicles.
61. Vehicles or parts to be kept for four
days.
62. Licensee to keep a record book.
63. Daily or weekly reports by licensees.
64. Police authorities may waive the four
days' requirement.
65. Notice of proposed sale required liy
an unlicensed person.
66. Police authorities may enter licensed
premises.
67. Penalty for refu-iial to allow entry, etc.
68. Penalty for doing business without
license.
69. Penalties for breach of rules.
pawnbrokehs.
70. Licenses.
71. Pawnbrokers to retain articles four
months, etc.
72. Rate of interest may be limited.
73. Officers may enter pawnbroker's shop,
etc.
74. Penalty for refusing to admit officer.
75. Penalty for acting without license.
76. Loans on personal property regulated.
77. Fee for license.
78. Regulations.
79. Pawnbrokers to keep record of
pledges, etc.
Sect.
80. Memorandum to pledgor.
81. Books to be open to inspection.
82. Penalty.
83. Record of amount loaned on tools, etc.
84. Penalty.
85. .Application of certain sections.
86. Loans on collateral security of house-
hold goods, etc.
87. Record book to be open to inspection.
88. When articles pledged are to be re-
tained.
89. Penalty for refusing inspection, etc.
90. Loans of less than one thousand
dollars.
91. Loans secured by pledge, etc.
92. Loan on security of household furni-
ture.
93. Notice to foreclose.
94. Liability for refusal to discharge
mortgage.
95. Application of five preceding sections.
96. Licenses for business of making small
loans.
97. Regulations. Investigations.
98. Returns to commissioner.
99. Examination of licensees.
100. Rate of interest.
101. Term and fomi of license. Posting.
102. Fees.
103. Penalty for violation of law by
licensees.
104. Conditions of granting license.
105. Bond.
106. Recover}' of illegal interest.
107. Mortgage, etc., as security dis-
charged in payment of loan.
108. Validity of mortgage, etc.
109. Receipt for part payment.
110. Penalty for acting without a license.
111. Law as to rate of interest in absence
of agreement not affected.
112. Duties of state police, etc.
113. Old returns may be destroyed.
114. Certain associations need not procure
licenses.
STEAM ENGINES AND FURNACES.
115. Licenses.
116. Changes in furnaces, etc., erected be-
fore acceptance of law.
117. .Appeal.
118. Stationary engines.
119. Furnaces, etc., illegally erected or
used are nuisances.
120. Application of five preceding sec-
tions.
SALE OF FIREARMS.
121. Definitions.
122. Licenses.
123. Conditions of licenses.
Chap. 140.]
LICENSES.
1413
Sect.
12-t. Term of licenses.
125. Suspension or revocation of licenses.
126. Signs, etc., evidence that firearms are
kept for sale.
127. Transfer of licenses.
12S. Penalty for selling without a license.
129. Penalty for giving false name, etc.
130. Penalty for selling firearms, etc., to
minor under fifteen.
131. License to carry pistol, etc.
SMOKE NUISANCE.
132. Smoke nuisance.
133. Permits.
134. Objections to permits.
135. Enforcement.
136. Penalty.
D003.
137. Licenses.
138. Same subject.
139. Fees.
140. Breeder's Ucense.
141. Penalty for keeping unlicensed dog.
142. Keeping of bloodhound, etc.
143. Penalty.
144. Dog to be removed or killed in certain
circumstances.
145. License to have description of liydro-
phobia printed on it.
146. License valid throughout the state,
etc.
147. Issuing of licenses, disposition of fees,
etc.
148. Bond of city clerk.
149. Accounts of county, etc., clerks.
150. Assessors to take list of dogs.
151. Dog officers. Killing unlicensed dogs.
152. Returns by dog officers.
153. Warrant to dog ofiieers.
154. Mayor, etc., to certify to district at-
torneys as to warrants.
155. Damage by dogs.
156. Dog attacking person or certain
animals may be killed, when.
157. Complaint as to dangerous dog.
158. Dog proved dangerous may be killed.
159. Treble damages if dog, after notice,
causes injury, etc.
160. Protecting domestic animals from in-
jury by dogs.
161. Certain damages by dogs to be paid
by the county.
162. Reward for killing dog found injuring
domestic animals.
163. Notice to owner to kill such dog.
164. Penalty for not confining dog.
165. Appointment of persons to investigate
damages by dogs.
166. Person damaged has choice of remedy.
167. Dogs may Ix- required to be muzzled.
168. Service of notice. Penalty.
169. Penalty on town officer.
170. Disposition of fees, etc., in Suffolk
county.
Sect.
171. Owner of dog liable to county for
damages paid by it.
172. Disposition of une.xpended balance of
dog fund.
173. Ordinances and by-laws as to dog.s.
174. Recovery of penalties.
175. Liability for killing, etc., a licensed
dog.
STALLIONS.
176. Registration.
BILLIARD TABLES AND BOWLING ALLEYS.
177. Licenses.
178. Penalty.
179. Penalty for admitting minors to bil-
liard rooms, etc.
180. Penalty for unlawful use, etc., of
bowling alley.
THEATRICAL EXHIBITIONS, PUBLIC AMUSE-
MENTS, ETC.
181. Licenses.
182. Penalty for unlicensed exhibition.
183. Darkened hall prohibited during
progress of public dances therein.
184. Penalty for exhibition when liquor is
sold.
185. Masked ball prohibited.
SKATING RINKS. ETC.
186. License.
187. Penalty.
PICNIC GROVES.
188. License.
189. Penalty.
190. Peddling near picnic grove forbidden.
STEAMBOATS.
191. License.
192. Form of license. Fee.
193. Penalty.
BOATING .4.ND BATHING.
194. License.
195. Posting notices.
196. Penaltj' for acting without license.
GENERAL PROVISIONS.
197. Admission of children to entertain-
ments regulated.
198. Admission of young persons to dance
halls and skating rinks regulated.
199. Posting copy of law.
200. Penalty.
201. Officers may enter billiard rooms,
etc
202. Form, etc., of certain licenses.
203. Term of licenses.
204 License valid only in place specified.
205 Revocation of license.
1414
Definition.
LICENSES.
[Chap. 140.
Section 1. "Licensing authorities" as used in this chapter, unless a 1
contrary meaning is required by the context, shall mean the boards in 2
Boston and other cities which by special statutes or city charters have 3
the power to issue licenses for innholders or common N-ictuallers, the 4
aldermen in other cities and the selectmen in towns. 5
License.
C. L. 79, § 2.
1692-3, 9, § 1.
1703-4, 5, 5 1.
17S6, 68, § 1.
1792, 25.
1832, 166, §§ 4,
6,8.
^ 1833, 122.
R. S. 47.
§§ 17. 18.
1837, 242, § 2.
G. S. 88,
§§ 2, 21.
1875. 99, § 6,
cl. 5.
1878. 241, § 8.
1879. 38, § 1.
P. S. 102,
l§ 2. 24.
1885. S3;
323. § 2.
1894. 235;
351; 428, §4.
1895, 343.
INNHOLDERS AND COMMON VICTUALLERS.
Section 2. Licensing authorities may grant licenses to persons to be 1
innholders or common victuallers. Such Ucense shall not be issued or be 2
valid until it has been signed by a majority of the aldermen in cities 3
where the license is to be granted by the aldermen, by a majority of the 4
licensing board in other cities or by the selectmen in towns. An alderman, 5
any member of the licensing board or a selectman may refuse to sign a 6
license for a person who, in his opinion, has not complied Mith tliis chap- 7
ter. Tliis section shall not recjuire the licensing authorities to grant S
either of said hcenses if, in their opinion, the pubhc good does not recjuire 9
it. A fee of not more than five dollars may be charged for either of said 10
licenses. The hcenses shall be recorded in the office of the licensing 11
authorities. An alderman, member of a licensing board or selectman 12
who signs a hcense granted contrary to this chapter shall be punished by 13
a fine of not more than fifty dollars. R l. 102, § 2. 1906, 291, § 4. 14
1910, 383. 141 Mass. 23. 225 Mass. 104.
1916, Sp. 310. 221 Mass. 395. 3 Op. A. G. 276.^
Form of
innholders'
licenses.
1915, 180, § 5.
1918, 259, § 2.
Section 3. All innholders' licenses shall be expressed to be subject 1
to sections twenty-two to tliirty-two, inclusive, of this chapter and sec- 2
tions twenty-five to twenty-seven, inclusive, of chapter two hundred and 3
seventy-two. 4
Contents of
license of aa
innholder or
common
victualler.
Term.
C. L. 83. § 15.
1703-4. 5, § 1.
1780, 68. § 2.
1832, 166,
§§ 6, 7.
R.S. 47.
5S 17, 19.
Section 4. Every license of an Innliolder or common \ictualler shall
specify the street and number, if any, of the building where the business
is to be carried on or give some other particular description thereof, and
the Ucense shall not protect a Hcensee who carries on liis business in
any other place. Such hcenses shall expire on April tliirtieth of each
year; but they may be granted during April, to take efi'ect on May first
following. G.S.SS, §§2,3.
1878, 241, § 9.
1879, 38, § 2.
P. S. 102, i
1890, 73.
R. L. 102, |§ 3, 4.
201 Mass. 204.
Section 5. Every innholder and every common victualler shall at
all times be provided with suitable food for strangers and traA'elers.
Every innliolder shall also have upon his premises suitable rooms, with
beds and bedding, for the lodging of his guests, and, if the licensing
1832, 166,; §io. authorities so require, be provided with stable room, hay and provender
Innholders,
etc., to have
suitable ac-
commodations
for travelers.
C. L. 82, § 10.
1698. 10. § 1.
1786. 68. I 3
R. S. 4
G. S. 88, § 8.
for their horses and cattle.
p. S. 102. §§ 5, 6.
R. L. 102. § 5.
1878. 241, §§ 1, 2.
221 Mass.
Refusal of
license.
1878. 241,
§§3,4.
P. S. 102,
5§ 7, 8.
R. L. 102. § 6.
201 Mass. 204.
221 Mass. 70.
Section 6. An innholder's or common victualler's license shall not 1
be granted unless at the time of making application therefor the applicant 2
has upon his premises the necessary implements and facilities for cooking, 3
preparing and serving food for strangers and travelers; and, if he is an 4
applicant for an innholder's license, also has the rooms, beds and bedding 5
and stable room and prov'ender for horses and cattle required by law. 6
1919, 99.
189 Mass. 70.
Chap. 140.] licenses. 1415
1 Section 7. An innholder who, upon request, refuses to receive and feeling to"^
2 make suitable provision for a stranger or traveler, and also for his horses [^if^^l^
3 and cattle, when he may under the provisions of this chapter be legally '^j^^^f § i°-
4 required so to do, shall be punished by a fine of not more than fifty n, § 4. '
5 dollars. 1786, 68, § 3. 1832, 166. § 10. R. S. 47, § 8.
G. S. SS, § 9. 1878, 241, § 5. P. S. 102, § 9. R. L. 102, § 7.
1 Section 8. A common victualler who, upon request, on any day but Penalty for
2 Sunday, refuses to supply food to a stranger or traveler shall be punished to traveler.
3 by a fine of not more than fifty dollars.
1878, 241, § 6. P. S. 102, § 10. R. L. 102, § 8. 221 Mass. 70.
1 Section 9. If, in the opinion of the licensing authorities, a licensee Revocation
2 as an innholder or a common victualler ceases to be engaged in the business i78'6,^6&§ s.
3 he is licensed to pursue, or fails to maintain upon his premises the im- R^^l.'il,^!!.'"'
4 plements and facilities required by this chapter, they shall immediately G^I'lli^iV^-
5 revoke his license. If a licensee at any time conducts his licensed busi- i?1'|'*''
G ness in an improper manner, the licensing authorities, after notice to the p, s! 102.
7 licensee and reasonable opportunity for a hearing, may upon satisfactory r. l 102,
8 proof thereof suspend or revoke his license. An innholder who violates i9is~ w."'
9 section seven or a common victualler who violates section eight shall ' '" ""
10 forfeit his license. A licensee who is convicted a second time of the
11 violation of any of the provisions of sections six to eighteen, inclusive,
12 shall forfeit his license.
1 Section 10. An innholder shall not be liable for losses sustained by Liability oi
2 a guest except of wearing apparel, articles worn or carried on the person, loss of "
3 personal baggage and money necessary for traveling ex-penses and personal isssfwo, § 1.
4 use, nor shall such guest recover of an innholder more than one thousand fs?!, lis!/ 1'.
.5 dollars as damages for any such loss; but an innholder shall be liable in ^^^^ ^°^^ ^ 12.
6 damages to an amount not exceeding three thousand dollars for the loss js^^. sos. ^^
7 of money, jewels and ornaments of a guest specially deposited for safe a Pick 2"so.
8 keeping, or offered to be so deposited, with such innholder, person in i4o Mass. 123.
9 charge at the office of the inn, or other agent of such innholder authorized
10 to receive such deposit. This section shall not affect the innholder's
11 liability under any special contract for other property deposited with
12 him for safe keeping after being fully informed of its nature and value,
13 nor increase his liability in case of loss by fire or overwhelming force
14 beyond that specified in the following section.
1 Section 11. In case of loss by fire or overwhelming force, innholders Liability for
2 shall be answerable to their guests only for ordinary and reasonable care isss, 405?§ 2.
3 in the custody of their baggage or other property.
G. S. 88, § 11. P, S. 102, § 15. R. L. 102, § 11.
1 Section 12. Whoever puts up at an inn or boarding house and, fraudifentfy
2 without having an exTiress agreement for credit, procures food, enter- procuring
,. i.'^., . ii. i-i- entertainment
6 tamment or accommodation without paying therefor, and with intent at an inn
4 to cheat or defraud the owner or keeper thereof; or, with such intent, hous°e.'^ '"
5 obtains credit at an inn or boarding house for such food, entertainment p ki62,§ is.
6 or accommodation by means of any false show of baggage or eft'ects SUf; {eg.' ^ ''
7 brought thereto; or, with such intent, removes or causes to be removed ''■ ^- ^'^^ ^ ^^'
8 any baggage or effects from an inn or boarding house while a lien exists
9 thereon for the proper charges due from him for fare and board furnished
1416
LICENSES.
[Chap. 140.
therein, shall be punished by a fine of not more than fifty dollars or b_y 10
imprisonment for not more than three months. 11
Sti^n°s'tobr° Section 13. Innholders shall post a printed copy of this and the 1
fsrotlss, § 3. three preceding sections in a conspicuous place in each room of their inns. 2
r*l' 10^' ^ ^ Boarding house keepers shall post a copy of the preceding section in a .3
§§' 12, 13'.' conspicuous place in each room of their boarding houses. 4
biggagein"pos- SECTION 14. An innholdcr, after retaining for six months from the 1
iToid^re"^ '"°" time of departure of a guest from his inn any trunks, bags, valises, parcels, 2
1894' isi' ^ ' clothing, goods or other personal property of a guest which has been aban- 3
R. L.' 102, § 14, doned by such guest, or which such innholder retains by virtue of his 4
lien thereon for the unpaid board, lodging and other charges of such .5
guest, may sell the same by public auction upon the premises of the inn, 6
notice of the time and place of sale first being posted in a conspicuous 7
place in the office of the inn for four weeks prior to the date of such sale, 8
and published once in each of three successive weeks in a newspaper, if 9
any, published in the town where the inn is situated; otherwise, in a 10
newspaper published in the county where the inn is situated, the first 11
publication of such notice to be not less than twenty-one days before 12
the day of sale. A copy of such notice shall be sent by registered mail 13
addressed to said guest at the residence given by him in the register of 14
such inn. Such notice shall contain a descriptive list of all such property 15
and of all such specific marks as may serve to identify such propert.y, 16
and the name of the guest so far as known to such innholder. 17
Section 15. The proceeds of such sale, after deducting reasonable 1
charges and expenses incurred in the storage and sale of such property, 2
shall be applied to the discharge of the lien of such innliolder thereon 3
for the board, lodging and other charges of such guest, and any proceeds 4
remaining thereafter shall be paid to the commonwealth. 5
pr^o^eedVof sale Section 16. If, withiu three years after such sale, the owner of any 1
ownlr"''''' *° s"^'^ property claims it and proves his ownership thereof, the said pro- 2
R ^L 102' 1 16 ^^^'^^^> ^^^^^' deducting all reasonable charges and expenses, shall be paid 3
over to him by the state treasurer. 4
Disposition of
proceeds of
sale
1S93. 419, § 2.
R. L. 102. § 15.
Negligence
of guest a
defence.
1853, 405, § 3.
G. S. 8S, § 12.
P. S. 102. ^ 16.
R. L. 102, § 17.
140 Mass. 123.
145 Mass. 1S6.
Signs.
C. L. 79, 5 2.
1786, 68. § 3.
1S32, 166, ^ 10.
R. S. 47, § 7.
G. S. 88, S 14.
P. S. 102, § 17.
R. L, 102, § 18.
Summary of
laws to be
furnished
licensees.
1837, 242, S 5.
G. .S. 88. § 22.
P. S. 102, s 2.5.
Section 17. An innholder against whom a claim is made for loss 1
sustained by a guest may show that such loss is attributable to the 2
negligence of the guest or to his failure to comply with the regulations of 3
the inn, if they are reasonable and proper and are shown to have been 4
duly brought to the notice of the guest by the innholder. 5
Section 18. Every innholder and common victualler shall at all times 1
have a board or sign affixed to his house, shop, cellar or store, or in a 2
conspicuous place near the same, with his name legibly inscribed thereon 3
in large letters and the business for which he is licenseil inscribed thereon, 4
and upon neglect thereof shall forfeit twenty dollars. 5
Section 19. The state secretary shall cause a condensed summary of 1
all laws relative to innholders and common victuallers to be printed, and 2
shall supply copies thereof to licensing authorities, who shall at the time 3
of granting each license provide the licensee with a copy of such summary. 4
R L. 102, § 22.
Chap. 140.] licenses. 1417
1 Section 20. Wlioever assumes to be an innholder or common vict- Penalty on un-
2 ualler without being licensed as such under this chapter shall forfeit one howlr, etc"
3 hundred dollars.
C. L. 79, § 2; 84. § 3. 1S32, 166. §§ 1. 3 P. S. 102, § 1.
178(;, 68, §1. R. S. 47, §1. R. L. 102,'§1.
1830, 136, §§ 1, 2, G. S. 88. § 1, 101 Mass. 214.
1 Section 21. Whoever is convicted a third time of a ^•iolation of any Penalty
2 provision of the preceding sections, except those contained in sections "onvirtion.
3 seven and eight, shall, in addition to the penalties before provided, be nge'.ls, If.
4 punished by imprisonment for not more than three months. ^^-- '^^' ^ ^^
R. S. 47, § 29. G. S. 88, § 17. R. L. 102, § 21.
1837, 242, § 4. P. S. 102, § 20.
LODGING HOUSES.
1 Section 22. "Lodging house", as used in sections twenty-two to DeBnition
2 thirty-one, inclusive, shall mean a house where lodgings are let to five '^^^'^^^'^ '•
3 or more persons not within the second degree of kindred to the person
4 conducting it, and shall not include dormitories of charitable, educational
5 or philanthropic institutions.
1 Section 23. Licensing authorities may grant licenses for lodging Licenses.
2 houses which shall be for the period provided in section four and shall §5'!; 9.^^'
3 be issued without charge. Said authorities shall enforce sections twenty-
4 four to thirty-one, inclusive, and shall prosecute all violations thereof.
1 Section 24. Whoever conducts a lodging house without a license penalty.
2 shall be punished by a fine of not less than one hundred nor more than '^^*' ^^^' ^ *•
3 five hundred dollars or by imprisonment for not more than three months,
4 or both.
1 Section 25. Premises occupied, used or controlled by a licensee inspection.
2 under sections twenty-two to thirty-one, inclusive, or under an innholder's ^^'*' ^^^' ^ ^'
3 license shall be subject to inspection by the licensing authorities and their
4 authorized agents, and by the police on request from the licensing
5 authorities.
1 Section 26. Whoever, being licensed as a lodging house keeper under penalty for
2 sections twenty-two to thirty-one, inclusive, or as an innholder, or being P"mo"i"*
3 in actual charge, management or control of the premises for which the Jgig^lgQ
4 license is issued, knowingly permits the premises under his control to be SM.'s.
5 used for the purpose of immoral solicitation, immoral bargaining or
6 immoral conduct shall be punished by a fine of not less than five hun-
7 dred nor more than one thousand dollars or by imprisonment for not
8 less than six months nor more than one jear, or both. E\idence that a
9 room in a hotel or lodging house was not actually used for immoral con-
10 duct shall not prevent a conviction under this section of a person in
11 actual charge, control or management of the premises who permits the
12 occupation of such a room knowing or having good reason to know that
13 the parties occupying such a room intended to use it for immoral solici-
14 tation, immoral bargaining or immoral conduct. If it is required that
15 registers be kept, as provided in sections twenty-seven and twenty-eight,
16 evidence that the person in actual charge, control or management of
17 the premises has knowingly permitted the occupation of a private room
18 of less than four hundred square feet floor area, containing a bed or
1418
LICENSES.
[Chap. 140.
couch, by the same woman on different occasions within a period of 19
thirty days with different men, or by the same man on different occasions 20
within a period of thirty days with different women, shall be prima facie 21
evidence of a violation of this section. 22
Register.
1918. 259,
§§ 5, 8.
Section 27. Every innholder, and every lodging house keeper re-
quired so to do imder section twenty-eight, shall keep or cause to be
kept, in permanent form, a register in which shall be recorded the true
name or name in ordinary use and the residence of every person engaging
or occupying a priA'ate room averaging less than four hundred square
feet floor area, excepting a private dining room not containing a bed or
couch, or opening into a room containing a bed or coUch, for any period
of the day or night in any part of the premises controlled by the licensee, 8
together with a true and accurate record of the room assigned to such 9
person and of the day and hour when such room is assigned. The entry 10
of the names of the person engaging a room and of the occupants of said 11
room shall be made by said person engaging said room or by an occupant 12
thereof. Until the entry of such name and the record of the room has 13
been made, such person shall not be allowed to occupy privately any 14
room upon the licensed premises. Such register shall be retained by the 15
holder of the license for a period of at least one year after the date of the 16
last entry therein, and shall be open to the inspection of the licensing 17
authorities, their agents a.nd the police. Whoever violates any pro- IS
vision of this section shall be punished by a fine of not less than one 19
hundred nor more than five hundred dollars or by imprisonment for not 20
more than three months, or both. 21
Order to keep
a register.
191S, 259, § 7.
Section 28. Every person conducting a lodging house shall within 1
twenty-four hours after he is ordered to do so by the licensing authorities 2
keep a register. The said authorities may issue such order at any time, .3
and shall do so upon receipt of an affida^'it of a commissioned officer of 4
the United States army or navy or a police officer stating that the affiant 5
knows or believes such lodging house is being used for immoral solicita- 6
tion, immoral bargaining or immoral conduct. 7
Penalty for
false entry in
register, etc.
1918, 259, § 6.
Revocation, ,
etc., of
licenses.
1918, 259, § 9.
Section 29. No person shall write or cause to be written, or if in 1
charge of a register knowingly permit to be written, in any register in 2
any lodging house or hotel any other or different name or designation 3
than the true name or name in ordinary use of the person registering or 4
causing himself to be registered therein. No person occupying such 5
room shall fail to register or fail to cause himself to be registered. Who- 6
ever violates any provision of this section shall be punished by a fine of 7
not less than ten nor more than twenty-five dollars. 8
Section 30. A license issued under sections twenty-two to thirty- 1
one, inclusive, or an innholder's license, shall be revoked if at any time 2
the licensing authorities are satisfied that the licensee is unfit to hold 3
the license. They may suspend and make inoperative, for such period 4
of time as they may deem proper, the licenses mentioned herein for any 5
cause deemed satisfactory to them. The revocation and suspension shall 6
not be made until after investigation and a hearing, or after giving the 7
licensee an opportunity to be heard; notice of the hearing shall be left at 8
the premises of the licensee not less than three days before the time 9
therefor. 10
Chap. 140.] licenses. 1419
1 Section 31. All innholders, and all lodging house keepers who have Posting of
2 been ordered to keep a register, shall post in a conspicuous place near the ml, 259, § 10.
3 register a notice, to be furnished by the hcensing authorities, containing
4 the provisions of sections twenty-se\en and twenty-nine relating to the
5 entry of names and residences in the register, together with the penalty
6 provided for their \-iolation.
1 Section 32. The clerk of a court where any person is convicted of a Record of
2 violation of any pro^^sion of sections twenty-two to thirty-one, inclusi^'e, be sent to
3 shall forthwith send a copy of the record of the conviction to the licensing authorities.
4 authorities in the town where the offence occurred. i9i8, 259, § 11.
public lodging houses.
1 Section 33. In cities of over fifty thousand inhabitants every build- fs94?4u°'§ 1.
2 ing not licensed as an inn, in which ten or more persons are lodgetl free l^*-§'^^-
3 or for a charge of twenty-five cents or less for each person for a day i'"!!?^-, ,
4 of twenty-four hours, or for any part thereof, shall be deemed a public
5 lodging house within the meaning of sections thirty-four to forty, in-
6 elusive. No building or part thereof erected, altered or converted to
7 be used as such a public lodging house shall have the sleeping compart-
8 ments arranged on the cubicle plan.
1 Section 34. The officer or board having charge of the police in any Licenses.
2 such city may license persons to keep public lodging houses therein, and §§ 2,'?. '
3 shall immediately revoke such license if the licensee violates any pro- §§*2,'7',^8.'
4 vision of sections thirty-five to thirty-eight, inclusive. No fee shall be
5 charged for such license, and, subject to section forty-nine of chapter
6 one hundred and forty-three when applicable, it shall expire on the
7 thirtieth day of April next after the granting of the same. Every such
8 license shall specify the street and number, if any, of the building where
9 the business is to be carried on or give some other particular description
10 thereof, and the license shall not protect a licensee who carries on his
11 business in any other place.
1 Section 35. No such license shall be granted in anv such citv until inspection of
^^ * * means or
2 the inspector of buildings thereof, or the other officer or board having escape from
3 authority to administer the laws and ordinances in regard to the con- isni, 414, 1 3.
4 struction of buildings therein, has certified that the building, if it has §'5 3.'8 '
5 eight or more rooms or ten or more persons are accommodated above ^^''^' ^"^^ ^ ""■
6 the second story, complies with the requirements of chapter one hundred P«°»'ty' § ^°-
7 and forty-three, and in other cases is provided with sufficient means of
8 escape in case of fire, and that suitable appliances are provided for ex-
9 tinguishing fires and for giving alarm to the inmates in case of fire; and
10 such officer or board may from time to time require such alterations to
11 be made or such additional appliances to be provided as may in his or
12 its judgment be necessary for the protection of life and property in case
13 of fire.
1 Section 36. No such license shall be granted in any such city until bow^of"" ^^
2 the board of health thereof has certified that the building is provided 5'^§^"'4j4 s^
3 with a sufficient number of water closets and urinals and with good and 1904! 242',
4 sufficient means ol ventilation; and the said board may from time to ^^
5 time require the licensee thoroughly to cleanse and disinfect all parts of "^"^ "^'
6 said building and the furniture therein to the satisfaction of such board.
1420
LICENSES.
[CH.A.P. 140.
fsli^'414 § 5 Section 37. In every public lodging house a register shall be kept 1
ITs'i*^' ''^ which shall be entered the name and address of each lodger, together 2
with the time of his arrival and departiu-e, and such register shall at all 3
™* ^' times be open to the inspection of the police. 4
pu^poses'of Section 38. The keeper of every public lodging house shall at all 1
]^94"^4iT § 6 times, when so required by any officer of the building department, of the 2
1904,242, health department, or of the police department, give him free access to 3
said house or any part thereof. 4
i6, 8.
Penalty, § 40,
Penalty for
keeping public
lodging Louse
without a
license.
1894, 414, § 7.
1904, 242,
§§ 7, 8.
Section 39. Whoever keeps or holds himself out as keeping a public 1
lodging house without being duly licensed as hereinbefore pro^•ided, and 2
whoever is concerned or financially interested in any public lodging house, 3
the keeper of which is not so licensed, shall be punished by a fine of not 4
more than one hundred dollars. 5
Penalty.
1894, 414, 5 7.
1904. 242.
Section 40. Any keeper of a public lodging house who violates any 1
provision of sections thirty-five to thirty-eight, inclusive, shall be punished 2
bv a fine of one hundred dollars. 3
Penalty for
keeping
unlicensed
intelligence
office.
1848, 270, § 1.
G. S. 88, § 23.
1872, 237.
P. S. 102, § 26.
R. L. 102, § 23.
intelligence offices.
Section 41. Whoever, without a license therefor, establishes or
keeps an intelligence office for the purpose of obtaining or giving in-
formation concerning places of employment for domestics, servants or
other laborers, except seamen, or for procuring or giving information
concerning such persons for or to employers, or for procuring or giving
information concerning employment in business, shall be punished by
a fine of ten dollars for each day such office is so kept.
Licenses for
intelligence
offices.
1848, 270, § 2.
G S. 88. § 24.
187(1, 147,
§§1.2.
1880, 84. § 1.
P. S 102, § 27
Section 42. The licensing board in Boston, the license commission 1
in Lowell, the aldermen in other cities and the selectmen in towns, may, 2
for the purposes mentioned in the preceding section, grant licenses to 3
suitable persons, subject to sections two hundred and two to two hun- 4
dred and five, inclusive, and may revoke them at pleasm-e. 5
R. L. 102, § 24. 1902, 187, S 5. 1906, 291, § 4. 1911, 645.
Keeper not to
receive money
unless employ-
ment is fur-
nished.
1894, 180, 5 I
R. L. 102, § 25.
Section 43. The keeper of an intelligence office shall not recei\e 1
or accept any money from a person seeking employment through 2
the agency of such office, unless employment of the kind demanded is 3
furnished. 4
Money to be
refunded in
certain cases.
1894, 180, § 2.
R. L. 102, § 26.
Section 44. If a person who receives employment through the agency 1
of an intelligence office is discharged by his employer within ten days 2
after the time of entering upon such emplo\"ment, and such discharge 3
is not caused by his inability, incompetence, refusal to perform the work 4
required or other fault, the keeper of such intelligence office shall on de- 5
mand refund to him five sixths of the amount paid to such keeper b\- the 6
employer on account of such employment. 7
Statutes to be
Erinted on
censes.
1894, ISO, § 3.
R. L. 102, 1 27.
Section 45. City and town officers who are charged with the duty 1
of granting licenses to keepers of intelligence offices shall cause sections 2
forty-three to forty-six, inclusive, to be printed on every such license. 3
They shall also cause to be prepared and shall furnish to each keeper of 4
Ch.\.P. 140.] LICENSES. 1421
5 a licensed intelligence office copies of said sections, printed upon card-
6 board in type of a size not smaller than pica, and each licensee shall con-
7 spicuously post three of said printed copies in each room occupied by
8 him for the purpose of such intelligence office.
1 Section 46. If a keeper of an intelligence office violates any pro- Penalty.
2 vision of the three preceding sections, his license may be suspended or r. l; 102,' § 28.
3 revoked by the Ucensing authorities mentioned in section forty-two and Jlg^M^als! 70.
4 he shall be punished by a fine of not less than twenty-five nor more than
5 fifty dollars.
MISCELLANEOUS PROVISIONS.
1 Section 47. No coflFee house, so called, or tea house or place of J"Xe^hJSIe3
2 resort for refreshment where the principal business is or purports to }?\'|^'
3 be the sale of coffee or tea as a beverage shall be maintained in any
4 town which accepts tliis section, or has accepted corresponding pro-
5 \asions of earlier laws, by a vote of a city council or by vote of a town at
6 a town meeting, until a license therefor has been granted by the licensing
7 authorities. The fee for the license shall be five dollars or such other
8 sum as shall be fixed from time to time by the city coimcil or selectmen.
9 Licenses issued hereunder shall expire on May first following the date
10 of issue, and may be revoked at any time by the licensing authorities.
11 Whoever violates this section shall be punished by a fine of not more
12 than one hundi-ed dollars.
1 Section 48. Whoever directly or indirectly accepts dr receives any Penalty for
2 gratuity given to his employee for the checking of clothing shall be gratuit'y
3 punished by a fine of not less than fiftj- dollars. wis. i49, § :. ^o employee
ing
given
1 Section 49. The street commissioners and the police commissioner of i';fn";''^art7
2 Boston, the aldermen of anv other citv, or the selectmen of anv town }-I9*j ?S0' Lk
3 may, if in theii* opinion public convenience so requires, license any repu-
4 table person, upon the payment of an annual license fee of not less than
5 fifty dollars, to maintain a vehicle for the sale of food in such part of any
6 public way and during such hours as they may designate, provided that
7 public travel is not incommoded thereby. Any such license may be
8 revoked by them at any time.
1 Section 50. No license as aforesaid shall be granted to use any part Same subject^.
2 of a highway the fee in which is not owned by the town unless 'the owners
3 of the land abutting on that part of the way consent in ■RTiting to the
4 granting of the license.
1 Section 51. No. person shall practice manicuring or massage, or Manicuring,
2 conduct an establishment for the giving of vapor baths for hire or reward, ""po^batL.
3 or advertise or hold himself out as being engaged in the business of [HI', Uk 1 1.
4 manicuring, massage or the giving of said baths without receiving a
5 license therefor from the board of health of the town where the said
6 occupation is to be carried on. The board of health may grant the license
7 upon such terms and conditions, and may make such rules and regula-
8 tions in regard to the carrying on of the occupation so licensed, as it
9 deems proper, and may revoke any license granted by it for such cause
10 as it deems sufficient, and without a hearing; provided, that a person
11 licensed to massage or to conduct an establislmient for the giving of
1422
LICENSES.
[Chap. 140.
Officers may
enter premises.
1911, 443, § 2.
Penalty.
1911, 443,
Licenses of
junk dealers.
etc.
1839.
53,
§§1.
2.4.
G. S.
88,
§§2,5
1.26.
1862,
205,
§2
1876.
147,
§§1,
2
ISSO,
84. § 1.
P. S.
102,
§§ 28, 30.
R. L.
102,
§§29
.31.
1902,
187,
§§1.
5.
1910,
554.
§1.
1911,
645.
1915,
144,
§1.
1917,
130.
1918,
291.
§ 18.
1S3 Mass.
196.
1S9 Mass.
70.
220 Mass.
552.
Penalty.
1839,
53. § 3.
G. S.
88, §
•21.
1862,
205,
§3.
P. S.
102,
§31.
R. L.
102,
§32.
1902,
187,
§3.
1910.
5.54,
§2.
1918,
291,
§20.
Junk collector.
1862,
205.
§1.
P.S.
102,
§29.
1900,
416,
§3.
R.L.
102.
§30.
1902,
187,
§2.
1910,
193.
License re-
quired e-xcept
in certain
cases
1919,
259,
§§1,
14.
Classes of
licenses.
1919,
,259,
.§2.
vapor baths in any town may, at the request of a physician, attend 12
patients in any otlier town in the commonwealth without taking out 13
an additional license. 14
Section 52. Members of the police department of any town may 1
enter and inspect any premises in that town used for manicuring or 2
massage or the giving of vapor baths. 3
Section 53. ^^lioever violates any provision of section fifty-one, or
any rule or regulation made under authority thereof, or prevents or
hinders any member of a police force from exercising the authority con-
ferred upon him by section fifty-two, shall be punished by a fine of not
more than one hundred dollars or by imprisonment for not more than six
months, or both.
Section 54. Cities and towns by ordinance or by-law may pro\'ide 1
for the hcensing, by the police commissioner in Boston, by the license 2
commission in Lowell, by the aldermen in other cities and by the select- 3
men in towns, of suitable persons to be collectors of, dealers in or keepers 4
of shops for the purchase, sale or barter of jmik, old metals or second 5
hand articles, may make rules and regulations relative to their business, 6
anfl may proNide for the super\ision thereof. Said licensing board or 7
officer may, except as other\use i3ro\ided in such ordinance or by-law, 8
make additional rules, regulations and restrictions which shall be ex- 9
pressed in all licenses. Said licenses may be revoked at pleasure, and 10
shall be subject to sections two hundred and two to two hundred and 11
five, inclusive, except that societies, associations or corporations organ- 12
ized solely for reUgious or charitable purposes and their agents shall not 13
be required to pay a fee for such licenses. 4 0p.A.G.633. 14
Section 55. \Vhoever acts as a collector of, dealer in or keeper of a 1
shop for the purchase, sale or barter of junk, old metals or second hand 2
articles without a license, or in any other place or manner than that 3
designated in his license or after notice to him that his license has been 4
revoked, or violates any such rule, regulation or restriction, shall forfeit 5
twenty dollars. 6
Section 56. A junk collector shall be deemed to be any person who 1
by going from place to place collects by purchase or otherwise junk, 2
old metals or second hand articles, whether or not by previous contract 3
or arrangement. isis. 291. § 19. is3 Mass. i96. 220 Mass. 552. 4
SALE OF SECOND H.\ND MOTOR VEHICLES.
Section 57. No person, except one whose principal business is the 1
manufacture and sale of new motor vehicles but who incidentally acquires 2
and sells second hand vehicles, shall engage in the business of buying, sell- 3
ing, exchanging or assembling second hand motor vehicles or parts thereof 4
without securing a license as provided in section fifty-nine. 5
Section 58. Licenses granted under the following section shall be 1
classified as follows: 2
Class 1 . — Any person who is the recognized agent of a motor vehicle 3
manufacturer, and whose principal business is the sale of new motor 4
Chap. 140.] licenses. 1423
5 vehicles, the sale of second hand motor vehicles being incidental thereto,
6 may be granted an agent's license.
7 Class 2. — Any person whose principal business is the buying and sell-
8 ing of second hand motor vehicles may be granted a used car dealer's
9 license.
10 Class 3. — Any person whose principal business is the buying of
1 1 second hand motor vehicles for the purpose of remodelling, taking apart
12 or rebuilding the same, or the buying or selling of parts of second hand
13 motor vehicles or tires, or the assembling of second hand motor vehicle
14 parts may be granted a motor vehicle junk license.
1 Section 59. The police commissioner in Boston and the licensing Licensing
2 authorities in other cities and town.s may grant hcenses under this conte"trof
3 section which shall expire on January first following the date of issue 'igig^ooo'.'^j 3:
4 unless sooner revoked. The fees for the licenses shall be fixed by the Jj"' ^^ ^^'•
5 licensing board or officer, but in no case shall exceed fifty dollars. The
6 license shall specify all the premises to be occupied by the licensee for
7 the purpose of carrying on the licensed business. Permits for a change
8 of situation of the licensed premises or for additions thereto may be
9 granted at any time by the licensing board or officer in writing, a copy
10 of which shall be attached to the license. All licenses granted under
1 1 tliis .section shall be revoked by the licensing board or officer if it appears,
12 after hearing, that the hcensee is not compljing with sections fifty-seven
13 to sixty-mne, inclusive, or the rules and regulations made thereunder;
14 and no new license shall be granted to such person thereafter, nor to any
15 person for use on the same premises, without the approval of the registrar
16 of motor vehicles, in sections fifty-nine to sixty-six, inclusive, called the
17 registrar. The hearing may be dispensed with if the registrar notifies
IS the Ucensing board or officer that a licensee is not so compljing.
1 Section 60. The registrar may from time to time make rules and Rules relative
^ * ..... to purchase,
2 regulations consistent \Mth sections fifty-se^•en to sixty-mne, mclusn'e, etc of^ second
3 relative to the purchase, sale or exchange of second hand motor vehicles vehicles.
4 or parts thereof. Such rules and regulations shall be subject to approval, § 12- 350.
5 and shall take effect, in the manner pro^•ided by section six of chapter ^^ ^^^' "^■
6 sixteen.
1 Section 61. All second hand motor vehicles or parts thereof pur- vehicles or
2 chased or taken in exchange by any licensee under class two or three of Eept^o" four
3 section fifty-eight, or left on the premises of any such licensee for the pur- jgg; 259, § 4.
4 pose of sale, exchange or assembly, shall be retained on the premises for
5 four days unless the licensee receives the notice provided for in section
6 sixty-four.
1 Section 62. Every licensee shall keep a book, in such form as shall ^lepT Record
2 be approved by the registrar, in which, at the time of the purchase, sale, J^^^asg § g-
3 exchange, or receipt for the purpose of sale, of any second hand motor aso, '§§ lii,
4 vehicle or parts thereof, shall be legibly written in the English language
5 an account and description of such motor vehicle or parts, with the
6 name and address of the seller, of the purchaser, and of the alleged owner
7 or other person from whom such motor vehicle or parts were purchased
8 or received or to whom they were deli^'ered, as the case may be. Such
9 description, in the case of motor vehicles, shall also include the engine
1424
LICENSES.
[Ch.\p. 140.
. number, if any, the maker's number, if any, chassis number, if any, and 10
such other numbers or identification marks thereon as shall be required 11
by the registrar, and shall also include a statement that a number has 12
been obliterated, defaced or changed if such is the fact. 13
Daily or
weekly reports
by licensees.
1919. 259. § 9:
350, H 111,
115.
Section 6-3. Every licensee under classes two or three of section 1
fifty-eight shall send daily by mail to the registrar a list, on blanks pre- 2
scribed by him, of the second hand motor vehicles or parts thereof pur- 3
chased or sold by him or stored for the purpose of sale during the preced- 4
ing twenty-four hoiu-s. A copy of such list shall also be sent daily in 5
Boston to the poHce commissioner and in other cities and towns to the 6
local chief of police. Every licensee imder class one shall send the said 7
list weekly, covering a period of seven days. 8
ruthorities Section 64. The police commissioner of Boston, the chief of police
may waive the of anv Other citv, the selectmen of a town, or any officer authorized
four (lavs re- ^ , '' * i» i • i
quirement._ _ by them, and any agent or inspector oi the registrar may, by written
notice, release any person licensed under section fifty-nine, or any per-
son described in the following section, from retaining any second hand
vehicle or part thereof for the period prescribed in section sixty-one or
sixty-five. Upon receipt of such notice such licensee or person shall be
deemed to have comphed \ntli said sections.
1919,259, § 10;
350, §1111.
11.5.
Notice of pro-
posed sale re-
quired by an
unlicensed
person.
1919.259, § 11;
350, §§111.
115.
Section 65. Any person not licensed under section fifty-nine, selling
or offering to sell any motor \eliicle, except to a licensee under class
one of section fifty-eight or a person exempted b>' section fifty-se^•en, shall,
at least four days before such sale, notify in writing the registrar and the
chief of police or selectmen in the city or town where the sale is to be
made, or, if in Boston, the police commissioner, unless he has secured a
release as provided in the preceding section. Such notice shall contain
all the information required by law to be set forth in an application for 8
the registration of motor vehicles in the commonwealth, with the names 9
and addresses of the vendor and vendee. 10
Police
authorities
may enter
licensed
premises.
1919.259, § 5;
350, §§ 111,
115.
Section 66. The police commissioner in Boston, the chief of police
of any other city, the selectmen of a town or any police officer authorized
by them, or an agent or inspector of the registrar may at any time enter
upon any premises used by any person hcensed imder se<.-tion fifty-nine
for the purpose of carrying on his licensed business, ascertain how he con-
ducts the same, and examine all second hand motor vehicles or parts
thereof kept or stored in or upon the premises, and all books, papers and
inventories relating thereto.
Penalty for
refusal to
allow entry,
ig'i'g, 259, s 6.
Section 67. A licensee under section fifty-nine, or a clerk, agent or 1
other person in charge of the licensed premises, who refuses to admit 2
thereto an officer authorized to enter the same, or who fails to exhibit to 3
him on demand all such motor vehicles, parts thereof, and books, papers 4
and inventories relating thereto, and any person who \\-ilfully hinders, 5
obstructs or prevents such officer from entering the premises or from 6
making the examination authorized in the preceding section, shall be 7
punished by a fine of not more than two hundred dollars or by imprison- 8
ment for not more than one year, or both. 9
Chap. 140.] licenses. 1425
1 Section 68. Whoever, not being licensed, carries on the business Penalty tor
2 for wliich a hcense is required by section fifty-seven, or is concerned wittout
3 therein, or, being Hcensed, carries on such business or is concerned therein isii^^g, § 7.
4 in any other place or manner than that designated in his hcense, or after
5 notice to liim that his hcense has been revoked or suspended, shall be
6 punished by a fine of not more than one hundred dollars.
1 Section 69. Whoever violates any provision of sections fifty-seven to Penalties for
2 sixty-eight, inclusive, or any rule or regulation made by the registrar ruSJ!
3 under section sixty, unless another penalty not including the revocation Mof'^'ni^.'^'
4 of a license is prescribed in sections fifty-seven to sixty-eight, inclusi\'e, 'i^-
5 shall be punished by a fine of not more than five hundred dollars or by
6 imprisonment for not more than one year, or both.
PAWNBROKERS.
1 Section 70. The police commissioner of Boston, the license com- Licenses.
2 mission of Lowell, the aldermen of any other city, or the selectmen of a.^tsi!^^^'
3 any town, if ordinances or by-laws therefor have been adopted in such isTe^'m,
4 city or town, may license suitable persons to carry on the business of \l^^ |^ ^ j
5 pawnbrokers in such city or town, subject to sections two hundred and ^^gJi/^gO^' \'^^-
6 two to two hundred and five, inclusive, and may revoke such Ucenses at R. l. 102! § 33.
7 pleasure. 1902, is7, § 5. 1906. 291. § 10. i909, 221.
1911, 645. 189 Mass. 70. 206 Mass. 430.
1 Section 71. Articles deposited in pawn with a licensed pawnbroker PawBbrokers
2 shall, unless redeemed, be retained by him on the premises occupied artuieslour
3 by him for his business for at least four months after the date of deposit, isra, ioCli.
4 if not of a perishable nature; and, if perishable, for at least one month fs^,324.^^^'
5 after said date. After such date, he may sell the same by public auction, fg/^^^' \q^-
6 apply the proceeds thereof in satisfaction of the debt or demand and the
7 expense of the notice and sale, and pay any surplus to the person enti-
8 tied thereto on demand. No article taken in pawn by such pawnbroker
9 exceeding twenty-five dollars in value shall be disposed of otherwise
10 than as above provided, any agreement or contract between the parties
11 thereto to the contrary notwithstanding. Articles of personal apparel
12 shall not be deemed to be of a perishable nature within the meaning of
13 this section.
1 Section 72. The authorities which issue such licenses may fix the Rate of
2 rate of interest which such pawnbrokers may recei\'e on loans, and may be limited.
3 fix diiTerent rates which may be received for difi'erent amounts of money p's.'io27§34,
4 lent; and no licensed pawnbroker shall charge or receive a greater rate l*op'. a" g.^om.
5 of interest than that so fixed. Any such pawnbroker who violates any
6 provision of this or the preceding section shall be punished by a fine of
7 not more than fifty dollars.
1 Section 73. The chief of police of a city, the selectmen of a town, oiBaers may
2 any officer authorized by either of them, or a state police officer may broiicra shop,
3 at any time enter upon any premises used by a licensed pawnbroker for fsT?. iss, § i.
4 the purposes of his business, ascertain how he conducts his business, igfs, 243.^ '^^'
5 and examine all articles taken in pawn or kept or stored in or upon said ^- ^- 'o^. § 36.
6 premises and all books and inventories relating thereto. Every such
7 pawnbroker, his clerk, agent, servant or other person in charge of the
1426
LICENSES.
[Chap. 140.
premises shall exhibit to such officer on demand any or all of such articles, 8
books and inventories. 9
Penalty for
refusing to
admit officer.
1877, 1S5, § 2.
P. S. 102, § 36.
R. L. 102, § 37.
wSection 74. A licensed pawnbroker, clerk, agent or other person in 1
charge of such premises who refuses to admit thereto an officer authorized 2
to enter the same, or who fails to exhibit to him on demand all such 3
articles, books and inventories, and any person who wilfully hinders, 4
obstructs or prevents such officer from entering the premises or from 5
making the examination authorized in the preceding section, shall be 6
punished by a fine of not more than two hundred dollars or by imprison- 7
ment for not more than one year, or both. 8
Penalty for
acting without
license.
1855, 121,
§§3,4.
G. S. 88,
P. S. 102.
R. L. 102,
30.
I 37.
38.
197 Mass. 107.
Section 75. Whoever, not being licensed, carries on such business 1
or is concerned therein within such town, or, being licensed, carries on 2
such business or is concerned therein in any other place or manner than 3
that designated in his license or after notice to him that his license has 4
been revoked shall be punished by a fine of not more than fifty dollars. 5
Loans on
personal
property
regulated.
1895, 497, § 1.
R. L. 102, § 39.
176 Mass. 290.
206 Mass. 430.
Penalty, § 82.
Section 76. No person shall, in any city or in any town of ten 1
thousand or more inhabitants, engage in or carry on the business of 2
loaning money upon mortgages, deposits or pledges of wearing apparel, 3
jewelry, ornaments, household goods or other personal property, or of 4
purchasing such property on condition of selling it back again at a stip- 5
ulated price, unless he is licensed as a pawnbroker; but this and the six 6
following sections shall apply only if such property is deposited with the 7
lender, and shall not apply to loans made upon stock, bonds, notes or 8
other written evidences of ownership of property or of indebtedness to 9
the holder or owner of any such securities. 10
Fee for license.
1895, 497. § 2.
R. L. 102, § 40.
1905, 415.
Section 77. The fee for a license as a pawnbroker or renewal thereof 1
shall be fifty dollars, but if a license is issued on or after November first 2
in any year the fee shall be twentj--five dollars. The licensee shall, at 3
the time of ^ecei^•ing such license, file with the authorities who issue the 4
license a bond to such city or town, in the sum of three hundred dollars, 5
with two sureties approved by such authorities, and conditioned for the 6
faithful performance of the duties and obligations pertaining to the 7
business so licensed. 8
Regulations.
1895, 497, § 3.
R. L. 102, S41.
1911,727. §21.
4 Op. A. G. 562.
Penalty, § 82.
Section 78. The authorities who grant licenses to pawnbrokers 1
shall establish regulations, to the satisfaction of the commissioner of 2
banks, relative to the business carried on and the rate of interest to be 3
charged by them, and a pawnbroker shall not charge or receive upon any 4
loan a greater rate of interest than that fixed by the licensing authorities. 5
Pawnbrokers
to keen record
of pledges, etc.
1895, 497, § 4.
R. L. 102, § 42.
1907, 211, § 1.
197 Mass. 218.
Penalty, § 82.
Section 79. Every pawnbroker shall keep a book in which, at the 1
time of making a loan, shall be legibly written in the English language 2
an account and description, including all distinguishing marks and 3
munbers, of the articles pawned, the amount of money loaned thereon, 4
the time of pawning them, the rate of interest to be paid on such loan, 5
and the name and residence of the person pawning such articles, and 6
shall furnish a correct record of such transactions, containing all such 7
information, once a week, or oftener if required, to the licensing authori- 8
ties or to any person designated by them. 9
Chap. 140.] licenses. 1427
1 Section 80. Every such pawnbroker shall, at the time of making Memorandum
2 such loan, deliver to the person who pawns any article a memorandum i895f497r§ 5.
3 or note signed by him and containing the substance of the entry required 197 Ma°i'. o*!.'
4 by the preceding section. No charge shall be made or required by any Penaity_ 5 52.
5 pawnbroker for such entry, memorandum or note.
1 Section 81. Said book shall at all reasonable times be open to the Books to be
2 inspection of the mayor, of the members of the board of police, of the spection^"
3 superintendent of police and deputy superintendents, of the chief inspector {Us. sis! ^'
4 of police, of anj' officer of the state police or of any person authorized by ^- ^- ^°^' ^ **■
5 them in writing for that purpose who exhibits such written authority to Penalty, § 82.
6 such pawnbroker.
1 Section 82. Whoever violates any provision of the six preceding Penaity_
2 sections shall be punished by a fine of not less than fifty nor more than r. l. 102! § 45.
3 three hundred dollars or by imprisonment for not more than two months,
4 or both.
1 Section 83. When a licensed pawnbroker buys or takes in pawn any Record of
2 tool such as is used by contractors, builders or mechanics, he shall enter o"toois, et?.^
3 in a book kept for that purpose a description of the same and the amount ^^°^' °°°' ^ ^'
4 paid for or loaned upon the same, and shall cause the person offering such
5 tool for sale or for pawn to sign his name and address therein. The
6 pawnbroker shall also write therein the name and address of the said
7 person.
1 Section 84. Any person thus offering any tool for pawn or for sale Penalty.
2 who signs a wrong name or address shall be punished by a fine of not
3 more than one hundred dollars or by imprisonment for not more than
4 six months. Any pawnbroker who kno^^^ngly writes the wrong name
5 or address of a person thus offering a tool for sale or for pawn, or knowingly
6 permits the signing of such wrong name or address, shall be fined one
7 hundred dollars for the first offence, and upon a second offence his
8 license shall be revoked, and he shall not be permitted to conduct the
9 business of pawnbroker in the commonwealth for one year.
1 Section 85. The provisions of sections eighty-six to one hundred and ofP^enaiif"
2 twelve, inclusive, shall not apply to licensed pawnbrokers. sections.
1890, 410, §§ 1, 6. 1892, 428, §6. 1898, 677, § U- R. L. 102, § 46.
LOANS.
1 Section 86. Every person who is engaged in the business of making Loans on
2 loans on collateral security represented by household goods, wearing se'urit.v'of
3 apparel, watches, diamonds, jewelry or other articles of personal use or g°ojs''e'tc.
4 ornament, or on notes secured by pledge or mortgage of any such prop- ^f""'!""'
5 erty, and with whom such property is deposited, or who purchases such f.hP-- li^-
6 property on condition of selling it back again at a stipulated price, or
7 who pays or advances money thereon under such circumstances that
8 it may be inferred from the character of the transaction that such prop-
9 erty may afterward be redeemed, shall keep a book in which, for the
10 purpose of identification, shall be recorded at the time of each loan or
11 transaction a full and accurate description of the articles pledged or
1428
LICENSES.
[Ch.\p. 140.
deposited, with any designating numbers or marks and also the name 12
and residence of the borrower or depositor, and each transaction shall be 1.3
specifically numbered in said book. He shall also give to each borrower 14
or depositor a receipt, ticket or card, numbered to correspond with the 1.5
number of the transaction on said book, inscribed with the name of the 16
lender, the article pledged, the description of the property as above 17
required, the name of the borrower or depositor, the amount of the loan, 18
the date when made and the date when payable. 19
Record book
to be open to
inspection.
1890,4] ft. § 3.
R. L. 102. §4S.
1906,291, § 10.
Section 87. Said book shall at all times be open to the inspection 1
of the police commissioner and of the superintendent and chief inspector 2
of police of Boston, of the commissioner of public safety, and of the 3
chief of police and selectmen of their respective cities or towns, or of an 4
officer specially authorized by any of them in A\Titing for that purpose, who 5
exhibits such written authority; and the property described in said book 6
shall on demand be exhibited to said officers. 7
When articles SECTION 88. If it appears to anv of the officers mentioned in the 1
pledged are to . "^ '^ . , i '• i i i i i i
be retained. prcccdmg scctiou that any articles which have been pledged under section 2
R. l! 102! § 49. eighty-six have been stolen, he may give written notice to the pledgee to 3
hold such articles, and they shall thereafter be held by the pledgee for 4
sixty days unless said notice shall be recalled in writing by the officer 5
gi\ing it, and be subject to inspection and examination at all reasonable 6
times; and they shall be produced, upon notice or summons by the district 7
attorney or other prosecuting officer, before any court or grand jury if 8
the question of the larceny of the same is under in^■estigation, and said 9
pledgee shall not be liable in damages or otherwise on account of such 10
detention.
11
Penalty for
refusing
inspection, etc.
1890,410, § 4.
R. L. 102, § 50.
Section 89. Every person engaged in the business mentioned in 1
section eighty-six, his agent or other person in charge thereof, who fails 2
or refuses to allow the inspection of the book, or who wilfully hinders, 3
obstructs or prevents said officers from inspecting the book or examining 4
the property as provided in section eighty-seven, or who wilfully violates 5
any other pro\"ision of the three preceding sections, shall be punished by a 6
fine of not more than two hundred dollars or by imprisonment for not 7
more than one year, or both. 8
Loans of less
than one
thousand
dollars.
1888, 388.
1892, 428. § 1.
R. L. 102, § 51.
148 Mass. 231.
160 Mass. 237.
163 Mass. 322.
163 Mass. 258.
170 Mass. 517.
208 Mass. 84.
211 Mass. 72.
217 Mass. 144.
Section 90. A loan of less than one thousand dollars shall be dis- 1
charged upon payment or tender by the debtor of the principal sum 2
actually borrowed, with interest at the rate of eighteen per cent per 3
annum from the time said money was borrowed, and a sum not exceeding 4
five dollars for the actual expenses of making and securing the loan; but 5
the lender shall be entitled to interest for six months at said rate if the 6
debt is paid before the expiration of that period. All payments in excess 7
of said rate shall be applied to the discharge of the principal, and the 8
borrower shall be obliged to pay or tender only the balance of the principal 9
and interest, at said rate, due after such application. This section shall 10
not affect any loan made at a less rate than eighteen per cent per annum, 11
nor shall it affect so much of section three of chapter one hundred and 12
seven as provides that if there is no agreement for a different rate the 13
interest of money shall be at the rate of sLx dollars upon each hundred 14
dollars for a year. 15
Chap. 140.] licenses. 1429
1 Section- 91. If a loan of less than one thousand dollars is secured Loans secured
2 by a mortgage or pledge of personal property, the mortgagee or pledgee is92, 428,' § 2/
3 shall discharge such mortgage and restore such pledge upon payment t7o Mass', si?.'
4 or tender to him of the amount legally due under the preceding section, '°^ '^'''''^ ^*'
5 and such payment or tender may be made by the debtor or by a person
6 having an interest in the property mortgaged or pledged.
1 Section 92. A mortgage of household furniture on which interest Loan on
2 is charged at the rate of eighteen per cent or more per annum, made to household
3 secure a loan of less than one thousand dollars, shall not be valid unless 1892' 42s, § 3.
4 it states with substantial accuracy the amount of the loan, the time for fds^iTss'. lo^i*'
5 which the loan is made, the rate of interest to be paid, and the actual \g1 ^{m- '^?
6 expense of making and securing the loan, nor unless it contains a pro\-ision i^* Mass. 315.
7 that the debtor shall be notified, in the manner provided in section five
8 of chapter two hundred and fifty-five, of the time and place of any sale
9 to be made in foreclosure proceedings at least seven days before such
10 sale.
1 Section 93. A notice of intention to foreclose a mortgage of per- Notice to
2 sonal property given to secure loans of less than one thousand dollars, i'802,'428, § t.
3 under sections five and eight of chapter two hundred and fifty-five, shall 23/'m°ss'. I57.'
4 not be \'alid unless it expressly states where such notice is to be recorded,
5 and that the right of redemption will be foreclosed sixty days after such
6 recording.
1 Section 94. Whoever refuses or neglects, after request, to discharge Liability for
2 a mortgage or to restore the property held as a pledge, as provided in discharge
3 section ninety-one, shall be liable in tort to the borrower for all damages ™892.*|28! § 5.
4 resulting to him from any violation of said section. R l. 102, § 55.
1 Section 95. The five preceding sections shall not apply to any loan Application of
2 of three hundred dollars or less made by a person who holds a license seclioIS^^ '°^
3 under sections ninety-six to one hundred and thirteen, inclusive, nor af- Jig"; til'. | a.
4 feet section seventy-two of this chapter or section four of chapter two ^^l' HI] | Ig
5 hundred and fifty-five.
1 Section 96. No person shall directly or indirectly engage in the Licenses for
2 business of making loans of three hundred dollars or less, if the amount nmk"iirsniaii
3 to be paid on any such loan for interest and expenses exceeds in the Iggs! 577, s 1.
4 aggregate an amount equivalent to twelve per cent per annum upon the f^^- ,;q|' | j ''•
5 sum loaned, without first obtaining from the commissioner of banks, JgJi'OTg'l?'
6 in sections ninety-six to one hundred and fourteen, inclusi\'e, called the wiai 347! § T.
_ . . ',. ^ , • 1 1 • • ji j_ 1 176 Mass. 19.
7 commissioner, a license to carry on the said business in the town where 223 Mass. 311.
8 the business is to be transacted. When an application for a loan or for """ ' '^^
9 an endorsement or guarantee or for the purchase of a note is made by ^<'°"">'' 5 103.
10 any person within this commonwealth, and the money is advanced or the
11 endorsement or guarantee is made or furnished by any person without
12 this commonwealth, the transaction shall be deemed a loan made within
13 this commonwealth, and such a loan and the parties making it shall be
14 subject to sections ninety-six to one hundred and thirteen, inclusive. The
15 buying or endorsing of notes or the furnishing of guarantee or security for
IG compensation shall be considered to be engaging in the business of making
17 small loans within said sections. In prosecutions under said sections,
18 the amount to be paid upon any loan of three hundred dollars or less for
1430
LICENSES.
[Chap. 140.
Regulations.
Investigations.
1S98, 577, § 5.
R. L. 102, § 01.
1908, 605. § 2.
1911, 727, S 4.
1919, 350, § 49.
Penalty, § 103.
interest or expenses shall include all sums paid or to be paid by or on be- 19
half of the borrower for interest, brokerage, recording fees, commissions, 20
services, extension of loan, forbearance to enforce payment, and all other 21
sums charged against or paid or to be paid by the borrower for making or 22
securing directly or indirectly the loan, and shall include all such sums 23
when paid by or on behalf of or charged against the borrower for or on 24
account of making or securing the loan, directly or indirectly, to or by 25
any person, otlier than the lender, if such payment or charge was known 26
to the lender at the time of making the loan, or might ha\'e been ascer- 27
tained by reasonable inquiry. Any person directly or indirectly engag- 28
ing in the business of negotiating, arranging, aiding or assisting the bor- 29
rower or lender' in procming or making loans of three hundred dollars or 30
less, for which the amount paid or to be paid for interest and expenses, 31
including all amounts paid or to be paid to any other party therefor, 32
exceeds in the aggregate an amount equivalent to twelve per cent per 33
annum, whether such loans are actually made by such person or by an- 34
other party, shall be deemed to be engaged in the business of making 35
small loans, and shall be subject to sections ninety-six to one hundred 36
and twelve, inclusive. 37
Section 97. The commissioner shall from time to time establish 1
regulations respecting the granting of licenses and the business carried 2
on by the licensees, and by loan companies and associations established 3
by special charter. He shall either personally or by such assistants as 4
he may designate, at least once a year and oftener if he deems it neces- 5
sary, investigate the affairs of such licensees, companies and associations, 6
and for that purpose shall have free access to the vaults, books and 7
papers thereof, and shall ascertain the condition of the business and 8
whether it has been transacted in compliance with the law and the regu- 9
lations made hereunder. The commissioner may cause an examination 10
of the said books and business to be made by an accountant whom he 11
may select, and the cost of any such examination shall be paid b\' the 12
person whose books are so examined. 13
Returns to
commissioner.
1911, 727,
5§ 1, 5.
1912, 675, I 1.
Penalty, § 103.
Examination
of licensees.
1911,727, §6.
Section 98. All persons required by sections ninety-six to one hun-
dred and fourteen, inclusiA'c, to be under the supervision of the com-
hiissioner shall annually on November first make a return to him in
the form of a trial balance of theh books at the close of business on
September thhtieth preceding, and shall specify the different kinds of
liabilities and the different kinds of assets, ^\•ith such other mformation
as may be called for by the commissioner in accordance with a blank form
to be furnished by him. The commissioner shall make an annual report
and shall forward therewith a copy of such returns or so much thereof
as he may deem necessary.
Section 99. The commissioner may summon said licensees, com-
panies or associations, or any of their agents or employees, and such
other witnesses as he deems necessary, and examine them relative to
their transactions and to the condition of their business, and for that
purpose may administer oaths. Whoever without justifiable cause re-
fuses to appear and testify when so required, or obstructs the commis-
sioner or his representatives in the performance of their duties, shall be
punished by a fine of not more than five hundred dollars or by impris-
onment for not more than six months, or both.
1
2
3
4
5
6
7
8
9
10
1
2
o
O
4
5
6
7
8
9
Ch.\P. 140.] LICENSES. 1431
1 Section 100. He shall establish tlie rate of interest to be collected, ?^!*^ °[
interest,
2 and in fixing said rate shall have due regard to the amount of the loan, isas. 577. § s.
3 and the nature of the security, and the time for which the loan is made; i90s,'605,' §2.'
4 but the total amount to be paid on any loan for interest and expenses 1916! 224! ^ '
5 shall not in the aggregate exceed an amount equi\-alent to three per cent penalty, § 10a
6 a month on the amount actually received by the borrower, computed
7 on unpaid balances; and no licensee or company or association to which
8 sections ninety-six to one hundred and twelve, inclusive, apply shall
9 charge or recei\'e upon any loan a greater rate of interest than that fixed
10 by the commissioner. No charge, bonus, fee, expense or demand of any
11 nature whatsoever, except as above provided, shall be made upon loans
12 to which said sections relate. ,
1 Section 101. Licenses granted by the commissioner sli^ll be for Term and
2 a period of one year from October first. Each license shall plainly state ikeSse.
3 the name of the licensee, and the city or town, with the name of the street, i9n'"727, § g.
4 and the nimiber, if any, of the place where the business is to be carried
5 on, and shall be posted in a conspicuous place in the office where the
6 business is transacted.
1 Section 102. The fee for all licenses granted under section ninety- Fees.
2 six shall be not less than one hundred dollars. If the licensee desires ^^^^' ^''^^^
3 to carry on business at more than one place he shall procure a license
4 for each place where the business is to be conducted.
1 Section 103. Anv person violating anv provision of sections ninety- Pemity for
. . . , . • ,^ . , 1 'i 1 1 • violation of
2 six to ninety-eight, inclusive, and one hundred to one hundred and nine, }?«• by
3 inclusive, or any regulation made thereunder, or any rule or order made isqs, 577. § 10.
4 by the commissioner, shall be subject to a fine of not more than fiAe wo». ml'.
5 hundred dollars, and the license may be suspended or revoked by the iIh.t^?, § 10.
6 commissioner. Any loan upon which a greater rate of interest or expense 223^Ma^ffi'. Ii^i.
7 is charged or received than is allowed by sections ninety-six to one hun-
8 dred and eleven, inclusive, and the regulations made thereunder, may be
9 declared \'oid by the supreme judicial or superior court in equity upon
10 petition by the person to whom the loan was made.
1 Section 104. A license under section ninety-six shall not be granted Conditions of
2 until the applicant has filed with the commissioner a statement on license.
3 oath, which in the case of a corporation or association may be made by n^t. 102'. § ss.
4 the president or agent thereof in charge of the business, stating the place '^^'' ^""' ^ ^''
5 in the town where tlie business is to be carried on, the name and the Pe'^a'ty, § 103.
6 private and business address of the applicant, and in the case of a cor-
7 poration the state under the laws of which it is organized, and the name
8 and private address of the clerk or secretary and of the agent or other
9 officer haxing charge of its proposed business, nor until the applicant,
10 unless excused by the commissioner, files with him a power of attorney,
11 appointing a person satisfactory to the commissioner to be his attorney,
12 upon whom all lawful process may be served in any action or proceeding
13 arising under sections ninety-six to one hundred and twelve, inclusive,
14 with the same effect as if served upon the licensee. If any change occurs
15 in the name or address of a licensee or of the clerk, secretary or agent afore-
16 said of any licensed corporation, or in the place where the licensed busi-
1432
LICENSES.
[Chap. 140.
ness is carried on, or in the membership of anj' partnership licensed under 17
said sections, a true and full statement of such change, sworn to in the 18
manner required by this section in the case of the original statement, 19
shall forthwith be filed with the commissioner, who may after a hearing 20
revoke the license. 21
Bond.
1898, 577, § 3.
E. L. 102. § 59.
1911, 727, 5 12.
Section 105. No license shall be issued under section ninety-six until 1
the licensee gives to the state treasurer a bond in the sum of fi\"e thousand 2
dollars, executed by the licensee and by a surety company appro\'ed by 3
the commissioner, conditioned upon the faithful performance by the 4
licensee of the duties and obligations pertainmg to the business so licensed 5
and the prompt payment of any judgment recovered against him or for 6
which he may be liable under sections ninety-six to one hundred and 7
eleven, inclusive, but no suit at law or in equity shall be begun against 8
the sureties on such a bond within thirty days after judgment against 9
the licensee. If in any case at law or in equity against the licensee un- 10
der sections ninety-six to one hundred and eleven, inclusive, it appears 11
that the plaintiff is entitled to judgment or decree, except for proceedings 12
m bankruptcy or insolvency, or the discharge therein of the licensee, the 13
court may at any time, on motion, enter a special judgment or decree 14
for the plaintiff for the amount of his debt, damages and costs, or for 15
such other relief as he may be entitled to; and the said bond shall be 16
conditioned upon the payment of any such special judgment and upon 17
compliance with any such decree. Whoever is aggrieved by a breach of 18
the condition of such a bond may sue thereon at his own expense and 19
in his own behalf, but in the name of the obligee; and if judgment shall 20
be entered for the defendant for costs, execution therefor shall issue 21
against the person for whose benefit the suit is brought, as if he were 22
the plaintiff of record, but not against the obligee. In such a suit like 23
proceedings shall be had as in a suit by a creditor on an administration 24
bond. The commissioner may at any time require the licensee to file 25
an additional bond of like nature and with like effect, and to give full 26
information as to all judgments recovered or suits pending on his bond. 27
Upon failiire to file any bond so required, the license shall be revoked. 28
Recovery of
iUegat interest.
1911. 727, § 13
1912. 675, § 4
223 Mass. 311
Section 106. If a greater rate of interest or amount for expenses 1
R^L io2'|g'' *-^^" '^ allowed under sections ninety-six to one hundred and eleven, in- 2
elusive, has been paid on any loan to which said sections apply, the person 3
who paid it may file a complaint with the commissioner, who may, after 4
a hearing, order such excess amounts refunded, or may make such other 5
order as he may deem necessary. The filing of the complaint and the 6
decision of the commissioner shall not affect the right of the complainant 7
under section one hundred and three, who may, in an action of contract 8
or suit in equity, recover back the amount of the unlawful interest or 9
expenses, with twice the legal costs, if such action or suit is brought within 10
two years after the time of payment. 11
as°ec^y'*'" Section 107. If a loau to which sections ninety-six to one hundred
piymTnt^f"' ^""^ clcven, inclusivc, apply is secured by a mortgage or pledge of per-
1898 577 « 7 ^'^"''^' property or by an assignment of wages, the mortgage shall be dis-
R. l'. 102'. §63. charged, the pledge restored or the assignment released upon payment or
' tender of the amount legally due under said sections; and such payment
Penalty, § 103. ^j. ^gjj^jgp jjj^y {jg made by the debtor, by any person duly authorized by
Chap. 140.] licenses. 1433
7 him, or by any person having an interest in the property mortgaged or
S pledged or in the wages assigned. Whoever refuses or neglects, upon
9 request, to discharge a mortgage, release an assignment or restore a
10 pledge to the party entitled to receive the same, after payment of the
11 tlebt secured thereby or the tender of the amount due thereon as afore-
12 said, shall be liable in tort to the borrower for all damages thereby sus-
13 tained by him.
1 Section 108. A mortgage or pledge of personal property, or an assign- validity of
2 ment of or order for wages or salary to which sections ninety-six to one Tms^lii. § I'.
3 hundred and eleven, inclusive, apply, shall not be valid unless it states f^^- 727,' i 15!
4 with substantial accuracy the actual amount of the loan, the time for pg^^^y ^ jos
5 which the loan is made, the rate of interest to be paid, and the expense of
6 making and securing the loan, if any; nor miless it contains a provision
7 that the debtor shall be notified, in the manner provided in section five
8 of chapter two hundred and fifty-five, of the time and place of any sale
9 to be made in foreclosure proceedings at least seven days before such
10 sale. A notice of intention to foreclose under the provisions of section
11 five or section eight of chapter two hundred and fifty-five shall not be
12 valid in such a case unless it expressly states where such notice is to be
13 recorded, and that the right of redemption will be foreclosed sixty days
14 after such recording. At any time after twenty days from the date of
15 any such mortgage, if the same has not been recorded the holder thereof
16 shall forthwith, on demand and payment or tender of one dollar, give to
17 the mortgagor or any person interested in the mortgaged property a
IS copy of the mortgage and of the note or other obligation secured thereby,
19 which such holder shall certify to be a true copy thereof.
1 Section 109. If a payment is made on account of a loan to which sec- Receipt for
2 tions ninety-six to one hundred and eleven, inclusive, apply, the person i'89S,''577?r9.
3 who receives the payment, or his pnncipal, shall, when the payment is {ga; 727,' | le!
4 taken, give to the person paying a receipt setting forth the amount then
5 paid and the amount previously paid, and identifying the loan, note,
6 mortgage or assignment to which it is to be applied.
Penalty, § 103.
•J25 Mass. 448.
1 Section 110. Whoever, not being duly licensed as provided in sec- Penalty for
2 tion ninety-six, on his own account or on account of any other person not Sheens™.'
3 so licensed, engages in or carries on, directly or indirectly, either sepa- jj^^f' 102, | m.
4 rately or in connection with or as a part of any other business, the business }g}',; y^^; 1 1''-
5 of making loans or buying notes or furnishing endorsements or guarantees, {^g^j'^^gg' \^'
6 to which sections ninety-six to one hundred and eleven, inclusive, apply, 218 Mass. 306.
7 shall be punisJied by a fine of not more than five hundred dollars or by 223 Mass. 311!
8 imprisonment for not more than two months, or both. Any loan made
9 or note purchased or endorsement or guarantee furnished by an un-
10 licensed person in violation of said sections shall be void. In prosecutions
11 under said sections the fact that the defendant has made or assisted in
12 the making of two or more loans of three hundred dollars or less, upon
13 which there has directly or indirectly been paid or charged, for interest,
14 brokerage, recording fees, commissions, services, extension of loan, for-
15 bearance to enforce payment or other expenses, a sum which exceeds in
16 the aggregate an amount equivalent to twelve per cent per annum upon
17 the amount actually received by the borrower, whether such sum has been
18 paid to or charged by the defendant or paid to or charged by any other
1434
LICENSES.
[ClL\P. 140.
person, shall be prima facie evidence that the defendant has engaged in 19
and carried on the business of making loans to which sections ninety-six 20
to one hundred and twelve, inclusive, apply. 21
Section 111. Sections ninety-six to one hundred and eleven, inclu-
Law as to rate
of interest in
agreement not sive, shall not affcct SO much of section three of chapter one hundred and
ifgs'sy? § u seven as provides that, if there is no agreement for a different rate, the
fan -2-' t IS ^^^terest on money shall be at the rate of six dollars upon each one hun-
dred dollars for a year.
°at"poUce, Section 112. The state police and the police of the cities or towns 1
«*<= - shall carry out the directions of the commissioner in enforcing sections 2
ninety-six to one hundred and thirteen, inclusive, and any regulations 3
made by him. 4
1911, 727, § 2.
S'ay^be"d?? SECTION 113. Rctums made to the commissioner under section 1
me^m ninety-eight may be destroyed or disposed of by his order after the lapse 2
of three years from the date of their receipt, and any proceeds received 3
in the course of their disposal shall be paid to the commonwealth. 4
Certain
associations
need not pro-
cure licenses.
1899, 261.
R. L. 102, § 6S.
1909, 27S, § 1.
1911, 727, § 19.
Section 114. Loan companies and loan associations established 1
by special charter, and fraternal mutual benefit societies the member- 2
ship of which is limited to the employees of any one person and which 3
make loans to its members only, shall be subject to the supervision of the 4
commissioner, but need not procure a license. 5
Licenses.
1845. 197, §1 1.
5. 10.
1S4B, 96,
§§ 1, 3.
G. S. 88, §§ 33,
34.
P. S. 102, §§ 40,
41.
R. L. 102, § 73.
1 Allen, 137.
140 Mass. 106,
109, 594.
160 Mass. 391.
175 Mass. 357.
STEAM ENGINES AND FURNACES.
Section 115. A furnace for melting iron or making glass, or a sta- 1
tionary steam engine for use in a mill for planing or sa'u'ing boards or 2
turning wood or in which other fuel than coal is used to create steam, 3
shall not be erected or put up to be used in a town which accepts this 4
and the two following sections or has accepted corresponding provisions 5
of earlier laws, unless the aldermen or selectmen thereof ha\'e granted a 6
license therefor, prescribing the place where the building shall be erected 7
in which the steam engine or furnace is to be used and the materials and 8
construction thereof, and have made such regulations as to the Jieight 9
of flues and protection against fire as they deem necessary for the safety 10
of the neighborhood. Such license may be granted on a written appli- 11
cation, and shall be recorded in the town records. The aldermen or select- 12
men shall assign a time and place for a hearing upon such application, and 13
cause at least fourteen days' public notice thereof to be gi\"en, at the ex- 14
pense of the applicant, in such manner as they may order. 15
Changes in
furnaces, etc.,
erected before
acceptance
of law.
1845, 197, §§ 2,
10.
G. S. 88, § 35.
P. S. 102. §42.
R. L. 102, § 74.
Section 116. In a town which accepts this section or has accepted 1
corresponding provisions of earlier laws, the aldermen or the selectmen, 2
after due notice in writing to the owner of such steam engine or furnace, 3
except for making glass, erected or in use therein before the time of 4
such acceptance and a hearing, may adjudge it to be dangerous or a 5
nuisance to the neighborhood, and make and record an order prescribing 6
such rules, restrictions and alterations as to the building in which it is 7
constructed or used, the construction and height of its smoke flues, and 8
such other regulations as they deem necessary for the safety of the neigh- 9
borhood; and the town clerk shall deliver a copy of such order to a con- 10
Chap. 140.] licenses. 1435
11 stable, who shall serve on the owner an attested copy thereof, and make
12 return of his doings thereon to said clerk within three days after the de-
13 livery thereof to him.
1 Section 117. An owner of a steam engine or furnace who is aggrieved fsTs^^ig?
2 by such order may have the remedy prescribed by section two of chap- |,5 |-|g ^^ 36-
3 ter one hundred and thirty-nine. The superior court, on granting the 39.
4 application for a jury, may issue an injunction restraining the further p. s.'io2.'
5 use of such engine or furnace until the final determination of the n. h'loi, § 75.
6 application.
1 Section 118. In a town which accepts this section or has accepted stationary
2 corresponding provisions of earlier laws, a stationary engine, propelled 1862, 74.
3 by steam or other motive power, shall not be erected or put up for use i^. s! 102. § 47.
4 within five hundred feet of a dwelling house or public building unless a f4o^Mlss.' m'
5 license therefor has been first granted and recorded in the manner pro- "^'
6 vided in section one hundred and fifteen.
1 Section 119. An engine or furnace erected or used contrary to sec- Furnaces,
2 tion one hundred and fifteen, one hundred and sixteen or one hundred Ifec'ted'^OT"*^
3 and eighteen shall be deemed a common nuisance; and the aldermen nuisances.
4 or selectmen may remove the same in the same manner as boards of l^\^g ^^~' ^^ ^'
5 health may remove nuisances under sections one hundred and twenty- Jf*|'|®'
6 three to one hundred and twenty-five, inclusive, of chapter one hundred g. s'. 88, § 40.
7 and eleven. 1862, 74, § 2. p. s. 102, § 4s. r. l. 102. § 77
1 Section 120. All the powers and duties imposed by the five preced- ofP^^e"''""
2 ing sections on aldermen, selectmen or town clerks shall be exercised by preceding
3 the state fire marshal in the cities and towns of the metropolitan fire lau, 795, § 5.
4 prevention district as described in section twenty-eight of chapter one
5 hundred and forty-eight.
SALE OF firearms.
1 Section 121. In sections one hundred and twenty-two to one hun- Definitions.
2 dred and twenty-nine, inclusive, "firearms" includes a pistol, revolver or Jj'^' *®^' ^^ '"
3 other weapon of any description, loaded or imloaded, from which a shot or
4 bullet can be discharged and of which the length of barrel, not including
5 any revolving, detachable or magazine breech, does not exceed twelve
6 inches; and "licensing board" means the city councils of cities and
7 the selectmen of towns. Said sections shall not apply to antique fire-
8 arms incapable of use as firearms nor to sales of firearms at wholesale.
1 Section -122. The licensing board in any town may, in its discretion, Licenses
2 grant licenses to persons to sell, rent or lease firearms. Every such license ^^"' '*^^' ^ ^'
3 shall specify the street and number, if any, of the building where the
4 business is to be carried on, and the license shall not protect a licensee
5 who carries on his business in any other place.
1 Section 123. The license shall be ex-pressed to be and shall be sub- Conditions of
2 ject to the following conditions: First, That the provisions, in regard i9i™495, §4.
3 to the nature of the license and the building in which the business may
4 be carried on under it shall be strictly adhered to. Second, That every
5 licensee shall before deliverv of a firearm make or cause to be made a true
1436
LICENSES.
[Chap. 140.
entry in a book to be kept for that purpose, specifying the description of 6
the firearm, the make, number, whether single barrel, magazine, revol- 7
ver, pin, rim, or central fire, whether sold, rented or leased, the date and 8
hour of such delivery, and the full name, sex, residence and occupation 9
of the pm-chaser, exchanger or hirer. The said book shall be open at all 10
times to the inspection of the licensing board and of the police. Third, 11
That the license or a copy thereof, certified by the recording officer of 12
the licensing board or by the clerk of the town by which it is issued, shall 13
be displayed on the premises in a position where it can easily be read. 14
Fourth, That no firearms shall be displayed in any outer window of said 15
premises or in any other place where they can readily be seen from the 16
outside. Fifth, That the license shall be subject to forfeiture as herein 17
provided for breach of any of its conditions, and that, if the licensee is 18
convicted of a violation of any such condition, his hcense shall thereupon 19
become void. 20
Term of
licenses.
1911, 495, § 5.
Section 124. Licenses shall expu-e on April thirtieth of each year; 1
but they may be granted during April to take effect on May first next 2
ensuing. 3
Suspension or
revocation of
licenses.
1911, 495, § 6.
Section 12.5. The licensing board, after notice to the licensee and 1
reasonable opportunity for him to be heard by the board or by the mayor 2
and a committee of the city council, may declare his license forfeited, 3
or may suspend his license for such period of time as they may deem 4
proper, upon satisfactory proof that he has violated or permitted a vio- 5
lation of any condition thereof or has ^'iolated any law. The pendency 6
of proceedings before a court shall not suspend or interfere with the 7
power to declare a forfeiture. If the license is declared forfeited, the 8
licensee shall be disqualified to receive a license for one year after the 9
expiration of the term of the license so forfeited. 10
Signs, etc.,
evidence that
firearms are
kept for sale.
1911. 495, § 7.
Section 126. If any placard, sign or advertisement is exposed from,
maintained in or permitted to remain upon any vehicle, shop, stand,
tenement, or any place of common resort, purporting or designed to
announce the keeping in or upon said vehicle or in or upon any of said
premises of firearms, it shall be prima facie evidence that firearms are
kept in or upon such vehicle or premises for sale.
Transfer of
licenses,
1911, 495. §
Section 127. Licensing boards may transfer licenses from one loca- 1
tion to another within the town in which the licenses are in force, but 2
such transfer shall be granted only to the original licensee and upon the 3
same terms and conditions upon which the license was originalh- granted. 4
Penalty
for selling
without a
license.
1911, 495, § 9.
Section 128. Whoever, without being licensed as hereinbefore pro-
vided, sells or exposes for sale, or has in his possession with intent to
sell, firearms shall be punished by a fine of not less than fifty nor more
than five hundred dollars or by imprisonment for not more than one
year.
Penalty for SECTION 129. Any pcrson who in purchasing, exchanging or hiring 1
name. etc. a firearm gives a false or fictitious name or address shall be punished by 2
' a fine of not less than twenty-five nor more than one hundred dollars 3
or by imprisonment for not more than one year, or both. 4
Chap. 140.] licenses. 1437
1 Section 130. Whoever sells or furnishes to a minor under the age Penalty
2 of fifteen any firearm, air gun or other dangerous weapon or ammunition fi°elrm^1.tc..
3 therefor shall be punished by a fine of not less than ten nor more than fift™°°'' "°'*^''
4 fifty dollars, but instructors and teachers may furnish military weapons ^^ l^^ § 92
5 to pupils for instruction and drill. i909, 199. 1919, iso.
1 Section 131. The justice of a court or a trial justice, the board of ^3r™pis*t°oi,
2 police or mayor of a city, or the selectmen of a town, or persons au- '^^^^^ j,, ^ ^
3 thorized by them may, upon the application of any person, issue a license lani 548! 1 1.
4 to such person to carry a pistol or revoh'er in the commonwealth if it
5 appears that the applicant has good reason to fear an injury to his per-
6 son or property or for any other proper purpose, and that he is a suitable
7 person to be so licensed.
SMOKE NXJIS.\NCE.
1 Section 132. In a toum, except those mentioned in chapter six hun- smoke
2 dred and fifty-one of the acts of nineteen hundred and ten, which accepts igm!"^!?, §§ 1,
3 sections one hundred and thirty-two to one hundred and thirty-six, r.^l/?02.
4 inclusive, or has accepted corresponding provisions of earlier laws by i9os!~f87~'^'
5 a vote of the city council or of the voters of a town at an annual town p^^^^^ , j3g
6 meeting, the emission, except by locomotive engines or by brick or
7 pottery kilns, into the open air of dark smoke or dense gray smoke for
8 more than five minutes continuously, or the emission, except as afore-
9 said, of such smoke during ninety minutes of any continuous period of
10 twelve hours, within a quarter of a mile of a dwelling, is hereby declared
11 a nuisance unless such emission is under a permit which maybe granted
12 annually by the aldermen of cities or the selectmen of towns.
1 Section 133. Such permit shall be signed by the mayor or by a P?™it^
2 majority of the board of selectmen and by the city or town clerk, and be e, s.'
3 recorded in the office of said clerk. It shall name the person to whom it §'123/ "'
4 is granted, and definitely and clearly describe the location and limits of
5 the premises to which it applies, and shall remain in force until the first
6 day of May next after its date, unless sooner forfeited or rendered void.
7 Notice of applications for such permits shall be published at the expense
8 of the applicant in the manner prescribed by section fifteen of chapter
9 one hundred and thirty-eight relative to applications for liquor licenses.
10 The board granting the permits may establish fees for their issue, not
11 exceeding one dollar each, to be paid to the treasurer of the municipality.
1 Section 134. If, before the expiration of the ten days following the objections
2 publication of the notice, the owner of a dwelling within a quarter of a igoi. 427. § 7.
3 mile of the premises described therein gives ■WTitten notice to the board ■ • ■
4 having authority to grant the permit that he objects to the granting
5 thereof, it shall not be granted, unless said board, after a public hearing
6 of the persons interested, decides that no just ground for objection exists,
7 or that the public good requires that it be granted ; but the granting of
8 a permit shall not prejudice any right of damages which a person may
9 have against the person receiving the permit. If a permit is granted
10 after objection is filed, and without a hearing as aforesaid, or without
11 proper advertisement as herein provided, the owner of such dwelling may
12 apply to the district court within whose jurisdiction the premises are
13 situated for a hearing in the case; and said court, if it appears that said
1438
LICENSES.
[Ch.\p. 140.
permit was granted without compliance with this and the preceding sec- 14
tion, shall revolve the permit, and notice of such revocation shall be sent 15
to the board granting the permit and to the person receiving it. 16
Enforcement.
1901, 427,
§§ 3, 4,
R. L. 102,
§ 125.
Section 135. The mayor or selectmen may, in January of each year, 1
designate some proper persons who shall be charged with the enforcement 2
of sections one hundred and thirty-two to one hundred and thirty-six, 3
inclusive, during the year in which they are appointed; but such desig- 4
nation shall be subject to change at any time. An officer so designated 5
may apply to the supreme judicial or superior court for an injunction to 6
restrain the further operation of any furnace or steam boiler which is being 7
operated in such a manner as to create a nuisance as above defined ; and 8
said court may, after hearing the parties, enjoin the further operation of 9
such furnace or boiler. 10
Penalty.
1901, 437, § '.
R. L. 102,
§ 126.
Section 136. Whoever commits the nuisance defined in section one 1
hundred and thirty-two, or suffers the same to be committed on any 2
premises owned or occupied by him, or in any way participates in com- 3
mitting the same, shall be punished by a fine of not more than one hun- 4
dred dollars for each week during any part of which such nuisance exists. 5
Licenses.
1797, 53,
5§ 1. 2.
1798, 54, § 1.
1810, 109.
1S12, 140, § 1.
R. S. 58,
§§ 10, 12.
1850. 245.
1858, 139,
§§ 1-3, 8.
1859, 225,
§§ 1. 2
G. S. 88. § 52.
1864, 299, § 1.
1865, 197, § 1.
1867, 130, § 1.
1872, 330, § 1.
P. S. 102, § 80.
1SS5, 292.
DOGS.
Section 137. The owner or keeper of a dog which is three months 1
old or over shall annually, on or before March thirty-first, cause it to be 2
registered, numbered, described and licensed for one year from April first 3
following, if the dog is kept in Boston in the office of the police commis- 4
sioner, or if kept in any other town in the office of the clerk thereof. The 5
license shall be subject to the condition expressed therein that the dog 6
which is the subject of the license shall be controlled and restrained from 7
killing, chasing or harassing sheep, lambs, fowls or other domestic animals. 8
The owner or keeper of a licensed clog sha'll cause it to wear around its 9
neck a collar distinctly marked with its owner's name and its registered 10
number. 11
R. L. 102, § 128.
1909, 440, § 4.
1914, 198. § 4.
1917, 271, § 2.
12 Allen, 480.
100 Mass. 136.
123 Mass. 245.
134 Mass. 537.
109 Mass. 354.
1 Op. A. G. 290.
Penalty, § 135.
Same subject.
1859,
225,
§10.
G. S.
88, § 55.
1863,
113.
1864,
299,
§2.
1867,
130.
§2.
1872,
330,
§§ 1.
2.
P. S.
102,
181.
1885,
292.
R. L.
102,
§129
1
1909,
440,
,§4.
Fees.
1797,
53, i
§2.
1824,
139,
§2.
R. S.
58, § 10.
1858,
139,
§3.
1859,
225,
§1.
G. .S.
88, § 52.
1867,
130, § 1.
P. S.
102,
§82.
1890,
72.
R.L.
102,
§130
Section 138. The owner or keeper of a dog may at any time have it
licensed until i\pril fu'st follo\\ing; and a person who becomes the owner
or keeper of a dog after x\pril first, which is not duly licensed, and the
owner or keeper of a dog which becomes three months old after March
thirty-fu-st in any year shall, when it is three months old, cause it to be
registered, numbered, described, licensed and collared as reciuired by the
preceding .section. ish. los, § 4.
4 Allen, 584. 174 Mass. 74. Penalty, § 141.
Section 139. The fee for every license shall, except as provided in
section one hundred and seventy-three, be two dollars for a male dog and
five dollars for a female dog, unless a certificate of a registered veterinarian
who performed the operation that said female dog has been spayed and
has thereby been deprived of the power of propagation has been filed
with the town clerk, in which case the fee shall be two dollars. A certi-
Chap. 140.] licenses. 1439
7 fied copy of such certificate on file in the office of any town clerk within i908, i69.
8 the commonwealth may be accepted as evidence that the said operation ^^^°' ^^'
9 has been performed.
1 Section 140. The owner or keeper of dogs kept for breeding purposes Breeder's
2 may annually receive a license authorizing him to keep such dogs upon iss7^307.
3 the premises described in the license. If the number of dogs so kept f lai/*^^'
4 does not exceed five, the fee for such license shall be twenty-five dollars,
5 and if the number of dogs exceeds five, the fee shall be fifty dollars, and
6 no fee shall be required for the dogs of such owner or keeper which are
7 under the age of six months. The three preceding sections shall not
8 apply to licenses under this section.
1 Section 141. Whoever violates any provision of sections one hundred ^ll"^;'*" '°''
2 and thirty-seven, one hundred and thirty-eight or one hundred and forty l'cf2'*'^'!,q °f-
3 shall forfeit not more than fifteen dollars, which shall be paid, if the dog issq! 225! § 9!
4 was kept in any town in Suffolk county, to the treasurer of the town, liei, 299, § s.
5 or, if kept in any other county, to the treasurer thereof. p^'s.' 102,' Hi.
1901, 120. 15 Gray, 193. 107 Mass. 405.
R. L. 102, § 137. 2 Allen, 507. 1 Op. A. G. 603.
1 Section 142. No person shall keep or have in his care or possession KeepinK of
2 any bloodhound, excepting an English bloodhound of pure blood whose ^J°'«^'"'""'''
3 pedigree is recorded or would be entitled to record in the English blood- ^^l' fg^' ^ '•
4 hound herd book, or any dog classed by dog fanciers or breeders as Cuban Lm^iQs'
5 bloodhound or Siberian bloodhound, whether such dog is in whole or in 5§ i.' 2-
6 part of such species, unless such dog is kept solely for exhibition. In
7 such case he shall at all times be kept securely enclosed or chained, and
8 shall not be allowed at large even though in charge of a keeper, unless
9 properly and securely muzzled.
1 Section 143. Whoever violates the preceding section shall forfeit Penalty.
2 fifty dollars, ten dollars of which shall be paid to the complainant, and u^t m] ^ ^'
3 forty dollars shall, if the dog was kept in any town in Suffolk county, be ^ ^^''^'
4 paid to the treasurer of the town, or, if kept in any other county, to the
5 treasurer thereof.
moved or
killed in certain
1 Section 144. Within forty-eight hours after the conviction of any Dog to be
2 person for keeping a dog contrary to the provisions of section one hundred
3 and forty-two, the mayor of a city or chairman of the selectmen of a town fsge^Jo^^ri
4 within which such dog is kept shall order the person so convicted to |'i^I'°^'
5 remove such dog from the city or town. Written notice of the order for
6 such removal shall be served by any police officer or constable of the
7 city or town; and if such dog is not removed within twenty-four hours
8 after service of such notice, the mayor or chairman of the selectmen
9 shall in writing order such dog to be killed by any police officer or con-
10 stable of such city or town, who may, in the execution of such order,
11 enter any premises within its limits.
1 Section 145. Every license issued to the owner of a dog shall have License to
2 a description of the symptoms of hydrophobia printed thereon. Such lioyfol'^hydro-
3 description shall be supplied by the department of public health to the ^ll"^^''^^ pnnteJ
4 clerks of the several towns upon application therefor. is77, io7, § 4.
p. S. 102, § 83. 1886, 101, § 4. R. L. 102, § 132.
1440
LICENSES.
[Chap. 140.
License valid
throughout
the state, etc.
1859, 225. §11.
G. .S. 88. § 55.
1864. 299, § 5.
1867, 130, I 5.
P. S. 102. § S6.
18S4, 185.
Section 146. A license duly recorded shall be valid throughout the 1
commonwealth, and may be transferred with the dog licensed thereunder; 2
but after thirty days from such transfer it shall be again recorded, if the 3
dog is kept in Boston, by the police commissioner, or, if kept in any other 4
city or town, by the clerk thereof. 5
R. L. 102, 5 13G. 1906, 291, § 10. 134 Jlass. 537.
Issuing of
licenses, dis-
position of fees,
etc.
1797, S3. § 3.
1824, 139, § 2.
R. S. 58. § 11.
1858. 139.
§§ 1,4.
1859, 225, § 1.
G. S. 88. I 53.
1864, 299, § 3.
1865, 197, § 2.
1867. 130, I 3.
1871,41.
P. S. 102. § 84.
1886, 259, § 2.
18S7, 135.
1888, 320, § 2.
E. L. 102,
§ 133.
1904. 353, § 3.
1906, 291, § 10.
141 Mass. 479.
Section 147. The police commissioner of Boston and the clerks of 1
other cities and towns shall issue said licenses, receive the money there- 2
for, and pay it into the treasuries of their respecti\'e counties, except in 3
the county of Suffolk, on or before June first and December first of each 4
year, retaining, except in Boston, to their own use twenty cents for each 5
license, and shall return therewith a sworn statement of the amount of 6
money thus received and paid over by them. They shall also keep a record 7
of all licenses issued by them, of the names of the keepers or owners of 8
dogs licensed, and of the names, registered numbers and descriptions of 9
all such dogs. If a city or town clerk neglects to pay over such money 10
to the county treasurer as required by this section, the city or town may 11
recover the amount thereof for the benefit of the county, with all damages 12
sustained through such neglect, and interest, in an action on the official 13
bond required of city clerks by the following section or of town clerks by 14
section thirteen of chapter forty-one. 15
Bond of city
clerk.
1SS8, 320,
§§ 1.3.
R. L. 102,
§ 134.
1910. 319, § 1.
191S, 291. § 21.
give bond with
Section 148. City clerks, except in Bo.ston, shall
sureties to their respective cities, which, within ten days after their elec
tion and qualification, shall be approved by the aldermen, conditioned
faithfully to account for all fees received for dog licenses and hunters'
certificates, and for the payment of all fees received for dog licenses, less
their fees, into their respective county treasuries, and for the payment
of all fees received for hunters' certificates of registration, less their fees,
to the commonwealth.
Accounts of
county, etc.,
clerks.
1859. 225, § 1.
G. S, 88. § 53.
1864, 299. § 4.
1807, 130, § 4.
Section 149. Each county, city and town treasurer, except in Suf- 1
folk county, shall keep an accurate and separate account of all money 2
received and expended by him under the provisions of this chapter re- 3
lating to dogs. p. s. 102, 5 85. r. l. 102, § 135. 4
-Assessors to
take list of
dogs.
1S5S. 139. § 2.
1859, 225. § 15.
1864, 299, § 6.
1867, 130, § 0.
1871. 41.
P. .S. 102. § 89.
R. L, 102,
§ 142.
1914, 198, § 4.
Section 150. The assessors shall annually take a list of all dogs 1
owned or kept in their respective cities and towns on April first, with 2
the owners' or keepers' names, and return the same to the city or town 3
clerk, or, in Boston, to the police commissioner, on or before July first. 4
An owner or keeper of a dog who refuses to answer or answers falsely to 5
the assessors relative to the ownership thereof shall be punished by a 6
fine of not less than ten dollars, which, except in Sufi'olk county, shall 7
be paid into the county treasury. 8
Dog officers.
Killing un-
licensed dogs.
1797, 53, § 4.
1798, 54, § 2.
1812, 146, § 2.
R. S. 58. § 12.
1858. 139, § 1.
1859, 225,
H 4, 12.
Section 151. The mayor of each city and the chairman of the select- 1
men of each town shall annually, within ten days after July first, issue 2
a warrant to one or more police officers or constables, who shall hold 3
office for one year or until their successors are qualified, directing them 4
forthwith to kill or cause to be killed all dogs within such city or town 5
which are not licensed and collared as required by this chapter, and to 6
Chap. 140.] licenses. 1441
7 enter complaint against the owners or keepers thereof; and any person c. s ss,
8 may, and every poHce officer and constable shall, kill or cause to be killed i864*o99, § 7.
9 all such dogs whenever or wherever found. Such officers, other than r&^'io2!'§^90.
10 those employed under regular pay, shall receive from the treasurers of their f^\^ '■^'-•
11 respective cities and towns one dollar for each dog so destroyed; except JqU^'isS'^ ^'
12 that in cities of twenty-five thousand inhabitants or more they shall be igiaop.
13 paid the same wages per diem for the time actually employed which the is pick. 202.
14 regular police officers of such cities receive. Bills for such services shall is^cf/ay.^li
15 be approved by the mayor of the city or chairman of the selectmen of JooM'iis'iaG.
16 the town in which said dogs are destroyed, and in cities and towns in loo Mass. 273,
17 the countv of Suffolk shall be paid from money received under the iss m-^ss 240
" 191 Miss o')
18 provisions of this chapter relating to dogs. Cities and towns in other 210 Mass! 374.
19 counties shall be reimbursed bj' the treasurers of their respective counties 226 Mass! 579'.
20 from the money received under such provisions. 1 Op. a. g. 603.
1 Section 152. Each police officer or constable to whom such warrant f^^^^^^\^
2 is issued shall make returns, on or before October first following and at 1867. iso. § s.
• • • .PS 102 5 91
3 the expiration of his term of office, to the mayor or chairman of select- r l. 102.
4 men issuing the same, and shall state in said returns the number of dogs i907!'24o, § 2.
5 killed, the names of the owners or keepers thereof and whether all unli-
6 censed dogs in his town have been killed, and the names of persons against
7 whom complaints have been made under the provisions of this chapter
8 relating to dogs, and whether complaints have been entered against all
9 the persons who have failed to comply therewith.
1 Section 153. Such warrant may be in the following form: warrant to
dog officers.
1867, 130. § 16.
Commonwealth or Massachusetts. ^- ^ 'j°| ^ '"^
(Seal.) § 164.
,ss.
To , constable of the city {or toum) of
In the name of the Commonwealth of Massachusetts, you are hereby required
to proceed forthwith to kill or cause to be killed all dogs wdthin the said city (or
town) not duly licensed and collared according to the provisions of chapter one
hundred and forty of the General Laws, and you are further required to make
and enter complaint against the owner or keeper of every such dog.
Hereof fail not, and make due return of this warrant with your doings therein,
stating the number of dogs killed and the names of the owners or keepers thereof,
and whether all unlicensed dogs in said city (or town) have been killed, and
the names of persons against whom complaints have been made under tlie pro-
visions of said chapter, and whether complaints have been made and entered
against all the persons who have failed to comply with the jjro visions of said
chapter, on or before the first day of October ne.xt.
Given under my hand and seal at aforesaid, the
day of , in the year nineteen hundred and
Mayor of {or Chairman of the Selectmen of)
1 Section 154. The mayor of each city and the chairman of the select- Mayor etc..
2 men of each town shall annually, within ten days after October first, district nt-
3 sign and transmit to the district attorney of his district a certificate, w°amfnt.r
4 on oath, stating that the warrant named in section one hundred and fifty- JlS-y; 130; j 9;
5 one was issued and whether it has been duly executed and returned ac- hi' '102^^^
6 cording to this chapter. The district attorney shall prosecute city, town § '*5.
7 or county officers who fail to comply therewith.
1442
LICENSES.
[Chap. 140.
Damage
by does.
1791, 38.
1797, 53,
Section 155. The owner or keeper of a dog shall be liable in tort to a 1
5; person injured by it in double the amount of damages sustainetl by him. 2
179S, .54. 5 3
1812, 14B, 9 3.
R. S. 08, ? 13.
G. S. 88. § 59.
P. S. 102. § 93.
R. L. 102. 5 146.
20 Pick. 477.
12 Met. 291.
12 Cush. 278.
11 Gray. 29.
1 AUen, 191.
3 Allen, 101, 191.
i Allen. 431
117 Mass. 109.
123 Mass. 580.
124 Mass. .57.
128 Mass. 218, 598.
131 .Mass. 236.
148 Mass. 85.
152 Mass. 7,
153 Mass. 347.
154 Mass. 346,
159 Mass. 497.
101 Mais. 182, 184.
170 Mass. 441.
172 Mass. 453.
177 Mass. 163.
184 Mass. 150.
202 Mass. 506.
204 Mass. 195.
213 Mass. 28.
216 Mass. 556.
221 Mass. 73.
229 Mass. 348.
°erfon"oT'"°^ SECTION 156. Any person may kill a dog which suddenly assaults him
anVmais may ^'hile he is peaceably walking or riding outside the enclosure of its owner
Ij"? k'l'ed, when, or keeper; and any person may kill a dog found out of the enclosure of its
R. s.'5s,'§ Ti, owner or keeper and not under his immediate care worrying, wounding
p.' s.' 102, §94. or killing neat cattle, sheep or lambs.
R. L. 102, JU7. 141 .Mass. 179. 177 Mass. 200.
Complaint as
to dangerous
dog.
1791, 38, § 2.
R. S. oS, § 16.
G. S. 88, § 61.
P. S. 102, § 95.
R. L. 102,
§ 148.
Dog proved
dangerous may
be killed-
1791, 38, § 3.
R. S. 58, § 16.
G. S. 88, § 1)2.
1805, 197, S 4.
1867, 130, 5 14.
P. .S. 102, § 96.
R. L. 102.
§ 149.
Treble dam-
ages if dog.
after notice,
causes injury,
etc.
1791, 38, § 4.
R. S. 58, § 17.
G. S. 88, § 63.
P. S. 102, § 97.
Protecting
domestic
animals from
injury by dogs,
1902, 226.
1904, 127.
Section 157. If a person who has been so assaulted, or who finds a
dog strolling outside of the enclosure of its owner or keeper and not under
his immediate care, within forty-eight hours after such assault or finding
makes oath thereof before a district court or trial justice or before the
clerk of the town where the owner or keeper of the dog dwells, and that
he suspects the dog to be dangerous or mischievous, and gives notice
thereof to its owner or keeper by delivering to him a certificate of such
oath signed by such court, justice or clerk, the owner or keeper shall
forthwith kill or confine such dog; and if he neglects so to do after
twenty-four hours from the receipt of such notice he shall forfeit ten
dollars.
Section 158. If such dog is licensed the fine prescribed by the pre-
ceding section shall not be imposed unless the dog is pro^'ed to be mis-
chievous or dangerous. Any person may kill a licensed dog which has
been so proved to be mischievous or dangerous if it is again found stroll-
ing outside of the enclosure of its owner or keeper and not under his im-
mediate care.
Section 159. If a dog, after such notice to its owner or keeper, by
such assault wounds any person, or worries, wounds or kills any neat
cattle, sheep or lambs, or does any other mischief, the owner or keeper
shall be liable in tort to the person injured thereby in treble the amount
of damages sustained bv him. R. l. 102. § 150.
1
2
3
4
5
6
7
8
9
10
11
1
2
3
4
5
6
1
2
3
4
5
Section 160. The county commissioners of any county, or their 1
agents thereto authorized in WTiting, may enter upon the premises of 2
the owner of any dog known to them to have M'orried or killed sheep, 3
lambs, fowls or other domestic animals, and then and there kill such dog, 4
unless such owner whose premises are thus entered for the said purpose 5
shall give a bond in the sum of two huntlred dollars, with sufficient sure- 6
ties, approved by the county commissioners, conditioned that the dog 7
shall refrain from killing or worrying sheep, lambs, fowls or other domestic 8
animals for twelve months next ensuing. And if the owner of the dog 9
declares his intention to give such a bond, the said county commissioners 10
or their agents shall allow him reasonable time in which to procure and 11
prepare the same and to present it to them, or to file it with the clerk of 12
the town where the said owner resides. 13
Chap. 140.] licenses. 1443
1 Section 161. Whoever suffers loss by the worrying, maiming or Certain
2 killing of his live stock or poultry by dogs, outside the premises of the doS''*o\eViJ
3 owners or keepers of such dogs, may, if the damage is done in a city, in- isss.'isS,"^ T
4 form the officer of police of the city who shall be designated to receive cf's'llflcl.'
5 such information by the authority appointing the police, and, if the dam- J||;^' J^^' | ^^
6 age is done in a town, may inform the chairman of the selectmen of the l'sgg''Jjo
7 town, or, if he is absent or ill, any one of the selectmen, who shall proceed isse,'259.'
8 to the premises where the damage was done and determine whether the r. l. io2;_
9 same was inflicted by dogs, and if so, appraise the amount thereof if it fgos^Vasi.
10 does not exceed twenty dollars. If in the opinion of said officer of police, \l°\[ Igl'. ^ ^
11 chairman or selectman, the amount of said damage exceeds twenty dol- 20°' a*g ■^so
12 lars, the damage shall be appraised, on oath, by three persons, of whom
13 one shall be such officer of police, chairman or selectman, one shall be
14 appointed by the person alleged to be damaged, and the third shall be
15 appointed by the other two. The said appraisers shall consider andin-
16 elude in such damages the labor and time necessarily expended in the
17 finding and collecting of the live stock or poultry injured or separated
18 and the value of those lost or otherwise damaged by dogs. The said
19 officer of police, chairman or selectman shall return a certificate of the
20 damages found, except in Suffolk county, to the treasurer of the county
21 where the damage was done, within ten days after such appraisal is made.
22 The treasurer shall thereupon submit the same to the county commission-
23 ers, who within tliirty days shall examine all bills for damages, and may
24 upon their own motion or upon request of an interested party shall sum-
25 mon the appraisers and all parties interested and make such investiga-
26 tion as they may think proper, and shall issue an order upon the treasui'er
27 of the county for such amounts, if any, as they decide to be just and shall
28 notify all interested parties of their decision. The treasurer, except in
29 Suffolk county, shall pay all orders drawn upon him in full, for the above
30 purpose, and for the expenses of appraisal out of any money in the county
31 treasury, and payments made therefor shall be charged to the dog fund.
32 The appraisers shall receive from the county tlu^ee dollars each for every
33 such examination made by them, and also twenty cents a mile one way
34 for their necessary travel.
1 Section 162. The aldermen or selectmen may offer a reward of not Pf.^^I'Jj''"'
2 more than twenty-five dollars for the killing of any dog found to have found injuring
3 worried, maimed or killed any sheep, lambs, fowls or other domestic anmfais'
4 animals, thereby causing damages for which their owner may become }**l! 102; ^ ^
5 entitled to compensation under the preceding section, or for evidence fgol^oo.
6 which shall determine to the satisfaction of such aldermen or such select-
7 men who is the owner or keeper of the dog by w hich such damage is done.
8 The county commissioners, except in Suffolk county, shall pay the said
9 reward from the dog fund, upon a certificate signed by the aldermen or
10 selectmen.
1 Section 163. If the aldermen or selectmen determine, after notice Notice to
2 to parties interested and a hearing, who is the ownei or keeper of any suXdog.
3 dog which is found to have worried, maimed or killed any sheep, lambs, ]i^t tot'. ^ ^'
4 fowls or other domestic animals, thereby causing damages for which ^ ^^^■
5 their owner may become entitled to compensation from the dog fund
6 under section one hundred and sixty-one, they shall serve upon the owner
7 or keeper of such dog a notice directing him within twenty-four hours to
8 kill or confine the dog.
1444
LICENSES.
[Ch.\p. 140.
Penalty for
not confining
dog.
1SS9, 454, § 4.
R. L. 102.
§ 154.
Section 164. A person who owns or keeps a clog, and who has re-
ceived such notice and does not within twenty-four hours kill such dog
or thereafter keep it on his premises or under the immediate restraint
and control of some person, shall be punished by a fine of not more than
twenty-five dollars; and any person may kill such dog if it is found
strolling outside of the enclosure of its owner or keeper and not under
his immediate care.
Appointment
of persona to
investigate
damages by
dogs.
1SS9, 434, § 5.
1894, 309, § 1.
R. L. 102,
§ 155.
19W, 142, § 1.
1907, 241.
1910, 392, § 1.
1918, 271, § 1.
160 Mass. 186.
177 Mass. 34.
Section 165. The county commissioners, except in Suffolk county, 1
shall appoint one and may appoint not more than four suitable persons, 2
all residents of the county, any one of whom shall, at the request of said 3
commissioners or of the chairman of the selectmen or officer of the 4
police designated as provided in section one hundred and sixty-one, 5
investigate any case of damages done by a dog of which the commis- 6
sioners, chairman or officer shall have been informed as provided in said 7
section; and if he believes that the evidence is sufficient to sustain an 8
action against the owner or keeper of the dog as provided in said section 9
and believes that such owner or keeper is able to satisfy any judgment 10
recovered in such action, he shall, unless the owner or keeper before action 11
brought pa.vs him such amount in settlement of the damage as he deems 12
reasonable, bring the action. It may be brought in his own name and in 1.3
the county where he resides, and he shall prosecute it. The persons so 14
appointed shall also have throughout their respective counties the same 15
powers and authority as police officers or constables acting under section 16
one hundred and fifty-one. All damages received or reco\"ered imder this 17
section shall be paid over to the county treasurer and placed to the credit 18
of the dog fund. The county treasurer shall pay out of the dog fund such 19
reasonable compensation as the county commissioners shall allow for 20
se^^■^ces and necessary expenses under this section and the reasonable 21
expense of prosecuting the said actions. The persons appointed here- 22
imder may be removed at an\- time by the county commissioners, and 2.3
in counties where they are appointed the county treasurer shall not be 24
authorized to bring the said actions. 25
Person
damaged has
choice of
remedy
1859, 225, § 8.
G. S. 88, § 65.
1864, 299, § 99.
1867, 130, § 10.
P. S. 102, § 99.
R. L. 102,
I 156
Section 166. The owner of sheep, lambs, fowls or other domestic 1
animals which have been worried, maimed or killed by dogs shall have 2
his election to proceed under section one hundred and sixty-one or sections 3
one hundred and fifty-seven to one hundred and fifty-nine, inclusi\-e: 4
but, having signified his election by proceeding in either mode, he shall 5
not have the other remedv. 6
Dogs may be
required to be
muzzled.
1877, 167,
S§1,2
P. S. 102,
§§ 101, 102.
R. L. 102,
§ 158.
Section 167. The- aldermen or selectmen may order that all dogs 1
shall be muzzled or restrained from running at large during such time 2
as shall be prescribed by such order. After passing such order and posting 3
a certified copy thereof in two or more public places in the town, or, if 4
a daily newspaper is published in such town, by publishing such copy 5
once in such newspaper, the aldermen or selectmen may issue their 6
warrant to one or more of the police officers or constables of such town, 7
who shall, after twenty-four hours from the publication of such notice, 8
kill all dogs found unmuzzled or running at large contrary to such order, 9
and shall receive such compensation therefor as is provided in section 10
one hundred and fiftv-one. 11
Chap. 140.] licenses. 1445
1 Section 168. The aldermen or selectmen may cause service of such service of
2 order to be made upon the owner or keeper of the dog by causing a Penafty.
3 certified copy thereof to be delivered to him; and if he refuses or neglects p'^i.' 102,' im.
4 for twelve hours thereafter to muzzle or restrain such dog as so required, f 159/°"'
5 he shall be punished by a fine of not more than twenty-five dollars.
1 Section 169. A county, city or town officer w ho refuses or wilfully Penalty on
2 neglects to perform the duties imposed upon him by the provisions of isss, i39™§'6.
3 this chapter relating to dogs shall be punished by a fine of not more than a^|.' ss,°§ ei^'
4 one hundred dollars, which shall be paid, except in Suffolk county, Hey' 130 1 1?
5 into the county treasury. Whoever is aggrie\ed by such refusal or neg- S f; \%^ ^°*'
6 lect may report the same forthwith to the district attorney of his district. § leo.
1 Section 170. In Suffolk count \-, all money received for licenses or Disposition
2 recovered as fines or penalties under the provisions of this chapter re- Cl suffofk"^"
3 lating to dogs shall be paid into the treasury of the town in which said ilS^g, 1 12.
4 licenses are issued or said fines or penalties recovered. All claims for \f^- i?J | \^-
0 damages done by dogs in Suffolk county shall be determined by appraisers J^ w^' 102, §105.
6 as specified in section one hundred and sixty-one and, when approved § lei.
7 by the aldermen or selectmen of the city or town where the damage was
8 done, shall be paid in full on the first Wednesday of January of each
9 year by the treasurer of such town, if the gross amount received by him
10 and not previously paid out under the provisions of this chapter relating
11 to dogs is sufficient therefor; otherwise such amount shall be divided
12 pro rata among such claimants in full discharge of their claims.
1 Section 171. The owner or keeper of a dog which is doing damage owner of dog
2 to sheep, lambs, fowls or other domestic animals shall be liable in tort coumy°for
3 to the county for all damages so done which the county commissioners damages pa.d
4 thereof ha\'e ordered to be paid as provided in this chapter. The county }|5*' ^^9. | s
5 treasurer, except as provided in section one hundred and sixty-five, may, ^i,^^ HA'^ji
6 and if so ordered by the county commissioners shall, bring such action, isot! iss!
7 In Suffolk county, such owner or keeper shall be liable in like manner to r s.^ioa, § loe.
8 the town for damages so done therein which the aldermen or selectmen f im/"''
9 have so ordered to be paid; and the town treasurer may, and if so ordered '®° ^^^^- '*®
10 by the aldermen or selectmen shall, bring such action.
1 Section 172. Money received by a county treasurer under the pre- Disposition of
2 ceding sections relating to dogs, and' not paid out for damages, shall, in ""laT^oFdog
3 January, be paid back to the treasurers of the towns in proportion to 'j'^^^ jg^ 5 3
4 the amounts received from such towns, and the money so refunded i|g'J^g'|i"
5 shall be expended for the support of public libraries or schools. In p .s.'ro2,§ 107.
6 Suffolk county, money so received by the town treasurer and not so § les. "
7 paid out shall be expended by the school committee for the support of ^OpA.G.sie,
8 public schools.
1 Section 173. A town may make additional ordinances or by-laws Ordinances
2 relative to the licensing and restraining of dogs, and may affix penalties ?" dog^"'""" "^
139.
10.
3 of not more than ten dollars for a breach thereof; but such ordinances r^^J.'II,'
4 or by-laws shall relate only to dogs owned or kept in such town, and the J^^o. 24's. ^ ^^
5 annual fee required for a license under section one hundred and thirty- p| foiVVoo
6 nine shall in no case be more than one dollar in addition to the amount R l 102,
required by said section. 10 Met. 3S2
165.
1446
LICENSES.
[Chap. 140.
^n&\S°' Section 174. All fines and penalties provided in the preceding sec-
p.' I.' folVuo. tions relating to dogs may be recovered before a district court or trial
8*166 '°^' justice in the county where the offence was committed.
kmbg.'etc" Section 175. Whoever wrongfully kills, maims, entices or carries 1
isss^Tsg.l"! a^'<iy ii dog licensed and collared as pro\'ided in section one hundred and 2
1859, 225, 1 5. thirty-scven shall be liable in tort to its owner for its value. 3
G. S. 88, § 57. P. S. 102. § 88. R. L. 208, § 38. 1913, 551.
Registration
1890, 334, "
R. L. 102,
§ 167.
ST.\LLIONS.
5 1. Section 176. The owner or keeper of a stallion for breeding purposes 1
shall, before advertising the service thereof, file a certificate of the name, 2
color, age, size and pedigree, as fully as obtainable, of said stallion, and 3
of the name of the person by whom he was bred, witli the clerk of the 4
town where said stallion is owned or kept, who .shall, upon payment 5
of a fee of twenty-five cents, record the same in a book to be kept for that 6
purpose. Whoever neglects to make and file such certificate shall re- 7
co\'er no compensation for the services of his stallion, and whoever know- 8
ingly and wilfully makes a false certificate shall be punished by a fine of 9
one hundred dollars. 10
Licenses.
1857, 194. § 2.
G. S. 88. § 69.
1876, 147,
§5 1,2.
1880, 94.
P. .S..102, § HI.
1885, 323. § 2.
R. L. 102,
§ 168.
1902. 187, I 5.
1906. 291, § 4.
1911. 645.
1920. 191.
133 Mass. 578.
BILLI.\RD TABLES AND BOWLING ALLEYS.
Section 177. The licensing board of Boston, the license commission 1
of Lowell, the aldermen of any other city, and the selectmen of any 2
town may grant and may suspend or revoke at pleasure a license which 3
shall be subject to sections two hundred and two to two hundred and 4
five, inclusive, to a person to keep a billiard, pool or sippio table or a 5
bowling alley for hire, gain or reward, upon such terms and conditions 6
as they deem proper, to be used for amusement merely and not for the 7
purpose of gaming for money or for property. 8
140 Mass. 38. 19U.Mass. 341.
Penalty.
1857. 194, I 1.
G. S. 88, § 70.
1880, 94.
P. S. 102.5 112.
R. L. 102,
5 169.
109 Mass. 344.
141 Mass. 420,
Section 178. Wlioever without such license keeps or suffers to be 1
kept in a house, building, yard or dependency thereof, actually occupied 2
or owned by him, a table for the purpose of playing at billiards, pool or 3
sippio, or a bowling alley for hire, gain or reward, or whoever for hire, 4
gain or reward suffers any person to resort thereto for such purpose shall 5
forfeit not more than one hundred dollars. 6
Penalty for
admitting
minors to
billiard rooms.
1855. 429, § 1.
G. S. 88, § 71,
1866, 237.
1880, 94.
Section 179. The keeper of a billiard, pool or sippio room or table, 1
bowling alley, or place in which pictures are displayed upon the deposit 2
of money in a coin controlled apparatus, Avho admits a minor thereto 3
without the written consent of his parent or guardian, shall forfeit ten dol- 4
lars for the first and twenty dollars for each subsequent offence, 5
p. S. 102. § 113. R. L. 102, § 170. 1908, 368. 98 Mass. 6.
unCfwfu/use, Section 180. Whocvcr erects, occupies or uses a building for bowling
aifey."' ^°^'^'"^ alleys, except in such part of a town as the aldermen or selectmen order,
cf^s'ls^s 73 s^^^^ forfeit not more than fifty dollars for every month he so occupies
PSioisiii or uses such building, and in like proportion for a shorter time. The
5 ni. "■ superior court may restrain such erection, occupancy or use without
sucli order.
Chap. 140.] licenses. 1447
THEATRICAL EXHIBITIONS, PUBLIC AMUSEMENTS, ETC.
Section 181. The mayor or selectmen may, except as provided
License s.
1S05, 98,
uiilueiised
pxhil)itioii.
ISO.), flS,
§S 1.3.
2 in section one hundred and fi^•e of chapter one hundred and forty-nine, l^^^ 3^,
.3 grant, upon such terms and conditions as they deem reasonable, a license §§ i.'s. .
4 for theatrical exhibitions, public shows, public amusements and exhi- ism. 231: § i.
5 bitions of every description, to be held upon week days only, to which p. ,s. i'o2.'§ 115.
6 admission is obtained upon payment of money or upon the delivery HH] 434; 5 3
7 of any valuable thing, or by a ticket or voucher obtained for money or f^h^ '°-'.
8 any valuable thing, or in which, after free admission, amusement is jsos. 341. 1 1.
9 furnished upon a deposit of money in a coin controlled apparatus; and 100s'. |s5._§ 2.
10 the mayor or selectmen may revoke or suspend such license at their 7 ciriy! 162!
11 pleasure, but they shall not grant a license for any such theatrical ex- uls mS: 519.
12 hibitions, public shows or public amusements or exhibitions of any de- J^j ^J^S: III.
13 scription whatever to beheld upon Sunday, except as provided in chapter iop^a!*g.^306.
14 one hundred and thirty-six. Op. a. g. (1920) 300.
1 Section 182. Whoe\-er offers to view, sets up, sets on foot, maintains, rcnaity tor
2 carries on, publishes or otherwise assists in or promotes any such exhibi-
3 tion, show or amusement without such license shall be punished by a
4 fine of not more than five hundred dollars. This and the preceding jfif'ss^^l'-
5 section shall not apply to public entertainments by religious societies in q^^IU'i^-
6 their usual places of worship for a religious or charitable purpose, or to isso. is's.
7 entertainments given in school buildings by or for the benefit of the k.l. 102,'
8 pupils thereof and under the supervision of the principal or teacher in iooV, 4iio, § 5.
9 charge of the school classes therein, or to entertainments given in a \^l] Ijf; ^ ^■
10 pri\ate dwelling, except in apartments thereof having a seating capacity i64 Masl!*n.
11 of four hundred or more. 177 Mass. 347.
1 Section 183. No person shall darken in whole or in part the hall, p^iJlbfted '"'"
2 room, piazza, roof garden or other place in which a public dance re- during progress
3 quired to be licensed under section one hundred and eighty-one is held, dances therein.
4 or any stairway, anteroom or passageway connected therewith, dur- hi-4. '
5 ing the progress of a dance therein or until all persons except the propri-
6 etor and his employees have withdrawn from the premises. The degree
7 of light required in such places shall be fixed by regulations prescribed
8 by the commissioner of public safety, copies of which and of this section
9 shall be conspicuously posted in every such place. Violations of this sec-
10 tion shall be punished by a fine of not less than one hundred nor more
11 than one thousand dollars.
1 Section 184. Whoever offers to view, sets up, sets on foot, maintains Penalty for
2 or carries on a theatrical exhibition, public show, concert or dance hall iiquor is sold.
3 exhibition, of any description, at which lager beer or other intoxicating g.s.'ss, §7b.
4 liquor is sold or exposed for sale with the consent of those who get up, r. l.'ub,^ ^'^'
5 set on foot or otherwise promote such exliibition or show, shall be punished ^ ^''*-
6 by a fine of not more than fi\e hundred dollars or by imprisonment for
7 not more than two years, unless such exhibition or show has been duly
8 licensed as provided by section one hundred and eighty-one. This
9 section shall not authorize the licensing of the sale of liquor contrary to
10 law.
1448
LICENSES.
[Chap. 140.
prowbftid" Section 185. \Mioever gets up, sets on foot, causes to be published, 1
cft^'ll V77' °^ otherwise aids in getting up and promoting a masked ball or other 2
P.S.102, § lis public assembly at which the company wear masks or other disguises and 3
5 175. ' to which admission is obtained upon payment of money or the delivery 4
of any valuable thing, or by a ticket or voucher obtained for money or 5
any ^-aluable thing, shall for the first offence be punished by a fine of not 6
more than fi\-e hundred dollars and for any subsequent offence by im- 7
prisonment for not more than one year. 8
License.
1885, 196, i
R. L. 102,
§ 176.
1902, 187, I
1906, 190.
1911, 645.
1920, 47.
SIC^.TING RINKS, ETC.
Section 186. The licensing board of Boston, the license commission 1
of Lowell, the mayor of any other city, and the selectmen of any town, 2
may grant a license to any person to establish, keep open and maintain 3
skating rinks to be used for roller skating, carousels, inclined railways, 4
Ferris wheels and outdoor exhibitions of fire fighting for the amusement 5
of the public, for hire, gain or reward, upon such terms, conditions and 6
regulations as they deem proper, subject to sections two hundred and 7
two to two hundred and five, inclusive, and to the provisions of law 8
relating to the observance of Sunday. 9
Tsss'ioe § 2 Section 187. Whoever, without such license, establishes, keeps open 1
R. 1:102; ■ or maintains a skating rink to be used for the amusement of roller skating 2
shall be punished by a fine of not more than five hundred dollars. 3
License.
1885. 309, §§ 1.
4; 323, § 2.
R. L. 102,
§ 178.
1902, 187, § 5.
1906, 291, I 4.
PICNIC GROVES.
Section 188. In a city or town which accepts the provisions of this 1
and the two following sections or has accepted corresponding provisions 2
of earlier laws, the aldermen, except in Boston and Lowell, or the select- 3
men may grant a license to any person to establish, let, keep open and 4
maintain a grove to be used for picnics or other lawful gatherings and 5
amusements for hire, gain or reward, upon such conditions and regula- 6
tions as they deem proper, subject to the provisions of sections two 7
hundred and two to two hundred and five, inclusive. Li Lowell the 8
license commission and in Boston the licensing board may grant such 9
licenses. 10
Penalty.
1885, 309, § 2.
R. L. 102,
§ 179.
Section 189. Whoever, without such license, establishes, lets, keeps 1
open or maintains, himself or by another, a grove to be used for picnics 2
or other amusements for hire, gain or reward shall be punished by a fine 3
of not more than one hundred dollars. 4
Peddling near
picnic grove
forbidden.
1887, 445.
R. L. 102,
§ 180.
Section 190. Whoever, not having his residence or regular place of 1
business within one half mile of a grove licensed under section one hun- 2
dred and eighty-eight, during the time of holding a picnic or other lawful 3
gathering in such licensed grove and within one half mile thereof hawks or 4
peddles goods, wares or merchandise, or establishes or maintains a tent, 5
booth, vehicle or building for vending provisions or refreshments Math- 6
out the consent of the licensee of such grove, or engages in gaming or 7
horse racing, or exhibits or offers to exhibit any show or play, shall forfeit 8
not more than twentv dollars. 9
Chap. 140.] licenses. 1449
STEAMBOATS.
1 Section 191. The aldermen or selectmen may license any person to License.
2 run a steamboat or other boat propelled by power other than muscular r!I.'io2!'h2o.
■3 power for the conveyance for hire of passengers on lakes, ponds or waters Sgio/i^l'.Vf''
4 not within the maritime jurisdiction of the United States. i^" -^i*^^ 221.
1 Section 192. Such licenses shall be granted for a term of not more Form of
2 than one year, and shall be recorded by the clerk of the town where lOTcaoo^rs
3 they are granted, who shall receive a fee of one dollar for recording each ^ | ui,^ ^"^
4 license. Every such license shall set forth the name of the steamboat f g\o^ J25 5 2
5 or other boat, of the master and owner, and the number of passengers
6 it is permitte<l to carry at any one time, with the number of life preservers
7 that shall be carried. The license shall be posted in a conspicuous place
8 therein, and the number of passengers specified in such license shall in
9 no case be exceeded.
1 Section 19.3. Whoever, runs a steamboat or other boat propelled by Penalty.
2 power other than muscular power for the con\"eyance of passengers for §§2,4 '
3 hire on such waters without first obtaining such license from the aldermen r. L^'o'i^ '^"
4 of every city and the selectmen of every town within which such steam- f9\o^ 125 § 3.
5 boat or other boat lands or receives passengers for hire shall be punished
C by a fine of not more than fifty dollars.
boating ANT) bathing.
1 Section 194. Cities and towns which accept this and the two follow- License
2 ing sections or have accepted corresponding provisions of earlier laws '^^°' ^°°' ^ ^'
3 by a vote of the city council or of the town at a town meeting called for
4 the purpose may prohibit any person from carrying on the business of
5 renting boats or bathing suits, for use upon or in so much of the waters
6 of any great pond as is situated within the town, without first obtaining
7 a license so to do from the aldermen or selectmen.
1 Section 195. The aldermen of such cities and the selectmen of such Posting
2 towns shall cause to be posted in the immediate vicinity of such ponds mo.lbo, § 2.
3 notices stating that sections one hundred and ninet\-four to one hun-
4 dred and ninety-six, inclusive, have been accepted by the city or town.
1 Section 196. Whoever in such a city or town, without obtaining a Penalty for
2 license under section one hundred and ninety-four, if one is required, ficensl'"' °"'
3 engages in the business described in said section, shall be punished by '^^°' *^- ^ ^'
4 a fine of not more than ten dollars.
GENERAL PROVISIONS.
1 Section 197. Whoever, himself or by his servant or agent, admits Admission of
2 a child under fourteen to any licensed show or place of amusement unless entertmnments
3 such child is accompanied by a person over twenty-one, shall, on com- islf^lG;
4 plaint of a parent or guardian of the child or of any police officer or of an f)^ ^°^'
5 attendance officer of the town in which the chikl is so admitted, be pun- jgoy'ssg
6 ished by a fine of not more than one hundred dollars; but he shall not i9io!532;
7 be liable to said fine if a child apparently fourteen years old has obtained
8 admission by any written misrepresentation or by any unauthorized en-
9 trance to said place of amusement, or has entered with and apparently
1450
LICENSES.
[Chap. 140.
in the company of a person over twenty-one but does not remain with 10
such person, provided the person in charge of said place of amusement 11
shall remove such child immediately therefrom upon knowledge that the 12
child is under fourteen and not then accompanied by a person over twenty- 13
one. This section shall not apply to shows or entertainments which 14
take place before six o'clock in the afternoon and during the hours that 15
the school of which the child attending such show or entertainment is a 16
pupil is not in session. It shall be prima facie evidence that such school 17
is in session if the public schools are in session in the town where said IS
show or entertainment takes place. 19
No proprietor, lessee or manager and no employee of a
Admission of SECTION 198.
young persons . , » 1 i- i ii • i • i i •
to dance halls proprietor, lessee or manager oi any public hall or room in which dancino
rinks regulated, or roller skating is practiced, and for admission to which money or other
1<)06, 384. o I
§§ 1.2.
valuable thing is accepted, shall admit, while dancing or roller skating
is practiced therein between six in the afternoon and six in the fore-
noon, any person under seventeen unless such person is accompanied
by a parent, guardian or adult member of the family with whom such
person is residing; and any minor may be refused admission to or ex-
cluded from any such hall or room while a dance or roller skating is
being carried on therein, unless such minor produces evidence satisfactory 10
to the proprietor or his agent that he is over seventeen. This section 11
shall not apply to a dance given by any charitable or religious society, 12
or by any public or private school, or by any class, .society or club the 13
membership of which is restricted to some particular charitable or reli- 14
gious society or to some particular public or private school. 15
Postmgcopy Section 199. A copy of sections one hundred and ninety-eight to 1
1006, 384, § 3. |.^^,Q hundred, inclusive, .shall be posted at the entrance of every public 2
hall or room where roller skating or public dances are practiced. 3
I'loe'ss^ § 4 Section 200. Whoever violates any provision of the two preceding 1
sections shall be punished by a fine of not less than five nor more than 2
one hundred dollars or by the forfeiture of his license, or both. 3
Officers may
enter billiard
rooms, etc.
1835, 429, § 2
1859, 219.
G. S. 88, § 72.
1S02. 222.
ISSO, '.)4,
P. S. 102, § 123.
1885, 196, § 3;
309, § 3.
K. L. 102,
§ 185.
Form, etc., of
certain licenses.
1839, 53, § 2.
1855, 121, § 2.
G. S. 88.
§§ 26, 29.
1876, 147, § 1.
1879, 102, § 3.
1880, 84; 94.
P. .S. 102, § 124.
1882, 258.
1885. 196, § 1;
309, § 1 ;
323. § 2.
189-5, 497,
R. L. 102, i
1902. 1S7,
§§ 4, 5,
§2.
) 186.
Section 201. A sheriff, marshal or their deputies, a constable or 1
police officer may at any time enter a billiard, pool or sippio room, bowling 2
alley, skating rink, the licensed premises of a common victualler or room 3
connected therewith, or a grove required to be licensed under section one 4
hundred and eighty-eight, or any building therein, for the purpose of en- 5
forcing any law; and whoever obstructs or hinders the entrance of such 6
officer shall be punished by a fine of not less than five nor more than 7
twenty dollars. 8
Section 202. Licenses granted to keepers of intelligence offices, 1
dealers in junk, old metals and second hand articles, junk collectors, 2
pawnbrokers and keepers of billiard saloons, pool or sippio rooms or 3
tables, bowling alleys, skating rinks and picnic groves shall, except as 4
hereinafter provided, be signed by the clerk of the town where they are 5
granted. Every such license shall, before being deli^•ered to the licensee, 6
be recorded by the town clerk, in a book kept for that purpose. Such 7
license shall set forth the name of the licensee, the nature of the biisi- 8
ness, and the building or place in such town in which it is to be carried 9
on, and shall continue in force until May first following unless sooner 10
Chap. 141.]
SUPERVISION OF ELECTRICIANS.
1451
11 revoked. The board or officer issuing such a hcense shall, except as woo, 201, § lo.
12 provided in section seventy-seven, receive for the use of the town such 4"op. Tg.
13 amount, not less than two dollars for each license, as the board or
14 officer considers reasonable. In Boston licenses for keepers of billiard
15 saloons, pool or sippio rooms or tables, bowling alleys, skating rinks and
16 picnic groves shall be signed by the licensing board and recorded by its
17 clerk; the other licenses shall be signed by the police commissioner and
IS recorded by his clerk.
1 Section 203. Such licenses may be granted in April, to take effect on Term of
2 May first following. isvg, 147, § 2. p. s. 102, § 125. r. l. 102, § isr. '-ceuses.
1 Section 204. A license issued as aforesaid shall not protect the License valid
2 holder thereof in a building or place other than that designated in the BpeoiSecf! ""^^
3 license unless consent to removal is granted by the licensing board or F.'i.'iol.'iiie.
4 officer. r. l. 102, § iss.
1 Section 205. Upon the revocation of such a license, such clerk shall ^n[°™Je°"
2 note the revocation upon the face of the record thereof, and shall give ^'^'•iQ.hiy-i'j
3 written notice to the licensee by delivering it to him in person or by leav- R-^l. icS,
4 ing it at the place of business designated in the license.
§ 189.
REFERENCES.
Other provisions relative to matters dealt with in this chapter:
Boarding and lodging house keepers, liens, Chap. 255, § 23.
Dogs, chasing deer, Chap. 131, § 65.
Penalty for steahng, Chap. 266, § 47.
Power of director of division of fisheries and game, wardens, etc.. Chap.
130, § 4.
Licenses for hospitals, dispensaries, etc.. Chap. Ill, §§ 53, .59, 71, 1.55.
Night watcluncn in hotels and rope fire escapes, Cliap. 143, §§ 44-47.
Smoke nuisance in Boston and vicinity, 1910, 651.
§ 115. In metropolitan district, state fire marshal to grant licenses under this section,
Chap. 14.S, § 30.
CHAPTER 141
SUPERVISION OF ELECTRICI.A.NS.
Sect.
1. Registration of persons, firms, etc., to
install wires or apparatus for electric
light purposes, etc. Definitions.
2. State examiners of electricians. Rules,
examinations, etc.
3. Forms of licenses.
4. Certificates not transferable. May be
suspended or revoked.
Sect.
5. Penalties.
6. Liability of holder of a master's certifi-
cate.
Not to apply to certain work.
Exemption of apprentices and certain
electricians.
Penalty for misstatement.
Disposition of fees and fines.
7.
8.
9.
10.
1 Section 1. No person, firm or corporation shall enter into, engage Registration of
2 in, or work at the business of installing wires, conduits, apparatus, fix- et'oTt'omst'afi'
3 tures or other appliances for carrying or using electricity for light, heat app'ifra'tus
4 or power purposes, either as master electrician or as journeyman elec- light'puVposes,
5 trician, unless such person, firm or corporation shall have received a fte
/-.!• 1 -r-if. Ill • i?i Definitions,
D license and a certificate thereior, issued by the state examiners oi elec- I'Jio, 290, § 1.
7 tricians and in accordance with the provisions hereinafter set forth.
1452
SUPERVISION' OF ELECTRICIANS.
[Chap. 141.
"Master elec-
trician" defined.
"Journeyman
electrician"
defined.
4 Op. A. G.
496.
State examiners
of electricians.
Rules, exami-
nations, etc.
1915, 296, I 2.
Annual report.
Conduct of
examinations,
225 Mass. 192.
4 Op. A. G.
631.
The words "master electrician" as used in this chapter shall mean a S
corporation, firm or person, having a regular place of business, who, by 9
the employment of journeymen, performs the work of installing wires, 10
conduits, apparatus, fixtures and other appliances for carrying or using 11
electricity for light, heat or power purposes. 12
The words "journeyman electrician " as used in this chapter shall mean 13
a person doing any work of installing wires, conduits, apparatus, fixtures 14
and other appliances for hire. 15
Section 2. The state examiners of electricians, in this chapter called 1
the examiners, may make necessary rules for the proper performance of 2
their duties. 3
They shall hold frequent examinations in Boston, and, twice in each 4
year, shall hold examinations in at least five other convenient places 5
within the commonwealth, and they may hold annual or occasional exam- 6
inations in other places. Public notice shall be given of all examinations. 7
They shall make an annual report of their doings. 8
In the conduct of the examinations they shall make uniform require- 9
ments for all towns, which may be revised from time to time, as circum- 10
stances require. Said examinations shall be sufficiently frequent to give 11
ample opportunity for all applicants to be thoroughly and carefully ex- 12
amined, may be written or in practical work, and may be supervised by 13
one or more of the examiners, but no license shall be granted without 14
the sanction of the examiners. 15
Forms of
licenses.
1915, 296,
§§2,3.
1918,213, § 1;
257, § 342.
1919, 2: oG;
333. § 8.
1920, 2.
4 Op. A. G. 631.
Fees.
Re-examina-
tion.
Expiration
and renewals,
"Certifi-
cate A."
Section 3. Two forms of licenses shall be issued. The first, herein-
after referred to as "Certificate A", shall be known as "master elec-
trician's license", and the second, hereinafter referred to as "Certificate
B", shall be known as "journeyman electrician's license".
(1) "Certificate A" shall be issued to any person, firm or corporation
engaged in or about to engage in the business of installing electrical
wires, conduits, apparatus, fixtures and other electrical appliances, qual-
ified unfler this chapter. The certificate shall specify the name of the
person, firm or corporation so applying, and the name of the person, who
in the case of a firm shall be one of its members, and in the case of a cor-
poration, one of its officers, passing said examination, by which he or it
shall be authorized to enter upon or engage in business as set forth therein.
The holding of " Certificate A " shall not entitle the holder individually to
engage in or perform the actual work of installing electric wires, conduits
and appliances as previously described in this chapter, but shall entitle
him to conduct business as a master electrician.
(2) "Certificate B" shall be granted to any person who has passed an
examination before the state examiners of electricians. It shall specify
the name of such person, who shall thereby be authorized to engage in
the occupation of a journeyman electrician.
(3) Persons desiring an examination shall make ^^Titten application
therefor, accompanied by the proper fee, which shall be twenty-five
dollars for "Certificate A" and one dollar for "Certificate B". An
applicant failing in his examination shall not have his fee returned to
him, but shall be entitled to one free re-examination. For each subse-
quent re-examination for "Certificate A", he shall pay fifteen dollars
and for "Certificate B", fifty cents.
(4) Each " Certificate A" shall expire on July thirty-first in each year,
but may be renewed by the same person, or the same firm or corpora-
1
2
3
4
5
6
9
10
11
12
13
14
15
IG
17
IS
19
20
21
22
23
24
25
26
27
28
29
Chap. 141.] supervision of electricians. 1453
30 tion, acting by one or more of its members or officers, without further
31 examination, upon payment of a fee of fifteen dollars, application therefor Fee.
32 being made during the preceding month.
33 (5) Each " Certificate B " shall expire on July thirty-first in each year, Expirations.
34 but may be renewed upon paj-ment of a fee of fifty cents, and upon the cat'e b.-'"' '
35 same conditions set forth in the preceding paragraph.
36 (6) Holders of "Certificate A" shall keep their certificate of registra- Holders to
37 tion displayed in a conspicuous place in their principal offices or places of tJfiratls.Ttc.
38 business. Holders of "Certfficate B" shall be furnished by the exam-
39 iners with evidence of having been so licensed, in card form or otherwise,
40 which shall be carried on the person of the licensee and exhibited on
41 request.
42 (7) Any certificate expiring while the holder thereof is in the military
43 or naval service of the United States shall be renewed without further
44 examination, upon payment of the prescribed fee, at any time within four
45 months after such person's discharge from the service.
46 (8) Examination papers and applications for "Certificate A" and E^^^mination
47 " Certificate B " shall be preserved for at least three years, after which PJ^'g"^^-
48 time they may, at the discretion of the examiners, be destroyed.
49 (9) Records of the meetings of the examiners shall be open for inspec- Records to be
50 tion at all times, and they shall have printed annually a manual of their ef™ '° ""
51 regulations, including the names of all licensees.
1 Section 4. No certificates issued under this chapter shall be assign- CertiScites
2 able or transferable. They may, after hearing, be suspended or revoked abie.'^''May be
3 by the examiners upon failure or refusal of the licensee to comply with revoked'"' ""^
4 the rules and requirements of the examiners, or for other sufficient cause. J^Jg' J^^| 1 1;
1 Section 5. Any person, firm or corporation, or employee thereof, and fg^l'Mo, 5 5.
2 any representative, member or officer of such firm or corporation indi-
3 vidually, entering upon or engaging in the business and work hereinbefore
4 defined, without having complied with this chapter, shall for the first
5 offence be punished by a fine of not less than ten nor more than one
6 hundred dollars, and for a subsequent offence by a fine of not less
7 than fifty nor more than five hundred dollars or by imprisonment in the
8 house of correction for six months, or both.
1 Section 6. No person, firm or corporation holding a " Certificate A" ^ifder'^ a'
2 shall be liable for work done by his or its employees, unless it appears ^^^^'^^ ""'
3 that such work was done with his or its knowledge or consent or by his wis, 296, § 0.
4 or its authorization.
1 Section 7. This chapter shall not apply to the installation, repairing Not to apply
2 and wiring of elevators or to work in connection with the erection, con- work.
3 struction, maintenance or repair of lines for transmission of electricity ^^^^'
4 from the source of supply to the ser^•ice switch on the premises where used
5 by municipal electric plants, by electric companies as defined in section
6 one of chapter one hundred and sixty-four, by gas companies author-
7 ized to make or sell electricity, by electric street railway companies, by
8 electric railroad companies or by railroad companies; nor to the work
9 of such plants or companies on premises owned or controlled by them;
10 nor to the work of said municipal electric plants or of said electric or gas
11 companies in installing, maintaining and repairing, on the premises of
12 customers, service connections and meters and other apparatus and
1454
SUPERVISION OF PLUilBIXG.
[Chap. 142.
appliances remaining the property of such plants or companies after 13
installation; nor to work in connection with the lighting of public ways, 14
alleys, private ways or private or public parks, areas or squares; nor to 15
the work of companies incorporated for the transmission of intelligence 16
by electricity in installing, maintaining or repairing wires, apparatus, 17
fixtures or other appliances used by such companies and necessary for 18
or incident to their business, whether or not such wires, conduits, appa- 19
ratus, fixtures or other appliances are on its own premises. 20
Exemption c
apprenticei? :
certain elec-
tricians.
1915. 296. §
4 Op. A. G.
496.
nd Section 8. This chapter shall not forbid the emplojTnent of learners 1
or apprentices working with and under the direct personal supervision of 2
*■ licensed journeymen electricians. 3
Electricians employed by theatrical companies may install temporary 4
■u"iring and appliances required for the purpose of the engagement of any 5
such company, subject to the super\ision of a person licensed under this 6
chapter. 7
Electricians regularly employed by firms or corporations other than 8
holders of "Certificate A" may install such electrical wiring, conduits 9
and appliances or make such repairs as may be required only on the prem- 10
ises and property of such firms or corporations; pro\'ided, that such 11
electricians hold journeymen's licenses, and ha^vB complied with this 12
chapter. 13
mlssteLuInt. SECTION 9. Any person applying for a journeyman's license and 1
1918! 257' * °' making any misstatement as to his experience or other qualifications, or 2
liio's ^^^y Person, firm or corporation subscribing to or vouching for any such 3
1920! 2. misstatement, shall be subject to the penalties set forth in section five. 4
Se?and fines^ SECTION 10. Fccs and fiucs collcctcd Under this chapter shall be paid 1
1913, 296, § 6. to the commonwealth. 2
REFERENCE.
§ 2. Certain state officials to be state examiners of electricians, Chap. 13, § 32.
CHAPTER 142.
SUPERVISION OF PLUMBING.
1. Definitions.
2. Application of cliapter.
3. Master plumbers and journej-men
must be licensed, etc.
4. Rules for examinations of plumbers, etc.
5. Fees for licenses, examination and re-
newals.
6. Licenses valid throughout common-
wealth. Registration. Revocation
of licenses.
7. Temporary suspension of license for
violation of statute, etc.
8. Rules as to construction, etc., in cer-
tain towns. Revision of rules.
9. Appointment and compensation of in-
spectors of plumbing. Appeal from
inspector's decision, etc.
Sect.
10. Inspection districts.
11. Appointment and duties of inspectors
in cities and in certain towns.
12. Appointment of additional inspectors.
13. Regulation of plumbing, fi.xtures, etc.
14. Sections 1 to 16 to apply to persons
learning business, when.
15. Expenditure of fees.
10. Penalty for certain violations. Penalty
for violation by towns.
17. Marking, etc., of range boilers.
IS. Same subject.
19. Penalty for violation of sections 17
and 18.
20. Exception to sections 17, IS and 19.
Chap. 142.] supervision of plitmbing. 1455
1 Section 1. In this chapter the following words shall have the fol- fs|4''455""i j
2 lowing meanings: mn-f;' «r'Io'
d L ertihcate , a certmcate or registration issued m accordance with 219 Mass. 3.3.
4 section three of chapter five hundred and thirty-six of the acts of nine- Jop. a. G.252.
5 teen hundred and nine, section two of chapter five hundred and ninety-
6 seven of the acts of nineteen hundred and ten or chapter ^xe hundred
7 and eighteen of the acts of nineteen hundred and twelve.
8 "Examiners", state examiners of plumbers appointed under section
9 ten of chapter seventeen.
10 "Journeyman", a person who himself does any work in plumbing sub-
11 ject to inspection under any law, ordinance, by-law, rule or regulation.
12 "Master plumber", a plumber having a regular place of business and
1.3 who, by himself or journeymen plumbers in his employ, performs plumb-
14 ing work.
15 "Practical plumber", a person who has learned the business of plumb-
16 ing by working for at least two years as an apprentice or under a verbal
17 agreement for instruction and who has then worked for at least one year
IS as a journeyman plumber.
19 "Registered", registered in accordance with section three of chapter
20 five hundred and thirty-six of the acts of nineteen hundred and nine,
21 section two of chapter five hundred and ninety-seven of the acts of nine-
22 teen hundred and ten or chapter five hundred and eighteen of the acts of
23 nineteen hundred and twelve.
1 Section 2. Sections one to seven, inclusive, sections eleven and ^f^l'^pll°°
2 twelve and sections fourteen to sixteen, inclusive, shall apply to all is^s. 453. ^^
3 cities, and section thirteen shall applv to all cities except Boston; pro- 1909,' sae,' § s. "
4 \'ided, that any such city except Boston may by vote of its city council 1911! 202.'
5 exempt from thfe pro\-isions of said sections any or all of its territory
6 Ijing outside of the limits of the water supply of such city, or uncon-
7 nected ^^^th a common sewer. Sections one, three, six and scA'cn and
8 sections eleven to sixteen, inclusive, shall apply to all to^^•ns which by
9 vote of their inliabitants accept said sections or have accepted cor-
10 responding proAisions of earlier laws, and said sections, except section
11 tliirteen, shall apply to all towns which accept rules formulated by the
12 examiners under sections eight and nine or have accepted them under
13 corresponding pro\'isions of earlier laws.
1 Section 3. No person shall engage in the business of a master Master
2 plumber or work as a journeyman unless he is lawfully registered, or has foumeyme"
3 been licensed by the examiners as pro\ided in tliis chapter. The license iTcensed, etc
4 or certificate of a journeyman shall be exliibited whenever required by isM'tsl'f/'
5 an inspector of plumbing. Every master plumber's license or certificate fgmM'i}-
G shall at all times be displayed conspicuously VAithin liis place of business. 213 iiass. iss.
217 Mass. 134. 219 Ma.ss. 219. 4 Op. A. G. 252.
1 Section 4. The examiners may make such rules as they deem neees- Rules for
2 sary for the proper performance of their duties, which shall take effect of plumber".^
3 when approved by the department of public health. They shall examine f^Q^^ 477^
4 each applicant desiring to engage in the business of a master plumber or 1894' 455
5 to work as a journeyman, as to his practical knowledge of plumbing, fJ^^jg,
6 house drainage and plmnbing ventilation, and subject him to a practical §§2,4.
7 test satisfactory to the examiners, who if satisfied of his competence shall 225 Mass'. 192.
8 issue to him a license as applied for. They shall hold frequent examina-
1456
SUPERVISION OF PLUMBING.
[Chap. 142.
tions in Boston and, twice in each year, hold examinations at five other 9
convenient places within the commonwealth. Public notice shall be 10
given of all examinations. Every application for examination shall be 11
in the handwriting of the applicant who shall be notified by the exam- 12
iners of the time and place of examination. The examiners may, without 13
payment of any fee, issue a probationary license in force for six months to 14
a person who, having worked as an apprentice, or under a verbal agree- 15
ment for instruction, for not less than three years, presents an appHca- 16
lion therefor with the signed endorsement of his employer agreeing to be 17
responsible for all work done under the license and to have the licensee, 18
at the expiration of the license, present himself for examination as a 19
journeyman. 20
Fees for
licenses,
exaniination
and renewals.
1893, 477. I 4.
1894, 455. I 4.
Section 5. The fee for the license of a master plumber shall be two 1
dollars; for examination and for renewals fifty cents each; for the license 2
of a journeyman fifty cents each. r. l. io3, § 4. 1909, 530, § 3. 3
Licenses
valid
throughout
common-
wealth.
Registration.
Revocation of
Ucenses.
1893, 477, 5 4.
1894, 455, § 4.
R. L. 103, § 4.
1909, 536, § 4.
Op. A. G.
(1920) 106.
Section 6. Licenses and certificates issued by the examiners shall 1
be valid throughout the commonwealth. The examiners shall forward 2
to the board of health of each town, or to the inspector of buildings 3
having control of the enforcement of regulations relative to plumbing in 4
such town, the names and addresses of all persons in such town to whom 5
such licenses have been granted. Licenses shall be issued for one year 6
and may be renewed annually on or before May first upon pajment 7
of the required fee. Each holder of a master plumber's certificate or 8
license shall register his name and business address with said inspector of 9
buildings if he has such control, otherwise with the board of health, in 10
the town wherein he desires to engage in business as a master plumber. 11
The examiners may, after notice and hearing, revoke the license of a 12
licensee violating any regulation relative to plumbing who has previously 13
been convicted of a like offence. 14
Temporary
suspension of
license for
violation of
statute, etc.
1909, 536, § 4.
Section 7. If in the opinion of such inspector of buildings, if any, 1
otherw-ise of the board of health, of a town, the holder of a license or cer- 2
tificate violates any statute, ordinance, by-law, rule or regulation relative 3
to plumbing, the said inspector or board of health of the town where such 4
violation is committed may request the examiners to forbid such holder, 5
for not more than thirty days, to engage in business in such town as a 6
master plumber or to work as a journeyman. After notice and hearing 7
both parties, the examiners maj' so forbid such holder and shall give 8
notice of their decision to each of the parties interested. 9
Rules as to
construction,
etc., in certain
towns.
Revision
of rules.
1909, 536, § 5.
Section 8. Upon petition of the board of health of any town wliich 1
has not prescribed regulations relative to plumbing under section tliir- 2
teen or corresponding proAisions of earher laws, the examiners shall 3
formulate rules relative to the construction, alteration, repair and in- 4
spection of all plumbing work within such town, wliich rules, when 5
approved by the department of public health and accepted by the said 6
board of health and published once a week for tliree consecutive weeks 7
in some newspaper published in said town, shall have the force of law. 8
Such rules may be re\'ised by the examiners upon petition of the board 9
of health. 10
Ch.\P. 142.] SUPERVISION OF PLimBING. 1457
1 Section 9. Within thirty days after rules have taken effect as pro- Appointment
2 vided in the preceding section, the local board of health shall appoint an sation™}"*"
3 inspector of plumbing having the qualifications and duties specified in pluStblng! °'
4 sections eleven and twelve to hold office for three years unless, after inspector™™
5 hearing, sooner removed for cause. He shall receive from the town com- ?^n'n'°=:'J'/*f ,=
6 pensation to be fixed by the appomtmg board, subject to the approval of
7 the selectmen. Appeal from a decision of such inspector may be made to
8 the examiners within ten days from the date of notice of his decision.-
9 The appellant shall deposit five dollars with the examiners to be returned
10 if the appeal is sustained, otherwise to be paid to the commonwealth.
11 The decision of the examiners, a copy of which shall be served on each
12 person interested, shall be subject to the approval of the department of
13 public health and to review by the superior court.
1 Section 10. Two or more towns may unite in forming an inspection inspection
2 district, the expense thereof to be paid on such basis as may be agreed igMlM'e, § 6.
3 upon by the boards of health thereof.
1 Section 11. The said inspector of buildings, if any, otherwise the Appointment
2 board of health, of each city and town, shall, ^^ithin three months after p? inspectors
3 it becomes subject to sections one to sixteen, inclusive, appoint from SnceTTain"''
4 the classified ci\'il ser\-ice list one or more inspectors of plumbing who ^ggs^i?? 5 5
5 shall be practical plumbers and shall have had practical experience i|9|^ Hi § 5.
6 either as master plumbers or journejinen, continuously, during five R- l' los, § 5.
7 years next preceding their appointment. Such inspector of buildings
8 or board may remove them for cause shown and shall, subject to, ap-
9 proA^al of the city council or selectmen, fix their compensation which
10 shall be paid by the city or town. Said inspectors of plumbing shall
11 inspect all plumbing in process of construction, alteration or repair for
12 which permits are granted \\ithin their respective cities and towns and
13 shall report to their appointing power or board violations of any law,
14 ordinance, by-law, rule or regulation relative to plumbing; they shall
15 perform such other appropriate duties as may be required. The ap-
16 proval of plumbing by any inspectors other than those provided for by
17 this chapter shall not be a compliance therewith.
1 Section 12. No inspector of plumbing shall inspect or appro\e any Appointment
2 plumbing work done by himself, his employer, employee or one employed hispectorT''
3 with him, but in a city or to^Mi subject to sections one to sixteen, in- r.^l.Ios, §6.
4 elusive, the said inspector of buildings, or the board of health, shall in
5 the manner pro^^ded in the preceding section appoint an additional
6 inspector of plumbing as therein pro\ided, who shall inspect plumbing
7 so done. Said additional inspector may act in the absence or disabiUty
8 of the local inspector and for his ser\-ices shall receive like compensation.
9 This section shall not apply to any city or town establisliing an amiual
10 salary for the inspector of plumbing, and in such city or town the in-
11 spector of plumbing shall not engage in or work at the business of
12 plumbing.
1 Section 13. Each city, except Boston, and each town which has Regulation of
2 five thousand inliabitants or more or which has a system of water supply g'"'"'''°^'
fixtures, etc.
3 or sewerage, shall by ordinance or by-law prescribe regulations for the Utt Ijf, [
4 materials, construction, alteration and inspection of all pipes, tanks, jigl; 4^ ;,; | {■
5 faucets, valves and other fixtures by and through which waste water or f-^^- 1°'-^^ \Jy^
1458
SUPERVISION OF PLUMBING.
[Chap. 142.
sewage is used and carried; and shall provide that such pipes, tanks, 6
faucets, valves or other fixtiues shall not be placed in any building in such 7
city or town, except in accordance ^\-ith plans approved by said inspector 8
of buildings, if any, other^\-ise by the board of health; and shall further 9
proN-ide that no plumbing shall be done, except to repair leaks, -without a 10
permit first being issued therefor, upon such terms and conditions as 11
such cities or towns shall prescribe. This section shall not prevent boards 12
of health from making such regulations relative to plumbing and house 13
drainage authorized by law prior to July sixth, eighteen hundred and 14
ninety-four, as are not inconsistent with any ordinance or by4aw made 15
under authority of this section. 16
1 to''?6 to Section 14. Sections one to sixteen, inclusive, shall apply to all 1
p?re?ns°ieara- persous learning the business of pliunbing when they are sent out to do 2
when"'''°^^^' the work of a jom-ne;yman. iso*. 453, § 9. r. l. 103, § 9. 3
Expenditure
of fees.
1S94, 455, § 11.
R. L. 103, § 11.
Section 1.5. Inspectors of buildings and boards of health may ex-
pend such portion of the fees collected by them under tliis chapter as is
necessary to properly perform the duties imposed thereby, and they shall
annually, before June first, make a detailed report to their respective
cities or towns of all their proceedings under sections one to sixteen,
inclusive, during the preceding year.
Penalty for
certain viola-
tions.
Penalty for
violation by
towns.
1888, 105, § 2.
1893, 477, § 7.
1894, 455, § 8.
R. L. 103, § 8.
1909, 536, § 10.
1914, 287.
225 Mass. 192.
Section 16. Every person engaged in the business of a master 1
plumber or working as a journejonan not lawfully registered or licensed, 2
if required by tliis chapter; and every person engaging in or working 3
at the business of plumbing in a city or town when forbidden so to 4
do under section seven; and every master plumber who engages or 5
employs any person to work as a journeyman who has not been so regis- 6
tered or licensed; and every person violating any p^o^^sion of sections 7
one to fifteen, inclusive, of this chapter or any ordinance, by-law, rule 8
or regulation made thereunder, shall be punished by fine not exceeding 9
fifty dollars. Any city or town subject to the preceding sections of 10
tliis chapter neglecting to comply -nith any of its pro\-isions shall forfeit 1 1
fifty dollars to the use of the commonwealth for each month during 12
which such neglect continues. 13
Marking, etc.,
of range
boilers.
1916, 154, § 1.
Section 17. No range boiler shall be sold or offered for sale unless
its capacity is plainly marked thereon in terms of Massachusetts stand-
ard liquid measure, and with the maker's business name, in such manner
as to be easily identified.
Same subject.
1916, 154, § 2.
1917, 39, § 1.
Section 18. No copper, iron or steel pressure range boiler, plain 1
or galvanized, or other vessel or tank in which water is to be heated 2
under pressure, shall be sold or offered for sale -without having stamped 3
thereon the maker's guarantee that it has been tested to not less than 4
two hundred pounds hydraulic or hydrostatic pressure to the square 5
inch, together with the maximum working pressure at which it may be 6
installed. And no such boiler, or other vessel or tank in which water is 7
to be heated under pressure, shall be installed if the working pressure is 8
greater than forty-two and one half per cent of the guaranteed test pres- 9
sure marked thereon by the maker. 10
Chap. 143.]
INSPECTION OF BUILDINGS, ETC.
1459
1 Section 19. Whoever sells or offers or exposes for sale any range Penalty for
2 boiler not marked or stamped as provided in the two preceding sections, S^uonTi?
3 or which is falsely marked as having a capacity which is greater by seven !l9?6!ts4, § 3.
4 and one half per cent than its true capacity, or who marks or causes the ^^"- ^^' ^ ^■
5 same to be marked with such false capacity, shall be pvmished by a fine
6 not exceeding fifty dollars. The inspectors of plumbing within their
7 respective cities and towns shall cause this and the two preceding sec-
8 tions to be enforced.
1 Section 20. The tliree preceding sections shall not apply to the sale Esception to
2 or offering for sale of installed range boilers or to the sale or offering for if "nd^o!'
3 sale of range boilers as junk. i9i6, 154, 5 4.
CHAPTER 143
INSPECTION AND REGULATION OF, AND LICENSES FOR, BUILDINGS,
ELEVATORS AND CINEMATOGRAPHS.
Sect.
general provisions.
1. Definitions.
2. Height of buildings in cities.
INSPECTION OF BUILDINGS.
3. Regulations by cities and towns.
4. Building limits in towns.
6. Certain structures common nuisances.
6. Inspector of buildings.
7. Time allowed to remove or repair un-
safe structure.
8. Proceedings on failure to remove or
repair.
9. Dangerous structure to be removed
or repaired by building inspector.
Penalty.
10. Person aggrieved may apply for jurj-.
11. Notice to non-resident.
12. Restraining illegal construction, etc.
13. State inspector may inspect in certain
cities and towns.
14. Dangerous structures to be removed or
repaired.
15. Construction of public buildings.
16. Penalty.
17. Temporary flooring during construction.
18. Same subject.
19. Penalty.
20. Hatchways, etc., to be protected.
21. Fire escapes, exits, etc.
22. Fire escapes to be kept clear.
23. Stairways to be kept clear.
24. Fire extinguishers, etc.
25. Wooden flues, etc., prohibited.
26. Construction of theatres.
27. Fire resisting partition, curtains, etc.
28. Certificate of inspection.
Sect.
29. Application for certificate.
30. Notice of change in use of building.
31. Notice of failure to conform to law.
Schoolhouses in cities to have fire es-
capes.
Cities may require three storj' build-
ings to conform to this chapter.
Licenses for theatres, etc.
Liability of licensee.
Inspection of theatres, etc.
37. Reports to be kept on fUe.
38. Copies of ratings, etc., to be sent to
licensee. Penalty for non-compli-
ance with order.
Copy of ratings, etc., may be posted.
Penalty for false statement, etc.
Penalty for giving or receiving free pass.
Ventilation and sanitation. Inspection
by department of public health.
Joint owner, etc., may provide fire es-
cape.
Watchmen in hotels, etc.
Modification of preceding section.
Further provisions for protection of life
may be prescribed. Penalty.
47. Rope fire escapes in hotels, etc.
48. Inspection of hotels, etc.
49. Certificate of inspector prerequisite to
license.
50. Penalty for hindering inspector, etc.
61. Owner must see that law is obeyed.
52. Penalty for unlicensed use as theatre,
etc.
53. General penalty.
54. Enforcement.
55. Appeal.
56. J'ees for experts.
57. Restraining illegal erection, etc.
32.
33.
34.
35.
36.
1460
INSPECTION OF BUILDINGS, ETC.
[ClL\P. 1-13.
Sect.
58. Concurrent jurisdiction of inferior
courts.
59. Enforcement of inspectors' orders.
60. Restraining illegal use, etc., of build-
ings.
61. Notice to assessors of permits for build-
ing.
ELEV.4T0RS.
62. Installation and inspection.
63. Test of safety devices.
64. Report of inspection.
65. Certificate of inspection to be posted
in elevator.
66. Report of accidents and of defective ele-
vators.
67. Petition for changes in regulations.
68. Board to amend regulations.
69. Establishment of regulations.
Sect.
70. .4ppea!.
71. Penalty.
CINEMATOGRAPHS.
72. Regulation.
73. Inspection.
74. Fee for inspection.
75. Licenses.
7C. Assistant's permit.
77. Second class license.
78. First class license.
79. Eligibility for examination.
SO. Special license.
81. Suspending or revoking license or permit.
82. Permits for special exhibitions.
83. Application of certain sections.
84. Penalty.
85. Special licenses for operators in
churches, schools, etc.
Definitions.
R. L. 104, § 14.
1904,450, I 1.
1913, 610, § L>;
655, §§ 14.
30, 39. 41;
S06, 5 1.
2 Op. A. G. 564.
GENERAL PROVISIONS.
Section 1. In this chapter the following terms, unless a contrary 1
meaning is required by the context or is specificallj'' prescribed, shall have 2
the following meanings: 3
"Alteration", changes in or addition to a building. 4
"Department", department of public safety. 5
"Inspector", an inspector of the division of inspection of the depart- 6
ment of public safety, except that in sections tliirty-four to thirty-eight, 7
inclusive, "inspector" shall include the inspectors of the building de- 8
partment of Boston and in sections sixty-tliree to sixty-six, inclusive, 9
"inspector" shall include a building inspector of a city or town. 10
"Inspector of buildings", a building inspector of a city or town. 11
"Miscellaneous hall", a building or part thereof containing an as- 12
sembly hall with a seating capacity of not more than four hundred, a 13
society hall, or a hall in a public or private school building. 14
"Public building", any building or part thereof used as a public or 15
private institution, schoolhouse, church, theatre, special hall, public hall, 16
17
18
19
20
21
'>2
miscellaneous hall, place of assemblage or place of public resort
"Public hall", any building or part thereof, except theatres, armories,
churches and schools, containing an assembly hall with a seating capacity
of more than four hundred and used for public gatherings and for such
entertainments, not requiring the use of scenery and other stage appli-
ances, as the licensing officer may approve.
"Repair", the reconstruction or renewal of a building or part thereof 23
damaged by fire or other cause. 24
"Special hall", a building or part thereof containing an assembly hall 25
with a seating capacitj^ of more than four hundred which may be used 26
for occasional performances for the entertainment of spectators, with the 27
use of scenery under such conditions as the licensing officer shall direct, 28
and for public gatherings. 29
"Story", any horizontal portion through a building between floor and 30
ceiling of which the ceiling is six feet or more above the average grade 31
of the sidewalk or ground adjoining. 32
"Supervisor of plans", an inspector of the division of inspection of the 33
department of public safety designated by the commissioner of public 34
ClLiP. 143.] INSPECTION OF BUILDINGS. 1461
35 safety to receive the plans and specifications of all buildings subject to
36 this chapter, to be erected or in which alterations are to be made, and
37 to act officially upon them under the direction of the chief of inspections
38 of the department of public safety.
39 "Theatre", a building or part thereof in which it is intended to make 2 0p. a. g.s64.
40 a business of the presentation of performances for the entertainment of
41 spectators, which has a seating capacity of more than foiu- hundred, with
42 a stage which can be used for scenery and other stage appliances.
1 Section 2. In a city no building shall be erected to a height of more Height of
2 than one hundred and twenty-five feet above the grade of the street; citles"^^ '°
3 but this restriction shall not apply to grain or coal elevators or sugar r*^l! 26, § 37.
4 refineries, nor to steeples, domes, towers or cupolas erected for strictly iu'^u^a'Qi.^^'
5 ornamental purposes, of fireproof material, on buildings of the above
6 height or less. The supreme judicial or superior court may enforce this
7 section and restrain any violation thereof. Tliis section shall not apply
8 to Boston.
inspection of BmLDINGS.
1 Section 3. Every city, except Boston, and every town which accepts Regulations
2 this section or has accepted corresponding pro\'isions of earlier laws towns!'^^'"'
3 may, for the prevention of fire and the preservation of life, health and §§^'2. 4.'
4 morals, by ordinances or by-laws consistent with law and applicable fsw.^si',! n.
5 tliroughout the whole or any defined part of its territory, regulate the f^^- ^°*- 5 1-
6 inspection, materials, construction, alteration, repair, height, area, loca- }23\P,^'l-2
7 tion and use of buildings and other structures within its limits, except 143 Mass! 593!
8 such as are owned or occupied by the United States or by the common- 203 mSs! 241!
9 wealth, and except bridges, quays and wharves, and may prescribe penal- lii Mast 296!
10 ties not exceeding one hundred dollars for every violation of such ordi- 5}? jj^g^; 273.
11 nances or by-laws. 224 Mass! 78."
1 Section 4. In a town which accepts this and the following section Building
2 or has accepted corresponding prov^isions of earlier laws, no dwelling t'lwns.'^
3 house or other structure more than eight feet in length or breadth and §|'i','3.'^'
4 seven feet in height, except detached houses or structures situated more f8^4.4°8*i,H2.
5 than one hundred feet from any other building and wooden structiu-es fg^- J°*' 1 1-
6 erected on wooden wharves, shall be built within such limits as the town
7 may from time to time prescribe, unless made of and covered with an
8 incombustible material, or unless a license is granted therefor by the
9 selectmen for public good or necessity and recorded in the town records.
1 Section 5. A building or structure erected in violation of the pre- Certain stmc-
2 ceding section shall be deemed a common nuisance without other proof nu"iSnces.™°°
3 thereof than proof of its unla^^'ful construction and use; and the select- p'a'm^'H'
4 men may abate and remove it in the same manner in which boards of ^^^' |^|' | ^^•
5 health may remo\-e nuisances^^nder sections one hmidred and twenty- i9i3. ess, § 3.
6 three to one hundred and twenty-five, inclusive, of chapter one hmidred
7 and eleven.
1 Section 6. In a city or town which accepts this and the six follow- inspector of
2 ing sections or has accepted corresponding provisions of earlier laws, i878,47!§i.
3 the superintendent of public buildings or such other person as the mayor ^39^4, 4s\,\ u.
4 of such city or the selectmen of such town may designate shall be in- ^^l' Jg^; f J;
5 spector of buildings, and, immediately upon being informed by report i90|. 221, 1 1.
1462
INSPECTION OF BUILDINGS.
[ClL\P. 143.
1918, 291. 5 23.
207 Mass. 285.
20S Mass. 51.
or otherwise that a building or other structure or anything attached 6
to or connected therewith in that city or town is dangerous to Hfe or 7
Umb, shall inspect the same; and if it appears to him to be dangerous 8
he shall forthwith in wTiting notify the owner, agent or any person 9
having an interest therein to remove it or make it safe. If it appears that 10
such structure would be specially unsafe in case of fire, it shall be deemed 11
dangerous within the meaning hereof, and the inspector of buildings may 12
affix in a conspicuous place upon its exterior walls a notice of its danger- 13
ous condition, which shall not be removed or defaced without authority 14
from him. 15
Time allowed
to remove or
repair unsafe
structure.
1878. 47, § 2.
P. S. 104. § 5.
1888. 399, § 3.
1894. 481,
§§ 15,49.
1899, 139, § 2.
R.L. 104, § 5.
1913, 655. § S.
Section 7. Any person so notified shall be allowed until twelve 1
o'clock noon of the clay following the service of the notice in which to 2
begin to remove such structure or make it safe, and he shall employ 3
sufficient labor speedilj' to make it safe or remove it; but if the public 4
safety so requires and if the aldermen or selectmen so order, the inspec- 5
tor of buildings may immediately enter upon the premises with the 6
necessary workmen and assistants and cause such unsafe structure to 7
be made safe or taken down without delay, and a proper fence put up 8
for the protection of passers-by. 9
Proceedings
on failure to
remove or
repair.
1878, 47. § 3.
P. S. 104, § 6.
1888, 399, § 4.
1894,481,
B 16, 50.
1899, 139, § 3.
R. L. 104. § 6.
1913, 655, § 6.
Section 8. If an owner, agent or person interested in such unsafe 1
structure refuses or neglects to comply with the requu-ements of such 2
notice within the time limited, and such structure is not made safe or 3
taken down as therein ordered, a careful survey of the premises shall 4
be made by a board consisting in a city of the city engineer, the chief 5
engineer of the fire department and one disinterested person to be ap- 6
pointed by the inspector of buildings, and in a town of a surveyor, the 7
chief engineer of the fire department and one disinterested person to be 8
appointed by the inspector of buildings. If there is no city engineer in 9
such city or no chief engineer of the fire department in such city or town, 10
the mayor or selectmen shall designate one or more officers or other 11
suitable persons in place of the officers so named as members of said 12
board. A wTitten report of such survey shall be made, and a copy 13
thereof served on such owner, agent or interested person. 14
Dangerous
structure to
be removed or
repaired by
building in-
spector.
Penalty.
1878, 47,
§§ 4, 5.
P. S. 104. § 7.
1894,481, § 17.
1S99, 139, § 4.
R. L. 104, § 7.
1913, 655, I 7.
Section 9. If such report declares such structure to be dangerous, 1
and if the owner, agent or person interested continues such refusal or 2
neglect, the inspector of buildings shall cause it to be made safe or taken 3
down, and the costs and charges inciu-red shall constitute a lien upon the 4
land upon which the building is located, and shall be enforced within the 5
time and in the manner provided for the collection of taxes on land; 6
and such owner or interested person shall, for every day's continuance 7
of such refusal or neglect after being so notified, forfeit to the city or 8
town in which the structure is located not less than ten nor more than 9
fifty dollars. 10
Person ag-
grieved may
apply for jury.
1S73. 261.
1878,47,
§§ 0-8.
P. S. 104,
§§ 8-10.
1894, 481,
§§ 18-20.
1S99, 139, § 5.
Section 10. An owner or interested person aggrieved by such order
may have the remedy prescribed by section two of chapter one hun-
dred and thirty-nine; but this section shall not prevent the city or
town from recovering the forfeiture provided in the preceding section
from the date of the service of the original notice, unless the order is
annulled by the jury. R. l. io4, § s. i9i3, 655, § s.
Chap. 143.] inspection of buildings. 1463
1 Section 11. If an owner or interested person lives out of the com- Notice to
2 monwealth, the notice required by section six may be served upon him i878!'47.™ib.
3 by a notary public, whose certificate of service imder liis notarial seal i8m,4m',V2i.
4 shall be sufficient evidence thereof. R. l. io4, § 9. wis, ess, § 9.
1 Section 12. The supreme judicial or superior court may restrain Restraining
2 the construction, alteration, repair, maintenance or use of a building or structionretc.
3 structure in A'iolation of any ordinance or by-law of a city or town and lUz', lis, § 3.
4 order its removal or abatement as a nuisance; and may restrain the further p^s^'iw, Vi2
5 construction, alteration or repair of a building or structure reported to be )f?|' ???•
1*11 ••! 'Ill loy4, 4ijl,
6 dangerous, under a survey authorized by section eight, until the deter- |§ ■*• 22.
7 mination of the matter, as provided in section ten. i9i3, ess, § 10.
1 Section 13. Any inspector, if called upon by the aldermen of any state inspector
2 city or by the selectmen of any town which has not accepted sections ^rfa'S atu;V°
3 six to eleven, inclusive, shall inspect any building or other structure, i8ss!°3"9?§ 1.
4 or anything attached to or connected therewith, in such city or town r^l'io4'|i2'
5 which has been represented to be dangerous to life or limb. i^i^' ^^^' § 12.
1 Section 14. If it appears to such inspector that the building or Dangerous
2 other structure, or anything attached to or connected therewith, is dan- be™emoved°
3 gerous to life or limb in case of fire or otherwise, he shall cause it to be iss^s.^m'^j 2.
4 removed or rendered safe in the manner provided by sections six to ^^f- *ll- 1 j|-
5 eleven, inclusive, and may cause proceedings to be instituted under sec- ^^^^- ^^^- 5 is.
6 tion twelve.
1 Section 15. Except in Boston, no building which is designed to be Construction
2 used, or in which alteration shall be made for the purpose of using it, or CuSdin^.
3 continuing its use, in whole or in part, as a public building, or as a factory, }||| |Jg' ^ '•
4 workshop or mercantile or other establishment, and to have accommoda- fgg|* jgg
5 tions for ten or more employees, and no building more than two stories is^*',!^?! § s]
6 in height designed to be used above the second story, or in which altera- r. l. lol,'
7 tion shall be made for the purpose of using it, or continuing its use, in igisT'ess.
8 whole or in part, as an office building, dormitory, hotel, family hotel, 230^11833.306.
9 apartment house, boarding house, lodging house or tenement house, and 4 ^p- ^- g- flJ-
10 to have eight or more rooms above said story, shall be erected, and no o^i^jfu
11 alteration shall be made therein, until a copy of the plans and specifica-
12 tions thereof has been deposited with the supervisor of plans by the
13 person causing its erection or alteration or by the architect thereof. Such
14 plans and specifications shall include those for heating, ventilation and
15 sanitation, if the supervisor of plans so requires. Such building shall
16 not be so erected or altered without sufficient egresses and other means
17 of escape from fire, properly located and constructed. The supervisor of
18 plans may require that stairways shall be enclosed, that they shall have
19 suitable landings, that they shall be provided with hand rails, that egress
20 doors and windows shall open outward and ha\e approved hardware,
21 that places of egress shall be properly lighted and designated, and that
22 proper fire stops shall be provided in the floors, walls, partitions and
23 stairways of such building. He may make such further requirements as
24 may be necessary to prevent the spread of fire or its communication from
25 any steam boiler or heating apparatus therein. The certificate of ap-
2G proval by the supervisor of plans of such plans and specifications, en-
27 dorsed with the approval of the chief of inspections of the department,
1464
INSPECTION OF BUILDmGS.
[Chap. 143.
or a specification of requirements necessary for compliance with sections 28
fifteen to sixty, inclusive, set forth in detail and so endorsed, shall be 29
issued to the person causing its erection or alteration, or to the architect 30
thereof, and a copy of the same, together with the plans, shall then be 31
turned over to the inspector in whose district the building is to be erected 32
or altered, who shall enforce the requirements thereof and supervise such 33
erection or alteration. After a certificate of approval or a specification 34
of requirement has been issued, no change shall be made in the plans or 35
specification or in the building without the wTitten permission of the 36
supervisor of plans. 37
Penalty.
1888, 316, § 2.
1892.419,
§ 138.
1S93, 199. 5 2.
1894, 382, § 3;
481. S§ 26, 39.
R. L. 104,
§§ 24, 53.
Section 16. ^^^^oeve^, except in Boston, erects, constructs or makes 1
alteration in a building, or draws plans or specifications, or superintends 2
the erection, construction or alteration of a building in violation of 3
sections fifteen to sixty, inclusive, shall be punished by a fine of not less 4
than fiftv nor more than one thousand dollars. wis. ess, §§ le, 52. 5
Temporarj'
flooring during
construction.
1901, 166, § 1.
R. L. 104, § 44.
1909, 514, § 97.
1913, 655, § 17.
194 Mass. 431.
213 Mass. 229.
Penalty, § 19.
Section 17. If, in the erection of an iron or steel framed building, 1
the spaces between the girders or floor beams of any floor are not filled 2
or covered by the permanent construction of said floors before another 3
story is added to the building, a close plank flooring shall be placed and 4
maintained over such spaces from the time when the beams or girders 5
are placed in position until said permanent construction is applied ; but 6
openings protected by a strong hand railing not less than four feet high 7
may be left through said floors for the passage of workmen or material; 8
provided, that when such flooring cannot be used without serious inter- 9
ference with the work of construction, such provision shall be made to 10
protect the workmen from falling material as the inspector shall direct. 11
Same subject.
1901, 166, § 2.
R. L. 104, § 45.
1909, 514, 5 98.
1913. 65S, § 18.
Penalty. § 19.
Section 18. In the construction of any iron or steel framed building 1
having a clear story of twenty-five feet elevation or more, a staging with a 2
close plank flooring shall be placed under and not more than ten feet 3
below the under side of the whole extent of the beams, girders or trusses 4
of such story upon which iron or steel workers are working. 5
Penalty.
1901, 166, § 4.
R. L. 104, § 46.
1909, 514, § 99.
1913, 655, I 19.
Section 19. Violations of any provision of the two preceding sec- 1
tions shall be punished by a fine of not less than fifty nor more than five 2
hundred dollars. 3
14.
Hatchways,
etc.. to be
protected.
1877, 214, §
P. S. 104. I
1SS2, 20S.
1894, 481,
§§41,62.
R. L. 104,
§§ 43. 56.
1909, 514,
§§ 36. 96.
1913, 806, § 13.
145 Miiss. 123.
202 Mass. 82.
Section 20. The openings of hoistways, hatchways and well holes 1
on every floor of a public building, except in Boston, shall be protected 2
by suflicient trapdoors or self-closing hatches or such other safeguards 3
as an inspector directs; and due diligence shall be used to keep such 4
trapdoors closed at all times except when in actual use by the occupant 5
of the building haA-ing the use and control of the same. Violations of 6
this section shall be punished by a fine of not more than one hundred 7
dollars. 213 Mass. 573. 8
Fire escapes,
exits, etc.
1877, 214,
§§ 4, 5, 19.
1880, 197.
P. S. 104.
§§ 1.5, 16.
18-20. 23.
Section 21. Except in Boston, any building in whole or in part used 1
as a public building, and any building in which ten or more persons 2
are employed in a factory, workshop, mercantile or other establishment, 3
and an office building, dormitory, hotel, family hotel, apartment house, 4
ClLiP. 143.] INSPECTION OF BUILDINGS. 1465
5 boarding house, lodging house or tenement house which has eight or is82, 266,
6 more rooms, or in which ten or more persons are accommodated, lodge ilsk Isi, § 2.
7 or reside above the second story, the owner, lessee or mortgagee in pos- lii^'fT.'^'
8 session whereof is notified in writing bj'- an inspector that sections fifteen Jg^j' ifl' | f'-
9 to sixty, inclusive, apply thereto, shall be provided with proper egresses i^,- ^^ ^°f
10 or other means of escape from fire sufficient for the use of all persons i907,'5o.3, § 1,
11 accommodated, assembled, employed, lodged or resident therein; but §§26,52.'
12 no owner, lessee or mortgagee in possession of such building shall be i2r/i/aM'. L^'
13 deemed to have violated this provision unless he has been notified in 22SMass:368.
14 writing by an inspector as to what additional egresses or means of escape lo"' a'§ 347'
15 from fire are necessary, and for thirty days has neglected or refused to
16 provide the same. The egresses and means of escape shall be kept un-
17 obstructed, in good repair and ready for use, and, if the inspector so
18 directs in WTiting, every such egress shall be properly lighted and pro-
19 vided with a sign having on it the word "Exit" in letters not less than
20 five inches in height, and so made and placed as plainly to indicate to
21 persons within the building the situation of such egresses; stairways
22 shall have suitable hand rails; egress doors and windows shall open
23 outwardly, and women or children shall not be employed in a factory,
24 workshop, mercantile or other establishment in a room above the sec-
25 ond story from which there is only one egress. The certificate of the
26 inspector shall be conclusive evidence of a compliance with the said re-
27 quirements. Portable seats shall not be allowed in the aisles or passage-
28 ways of such buildings during any service or entertainment held therein.
29 Stairways on the outside of the building shall have suitable railed land-
30 ings at each story above the first, accessible at each story from doors or
31 windows, and such landings, doors and windows shall be kept clear of ice,
32 snow and other obstructions.
1 Section 22. Any article placed upon a fire escape or an outside means Fire escapes
2 of egress of any building is hereby declared a common nuisance. Any Jfear^ "''"'
3 court authorized to issue warrants in criminal cases may, upon complaint ^^°^' ^^'' ^ '■
4 under oath made by any police officer that any article is placed or raain-
5 tained upon a fire escape or outside means of egress of any building,
6 issue a warrant to bring such article when found before a court having
7 jurisdiction of the same, and all articles seized under the authority of such
8 a warrant shall be disposed of in like manner as gaming implements
9 seized under chapter two hundred and seventy-six. Any owner, lessee,
10 tenant or occupant of any building who maintains or permits to remain
11 upon any fire escape or outside means of egress of any building any
12 article for more than twenty minutes shall be punished by a fine of not
13 more than one hundred dollars. The existence of any article upon a fire
14 escape or outside means of egress of any building shall be prima facie
15 evidence that such article was so placed, maintained or permitted to
16 remain by the occupant of the premises having access from said building
17 to said fire escape or outside means of egress.
1 Section 23. Every stairway of every building shall be kept free and |f \''^','^^^ '° ^^
2 unobstructed, and any person who permits any article to remain in any wos, 347,§ 2.
3 stairway of any building in such a manner as may impede the egress of
4 any person lawfully in said building or the ingress of any person lawfully
5 entitled to enter said building shall be punished by a fine of not more
6 than five hundred dollars. The existence of any article in any such
1466
INSPECTION OF BUILDINGS.
[ClL\P. 143.
stairway in any building shall be prima facie evidence that it was placed 7
or permitted to remain therein by the owner, lessee, tenant or occupant 8
of the building. 9
Fire extin-
guishers, etc.
1877, 214,
§§4,9.
P. S. 104,
H 19, 23.
1888,426, § 9.
1S94, 481,
§§ 34, 39.
R. L. 104,
§§ 26, 53.
Section 24. Except in Boston, the basement and each story of a
building which is subject to section twenty-one shall be supplied with
means of extinguishing fire, consisting of a hose attached to a suitable
water supply and capable of reaching any part of such basement or story,
or of such portable apparatus as the inspector shall direct; and such
appliances shall be kept at all times ready for use and in good condition.
1913, 655, §5 21, 52.
Wooden
flues, etc.,
prohibited.
1885, 326.
1888. 316, 5 1
426. § 8.
1892, 419.
§ 138.
1893, 199, § 1
1894, 481,
5§ 25, 33, 39.
Section 25. Except in Boston, no wooden flue or air duct for heat-
ing or ventilating purposes shall be placed or remain placed in any build-
ing subject to sections fifteen and twenty-one, and no pipe for con\'eying
hot air or steam in such building shall be placed or remain placed
within one inch of any woodwork, unless protected to the satisfaction
of the inspector by suitable guards or casings of incombustible material.
R. L. 104, §§ 23, 53.
1913. 655. §§ 22, 52.
Construction
of theatres.
1877,214, § 5.
P. S. 104, § 20
1894, 382, § 1.
R. L. 104,
5§ 36, 53.
1913, 655.
§§ 23, 52.
189 Mass. 568.
Section 26. Except in Boston, the audience hall in a building erected
or designed to be used in whole or in part as a theatre, or in which any
change or alteration shall be made for the purpose of using it as a theatre,
shall not be placed above the second floor of such building. The au-
dience hall and each gallery of every such building shall, respectively,
i'opt'ArG."306. have at least two independent exits, as far apart as may be; and if the
"' ' ■ audience hall is on the second floor, the stairways from said floor to the
ground floor shall be enclosed with fireproof walls, and shall have no 8
connection with the basement or first floor of the building. Every such 9
exit shall have a width of at least twenty inches for e\'ery one hundred 10
persons which such hall, or gallery from which it leads, is capable of 11
holding; but two or more exits of the same aggregate width may be sub- 12
stituted for either of the two recjuired exits. None of the recjuired exits 13
shall be less than five feet wide; provided, that the exits from a gallery 14
capable of holding not more than one hundred and fifty persons may each 15
be less than five feet but not less than three feet wide. 16
Fire resisting
partition,
curtains, etc.
18SS, 207;
426, § 1.
1892, 419,
§ 138.
1894,481,
§§ 24, 39.
1900, 335, § 1.
R. L. 104,
H 37, 63.
1913, 655,
§§ 24, 52.
Section 27. Except in Boston, the wall or partition between the 1
auditorium and stage of every theatre shall be fireproof or fire resisting 2
on the stage side, for the whole width of the auditorium and the whole 3
height of the auditorium or stage, as the inspector shall direct, and all 4
doors in such wall or partition shall be fireproofed and provided with 5
approved self-closing devices. The proscenium or curtain opening shall 6
have a fire resisting curtain of an incombustible material, properly con- 7
structed and operated by appro\'ed mechanism. There shall be one or 8
more ventilators near the centre and above the highest part of the stage, 9
equal in area to one tenth of that of the stage floor back of the fire re- 10
sisting cm-tain, and arranged so as to open automatically from heat, and 11
by a cord or cords from the stage floor, as the inspector shall direct. 12
?nn'spe^*tiqn. Section 28. Exccpt in Boston and as otherwise provided by law, 1
if'j2! 4i'j'; ^ ^' t'^^ inspectors shall from time to time examine all buildings within their 2
§ 138. respective districts which are subject to sections fifteen to sixty, in- 3
Chap. 143.] inspection of buildings. 1467
4 elusive. If in the judgment of any such inspector such building con- is94, 4si,
5 forms to the requirements of said sections for buildings of its class, he r. l.'ioi.
6 shall issue to the owner, lessee or occupant thereof, or of any portion ilia^'esl.
7 thereof used in the manner described in section twenty-one, a certificate | op^'a'g. 305.
8 to that effect, specifying the number of persons for whom the egresses
9 and means of escape from fire are sufficient. Such certificate shall con-
10 tinue in force for not more than five years after its date, but so long as
11 it continues in force it shall be concIusi^'e evidence of a compliance with
12 said section by the person to whom it is issued. It shall be void if a
13 greater number of persons than is therein specified are accommodated or
14 employed, or assemble, lodge or reside within such building or portion
15 thereof, or if such building is used for any purposes materially different
16 from the purpose for which it was used at the time of the granting thereof,
17 or if its interior arrangement is materially altered, or if any egresses or
18 means of escape from fire in such building at the time of granting the
19 said certificate are rendered unavailable or are materially changed.
20 The certificate may be revoked by an inspector at any time upon WTitten
21 notice to the holder thereof or to the occupant of the premises for which
22 it was granted, and shall so be re^'oked if, in the opinion of the inspector,
23 circumstances have so changed that the existing egresses and means of
24 escape are not proper and sufficient. A copy of said certificate shall
25 be kept posted in a conspicuous place upon each story of such building
26 by the occupant of the premises covered thereby.
1 Section 29. Except in Boston, upon application to an inspector for a Application
2 certificate under the preceding section, he shall issue to the applicant an isssfwon I'.
3 acknowledgment thereof, which for ninety days, pending the granting §*i'38.*^^'
4 or refusal of the certificate, shall ha^'e the same effect as the certificate, If^ls^lJ'
5 and such acknowledgment mav be renewed by him with the same effect ?.■ h ^P,'
6 for a further period, not exceeding ninety days. lois, ess, §§ 26, 52.
1 Section 30. Except in Boston, if any change shall be made upon Notice of
2 premises for which such certificate has been issued or in the use thereof of bmfding"''*
3 which would render the certificate void according to section twenty-eight, isoiitio! ^ *'
4 the person making such change shall forthwith gi\'e written notice thereof f894*'48i,
5 to an inspector for the district or to the commissioner of public safety. ^^ ~^- ^^■
E. L. 104, §§ 17, 53. 1913, 655, §§ 27, 52.
1 Section 31. Except in Boston, if an inspector finds that any building Notice of
2 or part thereof subject to sections fifteen to sixty, inclusive, fails to con- con{o?m°to
3 form thereto, or if any change is made therein which would render a 'i^s^s, 42c., § s.
4 certificate void under section twenty-eight, he shall give WTitten notice Pjfg*^^'
5 to the owner, lessee, occupant or agent in charge thereof, specifying such |?^i;^|„^'
6 additional provisions, egresses or other means of escape from fire as in r. l.'io4,
7 his opinion may be necessary to make it conform to said section and to 1913, 'ess.
8 "obtain a certificate; and any such owner, lessee, occupant or agent in "^*•^^■
9 charge thereof failing to comply with such notice for a period of thirty
10 days shall be punished by a fine of not less than fifty nor more than one
11 thousand dollars.
1 Section 32. If a schoolhouse in any city, except Boston, has not Schooihouses in
2 been provided with a safe and proper egress or other means of escape from fiio escape's.
3 fire, as required by sections fifteen to sixty, inclusive, within six months 4si, 5 40.'
1468
INSPECTION OF BUILDINGS.
[Chap. 14.3.
R. L. 104. § 11. after the ■uTitten notice provided for in the preceding section, the mayor, 4
' ^ ' for the purpose of conforming to the provisions of this chapter relative 5
to egresses or other means of escape from fire in schoolhouses, may, upon 6
petition of one hundred citizens or taxpayers in such city, authorize the 7
expenditure upon such sclioolhouse of not more than fifteen per cent of 8
the cost thereof, payable from any money in the treasiu-y of that city 9
which is not otherwise appropriated. 10
re'quire°thKe SECTION 3.3. Any city, cxccpt Boston, may by ordinance provide that
to°con^orm'°^' scctious fifteen, sixteen, twenty-one to thirty-one, inclusive, forty-se^'en
iss^'leo'*?'"' ^'^*^ forty-eight shall apply to any building of three or more stories in
i88s;426; § 11. height within its limits.
1894, 481, §§ 36, 39.
R. L. 104, §§ 53, 54.
1913, 6.55, §§ 29, 52.
Licenses for
theatres, etc.
1904.450, § 2.
1905. 342,
§U,2.
1907, 463.
1908, 335, § 1.
1910, 284, § 1.
1913, 055, § 31.
213 Mass. 213.
Section 34. In sections thirtj'-four to thirty-eight, inclusive, the 1
term "licensing officer" shall mean the mayor of Boston and the com- 2
missioner of public safety. In Boston the mayor and elsewhere the 3
commissioner of public safety shall issue licen.ses for theatres, special 4
halls and public halls. He may require such changes in the structural .5
or other condition of any building before issuing any license as in his 6
opinion the public safety requires, but no change shall be ordered in 7
excess of the requirements for a new building of like character. In 8
buildings existing on No\ember first, nineteen hundred and thirteen, 9
an equivalent of the conditions reciuired by law may be accepted by 10
the licensing officer; pro\aded, that such equivalents are set forth in 11
detail in the license. The Ucenses provided for herein shall be con- 12
spicuously posted near the main entrance of the theatre, special hall 13
or pubhc hall. Licenses for theatres, except in Boston, shall expire on 14
September first, for special halls on August first, and for public halls on 15
July first of each year. 16
Liability of
licensee,
1904, 4,50, § 3.
1913, 655, § 32
Section 35. The licensee shall be responsible, civilly and criminally,
for non-compliance with the laws applicable to the theatre, special hall
or public hall coA'cred by his license, and for non-compliance with the
conditions thereof. The licensing officer shall cause a complete inspec-
tion of all theatres to be made once in each month, of special halls and
public halls once in every six months, and as much oftener as circum-
stances may require.
Inspection of
tiieatres, etc.
1904, 4.50, § 4.
1913, 655, § 33.
Section 36. Every inspection of theatres, special halls or public halls 1
shall cover all details relating to the condition of the building as regards 2
the safety of life and property. The inspector shall make a signed re- 3
port as to all such details upon a tabulated inspection blank, the form of 4
which shall be determined by the licensing officer. The forms of such 5
blanks may be adapted to the circumstances of the different classes of 6
buildings, but shall be such as to enable the inspectors to report a rating 7
on the points and in the form hereinafter specified, and shall include a 8
detailed table of legal requirements, with a statement as to compliance 9
or non-compliance with each. All inspectors inspecting theatres, special 10
halls and public halls shall on the first of each week forward to the licens- 11
ing officer the reports of their inspections of the previous week, and shall 12
rate each theatre, special hall or public hall on the following points in the 13
following form : 14
Chap. US.] inspection of buildings. 1469
15 1. Compliance with existing laws, non-compliance in any particular
16 to be specified.
17 2. The following ratings of each building as to the safety of the au-
18 dience, in the judgment of the inspectors, in the light of improved methods
19 of insuring safety:
Condition, whether poor, fair, good or excellent. Remarks.
a. Structural condition.
b. Facility of escape of audience.
c. Heating apparatus.
d. Water supply.
e. Lighting apparatus.
f. Condition of fire apparatus.
g. Condition of sprinklers.
h. Condition of fire resisting curtain.
i. Protection against neighborhood hazard.
j. General condition of appliances and apparatus.
k. General condition of stage.
Rating as a whole.
With regard to safety of audience.
20 And such other points as in the opinion of the licensing officer may be
21 suitable. These reports and ratings shall be signed by the inspectors,
22 and shall give the date of the inspection, with such remarks upon the
23 condition of each theatre, special hall and public hall as may be suitable to
24 give notice of danger or to give confidence in the safety of such buildings.
2.5 After each inspection of a theatre, special hall or public hall, the inspector
2() shall post a notice in conspicuous type, near the main entrance thereof,
27 in the following form :
This theatre (or special hall) (or public hall) has been inspected by inspector
(name of inspector) on (date)
1 Section 37. The full inspection reports of theatres, special-halls and ke^''"^^ gi'^''^
2 public halls shall be kept on file by the licensing officer, but, except as laoi. 450. § 6.
3 hereinafter provided, shall not be open to examination by the public
4 until the expiration of one month from the time when they were rendered,
5 except with the consent of the licensing officer. Every licensee shall be
6 entitled to examine the full reports of his own building at any time. The
7 licensing officer shall make a full report annually of the condition of all
8 theatres, special halls and public halls, which shall be open to examina-
9 tion by the public at all times. The reports of inspectors shall be public
10 records of matters of public interest; and a fair publiciition of these
11 reports, or parts thereof, or comment thereon, by any person, in news-
12 papers or otherwise, shall be privileged.
1 Section 38. A certified copy of all ratings and conclusions of the Copies of
2 inspectors in respect to any licensed theatre, special hall or public hall t"b?sent'to
3 shall be delivered or mailed by the licensing officer to the licensee at the Penalty for
4 building. If any inspector shall report that the laws of the conditions of ""fh^r'dcJ"'"'^^
5 the license are not complied with by any licensee, the licensing officer ^^°f^- ^g?' 5 s.
6 may notify the licensee, fixing a time within which he shall comply with §§2,'3._ ' _
7 the law and the conditions of the license. If at the expiration of such
8 time there has not been such compliance, the licensing officer shall gi\-e
9 a hearing to the licensee; and if upon investigation he shall find that
10 there is cause, he shall revoke the license. The licensing officer may, if
1 1 in his opinion the public safety requires it, order any theatre, special hall
1470
INSPECTION OF BUILDINGS.
[Chap. 143.
Copy of
ratings, etc.,
may be posted.
1904. 450. § 9.
1913, 635, I 30.
Penalty for
false state-
ment, etc.
1904, 430, 5 13.
1913, 655, § 37.
or public hall to be closed pending a hearing upon the revocation of the 12
license, and any person failing to comply with such order shall be punished 13
by a fine of not less than fifty nor more than one thousand dollars. 14
Section 39. Any licensee may post upon his premises a certified 1
copy of the complete table of ratings and conclusions relating to the 2
theatre, special hall or public hall covered by his license, but he shall not 3
post an incomplete copy of such table. 4
Section 40. Any person having any duty to perform under this 1
chapter in connection with the licensing or inspection of theatres, special 2
halls or public halls ^^■ho wilfully makes any false statement or report 3
or any false record of any statement, report or rating as to any such 4
theatre, special hall or public hall shall be punished by a fine of not more 5
than one thousand dollars or by imprisoiunent for not more than one 6
vear. 7
Penalty for
giving or re-
cei^'ing free
pass.
1904, 450, 5 14.
1913. 655, I 38.
Section 41. Any officer or person having any duty in any way con- 1
nected with the inspection of theatres, special halls or public halls, who 2
requests for himself or another, or accepts or uses any ticket or pass or 3
privilege of admission, or admission, to any theatre, special hall or public 4
hall for which he is to pay or has paid either nothing or a price less than 5
that demanded of the public generally, and any o\\Tier, proprietor, 6
manager, lessee, agent or employee of any theatre, special hall or public 7
hall, or any other person who issues, delivers, offers or allows any such 8
ticket, pass, privilege or admission to any such officer or person, or to 9
any other person, at the request, solicitation, procurement or with the 10
connivance of any such officer or person, shall be punished by a fine of 11
not less than one hundred nor more than one thousand dollars. 12
Ventilation
and sanitation.
Inspection by
department of
public health.
1913. 655,
§§40.41.
1914, 792, § 1.
3 Op. A. G. 192.
Joint owner,
etc., may
p^o^^de fire
escape.
Section 42. Every public building as defined in section one, except 1
schoolhouses in which public or private instruction is afforded to less 2
than eleven pupils at one time, shall be kept clean and free from efSuvia 3
arising from any drain, pri\y or nuisance, shall be provided with a 4
sufficient number of proper water closets, earth closets or privies, and 5
shall be ventilated in such a manner that the air shall not become so 6
impure as to be injurious to health. If it appears to an inspector that 7
further or different heating, ventilating or sanitary provisions are re- 8
quired in any such public building, in order to conform to the require- 9
ments of this section, and that such requirement can be provided with- 10
out unreasonable expense, he may issue a ^\Titten order to the proper 11
person or authority, directing such heating, ventilating or sanitary pro- 12
visions to be provided. A school committee, public officer or person 13
who has charge of, owns or leases any such public building, who neglects 14
for four weeks to comply with the order of such inspector, shall be 15
punished by a fine of not more than one hundred dollars. The district 16
health officers or such other officers as the department of public health 17
may from time to time appoint shall make such examinations of school 18
buildings subject to this section as in the opinion of the department 19
the protection of the health of the pupils may require. This section 20
shall not apply to Boston. 21
Section 43. Except in Boston, if a building subject to sections 1
fifteen to sixty, inclusive, is owned, leased or occupied, jointly or in 2
Chap. 143.] inspection of buildings. 1471
3 severalty, any owner, lessee or occupant may affix to anj' part of the isss, 426. § e.
4 outside wall of such building any means of egress or of escape from fire § iss. '
5 specified and described by an inspector, notwithstanding the objection §§^31,^3*9.'
6 of any other such owner, lessee or occupant; and such means of egress f§4s,^5|;
7 or of escape may project over the highway, or o\er a right of way for isis^ 655,
8 a distance not exceeding one half the width of the right of way.
1 Section 44. The keeper of a hotel, boarding or lodging house or watchmen in
2 family hotel containing one hundred or more sleeping rooms, and being isss. 25i,§ 1.
3 four or more stories high, shall have therein at least two competent r!"i,; loii § 29.
4 watchmen, each properly assigned, and each on duty between the hours '^^^' '^^°' ^ ''^■
5 of nine o'clock at night and six o'clock in the morning. The keeper of Penalty, § 40.
6 every hotel, boarding or lodging house or family hotel containing fifty
7 or more sleeping rooms, but less than one hundred, and being three
S stories high, shall have between said hours at least one competent
9 watchman on dutj' therein. In all such hotels, lodging houses or family
10 hotels, the halls, corridors and stairways shall be properly lighted at
11 night, and a red light shall be kept during the night at the top and
12 bottom of each flight of stairs; and one or more proper alarms or gongs,
13 capable of being heard throughout the house, shall always remain easy
14 of access and ready for use in every such building to give to the in-
15 mates warning of fire. The keeper of every such hotel, boarding or
16 lodging house or family hotel shall keep a notice descriptive of such
17 means of escape conspicuously posted in every sleeping room.
1 Section 45. Except in Boston, the keeper of any such hotel, board- oJ ^e^eda'nT
2 ing or lodging house or family hotel who adopts a system of electric ^|8":i°223 § 1
3 watch clocks which register at the office the movements of the watch- R- l! iw]
4 men throughout the house, or who adopts a system of thermostats or iQi.-i.'ess.
5 fire alarm bells in the rooms, or who provides a watchman's watch with
6 key stations, the record of which is kept at the office, shall not be re- •^^°'' '^'' ^ *''■
7 quired to maintain more than one watchman in addition to the regular
8 night clerk and porters; provided, that the system or device so adopted
9 or provided is approved by the inspector.
1 Section 46. The aldermen of any city, except Boston, and the select- Further pro-
2 men of towns may prescribe additional night watch to be kept and tection of hfe
3 further provision for the prevention of fires and for the better protection "crrbed. '"^'^
4 of life in case of fire to be made by the keepers of hotels, boarding or flsa'^si,
5 lodging houses or family hotels within their cities and towns. Who- 1884, 223, § 2.
6 ever neglects or refuses to comply with any provision of this or the two Xgi^^^^a
7 preceding sections shall be punished by a fine of not less than fifty nor iii|: '^||'
8 more than one thousand dollars.
1 Section 47. The owner, lessee, proprietor or manager of a hotel ^s°PpesTn
2 which is not otherwise suitably provided with fire escapes, or of a lodg- jggo go?"'? 1
3 ing house which contains eight or more rooms above the second story, isw! 341-
4 shall place or cause to be placed a knotted rope, or better appliance, 11. l. 104. § 33.
5 for use as a fire escape in every room of such hotel or lodging house 3 op! a. g. 319.
6 used as a sleeping room, except rooms on the ground floor. One end Penalty, § 48.
7 of such rope shall be securely fastened to a suitable iron hook or eye
8 securely screwed into one of the timbers next adjoining the frame of a
9 window, or into the frame of a window, of said room, at least five feet
1472
INSPECTION OF BUILDINGS.
[Ch.\p. 143.
from the floor, and the rope shall at all times be kept coiled and ex- 10
posed to the plain view of the occupant of the room. The coil shall 11
be fastened in such manner as to be easily and quickly loosened and 12
uncoiled. The rope shall contain knots not more than eighteen inches 13
apart, a loop at the end at least three inches in length, shiill not be 14
less than one half inch in diameter, and shall be of sufficient length to 15
reach from such iron hook or eye to the ground. Such rope, iron hook 16
or eye and fastenings shall be of sufficient strength to sustain a weight 17
of four hundred pounds, and plain directions for the use of such rope 18
or other appliance shall be printed and posted within six inches of the 19
hook or eye to wliich the rope is fastened. Tliis section shall not apply 20
to Boston. 21
Inspection of
hotels, etc.
1800. 307,
«2,3.
1894.481,
§§45,68.
R. L. 104,
§§ 34, 35.
1913, 655, § 46.
Section 48. The inspector of buildings of each city and town, if 1
there be any, otherwise the chief engineer of the fire department, if 2
there be any, otherwise such person as the mayor of a city or the select- 3
men of a town shall designate, shall annually in the month of April 4
inspect every room of every hotel and lodging house of eight or more 5
sleeping rooms above the second story in his city or town and ascer- 6
tain if the preceding section is being complied with, and sliall report 7
the condition of the rope or other appliance to the commissioner of 8
public safety, upon forms to be furnished by him. 'S^Tioever \iolates 9
any pro\dsion of this or the preceding section shall be punished by a 10
fine of not more than five hundred dollars or by imprisonment for not 11
more than six months, or both. This section shall not apply to Boston. 12
Certificate of
inspector pre-
requisite to
license.
1888, 426, § 7.
1892, 419,
§ 138.
1894, 481,
§§ 32. 39.
R. L. 104,
§§ 49, 53.
1913, 655,
§§ 48. 52.
Section 49. Except in Boston, a license which is required by law,
ordinance or by-law to authorize any building or part thereof to be
used for any purpose specified in section twenty-one shall not be granted
until a license by the commissioner of public safety, or a certificate by
an inspector, as required by sections fifteen to sixty, inclusi\'e, shall
have been issued therefor, and, when granted, shall not continue in
force after the expiration of such license or certificate.
Penalty for
hindering in-
spector, etc.
1904, 4.50, § 12.
1908, 389, § 2.
1913, 655, § 49.
Section 50. Any person who hinders or prevents or attempts to
prevent the commissioner of public safety, the chief of inspections of
the department or any inspector from entering any building, structure
or enclosure or part thereof in the performance of his duty in the en-
forcement of the laws of the commonwealth relating thereto shall be
punished by a fine of not less than fifty nor more than one himdred
dollars.
Owner must
see that law is
obeyed.
1877,214,5 8.
1881, 137,
§ 2; 195.
P. .S. 104, § 22.
1882, 266, § 3.
1888, 426, § 12.
1894, 382, § 2;
481, §§ 37, 39.
R. L. 104,
§§ 60, 53.
1913, 655,
§§ 50, 62.
161 Mass. 35.
Section 51. Except in Boston, the owner, lessee or occupant of a 1
theatre, factory, workshop or manufactm'ing establishment, or who- 2
ever owns any building or part thereof mentioned in and subject to 3
sections twenty-one, twenty-four to twenty-eight, inclusive, and thirty, 4
or controls the use thereof, shall cause the provisions thereof to be 5
observed, and such person shall be liable to any person injured for all 6
damages caused by a violation of the provisions of said sections. No 7
criminal prosecution shall be begun for such violation until four weeks S
after wTitten notice to such person has been given by an inspector of any 9
changes necessary to be made in order to conform to said sections, nor 10
if such changes shall have been made in accordance with such notice. 11
Chap. 143.] inspection of buildings. 1473
12 Notice to one member of a firm or to the clerk or treasurer of a cor-
13 poration or to the person in charge of the building or part thereof shall
14 be sufficient notice hereunder to all members of any firm or corporation
1.5 owning, leasing or controlling the building or any part thereof. Such
IG notice may be served personally or sent by mail.
1 Section 52. No person shall occupy or use any building or part ^^f"^^^'^^''
2 thereof as a theatre, special hall, public hall, miscellaneous hall, place as theatre,
3 of assemblage or place of public resort until a license therefor has been looe, los, § i.
4 issued by the commissioner of pubhc safety or the mayor of Boston, or Igos'. 335,'
5 a certificate therefor by an inspector or an inspector of the building 1910,^3-
6 department of Boston. The certificate of the inspector shall be con- igjg^ggj
7 elusive e^'idence of a compliance with sections fifteen to sixty, inclusive, §§ 39, 51.'
8 for such use of a hall as he shall set forth in detail in the certificate,
9 and shall be conspicuously posted near the main entrance of the hall.
10 Molations of tliis section or of the conditions of a hcense or certificate
11 shall be punished by a fine of not less than twenty-five nor more than
12 one thousand dollars or by imprisonment for not more than one year,
13 and the license or certificate may be revoked.
1 Section 53. Whoever, being the owner, lessee or occupant of any General
2 building or part of a building described in section twenty-one, ^•iolates iss2, 26b, § .■?.
3 any provision of sections fifteen to fifty-two, inclusi\-e, for which no lUg; lit] i ^3.
4 other penalty is specifically prescribed, shall be punished by a fine of 48i!'§§*60,^62.'
5 not less than fifty nor more than five hundred dollars.
R. L. 104, §§ 55. 56. 1913, 655, § 53.
1 Section 54. Sections fifteen to fifty-two, inclusive, .shall, except Enforcement.
2 when otherwise specifically provided, be enforced by the commissioner r. l!io4!§46.
3 of public safety, the chief of inspections of the department and the inioilst', |T'
4 inspectors. The commissioner of pubhc safety shall issue regulations 655?§'54*!'^^'
5 necessary for their uniform enforcement. All sections of tliis chapter
G wliich apply to Boston shall be enforced by the building commissioner.
1 Section 55. Any person aggrieved by an order, requirement or direc- Appeal.
2 tion of an inspector under any of the preceding sections may, within isw! tlf, I k
3 thirty days after the service thereof, appeal to a judge of the superior looV, 45o'.|\o.
4 court for the county where the building to A\hich such order, require- \Iqj[ Igg' ^ ■*
5 ment or direction relates is situated for an order forbidding its enforce- Vf^'^^'^'
6 ment; and after such notice as said court shall direct to all parties l^i^^^i^,
7 interested, a hearing may be had before the court at an early and con- i9i7','i56, § 2.
8 venient time and place fixed by it; or the court may appoint three - ^ ''^•
9 disinterested persons, skilled in the subject .matter of the contro^■ersy,
10 to examine the matter and hear the parties; and the decision of said
11 court, or the written decision under oath of a majority of said experts,
12 filed in the office of the clerk of courts in said county within ten days
13 after such hearing, may alter, aimul or affirm such order, requirement
14 or direction. Such decision or a certified copy thereof shall have the
15 same authority, force and effect as the original order, requirement or
IG direction of the inspector. If such decision annuls or alters the order,
17 requirement or direction of the inspector, the court shall order the
18 inspector not to enforce his order, requirement or direction, and in
19 every case the certificate required by law shall thereupon be issued by
20 said court or by said experts.
1474
INSPECTION OF ELEVATORS.
[Chap. 143.
Mplrts' Section 56. The court may award reasonable compensation to such 1
1890. 43S, experts, to be paid by the county in which the appHcation for an order 2
1894,481. of the court was made, if the order, recjuirement or direction of the 3
R L 104. inspector is altered or annulled, otherwise by the applicant. If the 4
iisofl.'ioo. 1 4. order, requirement or direction of the inspector is affirmed by the court 5
1913! 655! § 56. or the experts, costs shall be taxed against the applicant as in civil 6
cases, and shall be paid into the treasury of the said county. 7
Restraining
illeg.al erection,
etc.
188S. 316. § 2;
426, § 12.
1893, 199, § 2.
1894, 382. § 2;
481. §§ 26, 38.
R. L. 104,
§§51,53.
Section 57. The supreme judicial or superior court may, upon the 1
petition of an inspector or, in Boston, of the building commissioner, 2
temporarily or permanently restrain the erection, construction, alter- 3
ation, use or occupation of a building in \-iolation of any pro\ision of 4
sections fifteen to fifty-two, inclusive. 5
1910, 2S4, § 1. 1913, 655, § 57.
Concurrent
jurisdiction of
inferior courts.
1906. 105, § 6.
1908, 335, § 3;
389, § 3.
Section 58. District courts shall have jurisdiction concurrently with 1
the superior court of prosecutions and proceedings at law under sections 2
three to fifty-two, inclusive. i9i3, 655, § 58. 3
Enforcement
of inspectors'
orders.
1904,450. § 11.
190G, 105, § 5.
1910, 2.84, § 1.
1913, 655, § 59.
Section 59. The supreme judicial or superior court may, upon the 1
application of the commissioner of public safety, the chief of inspec- 2
tions of the department or any inspector or, in Boston, of the building 3
commissioner, enforce, by any suitable process or decree, any pro\'ision 4
of sections fifteen to fifty-two, inclusive, and any order or requirement 5
of any person made under authority thereof. 6
Restraining
illegal use,
etc., of
buildings.
1899, 326.
R. L. 104, § 52.
1913, 655. § 60.
Section GO. The supreme judicial or superior court may restrain 1
the illegal placing, maintenance or use of any building, structure 2
or other thing. It may, upon the petition of a city or town for such 3
relief, require the removal of any such building, structure or other 4
thing by the owner, and may authorize the city or town, in default of 5
such removal by the owner, to remove it at his expense. Upon such 6
petition, the defendant shall be presumed to have acted without a 7
license or authority until he proves the contrary. 8
Notice to
assessor.'* of
permits for
building.
1913, 676, § 1.
Section 61. The inspector of buildings in every city and town 1
having such an officer shall give written notice to the assessors thereof 2
of the granting by him of permits for the construction of any building 3
therein or for any substantial alteration therein or addition thereto. 4
Such notice shall be given within seven days after the granting of each 5
permit, and shall state the name of the person to whom the permit 6
was granted and the location of the building to be constructed or al- 7
tered or to which an addition is to be made. 8
Installation
and inspection.
1901, 43C.
R. L. 104.
S27.
1913, 806,
§§ 1,7.
189 Mass. 580.
190 Ma,ss. 518.
200 Mass. 200.
204 Mass. 559.
ELEVATORS.
Section 62. In cities and towns not having a building department 1
or an inspector of buildings, the installation and alteration of all ele- 2
vators shall be under the supervision of the inspectors of the division 3
of inspection of the department. In cities and towns ha\ang an in- 4
spector of buildings or a person acting as such, the installation and al- 5
teration of all elevators shall be under his supervision. No elevator G
Ch.\P. 143.] INSPECTION OF ELEVATORS. 1475
7 shall be installed or altered until a copy of the plans and specifications 213 Mass. 247.
8 of such elevator or of the proposed alterations shall have been filed by
9 the owner of the premises where the elevator is to be installed or altered, '^"'' '^' '*'
10 or by the manufacturer of the elevator, with the inspector or building
11 inspector having jurisdiction, and a certificate of approval or a speci-
12 fication of requirements shall have been issued by him. The inspectors
1.3 and inspectors of buildings or the departments of buildings of cities and
14 towns shall enforce the regulations made by the board of elevator regu-
15 lations as hereafter provided.
1 Section 6.3. On completion of the work of installation or alteration, Test of safety
2 the manufacturer of the elevator or the person making the alterations igls^loe. § 2.
3 shall make a practical test of the safety devices of the elevator in the
4 presence of the inspector ha^■ing jurisdiction thereof; and if the test is
5 satisfactory to him, he shall issue a certificate approving the elevator and
6 safety devices thereof.
1 Section 64. All elevators shall be thoroughh^ inspected and a Report of
2 practical test made of the safety de^•ices required therefor at intervals igTsTsoii"'! 3.
3 of not more than one year, and at such other times as may be deemed
4 necessary by the inspector having jurisdiction thereof. Within ten
5 days after the inspection, he shall report the result thereof to the com-
6 missioner of public safety, upon forms to be furnished by him. This
7 requirement for the making of inspection reports shall not apply to
8 Boston.
1 Section 65. If in the judgment of any inspector having juris- Certificate of
2 diction thereof an elevator is safe, and if the elevator has been con- beposted" in°
3 structed in the manner required by law or by the regulations of the isss.'m.
4 board of elevator regulations, the inspector shall issue a certificate to ^^l- jq]; | g^;
5 that effect to the owner of the elevator or to the person in charge }^j3'|gjs4
6 thereof, who shall post the certificate in a conspicuous place in or near 227 Mass'. 415.
7 the cab or car of such elevator. Otherwise, the inspector shall im- Penalty. § 71.
8 mediately post conspicuously upon the entrance or door of the cab or
9' car of such elevator, or upon the elevator, a notice of its dangerous
10 condition, and shall prohibit the use of the elevator until it has been
11 made safe to his satisfaction. No person shall remove such notice or
12 operate such elevator until the inspector has issued his certificate as
13 aforesaid.
1 Section 66. Any owner, operator or person in charge of an elevator Report of
2 or any person employed to inspect an elevator shall, if he thinks such o'f'dcf™Uv^e"
3 elevator is unsafe, make a written report thereof to the inspector having igis.'sou, § 5.
4 jurisdiction thereof, who shall forthwith inspect such elevator. If any penalty, § 71.
5 accident occurs to an elevator, the operator, person in charge or owner
6 having knowledge thereof shall inunediately report such accident to the
7 inspector having jiu-isdiction, who shall forthwith inspect such elevator.
1 Section 67. Any person engaged in the inspection, alteration, con- Petition for
2 struction, repair or operation of elevators may from time to time, by regiSo'ns.
3 written petition to the commissioner of public safety, request that rules ii\t\ fii, ^ ^'
4 and regulations established by a board of elevator regulations hereto- ^ ^'^''•
5 fore or hereafter appointed be altered or amended. The commissioner
1476
INSPECTION OF CINEMATOGRAPHS.
[Chap. 143.
may grant public hearings upon such petition, and if he deems it advis- G
able may appoint a new board of elevator regulations as provided in 7
section eleven of chapter twenty-two. 8
Board to
amend regu-
lations.
1913. S06. § 6.
221 M.ass. 489.
231 Mass. 151.
232 Mass. 563.
Section 68. The board of elevator regulations shall frame amend- 1
ments to the regulations relating to the construction, installation, al- 2
teration and operation of all elevators, and relative to the location, 3
design and construction of shafts or enclosures for elevators, safety 4
devices, gates and other safeguards, protection against the elexator or 5
hoisting machinery, and means to prevent the spread of fire, and also 6
amendments to the regulations designed to make uniform the work of 7
the inspectors of the di\-ision of inspection of the department and of 8
inspectors of buildings throughout the commonwealth. 9
Establishment
of regulations.
1913, 800,
§§7,8.
1919, 350,
§§ 99, 100.
Section 69. The board of elevator regulations shall, within three 1
months after its members are appointed, draft amendments to the 2
regulations and submit the same to the governor and council for their 3
approval. Within si.xty days after such submission they shall approve 4
the same, with such alterations and amendments and after such public 5
hearings as they may deem proper; and the regulations so altered and 6
amended shall become part of the rules and regulations pertaining to 7
elevators. The commissioner of public safety shall furnish upon ap- 8
plication a printed copy of the regulations to all manufacturers of ele- 9
vators operating in the commonwealth, to all inspectors of buildings 10
in the cities and towns of the commonwealth, and to all others who are 11
concerned. The board shall be dissolved upon the approval of the regu- 12
lations by the governor and council. 13
Appeal.
1913,806. § 11.
Section 70. Whoever, except in Boston, is aggrieved by the order, 1
requirement or direction of an inspector of buildings of a city or town in 2
reference to the installation or alteration of ele\ators may, within ten 3
days after the service thereof, appeal as provided in section fifty-five; 4
and all the pro^■isions of said section, except as otherwise provided 5
herein, shall apply to the procedure on such appeal. In Boston the 6
right of appeal shall be the same as that pro\'ided by section se\'en of 7
chapter five hundred and fifty of the acts of nineteen hmidred and 8
seven. 9
Penalty.
1913, 806, 5 12.
Section 71. Any person violating or failing to comply with any 1
provision of sections si.xty-two to seventy, inclusive, or of any regulation 2
established thereunder shall be punished by a fine of not more than five 3
hundred dollars. 4
Regulation.
1905. 176, § 1.
1908, 500, § 1.
1914. 791, § 1.
1915, 169, § 1.
cinematographs.
Section 72. No cinematograph or similar apparatus involving the 1
use of a combustible film more than ten inches in length, except one 2
using only an enclosed incandescent lamp and cellulose acetate films 3
not more than one and one quarter inches in width, shall, e.xcept as 4
provided by section eighty-five, be kept or used for the purpose of ex- 5
hibiting such films in or upon the premises of a public building until 6
such cinematograph or similar apparatus has been inspected ami ap- 7
proved by an inspector, who shall ha\'e placed thereon a numbered 8
metal tag; nor until a booth or enclosure, which has been inspected 9
Chap. 143.] inspection of cinematographs. 1477
10 ami approved by such an inspector and his certificate issued therefor,
11 has been provided for said apparatus; nor until such precautions against
12 fire as the commissioner of public safety may specify have been taken
13 by the owner, user or exhibitor; provided, that no such apparatus shall
14 be operated with oxyhydrogen gas, so called, or with limelight. In
15 addition, in Boston the location of any booth or enclosure surrounding
16 such apparatus shall be approved by the building commissioner, who may
17 order such additional precautions against fire as he may deem necessary.
1 Section 73. The inspectors shall inspect any such apparatus which inspection.
2 is to be kept or used as specified in the preceding section, and any JgU^; HI] | f
3 booth or enclosure provided therefor, and the commissioner of public '^^*' ^^^' ^ ^•
4 safety shall make such rules and regulations as he may deem necessary
5 for the safe use thereof.
1 Section 74. For the inspection of such apparatus or of a booth or Fee for
2 enclosure, as provided by tlie preceding section, a fee of two dollars shall SogTssT § i.
3 be paid by the owner or user thereof. i9ii, 4s, 1 1. i9i4, 791, § 3.
1 Section 75. Except as provided in section seventy-seven, no person Licenses.
2 shall operate such apparatus in any public building until he has re- 1909] Isi! § 2.
3 ceived a special or first class license so to do from an inspector. No JgJI; 7I1; ^ ^•
4 such license shall be granted until the applicant has passed an exami- 5§ 4. 9. 10.
5 nation proving him to be thoroughly skilled in the working of the me-
6 chanical and electrical apparatus or devices used therein or connected
7 therewith, and no person under twenty-one shall be eligible for such ex-
8 amination. Three dollars shall accompany the application for a license.
9 The special or first class license shall be for the term of one year from
10 the date thereof, but may be renewed yearly, without examination, by
11 an inspector upon the payment of a fee of one dollar. A first class
12 license shall apply only to the operation of a hand driven apparatus. A
13 special license shall apply to one dri\'en by hand or motor.
1 Section 76. Any person over eighteen desiring to act as an assist- Assistant's
2 ant to a holder of a special or first class license shall register his name, i9os, see, § 5.
3 age and address on a form furnished by the commissioner of public 1911! 791! § a.
4 safety; and upon the receipt of one dollar the commissioner may issue a
5 permit allowing such person to assist sucli a licensed operator in a booth
6 or enclosure, but such person shall not himself operate the apparatus.
7 The permit shall be for the term of one year from the date thereof, but
8 may be renewed yearly by the commissioner upon the receipt of fifty
9 cents.
1 Section 77. A second class license giving the right to operate a Second class
2 hand driven cinematograph or similar apparatus, but only in the pres- 1914, 791, § c.
3 ence of a holder of a special or first class license, may be granted to any
4 person over twenty who has been employed for three months as an
5 assistant under the supervision of a licensee in or upon a public building.
6 The applicant, as a condition of receiving the said second class license,
7 shall pass an examination satisfactory to an inspector, and shall pre-
8 sent to the commissioner of public safety an affidavit, signed and sworn
9 to by him, stating that he has so worked for said period. The com-
10 missioner may require that the affidavit be corroborated. A fee of two
1478
INSPECTION OF CINEMATOGRAPHS.
[CH-AP. 143.
dollars shall accompany the appHcation for the Ucense. The license 11
shall be for the term of one year from the date thereof, but may be 12
renewed yearly by an inspector upon the receipt of fifty cents. 13
First class
license.
1914, 791, § 7.
Section 78. Any person over twenty-one who has held a second
class license for three months or more and has worked regularly during
that period in a booth or enclosm-e in or upon a public building, upon
presenting to the commissioner of public safety an affidavit, signed and
sworn to by him, stating that he has so worked for the said period, and
upon passing the examination and payment of three dollars, may receive
a first class license.
Eligibility for
examination.
1914, 791. § 8.
Section 79. Any person over twenty-one who presents to the 1
commissioner of public safety an affidavit, signed and sworn to by him, 2
stating that he has operated a cinematograph or similar apparatus in a 3
booth or enclosiu-e in a theatre or hall devoted to public exhibitions of 4
mo\ing pictures outside of the commonwealth for a period of three 5
months or more, shall be eligible for the examination, as provided in 6
section seventy-five, for a special or a first class license. 7
igHlre'rHo. Section SO. The holder of a first class license, or any person desig- 1
nated in the preceding section, who passes an examination satisfactory 2
to the department may be granted a special license. 3
Suspending
or revoking
license or
periiiit-
1914, 791. § 11.
Section 81. An operator's license or an assistant's permit may be
suspended or revoked for cause at any time by an inspector; but the
person whose license or permit is so suspended or revoked may appeal
to the commissioner of public safety, whose decision in the matter shall
be final.
Permits for
special
exhibitions.
1914,791, § 12.
Section 82. Except in Boston, the commissioner of public safety
may grant permits for the special exliibition of pictures by the use of a
cinematograph or similar apparatus in a public building which in his
opinion is in safe condition for such exliibitions, and he may prescribe
such regulations as he may deem necessary for the presentation of the
same. Two dollars shall accompany the a.pplication for each permit.
Application
ot certain
sections.
1914, 791, § 1.3.
Section 83. Sections seventy-two to seventy-six, inclusive, shall
not apply to any motion picture machine operated with only cellulose
acetate films not more than one inch and o"ne fourth in width and re-
quiring not more tlian fi\e hundred watts of electric current to operate
the arc; provided, that such machines shall not be kept or used in a
public building except under such regulations as the commissioner of
public safety shall prescribe.
Penalty.
1905, 176, § 3.
1908, ses, § 3.
1914, 791, § 15.
Section 84. Any person keeping or using a cinematograph or similar
apparatus contrary to any provision of sections seventy-two to eighty-
four, inclusive, or in violation of any rule or regulation made by the
commissioner of public safety, or, in Boston, in violation of any regula-
tion or requirement made by the building commissioner in accordance
with said sections, shall be punished by a fine of not less than fifty nor
more than fi\e hundred dollars.
CiL\p. 144.]
TENEMENT HOUSES IN CITIES.
1479
1 Section 85. Notwithstanding any provision of sections seventy-two Special licenses
2 to eighty-four, inclusive, the commissioner of public safety may grant in ch^ches,
3 special licenses for operators of motion picture machines in churches, ign^lio,"^'
4 schoolhouses or public institutions in cities and towns, except Boston, flu' 791, § 17.
5 which in his opinion are in safe condition for said exhibitions, and he OfKA.G.ci920)
6 may prescribe regulations for the proper conduct of the same. Two
7 dollars shall accompany each application for such special license.
REFERENCE.
Building laws in Boston, 1907, 550, and amendments.
CHAPTER 144.
TENEMENT HOUSES IN CITIES.
Sect.
GENERAL PROVISIONS.
1. Application.
2. Definitions.
3. Application of certain sections.
4. Law not to be modified.
5. Water and sewer connections.
6. Power of department of public health.
7. Improvements to be made within one
j-ear after acceptance.
8. Buildings converted or altered.
9. Alterations and change in occupancy.
NEW BUILDINGS. LIGHT AND VENTILATION.
10. Distance from side lot line.
11. Height.
12. Yards.
13. Courts.
14. Courts to be open at top.
15. Air intakes.
IG. Extensions or offsets to courts.
17. Building of walls across angles in
courts.
IS. Placing of buildings on s.ame lot with
tenement houses.
19. Rear tenements.
20. Lighting, etc.
21. Area of windows, etc.
22. Size of rooms.
23. Alcoves, etc.
24. Privacy.
25. Windows in public halls.
26. Sizes of windows in halls.
SANITATION.
27. Use of basement and cellar rooms for
li^•ing purposes.
28. Damp proofing, etc., of cellars.
29. Spaces under floors.
30. Drainage of courts, yards, etc.
31. Sinks.
Sect.
32. Construction, etc., of water closets.
33. Plumbing.
34. Water supply.
35. Pri\-ies.
FIRE protection.
36. Construction required.
37. Fire escapes.
38. Construction of bulkheads and scuttles.
39. Stairs and public halls.
40. Fireproof stairs and stair halls required
in tenement houses of second class
construction.
41. Entrance halls.
42. Shafts to be of fireproof construction.
43. Ceiling of cellar, etc.
44. Closets under first story stairs not
allowed.
45. Outside cellar entrance.
46. Finish about chimneys.
47. Fire walls.
48. Roofing materials.
49. Wooden tenement houses not to be
used for certain purposes above sec-
ond story.
improvements in OLD buildings.
50. Lighting and ventilation of rooms.
51. Lighting and ventilation of public halls.
52. Sinks.
53. Water closets.
54. Removal of cesspools, etc.
55. Basements and cellars to be damp
proof, etc.
56. Doors in shafts and courts.
57. Construction of fire escapes.
58. Means of egress.
alter-^tions of old bcildlngs.
59. Alterations.
1480
TENEMENT HOUSES IN CITIES.
[Ch.\p. 144.
Sect.
MAINTENANCE AND USE.
60.
61.
62.
63.
64.
65.
66.
67.
68.
69.
70.
71.
73.
74.
75.
76.
77.
78.
79.
80.
81.
Lighting of public halls in the daj-time.
Lighting of public halls at night.
Water closets in cellars.
Water closet accommodations.
Occupation of basement and cellar
rooms for living purposes.
Floors around water closets and sinks.
Repairs.
Water supply.
Buildings to be kept clean and free
from refuse matter, etc.
Walls of courts to be whitened, etc.
Walls and ceilings of rooms, etc.
Wall paper.
Receptacles for ashes, etc., to be pro-
vided.
Certain uses prohibited.
Not to be used for storage of combus-
tible materials, etc.
Bakeries and fat boiling.
Other dangerous businesses.
Janitor or housekeeper.
Overcrowding.
Letting of lodgings regulated.
Board of health may order repairs, etc.
Infected and uninhabitable houses to be
vacated.
Sect.
82. Repair of fire escapes.
S3. Scuttles, bulkheads, etc., to be easily
accessible at all times, etc.
86.
REQUIREMENTS AND REMEDIES.
Inspector of buildings. Appointment.
Permit for construction or alteration of
tenement house.
Building not to be occupied until after
approval, etc.
Enforcement of provisions.
Building erected, etc., in \-iolation of
this act to be deemed a common nui-
sance, etc.
Penalties.
.\ction of board of health, etc., may be
renewed by superior court.
Right of entry.
Liens.
Notice of pendency of action to be filed,
etc.
Owner's name, etc., to be registered,
etc.
Service of notices.
Service of summons.
Certain names and addresses to be in-
dexed, etc.
Repeal.
GENEILIL PROVISIONS.
i9i3,'TsG?'§' 9s. Section 1. This chapter shall apply to all cities except Boston which 1
accept it or have accepted corresponding provisions of earlier laws by a 2
vote of the city council with the approval of the mayor. .3
Definitions.
1913, 7SG, § 2.
Section 2. The following words used in this chapter shall have the 1
following meanings: 2
"Acceptance of this chapter" shall include the acceptance of corre- .3
spending provisions of earlier laws. 4
"Alcove", any part of a room partitioned off by fixed or movable 5
partitions of any material, by curtains or portieres, or by other con- 6
trivance or de\dce, and intended or designed to be used for living 7
purposes. 8
"Basement", a story partly under ground but having not less than 9
one half its height above the level of the curb, and also having one 10
half its height in every part above the level of the adjoining ground. 1 1
"Cellar", a story more than one half below the level of the curb or 12
adjoining ground. 13
"Corner lot", a lot situated at the. junction or intersection of two 14
streets each not less than sixteen feet in width, but any lot the outer 1.5
angle of which is over one hundred and twenty-five degrees shall not be IG
considered a corner lot. Any portion of the width of the front of such 17
lot distant more than fifty feet and any portion of the depth of such lot 18
distant more than one hundred feet from such a junction or intersection 19
shall not be regarded as part of a corner lot, but shall be subject to the 20
provisions of this chapter respecting interior lots. 21
"Court", an open unoccupied space, other than a yard or front yard, 22
on the same lot with a tenement house. A court extending to the street, 23
Chap. 144.] tenement houses in cities. 1481
24 yard, front yard or side yard is an "outer court". A court not so ex-
25 tending is an "inner court".
26 "Existing", existing at the time of the acceptance of this chapter or
27 corresponding provisions of earher laws.
28 "First class construction". A tenement house of first class construc-
29 tion is one constructed of fireproof material throughout, with floors built
30 of steel or re-enforced concrete beams, filled in between with terra cotta
31 or other masonry arches or with concrete or re-enforced concrete slabs;
32 wood may be used only for under and upper floors, windows and door
33 frames, sashes, doors, interior finish, hand rails for stairs, necessary
34 sleepers bedded in cement, and for isolated furrings bedded in mortar.
35 There sliall be no air space between the top of any floor arches and the
36 floor boarding.
37 "First story", the lowest story, the ceiUng of which is six feet or more
38 above both the level of the curb and tlie level of tlie adjacent ground.
39 In determining the height of any building by stories, the stories thereof
40 beginning witli such first story shall be numbered upward.
41 "Front" of a lot, that boundary line which borders on the street. In
42 the case of a corner lot the owner may elect by statement on his plans
43 either street boundary line as the front.
44 "Half story" or "attic", any story included in the roof, the cubic
45 contents of which, exclusive of cockloft or blind attic not exceeding
46 three feet in height at the highest point, is not more than sixty per cent
47 of the cubic contents of the first story.
48 "Heiglit", the perpendicular distance measured in a straight line from
49 the curb le\'el, or from the finished grade line of the lot where such grade
50 is higher than the curb, to the mean height above the ea^'es of any slop-
51 ing roof, and to the highest point of the roof beams in tlie case of flat
52 roofs, except that in the case of flat roofs a parapet exceeding three feet
53 in height shall be considered a part of the height of the building, the
54 measurements in all cases to be taken through the centre of the street
55 front of the house. Where a building is on a corner lot and there is more
56 than one grade or curb level, the measurements shall be taken from the
57 centre of the front on the street ha\'ing tiie lowest ele'V'ation.
58 "Interior lot", any lot other than a corner lot.
59 " Lot ", the plot of groimd covered by and adjacent to a tenement house
60 or dwelling house and devoted exclusively to the purposes of such house,
61 as shown by tlie plan of such lot furnished to the building department
62 pursuant to section eighty-five.
63 "Nuisance" includes all public nuisances as known at common law
64 or in equity jurisprudence; and furthermore, whatever is dangerous to
65 human life or detrimental to health, whatever building or erection, or
66 part or cellar thereof, is overcrowded with occupants or is not pro\ided
67 with adequate ingress or egress to and from the same or apartments
68 thereof, or is not sufficiently supported, ventilated, sewered, drained,
69 cleaned or lighted in reference to its or their intended or actual use; and
70 whatever renders the air or human food or drink unwholesome, are also
71 severally in contemplation of this chapter, nuisances; and such nuisances
72 are hereby declared unlawful.
73 "Occupied spaces". Porches, platforms, except those on the first story
74 when the basement is not occupied or designed or intended to beoccupieil
75 for habitation, and outside stairways, except fire escapes and steps lead-
76 ing to the first story, shall be considered as part of the building and not
77 as part of the yard or courts or unoccupied areas.
1482 TENEMENT HOUSES IN CITIES. [ChaP. 144.
"Public hall", a hall, corridor or passageway not within an apartment. 78
"Rear" of a lot, the side opposite to the front. In the case of a corner 79
lot with streets on three sides, or of a triangular or irregularly shaped 80
lot abutting on two streets at their junction or intersection, the rear shall 81
be a side not bordering on a street. 82
"Second class construction". A tenement house of second class con- 83
struction is one of which the exterior and party walls are fireproof and 84
conform to the requirements of first class construction as defined by 85
law or by ordinance of the city in which it is situated. 86
"Stair hall" includes the stairs, stau- landings and those parts of the S7
public halls tlirough which it is necessary to pass in going from the en- 88
trance floor to the roof. 89
"Street" includes any right of way dedicated to public use, any public 90
alley, or railroad right of way sixteen feet or more in width, any ceme- 91
tery or public park. 92
"Tenement house", any house or building, or part thereof, which is 93
rented, leased, let or hired out, to be occupied, or is occupied, or intended, 94
arranged or designed to be occupied as the home or residence of two or 95
more families (a family may consist of one or more persons), living in- 96
dependently of each other and doing their cooking on the premises and 97
having a common right in the halls, stairways, yard, com-ts, cellar, sinks, 98
water closets or privies, or any of them. Where the occupants of dwelling 99
houses contiguous and vertically divided, each occupied or intended, 100
arranged or designed to be occupied as the home or residence of one 101
family or more, have a common right in or use in common the halls, 102
stairways, yards, cellars, sinks, water closets or privies, or any of them, 103
such dwelling houses shall be deemed to be tenement houses and shall be 104
subject to this chapter. 105
"Thereafter", after the acceptance of this chapter or corresponding 106
provisions of earlier laws. 107
"Third class construction". A tenement house of third class con- 108
struction is one of which the exterior walls or parts thereof are of com- 109
bustible materials and do not conform to the requirements of first class 110
construction. Ill
"Yard", an open unoccupied space on the same lot with the tenement 112
house between the extreme rear line of the house and the exti'eme rear 113
line of the lot. A "front yard" is an open unoccupied space between 114
the front line of the house and the front line of the lot. A "side yard" is 115
an open unoccupied space between the side line of the main part of the 1 16
house and the side line of the lot and shall be deemed an outer court on 117
the lot line. 118
Words used in the present tense include the future; words in the 119
masculine gender include feminine and neuter; the word "shall" is al- 120
ways mandatory, and denotes that the house shall be maintained in all 121
respects according to the mandate so long as it continues to be a tene- 122
ment house; whenever the words "charter", "ordinances", "regula- 123
tions". "building department", "building inspector", "health depart- 124
ment", "board of health", "department charged with the enforcement 125
of this chapter", or "city solicitor" occur in this chapter they shall be 126
construed as if followed by the words " of the city in which the tenement 127
house is situated"; wherever the words "is occupied" are used in this 128
chapter applying to any building, such words shall be construed as 129
if followed by the words "or is intended, arranged or designed to be 130
occupied." 131
Chap. 144.] tenement houses in cities. 1483
1 Section 3. Unless otherwise specifically provided therein, sections AppHoation
2 nine to forty-nine, inclusive, shall apply only to tenement houses erected Sections'.
3 after the acceptance of this chapter, and sections fifty to fifty-nine, in-
4 elusive, only to tenement houses erected prior to such acceptance.
1 Section 4. This chapter shall be held to provide the minimum i.aw not to
2 requirements adopted for the protection of the health and safety of the i9i3,°786!§'5.
3 community. Nothing in this chapter shall be construed as prohibiting
4 any city from enacting from time to time supplementary ordinances im-
5 posing further restrictions, but no city authority shall have power to
6 minimize, avoid or repeal any provision of this chapter.
1 Section 5. The provisions of this chapter with reference to sewer water and
2 connection and water supply shall be deemed to apply only where nections"'
3 connection with a sewer and with a water main is or becomes practicable. ll\l\ 79I; | f;
4 The cjuestions of the practicability of such sewer and water connections i*'^'-'' ^^O' 5 96.
5 shall be decided by the local board of health, or by the department of
6 public health upon request of the local board.
1 Section 6. The department of public health may examine into the Power of de-
2 enforcement of the laws relating to tenement houses in any city. When- pubi"rheaUh.
3 ever so required by the governor, it shall make such an examination and |qJ|; ^fi'. i 1'
4 shall report the result thereof to the governor within the time prescribed ^^^^' ^^°' 5 ^''■
5 by him.
1 Section 7. In tenement houses erected prior to the acceptance of [^J?e°mtde°'^
2 this chapter by a city, all improvements specifically required thereby witiiin one
3 shall be made within one year thereafter, or at such earlier time as may acceptance.
4 be fixed by the building inspector.
1 Section 8. A building not a tenement house, if converted or altered ^"nlSld or
2 to such use after the acceptance of this chapter, shall thereupon become ^gf'f igg . 3
3 subject to all the provisions thereof affecting tenement houses erected
4 thereafter.
1 Section 9. No tenement house shall at any time be altered so as Alterations
2 to be in violation of any provision of this chapter. If any tenement house, Sccupancy^ °
3 whenever erected, or any part thereof is occupied by a number of families ^^^^' ^*^' ^ *'
4 in excess of the number specified in this chapter, or is erected or altered
5 or occupied contrary to law, such tenement house shall be deemed an
G unlawful structure, and the board of health may cause such building to
7 be vacated; and it shall not again be occupied until it or its occupation,
8 as the case may be, has been made to conform to the law, and a written
9 permit is obtained from the board of health.
NEW BUILDINGS. LIGHT AND VENTILATION.
1 Section 10. No tenement house of third class construction shall be Distance from
2 erected, enlarged or placed with the side walls, bay windows or other m3'°786?l 9.
3 projections, except cornices, belt courses and window sills, nearer than
4 five feet to the line of any adjoining lot, nor shall any lot upon which
5 such a tenement house stands be so changed in size as to bring the side
6 walls or bay windows or other projections, except as aforesaid, nearer
7 than five feet to the line of any adjoining lot. But any such tenement
1484
TENEMENT HOUSES IN CITIES.
[Chap. 144.
house may be constructed to the lot line if protected by a fire wall as 8
provided in section forty-seven. 9
If the side walls of any tenement house of first or second class con- 10
struction are built to the lot line there shall be no windows or any other 11
openings in such walls. 12
Height.
1913, 786, § 10.
Section 11. No tenement house shall have more than one legally 1
habitable story for each full ten feet of the width of the street, unless 2
such house be set back from the street a distance equal to the excess of 3
its height over that permitted at the street line. On a corner lot the 4
height shall be governed by the width of the wider street, as above, but 5
this height shall not extend along the narrower street a distance greater 6
than twice the width of said street. 7
Yards.
1913,786, § 11.
Section 12. Behind every tenement house there shall be a yard 1
extending across the entire width of the lot and at every point open 2
from the ground to the sky unobstructed, except as hereinafter provided. 3
Every part of such yard shall be directly accessible from every other part 4
thereof. The depth of said yard shall be measured from the extreme 5
rear of the house toward the rear line of the lot. Where the rear of the 6
lot abuts on a public alley or right of way dedicated to public use for 7
the full width of the lot, the depth of the lot may be measured to the 8
middle line of such alley or right of way; where there is no such alley 9
or right of way the measurements shall be taken to the rear lot line. If 10
the tenement house is three stories or less in height the depth of the yard 1 1
in the case of interior lots shall be not less than fifteen feet, and the depth 12
of the yard in the rear of corner lots shall be not less than ten feet. If 13
the tenement house exceeds three stories in height, the depths above 14
prescribed in the case of interior lots shall be increased five feet and in 1.5
the case of corner lots shall be increased two feet for each story abo\'e 16
three stories. \Vlien a lot upon which a tenement house is built is 17
bounded on every side by a street the yard may be omitted. 18
Courts.
1913, 786, § 12
Section 13. The sizes of all courts shall be proportionate to the 1
height of the building. No court shall be less in any part than the mini- 2
mum sizes prescribed in this section. The minimum width of a court 3
for a two story building shall be ten feet, and the width shall increase 4
two feet for each additional story. The length of an inner court shall 5
never be less than twice the minimum width prescribed by this section. 6
The length of an outer court shall never be greater than twice its mini- 7
mum width unless provided at the inner end with an air intake at the 8
bottom, as prescribed in section fifteen, which shall communicate di- 9
rectly with the street or yard or front yard. The minimum width for 10
an outer court on the lot line extending from the street or front yard to 11
the yard shall be ten feet for a three story building, and the width shall 12
increase one foot for each additional story. 13
opTn'aVt'op^ Section 14. No court shall be covered by a roof or skylight, but 1
1913, 780, i 13. every court shall be at every point open from the ground to the sky 2
unobstructed. 3
i9i3°786r§ 14. Section 15. In every tenement house four stories or under in 1
height, every inner court shall be provided with one or more horizontal 2
air intakes at the bottom. Such intakes shall communicate directly 3
Chap. 144.] tenement houses in cities. 1485
4 with the street, front yard or yard, and shall consist of a fireproof
5 passageway not less than three feet wide and seven feet high which
6 shall be left open, or be provided with an openwork gate at each end,
7 and such gate shall not be covered o\-er in any way either by glass or
8 any other material. If the tenement house is over four stories in height
9 there shall be two or more such intakes, one communicating with the
10 street or front yard and one with the yard.
1 Section 16. Extensions or offsets to courts are permitted for the Extensions or
2 purpose of lighting bathrooms, water closets and corridors only, but courts. '°
3 no such extension or offset shall be less than six feet in width in any part; ^^^^' '^^''' ^ '^■
4 its depth may be less than but never greater than its width. Such
5 dimensions shall be deemed the minimum dimensions for a two story
6 house, and shall increase one foot for each story above two stories.
1 Section 17. Nothing in the foregoing sections concerning courts Building ot
2 shall be construed as prohibiting the building of walls across the angles angles^^n°^'
3 of said courts to contain windows; provided, that the running length of 1913^736, § le.
4 the wall containing such windows does not exceed six feet.
1 Section 18. If any building is thereafter placed on the same lot Placing of
2 with a tenement house, whenever erected, there shall always be main- saineToMv°ith
3 tained between the said buildings an open unoccupied space extending hoTses!"'
4 upward from the ground and extending across the entire width of the ^^^^' ''^°' ^ ^''■
5 lot. Except as otherwise provided by special acts, such space shall
6 never be less than twenty-five feet in depth, and \\here either building
7 exceeds three stories in height the depth of such open space shall be in-
8 creased five feet for each story above three. No building of any kind
9 shall thereafter be placed upon the same lot with a tenement house,
10 whenever erected, so as to diminish the minimum size of courts or yards
11 as hereinbefore prescribed, except that where an alley not less than ten
12 feet wide abuts on the rear of the lot, a rear building, if not used for
13 tenement house or stable or manufacturing purposes, may be built up
14 to the rear line of the lot; provided, that it does not exceed one story in
15 height and that the space between it and the front building is maintained
16 as required by this section. If any tenement house is erected upon any
17 lot upon which there is already another building, it shall comply with
18 this chapter, and, in addition, the space between the said building and
19 the said tenement house shall be of such size and arranged in such
20 manner as is prescribed in this section, the height of the highest building
21 on the lot to regulate the dimensions.
1 Section 19. No tenement house shall be erected upon the rear of P™' ,
i.,.!,. 1. p . , tenements.
2 a lot where there is a buildmg on the front of the said lot, nor upon the isis. 7si;. § is.
3 front of any such lot upon the rear of which there is a tenement house
4 whenever erected or a stable or building used for manufacturing pur-
5 poses. This provision shall not apply to tenement houses abutting on
6 two streets and situated on the outside corner of the lot.
1 Section 20. Every apartment shall have at least one room with a Lightine. etc.
2 window opening directly upon the street or yard, and every room shall ^^^^' ^''"' ^ '^'
3 have at least one window opening directly upon the street or upon a
4 yard or court of the dimensions specified in this chapter, except that
5 kitchenettes, pantries, water closet compartments and bathrooms may
1486
TENEMENT HOUSES IX CITIES.
[Chap. 144.
Area of vdn-
dows. etc.
1913, 7SB, § 2
Size of rooms.
1913. 7S0. § 21.
have such window opening upon an off.set to a court, as provided in sec- 6
tion sixteen, and such window shall be so located as properly to light all 7
parts of such rooms. 8
Section 21. The total area of the windows between stop beads in 1
each room, including kitchenettes, water closet compartments and bath- 2
rooms, shall be at least one seventh of the floor area of the room, and 3
the top of at least one window shall be not less than seven feet six inches 4
above the floor, and the upper half of it shall be made so as to open the 5
full width. No such room shall have less than twelve square feet of 6
^\ indow area measured between stop beads, except that in kitchenettes, 7
water closet compartments and bathrooms such windows shall be not less 8
than six square feet in area between stop beads. 9
Section 22. There shall be in each apartment at least one room con- 1
taining not less than one hundred and fifty square feet of floor area, and 2
every other room, except kitchenettes, water closet compartments and 3
bathrooms, shall contain not less than eighty-four square feet of floor 4
area. All rooms shall be in every part not less than eight feet six inches 5
from the finished floor to the finished ceiling, except that a half story 6
room need be eight feet six inches in height in but one half of its area. 7
Alcoves, etc.
1913, 786, § 22.
Section 23. An alcove in any room shall be separately lighted and 1
ventilated as provided for rooms in the foregoing sections. No part of 2
any room in a tenement house, whenever erected, shall be enclosed or 3
subdi\aded at any time, wholly or in part, by a curtain, portiere, fixed or 4
movable partition, or other contrivance or device so as to make an alcove, 5
unless the part of the room so enclosed or subdivided shall contain a sepa- 6
rate window, as herein recjuired, and shall have a floor area of not less than 7
eighty-four square feet. 8
^Qis.fie, 5 23. Section 24. In each apartment there shall be access to every living 1
room and bedroom, and to at least one water closet compartment with- 2
out passing through a bedroom or bathroom or water closet compartment. 3
^'bUc halls. Section 25. Every public hall and stair hall shall have at each story
1013. 786, § 24. gj. ]pgg^ Qj^g window opening directly upon the street or upon a yard or
court of the dimensions specified in this chapter. Such window in a
public hall shall be at the end of the hall with the natural direction of the
light parallel to the hall's axis. Any part of a public hall which is in
any way shut off from any other part of the hall shall be deemed a sepa-
rate hall within the meaning of this section.
sizes of
windows in
halls.
1913, 7S6, I 25.
Section 2G.- The windows provided to light and ventilate each public 1
hall and stair hall, or part thereof, shall contain not less than twelve 2
square feet clear opening, measured between stop beads. The top of one 3
such window shall be not less than seven feet six inches above the floor, 4
and the upper half thereof shall be made so as to open the full width. 5
A sash door shall be deemed the equivalent of a window in this and the G
foregoing section; provided, that said door contains a clear opening of the 7
size prescribed for such windows. In every tenement house of tliree or 8
more stories, whenever erected, there shall be in the roof directly over each 9
stair well a ridge ventilator having a minimum opening of forty square 10
inches and v.itli fixed or mo^•able louvres. 1 1
CH-^P. 144.] TENEMENT HOUSES IN CITIES. 1487
SANITATION.
1 Section 27. No room in the cellar or basement shall be constructed, n^enflnd^*"
2 altered, converted, or occupied for living purposes, unless, in addition (p""J°'""''
3 to the other requirements of this chapter, all of the following conditions purposes.
4 are complied with : In a cellar no room shall be so occupied unless it is in
5 every part entirely above the finished grade of the adjoining land. Such
6 occupied cellar shall be counted as a story in determining the size of
7 courts and yard. In a basement no room shall be so occupied unless the
8 ceiling in every part is at least four and one half feet above the curb level
9 of the street in front of such room. Every such room shall be an integral
10 part of an apartment containing a room opening directly upon the street
11 or yard. There shall be appurtenant to every such apartment a sepa-
12 rate water closet, constructed and arranged as required by section thirty-
1.3 two. All walls surrounding such room, and the floor thereof, shall be
14 damp proof.
1 Section 28. The cellar floor and the walls below the ground level ing'^?c'"'o°'"
2 shall be damp proof. All cellars and basements shall be properly lighted 5^'jj''''7g5 27
3 and ventilated in all their parts to the satisfaction of the board of health.
1 Section 29. In any tenement house under any part of which there Spaces under
2 is no cellar, the first story shall be at least two feet above the ground loJa^ 736, § 28.
3 beneath and that adjacent thereto, and the space beneath such floor
4 shall be kept free and clear and shall be enclosed to prevent the accumu-
5 lation of rubbish, but provided with ample ventilation and adequate
6 drainage.
1 Section 30. All courts, areas and yards shall be properly graded and J/eou^f*
2 drained and, subject to section five, connected with the street sewer. ^fg^g'^Vsg- 5 29
3 And when necessary in order to keep such premises in a sanitary con-
4 dition such courts, areas or yards, or such part thereof as the board of
5 health shall order, shall be properly paved.
1 Section 31. There shall be a proper sink in each apartment. ma^'^sr, § 30
1 Section 32. There shall be within each apartment a separate water Construction.
2 closet, located in a bathroom or in a separate compartment; provided, cioset°s. **" "
3 that where there are apartments of but one or two rooms there shall '®^^' ^^'^' ^ ^'"
4 be at least one water closet for every two such apartments, and such
5 water closet shall not open into any apartment but shall be accessible
6 through a public hall, and the door thereof shall be provided with lock
7 and keys, and such compartment and water closet shall complj^ in all
8 other respects with this chapter. Said compartment shall be not less
9 than three feet wide, and shall be enclosed with brick, concrete, stone,
10 tiled or plastered partitions which shall extend to the ceiling. No wooden
11 sheathing or wainscoting shall be permitted. Every such compartment
12 shall have a window opening directly upon the street or upon a yard or
13 court of the minimum size prescribed by this chapter. Every water
14 closet compartment thereafter placed in any tenement house, whenever
15 erected, shall be provided with proper means of lighting the same at
16 night. The floor of every such water closet compartment shall be made
17 waterproof with asphalt, tile, stone or some other non-absorbing water-
1488
TENEMENT HOUSES IN CITIES.
[Chap. 144.
proof material; and such waterproofing shall extend at least six inches 18
above the floor so that the floor can be washed or flushed out without 19
leaking. When the water closet fixture is located in a bathroom the 20
floor directly beneath the fixture and extending at least one foot beyond 21
it in each direction shall be waterproofed as above provided. No drip 22
trays shall be permitted. No water closet fixtures shall be enclosed with 23
woodwork. No water closet shall be placed out of doors nor in the cellar 24
of any tenement house, whenever erected, except as provided in section 25
twenty-seven or as an appurtenance to an engine or boiler room or 26
laundry and then only in case such cellar closet is lighted and ventilated 27
as required in this chapter for a basement room. 28
Plumbing.
1913, 78(i. § 32.
Section 33. Plumbing fixtures shall not be enclosed with wood- 1
work. All plumbing pipes shall be exposed, except as may otherwise 2
be permitted by the board of health. Wherever plumbing or other pipes 3
pass through floors or partitions they shall pass through metal bushings 4
or casings extending entirely through the floor or partition, and the inner 5
diameter of such bushing or casing shall in no case exceed the outer 6
diameter of such pipe by more than one thirty-second of one inch, and 7
such bushings or casings shall be so set in floors or partitions as to be 8
externally air tight. All plumbing work shall be sanitary in every par- 9
ticular and except as otherwise specified in this chapter shall be in 10
accordance with the local plumbing regulations. Pan and long hopper 11
closets shall not be used. 12
^"'^^ Section 34. All sinks and water closets shall be provided with an 1
1913, 786, § 33. adequate supply of running water as approved by the board of health. 2
Privies.
1913, 786,
34.
Section 35. No privy or privy vault shall be permitted on the same 1
lot with any tenement house. 2
FIRE protection.
SqulroT''"" Section 3G. No tenement house of third class construction shall 1
1913, 780, § 35. Ije erected exceeding two and one half stories in height in any part, nor 2
shall it be occupied, nor intended, arranged or designed to be occupied, 3
by more than two families. No tenement house of second class con- 4
struction shall be erected exceeding four stories in height, nor shall it 5
exceed twenty-fi\'e hundred square feet in superficial area between fire 6
walls. Any tenement house which exceeds four stories in height shall 7
be of first class construction. A basement or cellar the ceiling of which 8
extends more than three feet above the curb level shall be a story within 9
the meaning of this section. 10
Fire escapes.
1913, 786, § 30.
Section 37. In every tenement house which exceeds two and one 1
half stories in height in any part, there shall be one or more fire escapes 2
located and constructed as provided in this section. 3
Such fire escape shall be so located as to permit of unobstructed egress 4
from every apartment on each floor abo\'e the ground floor, and in no 5
case shall such egress be through any bathroom, water closet, storage 6
room or public hall, nor shall any opening giving egress to any fire escape 7
be smaller in size than the minimum provided for windows by section 8
twentv-six. 9
CH-^P. 144.] TENEMENT HOUSES IN CITIES. 1489
10 No fire escape shall be placed witbiii or open upon any inner court
11 unless such court measures at least twenty-four feet in its least dimen-
12 sion, and unless the consent of the building department shall have been
13 obtained for such location.
14 Fire escapes shall, at the option of the owner, be constructed after one
15 of the methods hereinafter specified and described, to wit:
16 A. A wholly enclosed tower stairway, with an adjacent open air
17 vestibule at each floor.
18 Every such vestibule shall be constructed with brick, terra cotta or
19 concrete walls not less than eight inches thick at any point, and shall
20 ha\e at least one of such enclosing walls formed by an outer wall of the
21 building, and in such outer wall there shall be a permanent opening to the
22 outer air, of an area not less than eighty per cent of the total area of
23 such vestibule wall, and of a height not less than the clear story height.
24 Such opening, if reaching to the floor of the vestibule, shall be provided
25 with a railing of suitable height and strength. The floors of vestibules
26 shall be constructed wholly of incombustible material.
27 If one apartment on each floor is to be served by this fire escape then
28 one side wall (i.e., a wall at right angles to the outer wall) of each vesti-
29 bule shall have an approved fire door giving egress from the adjacent
30 apartment; or, if two apartments on any floor are to be served by this
31 fire escape, the vestibule at such floor must be so located as to provide
32 unobstructed egress from each apartment by means of an approved fire
33 door in each side wall of the vestibule. Such fire doors shall be not less
34 than three feet in clear width nor less than six feet and six inches in clear
35 minimum height, and shall not be secured or fastened except upon the
36 apartment side, and then only by means of locking bars or other easily
37 operated device having no removable parts. If there are openings from
38 basement or cellar floors into the vestibule they shall be provided with
39 self-closing fire doors and there shall be a permanent opening in the
40 outer wall, all as hereinbefore described.
41 On the side of each vestibule opposite the opening to the outer air shall
42 be constructed an approved fire door giving access to the stairway tower.
43 Every such door shall be of the size hereinbefore described, of self-closing
44 pattern but without locks or other fastenings, and shall contain an upper
45 lighting panel of wire glass at least six feet in area. There shall be no
46 openings into such a vestibule other than those hereinbefore described.
47 The stairway tower shall be not less than six feet six inches in clear
48 width, and shall be constructed with walls of brick, terra cotta, or con-
49 Crete not less than eight inches thick at any point. Such walls shall
50 extend from the ground to a point not less than two feet above the roof,
51 and shall be so constructed as to be impervious to smoke. There shall be
52 no doorways or other openings of any kind in such walls except the door-
53 ways connecting with the above described vestibules, and excepting an
54 egress doorway opening at the ground level, such egress door to open
55 outwardly, and if secured to be fastened upon the inside only. No such
56 ground level door shall be secured by means of sliding bolts, nor by a
57 lock or other apparatus requiring a key or otiier similar removable device.
58 Within the stairway tower shall be provided a stairway with a landing
59 at the level of each doorway, each landing to extend the full width of
GO the shaft and to be at least six inches wider in clear width than the door
61 opening thereon. Stairs and such intermediate landings as may be re-
62 quired shall be not less than three feet in width measured to the centre
63 of balustrades, and shall be provitled with balustrades and wall rails.
1490 TENEMENT HOUSES IN CITIES. [ClU.P. 144.
Stairs shall be placed at an angle not exceeding forty-five degrees from the 64
horizontal; treads to be not less than eight inches wide, and risers not to 65
exceed nine inches in height. Winders shall not be permitted, nor shall 66
there be less than three steps between any two landings. All such stair- 67
ways, landings and balustrades shall be of incombustible material, ex- 68
cept that wooden hand rails and wall rails may be used. 69
Every such shaft shall be roofed and provided with a skylight not less 70
than sixteen square feet in area, glazed with wire glass one fourth inch or 71
more in thickness set in metal frame and sash, and shall also have placed 72
centrally in such skylight a suitable ventilator of not less than two hun- 7-3
dred and twenty-five square inches area. 74
The above described type of fire escape may at the option of the owner 75
be used as a regular service stairway. 76
B. An enclosed tower stairway, similar to the above, except that 77
access to the same shall be provided by means of an outside balcony in 78
each story above the ground floor, instead of by means of the vestibules 79
hereinbefore described. Such balconies shall be constructed wholly of 80
incombustible material, shall be provided with well braced balustrades 81
of proper height on outer side and ends, and shall extend beyond at least 82
one door or window opening into each adjacent apartment. All doors 83
opening into the stairway tower shall be as described for type "A" fire 84
escape. 85
C. An outside balcony or balconies at each floor above the first floor. 86
Such balconies shall be constructed wholly of incombustible material 87
approved by the building department. They shall be not less than two 88
feet in width at any point, and shall be provided with suitable balustrades 89
and hand rails on outer sides and ends. 90
Each balcony shall communicate with the balcony next below by 91
permanent stairways placed at an angle of not more than forty-five de- 92
grees from the horizontal, treads shall not be less than eight inches wide 93
nor shall risers exceed nine inches in height, and each stairway shall be 94
provided with balustrades and hand rails and shall measure in width not 95
less than twenty-four inches measured from centres of hand rails. 96
A counterbalanced stairway shall be provided extending from the low- 97
est balcony to the ground, arranged to be lifted and supported when 98
not in use in a manner satisfactory to and approved by the building 99
inspector. 100
All such balconies shall extend to and include at least one floor or 101
window in every apartment on e\'ery floor above the ground floor, exclu- 102
sive of windows in bathrooms, water closets, storage rooms or public 103
halls. 104
Floors of all balconies required by this chapter and treads of stairs 105
appurtenant to balconies and fire escapes shall be constructed of grating 106
pattern, and shall have the bars separated by a clear space of not over 107
one inch, and shall be so constructed as safely to sustain a live load of not 108
less than seventy pounds to the square foot of floor area. Balconies, 109
unless it is otherwise provided by existing building laws or regulations, 110
may project into the public highway for a distance not greater than four 111
feet beyond the established building line. In case of tenements with flat 112
roof, the balconies on the upper floors shall, if required by the building 113
department, be provided with stairs or a gooseneck ladder leading from 114
such balcony to the roof and securely fastened thereto. 115
All balustrades in this section shall have vertical bars placed not more 116
than six inches on centres. 117
Chap. 144.] tenement houses in cities. 1491
118 All balconies forming part of or constituting fire escapes, and all appur-
119 tenances thereof, shall be subject to such supplementary regulations as
120 are in force or as may hereafter be adopted by any city or by the building
121 department thereof.
122 All doors opening upon fire escape balconies within six feet of the stair-
123 ways shall be of self-closing fire resisting pattern.
124 All windows opening upon fire escape balconies within six feet of the
125 stairways sh.all be self-closing of wire glass set in metal frames and sash.
1 Section 38. E\'ery tenement house exceeding two and one half o^uikheads
2 stories in height and having a flat roof shall have in the roof a bulkhead jgf./^s"'! 37
3 or scuttle not less than two feet by three feet in size. Such bulkhead or
4 scuttle shall be covered with metal on the outside and shall be provided
5 with stairs leading thereto and easily accessible to all tenants of the
6 building. No bulkhead or scuttle shall be located in a closet or room, but
7 shall be placed in the ceiling of the public hall on the top floor, and access
8 through the same to the roof shall be direct and uninterrupted.
1 Section 39. In every tenement house there shall be at least one stairs and
2 flight of stairs extending from the entrance floor to the top story. In igia'.'^ysl, M8.
3 every tenement house of third class construction there shall be at least
4 two independent flights of stairs with separate entrances leading from the
.5 entrance floor to the top story, said flights of stairs being at two points
6 as far apart as is possible in the opinion of the building department, and
7 one of said flights of stairs may consist of outside, open stairs and bal-
8 conies. In all cases said stairs shall be directly accessible from each
9 apartment, without passing through any other apartment. All stairs
10 and balconies and all public halls shall be at least three feet six inches
11 wide in the clear. All stairs shall be constructed with a rise of not more
12 than eight inches and with treads not less than nine inches wide.
13 AVinders shall not be permitted in any staircase.
1 Section 40. In every tenement house of second class construction Fireproof
2 exceeding two and one half stories in height the stairs and stair halls atalr^aUs
3 shall be constructed of incombustible material throughout, except that Jenement"
4 treads may be of hard wood not less than one and three quarters inches ^°^"*^| "{^^^
5 thick. Wooden hand rails shall be permitted. The floors of all such stair igi-g^'jgg T39
6 halls shall be constructed of incombustible material, and no wooden
7 flooring or sleepers shall be permitted. All such stairs and stair halls
8 shall be enclosed on all sides with brick, terra cotta or concrete walls
9 not less than eight inches thick. There shall be no transom or sash
10 opening from any such stair hall to any other part of the house. Each
11 stair hall shall be shut oft" from all non-fireproof parts of the building,
12 on each story, by self-closing fire doors, and if glass is used in such doors
13 it shall be of wire glass in metal frames and sash.
1 Section 41. Every entrance hall shall be at least four feet wide in Entrance
2 the clear. isis, 786. § 40. ''*"'*•
1 Section 42. All shafts shall be constructed of incombustible ma- shafts to be
2 terials throughout, with self-closing fire doors at all openings at each con/truafon.
3 story; and, if they extend to the cellar, shall also be enclosed in the i^i^. ''se, § 41.
4 cellar with incombustible walls and self-closing fire doors at all openings.
5 In no case shall any shaft be constructed of materials in which any in-
1492
TENEMENT HOUSES IN CITIES.
[ClL^P. 144.
flammable material or substance enters into any of the component 6
parts. But nothing in this section shall be so construed as to require 7
such enclosures about elevators or dumb-waiters in the well hole of stairs 8
where the stairs themselves are enclosed in brick or stone walls, and 9
are entirely constructed of incombustible materials as provided in tliis 10
chapter. 11
Ceiling of Section 4.3. In everv tenement house of second class construction 1
cdi'^r etc ^
i9i'3,'7S6; § 42. the cellar ceiling and the ceiling and side walls of the cellar stairs shall 2
be plastered on metal lath, and the stairs shall be provided at the top 3
with a self-closing fire door. 4
Closets under
first story
stairs not
allowed.
Section 44. No closet of any kind shall be constructed under any 1
staircase leading from the first story to the upper stories, laia, 7S6, §43. 2
Section 4.5. There shall be an entrance to the cellar or other lowest
Outside
cellar en-
1913^^756 § 44 story from the outside of the building.
Finish about Section 46. Whene\-er the plaster finish about any chimney is 1
1913. 7'86', 5 45. carried on furring, the furring strips shall be of metal, and only metal 2
lathing shall be used. All recesses about funnel holes shall be finished .3
wholly with incombustible material at sides, top and bottom. 4
Fire walls.
1913, 786, § 40.
Section 47. Where non-fireproof tenement houses are built in the 1
form of double houses or terraces or attached or semi-attached rows, 2
there shall be a fire wall of brick, concrete or terra cotta or other hard 3
incombustible material approved by the inspector of buildings, separat- 4
ing every such house from each adjoining house, and such wall shall have 5
no openings therein, and shall extend from the floor of the basement or 6
cellar to not less than one foot above the roof, and out to the boarding 7
of the walls. No wooden beams shall be carried tlirough the fire walls. 8
Roofing Section 48. Roofs in all parts and the sides of all dormer windows
1913, 786, § 47. shall be covered with fire resisting material satisfactory to the building
inspector.
Wooden
tenement
house.s not to
be used for
certain pur-
poses above
second story.
1913, 78G, § 48.
Section 49. In no wooden tenement house shall any story or part
thereof above the second story be rented, leased, let or hired out to be
occupied for housekeeping, nor shall it be intended, arranged or designed
to be occupied for housekeeping, nor shall any provision be made for
cooking, nor shall any cooking be done above the second story.
Lighting and
ventilation of
rooms.
1913, 786,
49.
improvements in old buildings.
Section 50. No room or alcove shall thereafter be occupied for living
purposes unless it shall have a window with an area of not less than ten
square feet between stop beads opening directly upon the street, or upon
a yard not less than ten feet deep, or above the roof of an adjoining
buikling, or upon a court of not less than thirty square feet in area,
open to the sky without roof or skylight.
ventiMon"of Section 51. PubHc halls and stairs shall be provided with sufficient 1
ign °7S6"§ 50 ^^S^^^ *° permit the reading of twelve point t\-pe in the daytime in any 2
Chap. 144.] tenement houses in cities. 1493
3 part thereof. Light and ventilation in such halls shall be from the outer
4 air, except when in the opinion of the building inspector it is impracti-
5 cable, in which case the lighting and ventilation shall be such as to meet
6 the approval of the board of health.
7 All new skylights thereafter placed in a tenement house shall be pro-
8 vided with ridge ventilators having a minimum opening of forty square
9 inches, and also with either fixed or movable louvres, or with movable
10 sashes, and shall be of such size as may be determined to be practicable
11 by the building inspector.
1 Section 52. Woodwork enclosing sinks placed in the public halls sinks.
2 or stairs shall be removed and the spaces underneath shall be left open.
3 The floors and wall surfaces beneath and around the sink shall be put
4 in good order and repairs, and if of wood shall be well painted with light
5 colored paint.
1 Section 53. Woodwork enclosing every water closet fixture shall J^i3''''78™|'|2
2 be removed, and the space underneath the seat shall be left open. The
3 floor and other surfaces beneath and around the closet shall be put in
4 good order and repair, and if of wood shall be well painted with light
5 colored paint.
1 Section 54. Where a connection with a sewer is possible, all cess- Removal of
2 pools, school sinks, privy vaults or other similar receptacles used to mT.Tse', § 53.
3 receive fecal matter, urine or sewage shall within one year thereafter
4 be completely removed and the places where they were located properly
5 disinfected under the direction of the board of health. Such appliances
6 shall be replaced by individual water closets of durable non-absorbent
7 material, properly sewer connected, with individual traps and properly
8 connected flush tanks providing an ample flush of water thoroughly to
9 cleanse the bowl. Each water closet shall be located inside the tenement
10 house in a compartment completely' separated from every other M'ater
11 closet, and such compartment shall contain a window of not less than
12 three square feet in area opening directly upon the street or yard, or on
13 a court of which the least dimension is not less than three feet and the
14 area not less than fifteen square feet. The floors of the water closet
15 compartment shall be waterproof, as provided in section thirty-two.
16 There shall be provided at least one water closet for each apartment
17 unless, in tlie opinion of the building inspector, this shall be impracti-
18 cable; but in no case shall there be less than one water closet for every
19 two apartments. Such water closets and all plumbing in connection
20 therewith shall be sanitary in every respect, and, except as in this section
21 otherwise provided, shall be in accordance with the laws, ordinances and
22 regulations in relation to plumbing and drainage. Pan and long hopper
23 closets shall not be permitted.
1 Section 55. Any part of a floor or wall below the adjoining grade," Basements
2 and in any case the lowest floor, shall be damp proof, and, when neces- bSdamp" '"
3 sary, shall be concreted with a finished surface. The cellar ceiling shall fgis'^so 5 54
4 be plastered when so required by the building inspector, except where
5 such ceiling is already well covered with a metal ceiling or where the
6 first floor above the cellar is constructed of iron beams and fireproof
7 filling.
1494
TENEMENT HOUSES IN CITIES.
[ClL\P. 144.
^nd'coiTrtf "'*' Section 56. At the bottom of every shaft and court there shall be
1913, 780, § 55. ^ door giving sufficient access to such shaft or court to enable it to be
properly cleaned out; provided, that where there is already a window
giving proper access to such shaft or court, such window shall be deemed
sufficient.
Construction
of fire escapes.
1913,786,156.
Section 57. All non-fireproof tenement houses which are tlu-ee or 1
more stories in height and do not have fireproof stairs and stair halls or 2
adequate fire escapes as required by this chapter, except those of three 3
stories which have two independent means of egress not directly con- 4
nected with each other, approved in writing by the building inspector, 5
and directly accessible to each apartment, shall be provided either with 6
incombustible outside stairways or with incombustible fire escapes directly 7
accessible to each apartment without passing through a public hall. 8
All fire escapes thereafter erected shall be located and constructed as 9
prescribed in section thirty-seven. 10
No existing fire escape shall be deemed adequate unless the following 11
conditions are complied with: 12
(1) Each apartment above the ground floor shall have a fire escape 13
balcony directly accessible to it. All balconies shall be capable of sus- 14
taining a li^'e load of seventy pounds per square foot. 15
(2) Each balcony shall be properly connected with one other balcony 16
by adequate stairs or stationary ladders with openings not less than 17
twenty-four by thirty-six inches, unless such balconies connect adjoining 18
houses or adjoining parts of the same house separated from each other 19
by a fire Mall in which there are no openings except such as are protected 20
by self-closing fire doors. 21
(3) All fire escapes shall have proper ladders from the lowest balcony 22
of sufficient length to reach a safe landing place beneath. 23
(4) All fire escapes not on the street shall have a safe and adequate 24
means of egress from the yard or court to the street or to adjoining 25
premises. 26
(5) Prompt and ready access shall be had to all fire escapes, which 27
shall not be obstructed in any way. 28
No existing fire escape shall be extended or have its location changed 29
except with the written approval of the inspector of buildings. 30
Means of
Section 58. Whenever a tenement house is not provided with 1
1913, 786, § 57. sufficient fire escapes or with sufficient means of egress in case of fire, 2
the building inspector shall order such additional fire escapes and other 3
means of egress as may be necessary.
Alterations.
1913, 786, § .58.
alter.\tions of old buildings.
Section 59. No tenement house shall at any time be so altered 1
as to be in violation of the requirements of sections ten to forty-nine, 2
inclusive, except as hereinafter pro\'ided: 3
(1) Any additional room or hall that is thereafter constructed or 4
created in a tenement house shall comply in all respects with said sec- 5
tions, except that such rooms may be of the same height as the other 6
rooms in the same story of the house. 7
(2) All shafts shall be constructed fireproof tlu-oughout; with fire- 8
proof self-closing doors at all openings, at each story; and, if they extend 9
to the cellar, shall also be enclosed in the cellar with fireproof walls and 10
ClL\P. 144.] TENEMENT HOUSES IN CITIES. 1495
11 fireproof self-closing doors at all openings. In no case shall any shaft be
12 constructed of materials in which any inflammable material or substance
13 enters into any of the component parts. But nothing in this section
14 shall be so construed as to require such enclosures about elevators or
15 dumb-waiters in the well hole of stairs where the stairs themselves are
16 enclosed in brick or stone walls, antl are entirely constructed of fireproof
17 materials as proviiled in this chapter.
18 (3) No tenement house of third class construction containing more
19 than two apartments shall thereafter be enlarged or extended; except
20 that a wooden extension not exceeding in total area seventy square feet
21 may be added to an existing wooden tenement house, provided that ^
22 such extension is used solely for bathrooms or water closets.
MAINTENANCE AND USE.
1 Section 60. In every tenement house where the public halls and ^ufifo'ifaiis
2 stairs are not, in the opinion of the board of health, sufficiently lighted, ™ ti^e daytime.
3 the owner of the house shall keep a proper light burning in the hallway,
4 near the stairs, upon each floor, as may be necessary, from sunrise to
5 sunset.
1 Section 61. In every tenement house occupied by more than two Lighting of
2 families a proper light shall be kept burning by the owner in the public at'n'iKht!'"''
3 hallways, near the stairs, upon the entrance floor, and upon the second ^^^^' '''^^' ^ ^'^■
4 floor above the entrance floor of the house, every night from sunset to
5 sunrise throughout the year, and upon all other floors of the said house
6 from sunset until ten o'clock in the evening.
1 Section 62. No water closet shall be permitted in the cellar of water closets
in c&Uqfs.
2 any tenement house, except as provided in sections twenty-seven and i9i3, 7S6, § m.
3 tlyrty-two.
1 Section 63. In every existing tenement house, there shall be pro- water closet
2 vided at least one water closet for every two apartments, lois, 786, § 62. tions™""''''"
1 Section 64. In existing tenement houses no room in the cellar shall Occupation of
ri 1 i> 1 •IP,.. .. . nasenient and
2 thereafter be occupied for living purposes except as provided in section cellar rooms
o
twentv-seven. And no room in the basement of such houses shall be so purposes
4 occupied unless all the following conditions are complied with: Every
5 such room shall be at least eight feet high in every part from the floor to
6 the ceiling, and the ceiling in every part shall be at least four and one
7 half feet above the curb level of the street or the level of the yard or
8 court in front of such room. There shall be appurtenant to every such
9 room the use of a water closet. E\'ery such room shall liave a window
10 opening, as provided in section fifty, of at least twelve square feet in size
1 1 clear of the sash frame, which shall open readily for purposes of ventila-
12 tion. The lowest floor shall be waterproof and damp proof. Every such
13 room shall have sufficient light and ventilation, shall be well drained and
14 dry, and shall be fit for human habitation.
1913, 786, 5 63.
Floors around
1 Section 65. Li all tenement houses the floor or other surface be-
2 neath and around water closets and sinks shall be maintained in good "nd'sinto'""
3 order and repair, and if of wood shall be kept well painted with light iai3,7S6, §64.
4 colored paint.
1496
TENEMENT HOUSES IN CITIES.
[Chap. 144.
Repairs.
1913, 786, § 65.
Section 66. Every tenement house and all the parts thereof shall be 1
kept in good repair, and the roof shall be kept so as not to leak, and all 2
rain water shall so be drained and conveyed therefrom as to prevent 3
dampness in the ■walls, ceilings, yards or areas. 4
Water supply.
1913. 7Sfi. I 66.
Section 67. Every tenement house shall have water furnished in 1
sufficient quantity at one or more places in each apartment. The owner 2
shall provide proper and suitable tanks, pumps or other appliances to .3
receive and distribute an adequate and sufficient supply of water at each 4
apartment in the said house at all times of the year during all hours of 5
the day and night. But a failure in the general supply of M-ater furnished 6
by the citj' authorities or from the freezing or bursting of pipes shall not 7
be construed to be a failure on the part of such owner, provided that 8
proper and suitable appliances to receive and distribute water have been 9
provided in the said house. 10
Buildings to
be kept clean
and free from
refuse matter,
1913, 786, § 67.
Section 68. The owner of every tenement house shall cause every
pmrt thereof to be kept clean and free from any accumulation of dirt,
filth and garbage or other refuse matter in or on the same, or in the
cellars, halls, passages, rooms, areas, yards, courts, and spaces ap-
purtenant thereto. The owner shall thoroughly cleanse every part of
a tenement house whenever ordered so to do by the board of health.
Walls of courta
to be whitened,
1913, 786, § 68.
Section 69. The walls of all courts, except those opening on a
street, unless built of a light colored brick or stone, shall be thoroughly
whitened by the owner, or shall be painted a light color by him, and
shall so be maintained. Such whitening or paint shall be renewed when-
ever necessary as may be required by the board of health.
Walls and
ceilings of
rooms, etc.
1913, 786, § 69.
Section 70. In all tenement houses the board of health may re-
quire the walls and ceilings of every room that does not open directly
on the street to be whitened or painted with white paint when necessary
to improve the lighting of such room, and may require this to be re-
newed as often as may be necessarv.
Wall paper.
1913, 7S6, § ■
•0. Section 71. No wall paper shall be placed upon the wall or ceiling 1
of any tenement house unless the wall or ceiling has been thoroughly 2
cleaned. 3
imashtVetc. Section 72. The owucr of every tenement house shall provide and 1
vid^.''^"' maintain therefor suitable covered water tight receptacles for ashes, 2
1913. 786, § 71 rubbish, garbage, refuse and other like matter. 3
pr"hib°t^^' Section 73. No swine shall be kept in a tenement house, or on the 1
1913. 786, § 72. game lot therewith. No horse, cow, calf, sheep, goat or fowl shall be 2
kept in a tenement house or on the same lot therewith within twenty- 3
five feet of the tenement house. No tenement house, or the lot upon 4
which it is situated, shall be used for the storage or handling of rags, 5
nor as a place of public assemblage. 6
u>°\t°ille''of Section 74. No tenement house, and no part thereof, or of the lot 1
mSeri'ab''etc upou which it is situatcd, shall be used as a Dlace of storage, keeping 2
mSeri'ab''etc upou which it is situatcd, shall be used as a place of storage, keepii ^
1913,786,5 73. or handling of any article dangerous or detrimental to life or health,
Chap. 144.] tenement houses in cities. 1497
4 nor for the storage, keeping or handling of feed, hay, straw, excelsior,
5 cotton, paper stock, feathers, rags or other easily combustible articles.
1 Section 75. No bakery or place of business in which fat is boiled ^t'^oiun'""'
2 shall be maintained in any tenement house. i9i3, -so. § 74.
1 Section 76. There shall be no transom, window or door opening other danger-
2 into a hall from any part of a tenement house where paint, oil, spirituous igis.reeryTs.
3 liquors or drugs are stored for the purpose of sale or otherwise.
1 Section 77. In any tenement house in which the owner thereof does .Tanitor or
2 not reside, there shall be a janitor, housekeeper or other responsible i9i3?7S6!'T76.
3 person who shall have charge of the same if the board of health shall
4 so require.
1 Section 78. If a room in a tenement house is overcrowded, the OvererowdinE.
2 board of health may order the number of persons sleeping or living in
3 said room to be so reduced that there shall not be less than four hundred
4 cubic feet of air to each adult, and three hundred cubic feet of air to
5 each child under twelve occupying the room.
1 Section 79. No tenement house or part thereof, shall be used for Letting of
2 the letting of lodgings unless the person letting the same shall first file regulated.
3 a notice in writing of the proposed letting in the office of the board of ^^^^' '^'''^ '*■
4 health, nor shall any person not a member of the family be taken to
5 live within an apartment occupied by any family without such written
6 notice. The owner shall see that this section is at all times complied
7 with, and a failiue so to comply on the part of any tenant, after due
8 and proper notice from the owner, shall be deemed sufficient cause for
9 the summary eviction of such tenant and the cancellation of his lease.
1 Section SO. Whenever any tenement house or building, structure. Board of
2 excavation, business pursuit, matter or thing, in or about a tenement order repairs.
3 house, or the lot on which it is situated, or the plumbing, sewerage, i|'"i3 ygg § 79.
4 drainage, light or ventilation thereof, is, in the opinion of the board
5 of health, in a condition or in eflPect dangerous or detrimental to life or
6 health, the board may declare that the same, to the extent which it may
7 specify, is a public nuisance, and may order the same to be removed,
8 abated, suspended, altered or otherwise improved or purified, as the
9 order shall specify. The board may also order or cause any tenement
10 house or part thereof, or any excavation, building, structure, sewer,
11 plumbing, pipe, passage, premises, ground, matter or thing, in or about
12 a tenement house, or the lot on which it is situated, to be purified,
13 cleansed, disinfected, removed, altered, repaired or improved. If any
14 order of the board is not complied with, within ten days after the serA'ice
15 thereof, or within such longer or shorter time as the board may designate,
16 then such order may be executed by said board through its officers,
17 agents, employees or contractors.
1 Section 81. Whenever it shall be certified by an inspector or officer infected and
2 or agent of the board of health that a tenement house, or any part thereof, houses to be
3 is infected with contagious disease, or that it is unfit for human habita- igis'fse, § so.
4 tion, or dangerous to life or health by reason of want of repair, or of
5 defects in the drainage, plumbing, ventilation or the construction of the
1498 TENEMENT HOUSES IN CITIES. [ChAP. 144.
same, or by reason of the existence on the premises of a nuisance hkely 6
to cause sickness among the occupants of said house, the board may 7
issue an order requiring all persons therein to vacate such house, or part 8
thereof, within not less than twenty-four hours nor more than ten days, 9
for the reasons to be mentioned in said order. In case such order is not 10
complied with within the time specified, the board may cause said tene- 11
ment house or part thereof to be vacated. The board, whenever it is 12
satisfied that the danger from said house or part thereof has ceased to 13
exist, or that it is fit for human habitation, may revoke said order, or 14
may extend the time within which to comply with the same. 15
fire'^esca°pes. SECTION 82. The owucr of cvcry tenement house shall keep all fire 1
1913, 786, § 81. escapes thereon in good order and repair, and whenever tiiey become 2
rusty shall have them properly painted with two coats of paint. No 3
person sliall at any time place any encumbrance of any kind before or 4
upon any such fire escape. 5
he^!'"eio'^"{o" Section 83. All scuttles and bulkheads, and all stairs or ladders 1
accessible at all '^^"^1"? thereto, shall be easily accessible to all tenants of the building, 2
Jif'S^.'iJJ- 5 o, and kept free from encumbrance, and ready for use at all times. No 3
"' scuttle or bulkhead door shall at any time be locked with a key, but 4
either may be fastened on the inside by movable bolts or hooks. 5
REQUIREMENTS AND REMEDIES.
bSngs'"^ Section 84. In a city which accepts this chapter, or has accepted 1
1913°'ts6'^§ 83 Corresponding provisions of earlier laws, and in which the office of build- 2
ing inspector or a similar office does not exist, the mayor shall annually 3
appoint an inspector of buildings. 4
co™ractk)n Section 85. Before the construction or alteration of a tenement 1
of tenemen" housc, or the alteration or conversion of a building for use as a tenement 2
igiT'yso s 84 house, is begun, and before the construction or alteration of any building 3
or structure on the same lot with a tenement house, the owner shall sub- 4
mit to the building inspector a detailed statement in wTiting, verified by 5
the affidavit of the person making the same, of the specifications for such 6
tenement house or building, upon blanks or forms to be furnished by 7
such inspector, and also full and complete copies of the plans of the work, 8
together with a plan of the lot on which the same is or is to be situated, 9
showing the location, character and size of all buildings thereon, and the 10
exact dimensions of said lot together with its description by metes and 11
bounds. The said statement shall give in full the name and residence, 12
by street and number, of the owner of the tenement house or other build- 13
ing. If such construction, alteration or conversion is proposed to be 14
made by any other person than the owner of the land in fee, the statement 15
shall contain the full name and residence, by street and number, not 16
only of the owner of the land, but of every person interested in the tene- 17
ment house, either as owner, lessee or in any representati\^e capacity. IS
The affidavit shall allege that said specifications and plans are true and 19
contain a correct description of such tenement house or other building, 20
structure, lot and proposed work. The statements and affiflavit herein 21
provided for may be made by the owner, or by the person who proposes 22
to make the construction, alteration or conversion, or by his agent. 23
No person shall be recognized as the agent of the owner, unless he shall 24
file with the building inspector a written instrument, signed by the 25
Chap. 144.] tenement houses in cities. 1499
26 owner, designating him as such agent. Any false swearing in a material
27 point in any such affidavit shall be deemed perjury. The said specifica-
28 tions, plans and statements shall be filed in the office of the building in-
29 spector and shall be public records, and no such specifications, plans or
30 statements shall be removed from the said office. The building inspector
31 shall cause all such plans and specifications to be examined.
32 If such plans and specifications conform to the provisions of law they
33 shall be approved in wTiting by the building inspector, and he may from
34 time to time approve changes in any plans and specifications, provided
35 that the plans and specifications so altered are in conformity with law,
36 but the buUding inspector shall not approve any plans or specifications
37 or any changes in the same until the board of health has certified that
38 the said plans and specifications conform to the law relative to light,
39 ventilation and sanitation. The construction, alteration or conversion
40 of such tenement house, building or structure or any part thereof, shall
41 not be begun luitil the filing of the said specifications, plans and state-
42 ments, and the approval thereof, as above provided. The construction,
43 alteration or conversion of any such house, building or structure, shall
44 be in accordance with the said approved specifications and plans. Any
45 permit or approval which may be issued by the building inspector but
46 under which no w'ork^has been done above the foundation walls within
47 one year after the issuance of the permit or approval, shall expire by
48 limitation. Said inspector may revoke or cancel any permit or approval
49 in case of any failure or neglect to comply with any provision of this
50 chapter, or in case any false statement or representation was made in
51 any specifications, plans or statements submitted or filed for such permit
52 or approval.
1 Section 86. No building thereafter constructed as or altered into a Buiidingnot
2 tenement house shall be occupied in whole or in part for human habitation unuf aTte""'^''
3 until the building conforms in all respects to the requirements of law. i9i'3°7|6,\'''s5.
4 Upon notice of the completion of the construction, alteration or conver-
5 sion of a tenement house, the building inspector and the board of health
6 shall inspect the building forthwith and it shall not be occupied as a place
7 of habitation unless it conforms to the requirements of this chapter.
1 Section 87. Any court having jiu-isdiction in equity, or any justice Enforcement
2 thereof may upon the application of the city solicitor, building inspector igr^Tso^l^e.
3 or the board of health of any city, restrain the construction, alteration,
4 repair, maintenance, use, or occupation of a building or other structure
5 in violation of this chapter and order its removal or abatement as a
6 nuisance, and compel compliance with any provision of this chapter.
1 Section 88. A building or other structure which is erected, altered, building
r»'*i 1 • • 1 • e» 1 • erected, etc.,
2 manitamed or used m violation of this chapter shall be deemed a com- '" violation
3 mon nuisance without other proof thereof than proof of such unlawful be deemed a
4 construction, maintenance or use, and the board of health may, if such nubance.etc.
5 violation is of any section of this chapter relative to light, ventilation or ^^^*' ^*''" * ^^'
6 sanitation, and the building inspector may, if said violation is of any
7 other provision of this chapter, order the owner of said premises at his
8 own expense to abate or remove said nuisance within twenty-four hours,
9 or within such further time as said board of health or said building in-
10 spector, as the case may be, considers reasonable, after notice to be served
1 1 in the manner provided in section ninety-five, and if the owner or occu-
1500
TENEMENT HOUSES IN CITIES.
[Chap. 144.
pant fails to comply M-ith such order, the board may abate or remove the 12
miisance, and all expenses incurred thereby shall be paid by the person 1.3
who caused or permitted the same. 14
Penalties.
1913, 7S6, I 88.
Section 89. AMioever violates any pro\asion of this chapter shall 1
be punished by a fine of not less than ten dollars. Any person who 2
violates any provision of this chapter, after he has been served with .3
a notice or order as pro^•ided by section ninety-fi-\'e, or who fails to comply 4
M'ith such notice or order within ten days after such service, or continues 5
to violate any provision or requirement of this chapter in the respect 6
named in such notice or order, shall in addition be punished by a fine of 7
not less than five nor more than twenty dollars for each day after the 8
first dav during which the violation continues. 9
Action of
board of
health, etc.,
may be re-
viewed
by superior
court.
1913, 786, § 89.
Section 90. Any person, the value of whose property may be affected 1
by any action of the board of health or of the building inspector, may 2
have the action of said board or inspector reviewed by the superior court 3
by any appropriate process; provided, that proceedings are instituted 4
within twenty days after such action. ' 5
Right of Section 91. Any person having any duty to perform under this 1
1913. 786, § 90. chapter in regard to any building or premises may, if it be necessary for 2
the performance of such duty, enter the same. 3
Liens.
1913, 786, § 91.
Section 92. Every fine imposed by judgment under section eighty- 1
nine of this chapter or section fifty-four of chapter one hundred and 2
forty-five upon a tenement house owner shall be a lien upon the house 3
in relation to which the fine is imposed from the time of the filing of a 4
certified copy of the judgment in the office of the register of deeds for 5
the county or district where the tenement house is situated, subject only 6
to taxes, assessments and water rates and other existing lawful encum- 7
brances, and the board of health and the building inspector, upon the 8
entry of said judgment, shall forthwith file the copy as aforesaid, and 9
the copy, upon such filing, shall forthwith be properly indexed by the 10
register of deeds. 1 1
Notice of Section 93. In anv action or proceeding instituted bv the officer 1
pendency of i' • i i T f> i • i ' i i • r»
action to be or department charged with the enforcement ot this chapter, the plain- 2
1913, 786, § 92. tiff Or petitioner may file in the office of the register of deeds for the 3
county or district where the property affected by such action or proceed- 4
ing is situated, a notice of the pendency of the action or proceeding. The 5
register of deeds with whom the notice is filed shall record it, and shall 6
index it under the name of each person against whom said proceeding is 7
instituted. Any such notice may be vacated by the order of a justice 8
of the court in which the action or proceeding was instituted or is pend- 9
ing. The register of deeds of the county or district where the notice is 10
filed is hereby directed to mark the notice and any record or docket 11
thereof as cancelled of record, upon the presentation and filing of a cer- 12
tified copy of such order. 13
etc!" to be*""' SECTION 94. Every owner of a tenement house and every lessee of 1
registered, ^^le wholc housc, Or otlicr per^ou having control of a tenement house, 2
1913, 786, 1 93. g}iall file with the board of health a notice containing his name and 3
address, and also a description of the property, by street and number or -4
CiL\p. 145.]
TENEMENT HOUSES IN TOTVNS.
1501
5 othenvise, as the case may be, in such manner as will enable the said
6 board easily to find the same; and also the number of rooms in each
7 apartment, and the number of families occupying the apartments.
8 When the owner or agent is not a resident of the city the notice shall
9 contain the name and address of some agent residing within the city
10 for the purpose of receiving ser\'ice of process, and notice to and ser\'ice
11 of process upon such agent shall bind the principal. Blanks for the
12 said registration shall be provided by the board of health.
1 Section 95. Unless otherwise provided in this chapter, every notice service of
2 or order in relation to a tenement house shall be served ten days before Jgls^^rse, § 94.
3 the time for doing the thing in relation to which it is issued. The service
4 of a notice or order as aforesaid shall be made by the delivery of an at-
5 tested copy in hand to the owner or his agent, or by leaving an attested
6 copy at the last or usual place of abode of the owner or agent, or, if the
7 owner is a non-resident and has no agent duly appointed, it shall be
8 placed in a conspicuous place in said tenement house and a copy thereof
9 mailed by a registered letter, on the same day on which it is posted, to
10 the owner or his agent at his residence.
summons
■86, § 95.
1 Section 96. In any action brought by any city official in relation service of
2 to a tenement house for injunction, vacating of the premises or other 1913™?]
3 abatement of nuisance, or to establish a lien thereon, service of process
4 shall be in the manner provided in the preceding section, except that
5 the service of process shall be made only by a sheriff or one of his depu-
6 ties or by a constable.
1 Section 97. The names and addresses filed in accordance with certain names
2 section ninety-four shall be indexed by the board of health in such a ?o be indexed^,
3 manner that all those filed in relation to each tenement house shall be jg^s, 750, § ge.
4 together, and readily ascertainable. The board of health shall provide
5 the necessary books and clerical assistance for that purpose, and the
6 expense thereof shall be paid by the city. Said indexes shall be public
7 records, open to public inspection during business hours.
1 Section 98. Upon acceptance of this chapter by any city all ordi- J^g^fs^^ygg 5 97
2 nances of such city inconsistent herewith shall be annulled.
CHAPTER 145.
TENEMENT HOUSES IN TOWNS.
Sect.
general provisions.
1. Application.
2. Definitions.
3. Application of certain sections.
4. Certain provisions as to tenement
houses in cities applicable.
5. Laws not to be modified.
6. Sewer connection and water supply.
7. Powers of the department of public
health.
Sect.
8. Improvements required to be made
within one year.
9. Buildings converted or altered.
NEW BUILDINGS. LIGHT AND VENTIL.1.TIO.V.
10. Percentage of lot occupied.
H. Distance from side lot line.
12. Height.
13. Yards.
14. Courts.
1502
TENEMENT HOUSES IN TO'WTSrS.
[CiL\P. 145.
Sect.
15. Air intakes.
16. Angles in courts.
17. Buildings on same lot with tenement
houses.
18. Frontage on street.
19. Lighting and ventilation.
20. Windows.
21. Size of rooms.
22. Alcoves.
23. Chimneys, etc.
24. Privacy.
25. Public halls.
26. Size of windows for public hall.
27. Size of windows for stair hall.
SANITATION.
28. Basements or cellars not to be used for
li\'ing purposes.
29. Courts, yards and areas to be drained,
etc.
30. Water closets.
31. Plumbing.
32. Sewer connection.
33. Cesspools.
FIRE PROTECTION.
34. Certain tenement houses to be fire-
proof.
35. Stairs.
36. Fire walls.
IMPKOVEMENTS IN OLD BUILDINGS.
37. Lighting and ventilating of rooms.
38. Privy vaults, etc.
39. Basements and cellars.
40. Fire escapes.
Sect.
alterations of old buildings.
41. Alterations.
MAINTENANCE AND USE.
42. Lighting at night.
43. Water closets not permitted in cellars.
44. Basement and cellar rooms not to be
occupied for living purposes.
45. Cellar walls, etc., to be whitened or
painted.
46. Walls of courts to be whitened.
47. Wall paper.
48. Janitor.
EEQCIREMENTS AND REMEDIES.
49. Inspection of buildings.
50. Permit for building to be required, etc.
51. Building inspector to grant permit
before building can be occupied, etc.
52. Procedure and penalties.
53. Building constructed, etc., in viola-
tion of this chapter to be deemed a
common nuisance, etc.
54. Penalty for violation, etc.
55. Jurisdiction of the superior court.
56. Right of entry into buildings or prem-
ises.
57. Liens.
58. Notice of pendency of action to be
filed, etc.
59. Owner's name to be registered.
60. Serving of notices, etc.
61. Service of summons.
62. Certain names and addresses to be in-
dexed.
63. Repeal, etc.
GENERAL PROVISIONS.
1912.' 6^35? §'94. SECTION 1. This chapter shall apply to all towns which accept it or 1
ha\'e accepted corresponding provisions of earlier laws by vote of the 2
town at a town meeting. 3
Definitions.
1912, 635, § 2.
Section 2. The following Mords used in this chapter shall have the 1
following meanings: 2
"Acceptance of this chapter" shall include the acceptance of corre- 3
sponding provisions of earlier laws. 4
"Basement", a story partly but not more than one half below the 5
level of the adjacent ground. 6
"Cellar", a story more tlian one half below the level of the adjacent 7
ground. 8
"Corner lot", a lot situated at the junction of two streets, each not 9
less than twenty feet in width. Any part of the width of such lot dis- 10
tant more than seventy feet from such junction shall not be regarded as 11
part of a corner lot, but shall be subject to the provisions of this chapter 12
respecting interior lots. 13
"Court", an open unoccupied space, other than a yard, on the same 14
Chap. 145.] tenement houses in towtss. 1503
1.5 lot with the tenement house. A court not extending to the street or
16 yard is an "inner court". A court extending to the street or yard is an
17 "outer court".
18 "Existing", existing at the time of the acceptance of this chapter
19 or corresponding provisions of earher laws.
20 "Fireproof tenement house", one constructed of fireproof material
21 throughout, with floors built of iron, steel or re-enforced concrete beams,
22 filled in between with terra cotta or other masonry arches or with con-
2.3 Crete or re-enforced concrete slabs; wood may be used only for under
2-4 and upper floors, windows and door frames, sashes, doors, interior finish,
25 hand rails for stairs, necessary sleepers bedded in the cement, and for
26 isolated furrings bedded in mortar. There shall be no air space between
27 the top of any floor arches and the floor boarding.
28 "Front" of a lot, that boundary line which borders on the street.
29 In the case of a corner lot, the owner may elect by statement on his plans
30 either street boundary line as the front.
31 "Half story", any story included in the roof of which the floor area
32 of the rooms is not more than seventy-five per cent of the area of the
33 ground floor.
34 "Height" of a tenement house, the perpendicular distance measured
35 in a straight line from the curb level, or from the finished grade line of
36 the lot, where such grade is higher than the curb, to the highest point
37 of the roof beams in the case of flat roofs, and to the a^'erage of the height
38 of the gable in the case of pitched roofs, tiie measurements in all cases to
39 be taken through the centre of the fa(;'ade of the house. Where a building
40 is on a corner lot and there is more than one grade or level, the measure-
41 ments shall be taken through the centre of the facade on the street having
42 the lowest elevation.
43 "Interior lot", any lot other than a corner lot.
44 "Lodging house" or " boarding house", any house or building, or part
45 thereof, in which six or more persons are harbored, received or lodged for
46 hire, or any building, or part thereof, which is used as a sleeping place
47 or lodging for six or more persons not members of the family residing
48 therein.
49 "Nuisance" includes all public nuisances as known at common law
50 or in ecjuity jurisprudence; and furthermore whatever is dangerous to
51 human life or detrimental to health, whatever building or erection, or
52 part or cellar thereof, is overcrowded with occupants or is not provided
53 with adecjuate ingress and egress to and from the same, or the apart-
54 ments thereof, or is not sufficiently supported, ventilated, sewered,
55 drained, cleaned or lighted, in reference to their or its intended or actual
56 use, and whatever renders the air or human food or drink unwholesome,
57 are also severally in contemplation of this chapter, nuisances; and all
58 such nuisances are hereby declared unla^\•ful.
59 "Occupied spaces". Outside stairways, fire escapes, porches, plat-
60 forms and other projections shall be considered as part of the building
61 and not as part of the yard or courts or unoccupied area.
62 " Public hall ", a hall, corridor or passageway not within an apartment.
63 " Rear " of a lot, the side opposite to the front. In the case of a triangu-
64 lar or gore lot the rear shall be the side not bordering on the street.
65 "Stair hall", the stairs, stair landings and those parts of the public
66 halls tlirough which it is necessary to pass in going from the entrance
()7 floor to the roof.
1504 TENEMENT HOUSES IN TOWNS. [ChaP. 145.
"Street", any right of way dedicated to public use, any public alley, 6S
railroad right of way, cemetery or public park, twenty feet or more in (39
width. * 70
"Tenement house", any house or building, or part thereof, which is 71
rented, leased, let or hired out to be occupied, or is occupied or is in- 72
tended, arranged or designed to be occupied as the home or residence of 73
more than two families (a family may consist of one or more persons) 74
living independently of each other and having a common right in the 75
halls, stairways, j'ard, cellar, sinks, water closets or privies, or any of 76
them, and includes lodging and boarding houses, apartment houses, and 77
flat houses. Dwelling houses built in continuous rows of more than 78
two houses occupied or intended, arranged or designed to be occupied 79
as the home or residence of one family or more having a common right 80
in or using in common the halls, stairways, yards, cellars, sinks, water 81
closets or privies, or any of them, shall be deemed to be tenement houses 82
and shall be subject to all the provisions of this chapter. 83
"Thereafter", after the acceptance of this chapter or corresponding 84
provisions of earlier laws. 85
"Wooden building", a building of which the exterior walls or a part 86
thereof are wood. 87
"Yard", an open unoccupied space in the same lot with a tenement SS
house between the extreme rear line of the house and the extreme rear 89
line of the lot. An open unoccupied space between the front line of the 90
house and the front line of the lot is a " front yard ". A " side yard " shall 91
be deemed an outer court on the lot line. 92
Words used in the present tense include the future; words in the 93
masculine gender include the feminine and neuter; the word "shall" 94
is always mandatory, and denotes that the house shall be maintained in 95
all respects according to the mandate as long as it continues to be a 96
tenement house; wherever the words "by-laws", "regulations", "build- 97
ing inspector" or "board of health" occur in this chapter they shall be 98
construed as if followed by the words "of the town in which the tene- 99
ment house is situated"; wherever the words "is occupied" are used 100
in tills chapter applying to any building they shall be construed as if 101
followed by the words "or is intended, arranged or designed to be 102
occupied". 103
M?t'ain''s*ect'ion's SECTION 3. Uuless Otherwise specifically provided therein, sections 1
st'^if^is 17- ^^^ ^^ thirty-six, inclusive, shall apply only to tenement houses erected 2
28, 31, '33,' 31. after the acceptance of this chapter, and sections thirtv-seven to fortv- 3
37 39 40 45 . ' '
49; 52! 51! ' one, inclusive, only to tenement houses erected prior to such acceptance. 4
Certain provi- SECTION 4. The provisions of sections nine, fourteen, twenty-eight, 1
menthouses twcnty-ninc, thirty-one, thirty-four, thirty-five, forty-five, forty-eight, 2
L°ppikabie. forty-nine, fifty-one to fifty-three, inclusive, fifty-six, fifty-eight, sixty- 3
i4,^"29^^3bfV2; three, sixty-five to sixty-eight, inclusive, except the provision in section 4
«; 4«'-is,' 5?; sixty-seven as to the freezing or bursting of pipes, seventy, seventy-two 5
efi' ei-r^'^'Ti- ^^ seventy-six, inclusive, seventy-eight and eighty to eighty-tliree, in- 6
78! ' elusive, of chapter one hundred and forty-four shall apply to tenement 7
houses in towns, but unless otherwise specifically provided therein the 8
provisions of the first ten of said sections shall apply only to tenement 9
houses erected after acceptance of this chapter and the provisions of said 10
sections fifty-one, fifty-two, fifty-three, fifty-eight and sixty-three only U
to tenement houses erected prior to such acceptance. 12
Chap. 145.] tenement houses in towtvs. 1505
1 Section 5. The provisions of this chapter shall be held to be the i""? not to be
2 minimum requirements adopted ior the protection oi the liealtn and 1912, ess, §s.
3 safety of the community. Nothing in this chapter shall be construed as
4 prohibiting any town from enacting from time to time by-laws imposing
5 further restrictions, but no regulation or ruling of any town authority
6 shall repeal, amend or dispense with any provision of this chapter.
1 Section 6. The provisions of this chapter with reference to sewer Sewerconnec-
2 connection and water supply shall be deemed to apply only where con- supply.
3 nection with a public sewer and with public water mains is or becomes }9}4; 790; § i'
4 practicable. The questions of the practicability of such sewer and water i9i9.35o,§96.
5 connections shall be decided by the local board of health, or by the
6 department of public health upon request of the local board.
1 Section 7. The department of public health may examine into the Powers of the
2 enforcement of the laws relating to tenement houses in any town. When- puMicSth.
3 ever required by the governor, it shall make such an examination and lUuiral!!!:
4 shall report the result thereof to the governor within the time prescribed ^^^^- '^^°' ^ '"''■
5 by him therefor.
1 Section 8. In tenement houses erected prior to the acceptance of J"p™J|To b*e'
2 this chapter by a town all improvements specifically required thereby "^''/y^^;.""''
3 shall be made within one year thereafter, or at such earlier time as may 1912. t>35. § 8.
4 be fixed by the board of health.
1 Section 9. A building not a tenement house, if converted or altered verted"or ™''"
2 to such use after the acceptance of this chapter, shall thereupon become jgfal'eas, § 3.
3 subject to all the provisions thereof affecting tenement houses erected
4 thereafter.
NEW buildings. LIGHT AND VENTILATION.
1 Section 10. No tenement house shall occupy either alone or with Percentage of
2 other buildings more than sixty-five per cent of a corner lot, nor more 1912,635, §9.
3 than fifty per cent of any other lot; the measurements shall be taken
4 at the ground level. No measurements of lot area shall include any part
5 of any street or alley.
1 Section 11. No non-fireproof tenement house shall be erected, °<\e'fot''fmc°'"
2 enlarged, or placed with the side walls nearer than ten feet to the line of i^i^, 035. § 10.
3 any adjoining lot, or with any wall nearer than twenty feet to the wall
4 of any other building. No lot upon which stands a tenement house
5 erected before or after the acceptance of this chapter shall be changed
6 in size to bring the side walls of said house nearer than ten feet to the
7 lines of any adjoining lot or any wall of said house nearer than twenty
8 feet to the wall of any other building.
1 Section 12. No tenement house shall exceed in height the width of fg^Sl'ess, §11.
2 the widest street upon which it stands, unless such house be set back
3 from the street a distance at least equal to the excess of such height over
4 the width of such street, nor shall it in any case exceed four stories in *
5 height.
'S'
1 Section 13. Behind every tenement house there shall be a yard 79Y2,°r,35, § 12.
2 extending across the entire width of the lot and at every point open from
1506 TENEMENT HOUSES IN TOWNS. [ClL\P. 145.
the ground to the sky unobstructed. Every part of the yard shall be 3
directly accessible from every other part thereof. The depth of the yard 4
shall be measured from the extreme rear of the house to the rear line of 5
the lot. If the tenement house is tlu-ee stories or less in height the depth 6
of the yard, in the case of interior lots, shall be at least twenty-five feet, 7
and the depth of the yard in the rear of corner lots shall be at least fifteen 8
feet. If the tenement house exceeds three stories in height, the depths 9
above prescribed in each case shall be increased five feet for each story 10
above three. 11
i9i2,'635, § 13. Section 14. The sizes of all courts shall be proportionate to the 1
height of the building. No court shall be less in any part than the 2
minimum sizes prescribed in this section. The minimum width of a .3
court for a two story building shall be ten feet, and the width shall 4
increase two feet for each additional story. The length of an inner court 5
shall never be less than twice the minimum width prescribed by this 6
section. The length of an outer court shall never be greater than twice 7
its minimum width, but this limitation of length shall not apply to an 8
outer court on the lot line extending from yard or street to yard. 9
i9i2?635?§ 15. Section 15. Every inner court shall be provided with two or more 1
horizontal air intakes at the bottom. One such intake shall always com- 2
municate directly with the street, and one with the yard, and each shall 3
consist of a fireproof passageway not less than three feet wide and seven 4
feet high which shall be left open, or be provided with an openwork gate 5
at each end, and the gate shall not be covered in any way either by glass 6
or any other material. 7
raufS'° Section 16. Nothing in the foregoing sections concerning courts 1
1912,635,116. gj^gjj jjg construed as preventing windows at the angles of said courts; 2
provided, that the running length of the wall containing such windows 3
does not exceed six feet. 4
8ameiStwi°h Section17. If any buildiiig is thereafter placcd on the samc lot with 1
^ou'ses''"' a tenement house, whenever erected, or a tenement house erected upon 2
any lot upon which there is already another building, it shall comply 3
with the provisions of this chapter and section eighteen of chapter one 4
hundred and forty-four, except that no rear building shall diminish the 5
minimum size of courts or yards as hereinbefore prescribed. 6
str™'"^* "° Section 18. Every tenement house shall have an unobstructed front- 1
1912, 63a, § IS. ^^^ upou & strcct not less than twenty feet wide. No tenement house 2
and no other building shall thereafter be erected, enlarged or placed on 3
the same lot with a tenement house in such manner that any tenement 4
house shall be left without an unobstructed frontage upon a street not 5
less than twenty feet wide. 6
vent'iaUon"'' SECTION 19. Evcry Toom, including water closet compartments and 1
1912, 635, § 19. bathrooms, shall have at least one window opening directly upon the 2
street or upon a yard or court of the dimensions specified in sections 3
thirteen and fourteen, and the window shall be so located as properly 4
to light all parts of the room. 5
1912, 635, § 17.
Chap. 145.] tenement houses in towns. 1507
1 Section 20. The total window area in each room, including water ^'°''°^?
2 closet compartments and batlirooms, shall be at least one seventh of the
3 superficial area of the room, and the top of at least one window shall
4 be not more than eight inches below the ceiling, and the upper half of
5 it shall be made so as to open the full width. At least one such window
6 in rooms other than bathrooms or water closets shall be not less than
7 twelve square feet in area between the stop beads; and in water closet
8 compartments and bathrooms at least one such window, shall be not less
9 than six square feet in area between the stop beads.
1 Section 21. There shall be in each apartment at least one room sizcof rooms
2 containing not less than one hundred and fifty square feet of floor area.
3 All rooms shall be in every part not less than nine feet from the finished
4 floor to the finished ceiling, except that an attic room need be nine feet
5 high in but one half of its area.
1 Section 22. An alcove in any room shall be lighted and ventilated ^912^035, § 22
2 separately, as provided for rooms in the foregoing sections, and shall
3 not be less than one hundred square feet in area. No part of any room
4 shall be enclosed or subdivided at any time, wholly or in part, by a cur-
5 tain, portiere, fixed or movable partition or other contrivance or device,
6 unless the part of the room so enclosed or subdivided shall contain a sepa-
7 rate window as herein required and shall have a floor area of not less than
8 one hundred square feet.
23.
1 Section 23. There shall be adequate chimneys running through chimneys, etc
2 every floor with an open fireplace or grate or place for a stove, for every
3 apartment, properly connected with one of the chimneys.
1 Section 24. In each apartment access to every living room and bed- ^9i2%^35, § 24.
2 room, and to at least one water closet compartment shall be had without
3 passing through a bedroom or bathroom.
1 Section 25. Every public hall shall have at each story at least fgi^^j'^s"!' 25.
2 one window opening directly upon the street or upon a yard or court of
3 the dimensions specified in sections thirteen and fourteen. Such window
4 shall be at the end of said hall with the plane of the window at right
5 angles to the hall's axis. Any part of a public hall which is in any way
6 shut ofl' from any other part of the hall shall be deemed a separate hall
7 within the meaning of this section.
1 Section 26. One at least of the windows provided to light each size of win-
2 public hall or part thereof shall be at least two feet six inches wide and haii.
3 five feet high, measured between stop beads, and the top of the window
4 shall be not more than eight inches below the ceiling. There shall be
5 in the roof, directly over each stair well, a ridge ventilator having a
6 minimum opening of forty square inches and with movable louvres.
1 Section 27. There shall be provided for each story at least one size of win-
2 window to light and ventilate each stair hall which shall be at least haii.
3 two feet six inches wide and five feet higii measured between the stop '^'" ''•*-■
4 beads. A sash door shall be deemed the equivalent of the window
1508
TENEMENT HOUSES IN TOWNS.
[Chap. 14.5.
specified in this section and the two foregoing sections, provided that o
each door contains tlie amount of glazed surface prescribed for such 6
windows. 7
SANITATION.
feifarsno'A"be SECTION 28. No room in the basement or cellar shall be constructed, 1
purposes''""^ altered, converted or occupied for living purposes. 1912, ess. § 2s. 2
and areaYto^e Section 29. All courts, arcas and yards shall be properly graded 1
i9r"'^635^'§'3i ^'1*^ drained; and when necessary in order to keep such premises in a 2
sanitary condition such courts, areas or yards, or such part thereof as 3
the board of health shall order, shall be properly concreted. 4
Water closets.
1912. 635. § 33.
Section 30. In every tenement house there shall be within each
apartment a separate water closet, located in a bathroom or in a sepa-
rate compartment. Each such water closet shall be completely sepa-
rated from every other water closet. Said compartment shall be not
less than three feet wide, and shall be enclosed with plastered partitions
which shall extend to the ceiling. Every such compartment shall have
a window opening directly upon the street or upon a yard or court of
the minimum size prescribed by this chapter. Every water closet com- 8
partment thereafter placed in any tenement house whenever erected 9
shall be provided with proper means of lighting the same at night, and 10
floors beneath the water closet shall be waterproofed as provided in sec- 11
tion tliirty-two of chapter one hundred and forty-four. No drip trays 12
shall be permitted. No water closet fixtures shall be enclosed with any 13
woodwork. No water closet shall be placed in the cellar. 14
Plumbing.
1912. 635. § 34.
Section 31. No plumbing fixtures shall be enclosed with woodwork. 1
All plumbing pipes shall be exposed except as otherwise permitted by 2
the board of health. Wherever plumbing or other pipes pass through 3
floors or partitions the openings around such pipes shall be sealed or 4
made air tight with plaster or other incombustible materials, so as to 5
prevent the passage of air or the spread of fire from one floor to another 6
or from room to room. All plumbing work shall be sanitary in every 7
particular and, except as otherwise specified in this chapter, shall be 8
in accordance with the local plumbing regulations. Pan and long hopper 9
closets shall not be used. 10
Sewer con- SECTION 32. Evcry tenement house on a street in which there is a 1
1912,6.35. §37. public sewer, or in which a public sewer shall hereafter be placed, shall 2
be connected therewith. 3
cesspools. Section 33. No cesspool shall be permitted in the cellar or court 1
of any tenement house, nor within fifteen feet of any wall of said tene- 2
ment house, or of any dwelling house. 3
FIRE PROTECTION.
Certain tene-
ment houses to
Section 34. No tenement house shall be erected exceeding two and 1
igi'"e3r§39 ""^ '^'"^'^ stories in height, nor shall it be occupied, nor intended, ar- 2
ranged or designed to be occupied, by more than two families, unless 3
it be a fireproof tenement house. 4
Chap. 145.] tenement houses in towns. 1509
1 Section 35. There shall be at least two independent flights of stairs stairs.
2 with separate entrances leading from the entrance floor to the top story, ' '
3 said flights of stairs being at two points as far apart as is po.ssible in
4 the opinion of the building inspector. Said stairs shall be directly ac-
5 cessible from each apartment, without passing through any other apart-
6 ment. One of said flights of stairs may consist of outside, open stairs
7 and balconies. All stairs and balconies and all public halls shall be at
8 least three feet wide in the clear. All stairs shall be constructed with a
9 rise of not more than seven and one half inches and with treads not
10 less than ten and one half inches wide, and not less than three feet long
11 in the clear. Winders shall not be permitted in any staircase.
1 Section 36. The provisions of section forty-seven of chapter one Firewalls.
2 hundred and forty-four shall apply to tenement houses in towns except '
3 that the fire walls therein specified need extend only to the underside of
4 the sheathing of the roof.
IMPROVEMENTS IN OLD BUILDINGS.
1 Section 37. The provisions of section fifty of chapter one hundred v™tik"!ng''of
2 and forty-four except as to area of the window provided therein shall ^^^'J^^ggg , ^-
3 apply to tenement houses in towns.
1 Section 38. Where a connection with a sewer is possible, all school ^^^"'^ vaults,
2 sinks, privy vaults or other similar receptacles used to receive fecal i^^^, 635, § 49.
3 matter, urine or sewage, shall within one year thereafter be completely
4 removed, and the place where they were located properly disinfected
5 under the direction of the board of health. Such appliances shall be
6 replaced by individual water closets of durable non-absorbent material,
7 properly sewer connected, with individual traps and properly connected
8 flush tanks providing an ample flush of water thoroughly to cleanse the
9 bowl. Each water closet shall be located inside the tenement house in a
10 compartment completely separated from every other water closet, and
1 1 such compartment shall contain a window of not less than three square
12 feet in area opening directly upon the street or yard, or on a court of the
13 minimum size prescribed in section fourteen. The floors of the water
14 closet compartments shall be waterproof as provided in section thirty.
15 There shall be provided at least one water closet for every two families
16 in every existing tenement house. Such water closets and all plumbing
17 in connection therewith shall be sanitary in every respect, and except as
18 otherwise provided in this section shall be in accordance with the laws,
19 town by-laws and regulations in relation to plumbing and drainage. Pan
20 and long hopper closets shall not be used.
1 Section 39. The floor of the cellar or lowest floor shall be free from Basements
2 dampness, and, when necessary, shall be concreted with four inches of i9i2?635?'§ 50.
3 concrete of good quality and with a finished surface. The cellar ceiling of
4 every tenement house shall be plastered, when so required by the build-
5 ing inspector, except where the ceiling is already well sheathed with
6 matched boards or well covered with a metal ceiling, or where the first
7 floor above the cellar is constructed of iron beams and fireproof filling.
1 Section 40. All non-fireproof tenement houses, which are three or Fire escapes.
2 more stories in height, and do not have fireproof stairs and stair '®^^' ^^^' ^"
1510 TENEMENT HOUSES IN TOWNS. [ChaP. 145.
halls or adequate fire escapes, as required by this chapter, shall be pro- .3
vided either with fireproof outside stairways or with fireproof fire escapes 4
directly accessible from each apartment without passing through a public 5
hall. 6
No existing fire escape shall be deemed adequate unless the following 7
conditions are complied with: 8
(1) In every tenement house each apartment above the ground floor 9
shall have a fire escape balcony directly accessible from it. 10
(2) All balconies shall be properly connected with each other by ade- 11
quate stairs or stationary ladders with openings not less than twenty- 12
four by thirty-six inches. 13
(3) All fire escapes shall have proper ladders from the lowest balcony 14
of sufficient length to reach a safe landing place beneath. 15
(4) All fire escapes not on the street shall have a safe and ade- 16
quate means of egress from the yard or court to the street or to adjoining 17
premises. 18
(5) Prompt and ready access shall be had to all fire escapes, which 19
shall not be obstructed in any way. 20
No existing fire escape shall be extended or have its location changed 21
except with the WTitten approval of the inspector of buildings. 22
All fire escapes thereafter placed on tenement houses shall be located 23
and constructed as follows: All such fire escapes shall open directly 24
from at least one room or private hall in each apartment at each story 25
above the ground floor, other than a bathroom or water closet compart- 26
ment, and such room or private hall shall be accessible to every room 27
thereof without passing through a public hall. Access to fire escapes 28
shall not be obstructed in any way. Fire escapes shall not be placed in 29
any court. Fire escapes may project into a public street, but not more 30
than four feet beyond the building line. All fire escapes shall consist of 31
outside fireproof balconies and stairways. All balconies shall be not less 32
than three feet in width, and shall include at least one window or outside 33
door of each apartment at each story above the ground floor. 34
All fire escape stairways shall be placed at an angle of not more than 35
forty-five degrees, with flat open steps, not less than nine inches in width 36
and twenty-four inches in length, and with a rise of not more than nine 37
inches. The openings for stairways in all balconies shall be not less than 38
twenty-four by thirty-six inches, and shall have no covers of any kind. 39
When tenement houses upon which fire escapes are placed have flat 40
roofs the balcony on the top floor, except in the case of a balcony on 41
the street, shall be provided with stairs or with a gooseneck ladder 42
leading from the balcony to and above the roof and properly fastened 43
thereto. A drop ladder or stairs shall be provided from the lowest bal- 44
cony of sufficient length to reach to a safe landing place beneath. All 45
fire escapes shall be constructed and erected to sustain safely in all their 46
parts any reasonable load. In addition to the foregoing requirements, 47
all fire escapes thereafter erected upon tenement houses shall be con- 48
structed in accordance with such supplementary regulations as may be 49
adopted by the building department. 50
alterjVtions of old buildings.
i9i2?fi3°5T§ 54. Section 41. No tenement house shah at any time be altered so as 1
1913, 614, 1 1. ^^ j^g jj.| violation of the requirements of section four, which relate to 2
new buildings, and sections ten to thirty-six, inclusive, but the provisions 3
Ca.\P. 145.] TENEMENT HOUSES IN TOW'NS. 1511
4 of subdivisions one to three, inclusive, of section fifty-nine of chapter one
5 hundred and forty-four shall apply to tenement houses in towns. Said
6 subdivision three shall apply to wooden tenement houses of more than
7 two apartments.
MAINTENANCE AND USE.
1 Section 42. The provisions of sections sixty and sixty-one of chapter Lighting at
2 one hundred and forty-four shall apply to the lighting of public halls and itfi2. 635,
3 stairs in tenement houses except three-apartment houses, so called, which i9i3^'44i, § i.
4 are provided with push buttons with a three-point switch for turning
5 on or off the electric lights in the halls of the said apartments when it is
6 necessary to use the stairway therein.
1 Section 43. No water closet shall be permitted in the cellar of any watcr oiraets
^ J . 1 ... not permitted
2 tenement house. 1012, 6.3^. § .t. in cellars.
1 Section 44. The provisions of section sixty-four of chapter one hun- Basement and
2 dred and forty-four shall apply to tenement houses in towns except in to"beo??upiS"
3 so far as they refer to section twenty-seven of chapter one hundred and posea""'"^ ■"""
4 forty-four, and provide for height of ceiling above specified exterior levels, i^^^' •'^^' ^ ^^■
1 Section 45. The cellar walls and ceilings of every tenement house Ceiiarwaiis,
2 shall be thoroughly whitened or painted a light color by the owner, and whitened'or
3 shall be so maintained. The whitening or paint shall be renewed when- i9i2''^635, § eo.
4 ever necessary, as may be required by the board of health.
1 Section 46. The Malls of all courts, imless built of a light colored w^iis °'.''™''''
2 brick or stone, shall be thoroughly whitened by the owner, or shall be 1312, ess, § es'.
3 painted a light color by him, and shall be so maintained. The whiten-
4 ing or paint shall be renewed whenever necessary, as may be required by
5 the board of health.
1 Section 47. No wall paper shall be placed upon a wall or ceiling of w^" paper- ^,
n 1 I II 11 1 11 I f' 11 1912, 635, § 67.
2 any tenement house unless all wall paper shall be nrst removed there-
3 from and the wall and ceiling thoroughly cleaned.
1 Section 48. In any tenement house in which the owner thereof jgjg "gi- 73
2 does not reside, there shall be a janitor, housekeeper or other responsible
3 person who shall reside in said house and have charge of the same, if the
4 board of health shall so require.
REQUrREMENTS AND REMEDIES.
1 Section 49. In a town which accepts this chapter or has accepted Ju^fdln 's" "'
2 corresponding provisions of earlier laws the selectmen shall annually 1912. 635, § 79.
3 appoint an inspector of buildings.
1 Section 50. The provisions of section eighty-five of chapter one Permit for
2 hundred and forty-four shall apply to tenement houses in towns, except requlred.'etc.^
3 that the specifications, plans and statements required therein shall be ^■'^-' ''•'''• ^ *"•
4 filed in the office of the town clerk. But information submitted to the
5 building inspector under said section shall also be submitted to the board
6 of health upon blanks or forms furnished by it; and it shall cause all
7 plans and specifications so submitted to be examined.
1512 TENEIIENT HOUSES IN TOWNS. [ClL\P. 145.
kispectorto SECTION 51. No building thereafter constructed as or altered into a 1
befcre'bmTcimg tenement house shall be occupied in whole or in part for human habita- 2
■^a^jbeoccu- tion luitil tlie issuance of a certificate by the building inspector that the 3
1912, 633, §81. building conforms in all respects to the requirements of law, and the 4
building inspector shall not issue said certificate until the board of health 5
certifies to him that the building conforms to all reciuirements of law rela- 6
tive to the light, ventilation and sanitation of tenement houses. Upon 7
notice of the completion of the contruction, alteration or conversion of a 8
tenement house, the building inspector and the board of health shall in- 9
spect the building forthwith, and the building inspector shall issue a cer- 10
tificate of compliance within five days after written application therefor, 11
if the building at the date of such application is found to conform to the 12
requirements of this chapter. 1,3
penaWe^ """^ SECTION 52. Any court having jurisdiction in equity, or any justice 1
1912, 6.35. 5 S2. thereof may upon the application of any town by its attorney restrain the 2
construction, alteration, repair, maintenance, use or occupation of a 3
building or structure in violation of tliis chapter and order its removal 4
or abatement as a nuisance, and compel compliance with any provision 5
of this chapter. 6
ftruSetc' Section 53. A building or structure which is erected, altered, main- 1
in violation of taiucd OF uscd in violation of this chapter shall be deemed a common 2
this chapter to . . , , c i c i
be deemed a nuisaucc without othcF prooi thereof than proof of such unlawful con- 3
.sance. etc. struction, maintenance or use and the building inspector may, and if 4
said violation is of any section of this chapter relative to light, ventila- 5
tion or sanitation of said building shall, if required in writing by the board 6
of health, order the owner of said premises at his own expense to abate 7
or remove said nuisances within twenty-four hours, or within such further 8
time as said board considers reasonable after notice to be se^^■ed in the 9
manner provided in section sixty, and if the owner or occupant fails to 10
comply with such order, the board may abate or remove the nuisance 11
and all expenses incurred thereby shall be paid by the person who caused 12
or permitted the same. 13
Penalty for SECTION 54. Wiocvcr violatcs any provision of this chapter shall 1
^^olatlO^, etc. .111 n f 1 1 111 t
1912, 635, § 84. bc puuishcd by a fine of not less than ten dollars. Any person who 2
violates any provision of this chapter, having been served with a notice 3
or order as provided by section sixty, or who fails to comply with such 4
^notice or order within ten days after such service, or continues to violate 5
any provision or recjuirement of this chapter in the respect named in 6
said notice or order, shall in addition be punished by a fine of not 7
less than five nor more than twenty dollars for each day after the first 8
during ■which the violation continues. 9
fh^perio""^ Section 55. Any person, the value of whose property may be 1
m? 635 « 85 effected by any action of the board of health or the building inspector, 2
may have the action of said board of health or said building inspector 3
reviewed by the superior court by any appropriate process, provided pro- 4
ceedings are instituted within ten days after such action. 5
Sto'bufidingr Section 56. Any person having any duty to perform in regard to 1
igf "(jar^j 86 ^^y building or premises under this chapter may, if necessary for the 2
performance of such duties, enter the same. . 3
Chap. 145.] tenement hou.ses in towns. 1513
1 Section 57. The provisions of section ninety-two of chapter one i.iens.
2 hundred and forty-four shall apply to fines imposed by judgment under ^ '"' °' '
3 section fifty-four of this chapter.
1 Section 58. In any action or proceeding instituted by the depart- Notice of pend-
2 ments charged with the enforcement of this chapter, the procedure pro- to'i^e fiietf, etc.
3 vided by section ninety-three of chapter one hundred and forty-four shall ^'■"^' ^^^' ^ **'
4 apply.
1 Section 59. The owner of a tenement house and every lessee of the Owner's name
2 whole house or of two or more tenements therein, or the agent of the tered.
3 owner or other person having control of a tenement house, shall annually '^''' ''^°' ^ ^''
4 during the month of April file in the office of the town clerk a notice con-
5 taining his name and address, and also a description of the property,
6 by street number or otherwise, as the case may be, in such manner as
7 will enable the board of health and building inspector easily to find the
8 same; and also the number of apartments in each house, the number of
9 rooms in each apartment, and the number of families occupying the
10 apartments. The notice shall contain the name and address of some
11 agent for the house, for the piu-pose of receiving service of process, and
12 notice to and service of process upon such agent shall bind the principal.
1 Section 60. Unless otherwise provided in this chapter, every notice serving of
2 or order in relation to a tenement house shall be served ten days before iSi'l.^'ss.'^j 90.
3 the time for doing the thing in relation to which it is issued. The service
4 of notices or orders as aforesaid shall be made by the delivery of an
5 attested copy in hand to the owner or his agent, duly registered as pro-
6 vided in section fifty-nine, or by leaving an attested copy at the last or
7 usual place of abode of the owner or agent, or, if the owner is a non-resi-
8 dent and has no agent duly appointed, as provided in said section fifty-
9 nine, it shall be posted in a conspicuous place in said tenement house and
10 a copy thereof mailed by a registered letter on the same day on which it
11 is posted, to the owner or his agent at the residence designated in the
12 notice provided by said section.
1 Section 61. In any action brought by any town official in relation service of
2 to a tenement house for injunction, vacating of the premises or other igilj^eS!, § oi.
3 abatement of nuisance, or to establish a lien thereon, service of process
4 shall be in the manner provided in the preceding section, except that the
5 service of process shall be made only by a sheriff or one of his deputies
6 or by a constable.
1 Section G2. The names and addresses filed in accordance with certain names
2 section fifty-nine shall be indexed by the town clerk in such a manner tob^indexecf.
3 that all of those filed in relation to each tenement house shall be together '^''' '^^^' ^ ®^'
4 and readily ascertainable. The town clerk shall provide the necessary
5 books and clerical assistance for that purpose, and the expense thereof
6 shall be paid by the town. Said indexes shall be public records, open to
7 public inspection during business hours.
1 Section 63. Upon acceptance of this chapter by any town all by- Repeal, etc.
2 laws and regulations of such town inconsistent therewith shall be annulled. ' '''
1514
INSPECTION OF BOILERS, ETC.
[Chap. 146.
CHAPTER 146.
INSPECTION OF BOILERS, AIR TANKS, ETC. LICENSES OF ENGI-
NEERS, FIREiMEN, AND OPERATORS OF HOISTING MACHINERY.
Sect.
1. DefiBitions.
DUTIES OF BOARD OF BOILER RULES.
2. Rules for boilers.
3. Hearings.
4. Changes in rules.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
.26.
27.
28.
29.
30.
31.
32.
33.
INSPECTION OF BOILERS.
Duties of inspectors of the division.
Annual inspection.
Certain boilers excepted.
Boilers not to be operated without in-
spection.
Boiler not to be operated in excess of
prescribed pressure.
Report of uninsured boiler.
Duties of inspector.
Tampering with safety appliance.
Inspection by insurance companies or
inspectors of the division.
Insurance companies must have
licensed inspectors.
Acting as inspector without a license
prohibited.
Same subject as to company.
Reports of inspectors of the division.
Reports by insurance companies.
Insurance companies must report can-
celled risks.
Safety appliances.
Preparation of boiler for inspection.
Fees for inspection by the division.
Certificate of inspection by the division.
Inspected boiler to be stamped or
tagged.
Certificate of inspection by insurance
company.
First inspection.
Contents of certificate.
Safety plug.
Notice of defect in boiler.
Uninsured boiler not to be operated.
Hydrostatic pressure test.
Hindering inspector forbidden.
Penalty.
COMPRESSED AIR TANKS.
34. Air tanks.
35. Rules for tanks.
36. Inspection.
37. Notice.
38. Reports of inspection.
39. Tests for inspection.
Sect.
40. Fees.
41. Penalty.
AMMONIA COMPRESSORS.
42. Ammonia compressors.
43. Rules.
44. Rules to have force of law.
45. Changes in rules.
LICENSES OF ENGINEERS AND FIREMEN.
46. Licenses for operating boilers or en-
gines.
47. Violation of preceding section.
48. Determination of power.
49. Classes of licenses.
50. Qualifications of licensees.
51. Posting of license. Daily record.
52. Licenses in force on May 17, 1915.
LICENSES FOR OPERATING HOISTING MA-
CHINERY NOT RUN BY STEAM.
53. Hoisting machinery.
54. License to be carried on the person.
55. Penalty.
EXAMINATIONS OP APPLICANTS FOR LI-
CENSES, ETC.
56. Inspectors of the division to act as ex-
aminers.
57. Applications for licenses.
58. .Applicants may have a person present.
59. Revocation of licenses.
EXAMINATION OF INSPECTORS OF BOILERS.
60. Application for license.
61. Board of examiners.
62. Certificate of competency.
63. Appeal.
EXAMINATION OF ENGINEERS, FIREMEN OR
OPERATORS OF HOISTING MACHINERY.
64. Application for license as engineer or
fireman. Examination.
65. Application for license to operate hoist-
ing machinery.
66. Appeal.
67. License in force until revoked or sus-
pended.
GENERAL PROVISIONS.
68. Trial justices.
69. Appropriation for apparatus.
Definitions.
Section 1. The following words as used in this chapter, unless a con- 1
trary meaning is specifically prescribed or the context otherwise requires, 2
shall have the following meanings: 3
Chap. 146.] inspection of boilers. 1515
4 "Board", the board of boiler rules appointed under section ten of
5 chapter twenty-two.
6 "Chief", the chief of inspections of the department of public safety.
7 "Commissioner", the commissioner of public safety.
8 "Department", the department of public safety.
9 "Division", the division of inspection of the department of public
10 safety.
11 "Inspector", a boiler inspector of the division of inspection of the
12 department of public safety, or an inspector of an insurance company
13 authorized to insure steam boilers in the commonwealth.
DUTIES OF BO.\RD OF BOILER RULES.
1 Section 2. The board shall formulate rules for the construction. Rules for
2 installation and inspection of steam boilers, and for ascertaining the safe i907.'^4C5,
3 workingpressure to be carried therein; prescribe tests, if it deems it neces- fgdi^ls, § 2.
4 sary, to ascertain the qualities of materials used in the construction of f^ii^^"'
5 boilers; formulate rules regulating the construction and sizes of safety }^i^'|-
6 valves for boilers of different sizes and pressures, the construction, use
7 and location of fusible safety plugs, appliances for indicating the pressure
8 of steam and the level of water in the boiler, and such other appliances as
9 the board may deem necessary to safety in operating steam boilers; and
10 make a standard form of certificate of inspection. The attorney general
11 shall assist the board in framing the rules. Such rules shall be submitted
12 to the governor and council for their approval, and when approved shall
13 have the force of law, and shall be printed and furnished by the com-
14 missioner to those requesting them.
1 Section 3. The board shall hold public hearings annually on the Hearings.
2 first Thursday in May and November, and at such other times as it may ^®°^' ^^^' '
3 determine, on petitions for changes in the rules formulated by it. If,
4 after any such hearing, it shall deem it advisable to make changes in said
5 rules, it shall appoint a day for a further hearing, and shall give notice
6 thereof and of the changes proposed by advertising in at least one news-
7 paper in each of the cities of Boston, Worcester, Springfield, Fall River,
8 Lowell and Lynn, at least ten days before said hearing. If the board on
9 its own initiative contemplates changes in said rules, like notice and a
10 hearing shall be given and held before the adoption thereof.
1 Section 4. Changes in the rules which affect the construction of ^'"^^If'
2 new boilers shall take effect six months after the approval of the same iso^- ^ss. § 2.
3 by the governor and council; provided, that the board may, upon request,
4 permit the application of such change in rules to boilers manufactured
5 or installed during said six months, ^^^len a person desires to manufac-
6 ture a special type of boiler the design of wliich is not co^•ered by the
7 rules formulated by the board, he shall submit drawings and specifica-
8 tions of such boiler to said board, which, if it approves, shall permit the
9 construction thereof.
inspection of boilers.
1 Section 5. The division shall enforce this chapter and the rules of ?"''«« of
nlii 1 1' •! • T'.. inspectors of
2 the board except when otherwise provided. All inspectors of the division ^gSi^'Yi."^""-
3 may enter any premises in the pursuance of their duty. 5§ s/s.
ISflfi, 546, §§ 4, 7. 1906, 3S7, § 6. 1913, 610, § 4.
1899, 368, §§ 8, 11. 1907, 465, § 28. 1914, 407, § 5.
R L. 102, § 86. 1909, 393, § 3. 1915. 259, § 11.
1905, 310. § 3; 472, § 3. 1911. 656, | 6.
1516
INSPECTION OF BOILERS.
[Chap. 146.
Annual
inspection
1895, 418,
§2.
1898, 167.
R. L. 105,
§3,
Certain boilers
excepted.
1895.418,
§§ 1.2.
1898, 167.
R. L. 105,
B 2, 3.
1905, 472,
i 1.
1906, 387,
§1.
1907, 4fi5,
§ 1.
1908, 563,
§1.
1909, 393,
§§ 1.3.
1912,631,
§ 1.
Section 6. All steam boilers and their appurtenances except those 1
specified in the following section shall be thoroughly inspected externally 2
and internally at least once a year. i906, 3S7, § i. 3
1907, 465, § 1. 1908, 563, § 1. 1909, 393, § 1. 1912. 531, § 1.
Section 7. The preceding section shall not apply to boilers of rail- 1
road locomotives, motor vehicles or steam fire engines brought into the 2
commonwealth for temporary use in times of emergency, nor to boilers 3
used in private residences, nor to those used solely for heating public 4
buildings or apartment houses which carry pressures not exceeding fifteen 5
pounds to the square inch and have less than four scjuare feet of grate 6
surface, nor to boilers of not more than three horse power. The said 7
section shall not apply to boilers under the jurisdiction of the United 8
States nor to those used exclusively for horticultural or agricultural 9
purposes. 10
Boilers not to
be operated
without
inspection.
19011, 3S7, § 2.
1907, 465, § 19.
1912, 531, I 1.
Penalty, § 33.
Section 8. No person shall operate or cause to be operated any
boiler required by this chapter to be inspected until it has been inspected,
and the certificate of inspection required by section twenty-three or
twenty-five has been issued and so placed in the engine or boiler room of
the plant as to be easily read, or in the case of a portable boiler kept with
it and alwavs accessible.
Boiler not to
be operated in
excess of
prescribed
pressure.
1907, 465, § 1.
1908, 563, § 1.
1909, 393, I 1.
1912, S31. I 1.
Section 9. No person shall operate or cause to be operated any
boiler required by this chapter to be inspected at pressures in excess of
the safe working pressure ascertained by the rules of the board and
stated in the certificate of inspection nor unless the boiler is equipped with
such safety appliances as are prescribed by the board. Penalty, § 33.
Report of
uninsured
boiler.
1895, 418, § 1.
R. L. 105, § 2.
1907, 465, I 2.
1912, 531, § 2.
1913, 610, § 4.
Penalty, § 33.
Duties of
inspector.
1907, 465, 5 3.
Section 10. Whoever owns, or uses or causes to be used, any such 1
boiler, unless the same is under the periodically guaranteed inspection 2
of an insurance company authorized to insure boilers in the common- 3
wealth, shall report in writing to the chief the location of such boiler, 4
before the work of installation of such boiler is completed, and annually 5
thereafter; provided, that the owner or user of an insured boiler shall 6
report immediately in writing to the chief whenever the insurance com- 7
pany ceases for any cause to inspect the boiler. 8
Section 11. All such boilers shall be inspected externally at least 1
once each year when in operation, and the inspector shall observe the 2
pressure of steam carried and the general condition of each boiler, and 3
ascertain if the safety valve and the appliances for indicating the pres- 4
sure of steam and level of the water in the boiler are in proper working 5
order. 6
Tampering
with safety
appliance.
1895,418, § 4.
R. L. 105, § 5.
Section 12. No person shall remove or tamper with any safety appli- 1
ance prescribed by the board nor load the safety valve to a greater pres- 2
sure than that allowed by the certificate of inspection. 3
1907, 465, § 3. Penalty, § 33.
Inspection by
insurance com-
panies or
mspectors of
the division.
1893, 387.
1894, 481, § 3.
Section 13. The inspection of boilers and appurtenances shall be 1
made by the division, under the super\ision of the chief, or by inspec- 2
tors of insurance companies authorized to insure steam boilers in the 3
commonwealth. is95, 4is. § s. 1896, S46, § 4. 4
1898,261. R. L. 105, §1. 1907, 463, § 4. 1913, 610, § 4-
Chap. 146.] inspection of boilers. 1517
1 Section 14. Every insurance company authorized to insure steam insurance
2 boilers in the commonwealth shall have in its employ at least one in- h°"e''fi?msed"'
3 spector who holds a certificate of competency under section sixty-two igor.'^les^'
4 and resides in the commonwealth. When an inspector holding such a fgil^lsi, ^ 3.
5 certificate ceases to be employed by an insurance company, it shall
6 notify the commissioner, giving the reasons therefor.
1 Section 15. No person shall act as an inspector of boilers for an Acting as in-
2 insurance company unless he holds a certificate of competency under l^hcense"'"'""'
3 section sixty-two. 1907, 465, 1 5. 1912, 531, § 3. Penalty, § 33. prohibited.
1 Section 16. Any insurance company which issues a certificate of in- same subject as
2 spection signed by an inspector who does not hold a certificate of com- i907','465°§'8.
3 petency may have its authority to insure steam boilers revoked by the
4 commissioner of insurance.
1 Section 17. The inspectors of the division shall make reports of all Reports of
. . 11111 1 • 1 1 • p inspectors of
2 mspections and shall make such recommendations to the chief as they the division.
o ^ 1 ,. ^ *' R. L. 105, § 1.
0 may deem expedient. i907, 465, § 9. lois. eio, § 4.
1 Section 18. Every insurance company shall forward to the chief, i^su°an^ce^
2 within fourteen days after each inspection, reports of all boilers inspected ^g^jP^^^'l^v 2
3 by it. Such reports shall be made on blanks furnished by the chief, and i906, 387, § 1
. . . 1907, 465, § 10
4 shall contain all orders made by the company regarding such boUers. i9i3i eio! § 4.
Penalty, § 33.
1 Section 19. Every insurance company shall report immediately to insurance
2 the chief the name of the owner or user and the location of every boiler re^^t^an-™"""
3 required by this chapter to be inspected, upon which they have cancelled ifoT^Tit^i ii.
4 or refused insurance, giving the reasons therefor.
1913, 610, § 4. Penalty, § 33.
1 Section 20. Boilers and their appurtenances used exclusively for safety
2 heating purposes, which are not required by this chapter to be inspected, i907.''465r§ 12.
3 shall be provided with such safety appliances as shall be prescribed by
4 the board, and the division shall inspect such boilers upon application
5 of the owner.
1 Section 21. The owner or user of a boiler required by this chapter Preparation ot
2 to be inspected shall prepare the boiler for inspection as directed by the inspection.
3 inspector. The inspector shall, if requested, give the owner or user at ilgg, iw!
4 least fourteen days' notice to prepare a boiler for inspection; provided, J^qaIm] i 13
5 that no notice shall be required of an external inspection under steam, 1^12, 531, § 4.
6 nor if the boiler is being installed or has not been inspected within one Penalty, § 33.
7 year and a certificate of inspection issued. If, in the judgment of an
8 inspector of the division, any such boiler or its appurtenances is in a
9 defective or dangerous condition, he may immediately forbid the opera-
10 tion of the boiler, Mhether or not it is under the inspection of an insurance
11 company; and no person shall again operate such boiler, or cause it to
12 be operatetl, until a certificate of inspection has been issued by an inspec-
13 tor of the division.
1 Section 22. The owner or user of a boiler inspected by the division Fees for in-
2 shall pay to the commissioner five dollars for each boiler internally and the diNisioii.
1518
INSPECTION OF BOILERS.
[Chap. 146.
1895,
418,
§5.
R. L.
105,
§4.
1905,
472,
§ 1-
1907,
405,
§ 14.
1912,
531.
§5.
1913,
610,
§ 4.
1919,
133.
Certificate of
inspection by
the division.
1895,
418,
§§3,
4.
E. L.
105,
§§4,
5.
190.5,
472,
§2.
1907,
465,
§15.
1912,
531,
§6.
Penalty, § 33.
externally inspected, and two dollars for each ^•isit for external inspec- 3
tion under steam, and two dollars for each cast iron sectional boiler 4
inspected. The commissioner shall pay to the commonwealth all sums 5
so received. 6
Section 2.3. If, upon inspection, the inspector of the division finds 1
the boiler to be in safe working order, with the fittings necessary to safety, 2
and properly set up, and the boiler and its appurtenances conform to the 3
rules of the board, he shall issue to the owner or user thereof a certificate 4
of inspection stating the maximum pressure at which the boiler may be 5
operated, as ascertained by the rules of the board, and thereupon such 6
owTier or user may operate the boiler mentioned in the certificate; if the 7
inspector finds otherwise, he shall withhold his certificate until the boiler 8
and its fittings are put in a condition to insure safety of operation, and 9
the boiler and its appurtenances conform to the rules of the board, and 10
the owner or user shall not operate such boiler, or cause it to be operated, 1 1
until such certificate has been granted. 12
Inspected boiler
to be stamped
or tagged.
1906, 522.
§§2,3.
1907, 465, § 16.
Penalty, § 33.
Section 24. Every boiler which has been inspected by the division 1
shall be numbered either by stamping the number upon the boiler or by 2
attaching a numbered metal tag by a seal or otherwise to the boiler or 3
its fittings. No person except an inspector of the dixnsion shall deface 4
or remove anv such number or tag. 5
Certificate of
inspection by
insurance
company.
1905, 472, § 2.
1907, 465, § 17.
1912, 531, § 7.
Section 25. Insurance companies shall, after each internal and 1
external inspection, if the boiler and its appurtenances conform to the 2
rules of the board, and if they deem the boiler to be in safe working 3
condition otherwise, is.sue a certificate of inspection stating the maximum 4
pressure at which the boiler may be operated as ascertained by the rules 5
of the board. 6
First
inspection.
1907, 465, § 18.
1908. 563, § 2.
1913, 610, § 4.
Section 26. If a boiler is insured which has not previously been 1
inspected externally and internally and a certificate of inspection issued, 2
the company so insuring shall forthwith notify the chief to that effect, 3
and shall inspect such boiler internally and externally within one month 4
after the insurance is effected. No insurance shall be effected on any 5
boiler which does not conform to the rules of the board. 6
Contents of
certificate.
1907, 465, § 19.
Section 27. The certificate of inspection issued by the division, or 1
by an insurance company, shall state the name of the owner or user, the 2
location, size and number of the boiler, the date of inspection and the 3
maximum pressure at which it may be operated, with the signature of 4
the inspector, and shall contain such extracts from the statutes as shall 5
be deemed necessary by the board. It shall be so placed in the engine 6
or boiler room of the plant where the boiler is located as to be easily 7
read, except that the certificate of inspection for a portable boiler shall 8
be kept with it and shall be always accessible. 9
Safety plug.
1850, 277, § 1.
G. S. 88. § 43.
P. S. 102, § 51.
R. L. 105, § 9.
1907, 465, I 20.
Penalty, § 33.
Section 28. No person shall use, or cause to be used, a steam boiler, 1
excepting boilers upon motor vehicles, steam fire engines, boilers in private 2
residences, or boilers under the jurisdiction of the United States, unless 3
it is equipped with a fusible safety plug made of lead or some other equally 4
fusible material, as specified by the rules of the board. 5
ClL\P. 146.] COMPRESSED AIR TANKS. 1519
1 Section 29. The owner or user of any boiler required by this chapter Notice of
2 to be inspected shall immediately notify the division or the insurance boiler.
3 company, if the boiler is insured, if a defect affecting the safety of the ' ' "
4 boiler is discovered.
1 Section 30. If the insurance on any boiler required by this chapter Uninsured
2 to be inspected expires, or is cancelled because the insurers deem it un- be'o^erated"
3 safe to continue the operation thereof, the owner or user shall cease to isO'^^^s, § 22.
4 operate it until it has been put in a safe condition, satisfactory to the i'«'i''"y' § 33.
5 insurers, or has been inspected by the division and a certificate of inspec-
6 tion has been issued.
1 Section 31. If, in the judgment of the inspector of the division or of ^/^f™l^^^l^
2 the insurance company, it is ad\'isable to apply a hydrostatic pressure i907, 465, § 23.
3 test to a boiler, the owner or user shall prepare the boiler for such test,
4 as directed by the inspector of the division or by the insurance company.
1 Section 32. No person shall prevent or attempt to prevent the Hindering
2 chief or any inspector of the di\-ision from entering any premises on which forbfdden.
3 a boiler is situated.
1906, 387, § 5. 1907, 465, § 2.8. 1909, 393, § 3. Penalty. § 33.
1 Section 33. Whoever violates any provision of sections five to Penalty.
2 thirty-two, inclusive, or of the rules of the board shall be punished by 111°] llr. ^ ^'
3 a fine of not less than twenty nor more than five hundred dollars or by p; |; fo2,V53.
4 imprisonment for not more than six months, or both.
1895, 418, §7. 1906, 387, §§4, 5; 1907. 465, § 28.
R. L. 105, §§ 6, 11. 522, § 3. 1909, 393, § 3.
compressed air tanks.
1 Section 34. No person shall install or use, or cause to be installed ^„';|^?J|-
2 or used, any tank or other receptacle, except when attached to loco- §§ i,'?.
3 motives, street or railway cars, vessels or motor vehicles, for the storing 649, '§§ i,'7.
4 of compressed air at any pressure exceeding fifty pounds per square inch, penalty, § 4i.
5 for use in operating pneumatic machinery, unless the owner or user thereof
6 shall hold a certificate of inspection issued by the division, certifying that
7 the said tank or other receptacle has duly been inspected within two
8 years, or unless the owner or user shall hold a policy of insurance upon
9 the said tank or other receptacle issued by an insurance company author-
10 ized to insure air tanks within the commonwealth, together with a certif-
1 1 icate of inspection from an insurance inspector who holds a certificate of
12 competency described in section sixty-two.
1 Section 35. The board shall prescribe regulations for the size, shape, Ruiea for
2 construction, gauges, operation, maximum pressure, safety devices, use i9i3f'629, § 2.
3 of oil, and other appurtenances necessary for the safe operation of such lll*\^'i^' ^ ^'
4 tanks or other receptacles.
1 Section 36. The division shall inspect at least once in two years all J!!??®^ oq^i 3
2 such tanks or other receptacles, except such as are covered by a policy of 1914! 649', § 3.
3 insurance and inspected by insurance inspectors as specified in section
4 thirty-four.
1 Section 37. Owners of such tanks or other receptacles shall notify Notice.
2 the commissioner of the location thereof. 1914, 649, § 4. ^^^^' ''^°' ^ ■*'
1520
LICENSES OF ENGINEERS .tND FIREMEN.
[ClL\P. 146.
Reports of
inspection.
1913, 629. § 5.
1914, 649, § 5.
Section 38. Every insurance company authorized to insure air 1
tanks within the commonwealth shall forward to the commissioner, 2
within fourteen days after each inspection of an air tank or other such 3
receptacle, a report of such inspection. The reports shall be made on 4
blanks furnished by the division, and shall contain all orders and regula- 5
tions made by the company regarding the air tanks or other receptacles 6
so inspected. 7
Teats for
inspection.
1913, 629, § 6.
1914, 127, § 3;
649, § 6.
Section 39. The inspection shall consist of a hammer test, and, if
required by the inspector, a hydrostatic test the pressure of which shall
be one and one half times the pressure allowed on the air tank or other
receptacle inspected. The air tank or other receptacle shall be prepared
for inspection by the owner or user thereof.
Fees.
1913, 629, § 8.
1914, 649. I 8.
1919, 133.
Section 40. Three dollars shall be paid to the commissioner by the 1
owner, agent or user of any such tank or other receptacle for e\'ery inspec- 2
tion thereof. The commissioner shall pay to the commonwealth all sums 3
so received. 4
Penalty.
1913, 629, I 9.
1914, 649, I 9.
Section 41. Wioever violates any provision of sections thirty-four 1
to thirty-nine, inclusive, or any regulation made under authority thereof, 2
shall be punished by a fine of not more than fifty dollars or by imprison- 3
ment for not more than one month, or both. 4
Ammonia
compressors.
AMMONIA COMPRESSORS.
Section 42. No person shall use an ammonia compressor unless it is 1
1914, 467, § 1, equipped with a safety valve.
Penalty, § 55.
1914T467, §2. Section 43. The board shall formulate rules for the size, design,
location and piping of safety valves on ammonia compressors.
ForcfoMaw''^ Section 44. The rules so formulated shall have the force of law 1
1914, 467, §3. gjjjj gj^j^jj ^jg printed and furnished to those requesting them by the 2
division. 3
Sl"^^'" Section 45. Any changes in the rules as formulated by the board 1
1914, 467, 5 4. gj^^^jj ijg made in accordance with sections three and four. 2
Licenses for
operating
boilers or
engines.
1S95, 471, §
1896, 546, I
1S99, 308,
§§1,5.
R. L. 102,
§§ 78, SO.
1907, 373,
1911,562,
§§ 1.2.
1914,451.
1915, 259,
« 1, 3.
196 Mass. 402.
1 Op. A. G. 485.
Penalty, § od.
, § 1.
LICENSES OF ENGINEERS AND FIREMEN.
Section 46. No person shall have charge of or operate a steam 1
boiler or engine or its appurtenances, except boilers and engines upon 2
locomotives, motor vehicles, boilers and engines in private residences, 3
boilers in apartment houses of less than five apartments, boilers and 4
engines under the jurisdiction of the United States, boilers and engines 5
used for agricultural purposes exclusively, boOers and engines of less than 6
nine horse power, and boilers used for heating purposes exclusively which 7
are provided with a device approved by the commissioner limiting the 8
pressure carried to fifteen pounds to the square inch, unless he holds a 9
license as hereinafter provided. The owner or user of a steam boiler or 10
engine, other than boilers or engines above excepted, shall not operate or 11
cause to be operated a steam boiler or engine or its appurtenances for a 12
period of more than one week, unless the person in charge of and operat- 13
ClL\P. 146.] LICENSES OF ENGINEERS .\ND FIREMEN. 1521
14 ing it is duly licensed; provided, that in manufacturing plants an unli-
15 censed person may operate, under a licensed person on duty, a simple
16 non-condensing engine of not more than one hundred and fifty horse
17 power, and in any plant one unlicensed person may be employed under
IS the personal direction of each licensed person in the plant to operate
19 the appurtenances of a boiler or engine.
1 Section 47. If such steam engine or boiler or an appurtenance thereof violation of
2 is found to be in charge of, or operated by, a person not duly licensed as section.
3 an engineer or fireman, and, after a lapse of one week from such time, r. l! 102'. 1 79.
4 it is again found to be so operated by an unlicensed person, it shall be ii'l,'!.^^'
5 deemed prima facie evidence of a violation of the preceding section.
1 Section 48. The horse power of a boiler shall be ascertained upon a Determination
2 basis of three horse power for each square foot of grate surface or equiva- is99°*368, § 6.
3 lent, when the safety valve is set to blow at a pressure exceeding twenty- ign; 562! § s.'
4 five pounds per square inch, and on a basis of one and one half horse power '®'^' ^°®' ^ *■
5 for each square foot of grate sinface or equivalent, when the safety valve
6 is set to blow at twenty-fi\e pounds pressure per square inch or less.
7 The horse power of a reciprocating steam engine shall be ascertained
8 upon the basis of a mean effective pressure of forty pounds per square
9 inch of piston for a simple engine, fifty pounds for a condensing engine,
10 and seventy pounds for a compound engine, calculated upon the area of
11 the high pressure piston. A variable speed engine shall be rated at its
12 designed mean speed.
13 A steam turbine engine shall be rated at less than nine horse power
14 when the external diameter of the steam supply pipe does not exceed one
15 and three fourths inches, at fifty horse power when it exceeds one and
16 three fourths inches and does not exceed three and one half inches, and
17 at one hundred and fifty horse power when it exceeds three and one half
18 inches and does not exceed five inches.
1 Section 49. Licenses shall be granted according to the competence classes of
2 of the applicant, anfl shall be classified as follows: Engineers' licenses: 1895.^471, § 3.
3 First class, to have charge of and operate any steam plant. Second class, Jfoo, 201' ^ *'
4 to have charge of and operate a boiler or boilers, and to have charge of f^^- i^j | f^
5 and operate engines, no one of which shall exceed one hundred and fifty i^o^.^i;*
6 horse power, or to operate a first class plant under the engineer in direct ion! 562! § i.
7 charge thereof. Third class, to have charge of and operate a boiler or 1915. 259, § 7.
8 boilers not exceeding in the aggregate one hundred and fifty horse power,
9 and an engine or engines not, exceeding fifty horse power each, or to
10 operate a second class plant under the engineer in direct charge thereof.
11 Fourth class, to have charge of and operate hoisting and portable steam
12 engines and boilers. Portable class, to have charge of or to operate port-
13 able boilers and portable engines, except hoisting engines or steam fire
14 engines. Steam fire engineer's class, to have charge of or to operate steam
15 fire engines and boilers. Firemen's licenses: Extra first class, to have
16 charge of and operate any boiler or boilers. First class, to have charge of
17 and operate any boiler or boilers where the safety valve or valves are
18 set to blow at a pressure not exceeding twenty-five pounds to the square
19 inch, or to operate high pressure boilers under the engineer or fireman
20 in direct charge thereof. Second class, to operate any boiler or boilers
21 under the engineer or fireman in direct charge thereof. A person holding
22 an extra first class or first class fireman's license may operate a third class
1522
LICENSES OF ENGINEERS AND FIREMEN.
[ClL\P. 146.
plant under the engineer in direct charge thereof. Special licenses: A 2.3
person who desires to have charge of or to operate a particular steam 24
plant may, if he files with his application for such examination a WTitten 25
request signed by the owner or user of the plant, be examined as to his 26
competence for such service and no other, and, if found competent and 27
trustworthy, he shall be granted a license for such service, and no other; 28
provided, that no special license shall be granted to give any person charge 29
of or permission to operate an engine of over one hundred and fifty horse 30
power, except that where the main power plant is run by water power 31
exclusively during the major part of the time, and has auxiliary steam 32
power for use during periods of low water, a special license may be issued 33
to an applicant holding an engineer's license. 34
Qualifications
of licensees.
1911.562, § 3.
1915. 259, § 4.
Section 50. To be eligible for examination for a first class fireman's 1
license, a person must have been employed as a steam engineer or fire- 2
man in charge of or operating boilers for not less than one year, or he must 3
have held and used a second class fireman's license for not less than six 4
months. To be eligible for examination for a third class engineer's 5
license, a person must have been employed as a steam engineer or fire- 6
man in charge of or operating boilers for not less than one and one half 7
years, or he must have held and used a first class fireman's license for not 8
less than one year. To be eligible for examination for a second class 9
engineer's license, a person must have been employed as an engineer in 10
charge of a steam plant or plants having at least one engine of over 11
fifty horse power for not less than two years, or he must have held and 12
used a third class engineer's license either as an engineer, assistant engineer 13
or fireman for not less than one year, or have held and used a special license 14
to operate a first class plant for not less than two years; except that any 15
person who has served three years as apprentice to the machinist or 16
boiler making trade in stationary, marine or locomotive engine or boiler 17
works and who has been employed for one year in connection with the 18
operation of a steam plant, or any person graduated as a mechanical 19
engineer from a duly recognized school of technology who has been 20
employed for one year in connection with the operation of a steam plant, 21
shall be eligible for examination for a second class engineer's license. 22
To be eligible for examination for a first class engineer's license, a person 23
must have been employed for not less than three years as an engineer 24
in charge of a steam plant or plants having at least one engine of over one 25
hundred and fifty horse power, or he must have held and used a second 26
class engineer's license in a second class or first class plant for not less than 27
one and one half vears. 28
Posting of
license.
Daily record.
1899, 368, § 10.
R. L. 102, § 85.
1907, 373. § 4.
1911,562, § 7.
1915, 259, § 10.
Section 51. An engineer's or fireman's license shall be so placed in 1
the engine or boiler room of the plant operated by the licensee as to be 2
easily read. The person in charge of a stationary steam boiler upon 3
which the safety valve is set to blow off' at more than twenty-five pounds 4
pressure to the square inch, except boilers in private residences, boilers 5
in apartment houses of less than five apartments, boilers under the juris- 6
diction of the United States, boilers used for agricultural purposes ex- 7
clusi^'ely, and boilers of less than nine horse power, shall keep a daily 8
record of the boiler, its condition \\hen under steam, and of all re])airs 9
made and work done on it, upon forms to be obtainetl upon application 10
to the department. These records shall be kept on file and shall be al- 1 1
ways accessible to the chief and inspectors of the division. 12
Chap. 14G.] ex.\minations for licenses, etc. 1523
1 Section 52. A license in force on May seventeenth, nineteen hun- Licenses in
2 dred and fifteen, shall continue in force until it is suspended or revoked lois.
1S95, 471. § 2.
3.
8L
3 for the incompetence or untrustworthiness of the licensee, except that imi, 5411 _
4 a special license shall not continue in force after the holder thereof ^°l[ f^i; |
5 ceases to be employed in the plant specifiefl in the license. A license in J^n. 562, 5 s^
6 force on said date may be exchanged for a license of the same class under i9" Mass. 402.
7 section forty-nine at any time thereafter, on application to the division,
8 upon forms to be furnished by said division. The applicant shall make
9 oath to the statements contained in the said application, and the chief or
10 any inspector of the division may administer the oath.
licenses for operating hoisting machinery not run by steam.
1 Section 53. No person shall operate derricks, cableways, machinery Hoisting
2 used for discharging cargoes, temporary elevator cars used on excavation 1911, ese,'
3 work or used for hoisting building material, when the motive power to 1915,211, § 1.
4 operate such machinery is mechanical and other than steam, unless he Penalty. § 55.
5 holds a license as hereinafter provided. The owner or user of such hoist-
6 ing machinery shall not operate, or cause to be operated, such machinery
7 for a period of more than one week, unless the person operating it is duly
8 licensed.
1 Section 54. A license to operate such hoisting machinery shall be License to be
2 carried on the person of the holder thereof when operating the same. person. °
1911, G56, § .5.
1 Section 55. Whoever violates any provision of sections forty-two Penalty.
2 to fifty-four, inclusive, or any rule made thereunder, or prevents or at- isge] bin', § i'.
3 tempts to pre\-ent an inspector from entering on any premises in the dis- fgos; 1%', 1 1^'
4 charge of his duty shall be punished by a fine of not less than ten nor J^}|; 4^7; 1 5;
5 more than three hundred dollars or by imprisonment for not more than i^i^, 259. 1 li.
6 three months.
ex.uiinations of applicants for licenses, etc.
1 Section 56. The chief and inspectors of the division shall act, as inspectors of
2 provided in sections fifty-seven to sixty-seven, inclusive, as examiners tolcras'""
3 of applicants for certificates of competency to inspect boilers, and for llg™'^!"'
4 licenses as engineers or firemen or operators of hoisting machinery. Jggg' \^\' | f
5 The chief or any such inspector may administer the oath to applicants. is9|' |*J' » ^■
1S99, 368, § 8. 1905, 310, §3. 1915, 259, §§ 5, 11.
R. L. 102, § 86; 105, § 1. 1911, 562, § 3; 656, §§ 3, 6.
1 Section 57. Applications shall be made under oath on forms to be Applications
2 supplied by the division, and shall show the total experience of the ap- is95,°47i,^'
3 plicant. An applicant shall not be examined more than once in ninety i896,546,
4 days except in case of an appeal. Each application for a license as eii- ilol'^los,
5 gineer, fireman or operator of hoisting machinery shall be accompanied |^§ ^ ''^^^ . ^j
6 by a fee of one dollar. i90.-), 3io, § i.
1907, 465, § 6. 1911, 563, § 3; 650, § 3. 1915, 259, §5 4, 5.
1 Section 58. In all examinations or appeals the applicant may have Applicants
2 one person present who may take notes if he so desires. In case of ap- pe"soirpresent.
3 plicaiits for certificates of competency to inspect boilers such person shall §§'"*3,'9.'' '
4 be a representative of an insurance company employing the applicant or "^ si/gl.'
5 wishing to do so. isos, sic, § i. i907, 373, § 3; 405, § 7.
1911, 502, §§ 3, 6; 656, §§ 3, 4. 1915, 259, §§ 6, 9.
1524
EXAMINATIONS FOR LICENSES, ETC.
[Chap. 146.
Revocation
of licenses.
1895.471. § 2
1891), 546, § 2.
1899, 368. § 3.
R. L. 102, § 81.
1905, 310, § 1.
1907, 465, § 6.
1911,562, I 3;
656. § 3.
1915. 259,
§§ 5, 6.
Section 59. A certificate of competency to inspect boilers shall be
revoked and a license as engineer or fireman or operator of hoisting ma-
chinen' shall be suspended or re\oked for incompetence or untriist-
worthiness of the holder thereof. A wilfully false statement in the
application shall be sufficient cause for revocation at any time. If a
certificate or license is lost or destroyed a new certificate shall be issued
without examination upon satisfactory proof thereof.
Application
for license.
1907, 465, § 6.
examination of inspectors of boilers.
Section 60. The application of a person desiring to act as inspector 1
of boilers for an insurance company shall be accompanied by a written 2
request for an examination by said company. 3
Board of
examiners.
1907, 465. § 6.
Section 61. Three inspectors of the division shall act as a board 1
of examiners. The applicant shall be examined as to the construe- 2
tion, installation, maintenance and repair of steam boUers and their .3
appurtenances. 4
com'et?nc°' SECTION 62. If the applicant is found competent he shall receive a 1
1907, 465, § 6. certificate of competency to inspect steam boilers for the company which 2
requested the examination. The certificate shall remain in force during 3
his emploj-ment by the company unless sooner revoked. 4
Appeal.
1907, 465, § 7.
Section 63. A person who is refused a certificate of competency, or 1
whose certificate is revoked, may appeal from such decision to the com- 2
missioner, who shall grant a rehearing of the case by a board of five 3
examiners, no one of whom shall have actetl as an examiner in the former 4
instance. Their decision shall be final if approved by said commissioner. 5
Application
for license as
engineer or
fireman.
Examination.
1895,471, § 2.
1896, 546, § 2.
1899, 368, § 3.
R. L. 102, § 81.
1905, 310,
§§1,3.
1911,562, § 3.
1913,610, § 4.
1915, 259,
§§ 4, 5.
examination of engineers, firemen or operators of hoisting
machinery.
Section 64. WTioever desires to act as an engineer or fireman shall 1
apply for a license to the inspector of the division for the town where 2
he resides or is employed. The examinations shall be uniform throughout 3
the commonwealth. The applicant shall be given a practical examina- 4
tion, and, if found competent and trustworthy, he shall receive a license 5
graded according to the merits of his examination. An applicant for a 6
first class or second class engineer's license or for a special license shall 7
be examined by a board consisting of three inspectors of the division, 8
or two inspectors and the chief, and, if the applicant is employed, one 9
member of said board shall be the department inspector of boilers for the 10
town where the applicant is employed, and the decision of said board 11
shall be final. An applicant for a license as an engineer of any other 12
class or as a fireman shall be examinetl by one inspector of the division, 13
from whose decision there shall be an appeal as provided in section 14
sixtv-six. 1^
f^^licfnir Section 65. Whoever desires to act as an operator of hoisting ma- 1
hoistin"'^ chinery shall apply to the inspector of the division for the town where 2
machinery. ^g residcs or is employed. He shall be given a practical examination by 3
Chap. 147.]
STATE .\ND OTHER POLICE, ETC.
1525
4 a department inspector, and if found competent and trustworthy shall Jc^'g®^^'
5 receive a license to operate such machinery. He shall be examined only i9i5. 211, § 1.
6 as to his ability to use the particular machinery, whether a gasoline or
7 electric engine or otherwise, which he desires to operate, and the license
8 shall be limited to that particular kind of machinery; but if he so recjuests,
9 the applicant may be examined as to his proficiency in the various kinds
10 of machinery use<l for hoisting, and the license shall include those kinds
1 1 of machinery in respect to which he is found competent.
1 Section 6G. A person aggrieved by the action of a single examiner Appeal.
2 in refusing, suspending or revoking a license to act as engineer, fireman Um] til'. 1 1'.
3 or operator of hoisting machinery may, M'ithin one week, appeal there- ^^l] jq?; | si.
4 from to the chief, who shall appoint three inspectors of the division, \f>l- H^- 1 g.
5 or himself and two inspectors, to act together as a board of appeal. The ^sb, § 4. '
6 decision of a majority of the members of the board of appeal shall be final, lois! 259! § 9'.
1 Section 67. A license shall continue in force until it is suspended or License in
2 revoked for incompetence or untrustworthiness of the licensee, except [evoled or
3 that a special license shall not continue in force after the holder thereof i89|™7'i'^§ 2
4 ceases to be employed in the plant specified in the license. A person whose J|||ij' |^g' I f
5 license is suspended or revoketl shall surrender his license to the chief or R l' 102', § si.
6 an inspector of the division. If a new license of a different grade is issued, 1911! 502; § 3';
7 the old license shall be destroyed by the examiner. i9i5, 259, § 6.
656, § 3.
GENERAL PROVISIONS.
1 Section 68. Trial justices shall have jurisdiction of complaints for Trial justices.
2 violation of the provisions of this chapter, or of rules made hereunder, r*®l.' 102,' | se'
3 and may impose fines of not more than fifty dollars. 1905, 310. § 3.
1907, 465, § 28. 1909, 393, § 3. 1911, 656, § 6. 1915, 259, § 11.
1 Section 69. The commissioner may expend the amount annually Appropriation
2 appropriated for investigation work, for apparatus used in connection i°909fi3L''"''
3 with the inspection of steam boilers and for the installation and niain-
4 tenance of apparatus in the examination of engineers and firemen.
CHAPTER 147.
STATE AND OTHER POLICE, AND CERTAIN POWERS AND DUTIES OF
THE DEPARTMENT OF PUBLIC SAFETY.
Sect.
1. Certain duties of the commissioner of
public safety.
2. Powers.
3. Penalty for receiving rewards, etc.
4. Commissioner may secure extra police
officers.
5. Appeal from orders, etc.
6. Destruction of old reports, etc.
7. Constables, etc., to aid governor, when.
8. County police, appointment, powers and
duties.
Sect.
8pechl police officers.
9. Massachusetts Society for the Preven-
tion of Cruelty to Children.
10. Massachusetts Society for Prevention
of Cruelty to Animals.
RESERVE POLICE FORCE IN CITIES.
11. Reserve police force.
12. Number of members.
13. Powers, duties, compensation.
1526
CERT.VCN POWERS, ETC., OF DEP.iETMENT OF PUBLIC SAFETY. [CH-VP. 147.
Sect.
DAT8 OFF FOR POLICE.
14. Police in cities and towns.
15. Same subject.
16. Same subject.
17. Same subject.
POLICE MATRONS.
18. Police matrons in cities.
19. Tenure of ofBee, salarj', duties.
20. Duties of matron.
21. "Police station", "station", defined.
PRIVATE DETECTIVES.
22. License required.
23. Requirements for license, etc.
24. Application for license.
25. Contents of license.
26. Fee. Bond.
27. Revocation.
28. Penalty for di-iTilging information or
making false report.
29. Penalty for acting -nithout license.
30. Application of sections 22 to 29, inclu-
sive.
LIST OF POLICE.
31. List of police to be sent to commis-
sioner.
Sect.
LICENSED BOXING MATCHES.
32. Unlicensed boxing matches forbidden.
33. Licenses for boxing matches.
34. Bond.
35. Licenses for officials.
36. Referee and judges.
37. Physician.
38. Number of rounds. Gloves.
39. Age of participants or spectators.
40. PajTnent to commonwealth.
41. Tickets not to be sold beyond capacity
of haU.
42. Revocation or suspension of license.
43. Licensee not to have financial interest
in boxer.
44. Witnesses before the commission.
45. Superior court may enjoin unlicensed
match.
46. Rules and regulations. Report.
47. Distribution of money received by
commonwealth.
48. Sections 32 to 47, inclusive, in effect in
cities and towns which accept them.
49. Acceptance by cities and towns.
50. Resubmission of sections 32 to 47.
51. Certain pro\-isions of law not applicable
to boxing matches.
Certain duties
of the com-
missioner of
public safety.
18G3, 219,
§§1.4.
1871, 394, § 3.
1874.405.
1875, 15, § 1.
1877, 214, § 6.
1879, 305, I 3.
P. S. 103,
§§ 3, 11.
1894, 481, § 57.
1895,418, I 6.
R. L. 108, § 2.
Section 1. The commissioner of public safety, in this chapter called 1
the commissioner, shall have charge of the administration and enforcement 2
of all laws, rules and regulations which it is the duty of the department of 3
public safety, in this chapter called the department, to administer and 4
enforce, and shall, except as is otherwise provided, direct all inspections 5
and investigations. He shall, subject to the approval of the governor, 6
make all necessary rules for the government of his department, for re- 7
ports to be made by officers under him and for the performance of their 8
duties. He shall make an annual report. looo, 521, § i. i9ii,6i9. 9
1912, 726, §5. 1919, 350. §§ 1. 99, 100. 3 Op. .\. G. 492.
Powers.
1805, 249, I 5.
1866,261, § 4.
1871.394,
§§2,4,7.
1875, 15, § 5.
1879, 305,
§§ 2, 12.
P. S. 103, § 2.
1888,113.
1894, 481, I 1.
R. L. 108, § 7.
1906, 262.
1908, 143, § 1.
1913,610, § 1.
1919,350, §102,
Section 2. The state police shall have and exercise throughout the 1
commonwealth the powers of constables, except as to service of civil 2
process, and of police officers. The governor may command their services 3
in suppressing riots and in preser\'ing the peace. The commissioner may 4
detail any officer or inspector in the division of inspection or in the di\-i- 5
sion of fire prevention for temporary service in the division of state police. 6
The commissioner, with the appro\'al of the governor, may authorize 7
state police officers to carry badges, revolvers, clubs, handcuffs and twisters 8
or such other articles as may be required in the performance of their duties. 9
3 Op. A. G. 515.
Penalty for
receiving
rewards, etc.
1871, 394,
§§5.9.
1S75, 15, § 6.
1S77.214, § 10.
1S79, 305, § 6.
P. S. 103, § 0;
104. § 24.
1882, 266, § 5.
Section 3. Any officer or inspector of the department who directly
or indirectly receives a reward, gift or gratuity on account of his official
services shall be punished by a fine of not more than one hundred dollars
or by imprisonment for not more than three months, and shall also be
discharged from office. Any officer or inspector who fails to faithfully
perform his duties shall be immediately discharged from office.
1894, 481, § 56. R. L. lOS. § 6. 1919, 350, § 108. 133 Mass. 233.
►
Chap. 147.] police. 1527
1 Section 4. The commissioner may, when public exigency requires, Commissioner
2 with the approval of the governor, call upon the metropolitan district extra police
3 commission for assistance in performing the duties imposed upon him igw.Tso,
4 by law; and the said commission shall, when so called upon, assign to duty '°'^'
5 under said commissioner such of the police force under its control as it
6 and the commissioner shall determine.
1 Section 5. Any person affected by an order of the department or of osiers' etc""
2 a division or office thereof, may, within such time as the commissioner may is'^^ sso,
3 fix, which shall not be less than ten days after notice of such order, appeal Op.^A. q.
4 to the commissioner, who shall thereupon grant a hearing, and after such 134' 302. '
5 hearing may amend, suspend or revoke such order. Any person aggrieved
6 by an order approved by the commissioner may appeal to the superior
7 court; provided, that such appeal is taken within fifteen days from the
8 date when such order is approved. The superior court shall have juris-
9 diction in equity upon such appeal to annul such order if found to exceed
10 the authority of the department, or upon petition of the commissioner to
11 enforce all valid orders issued by the department. Nothing herein con-
12 tained shall be construed to deprive any person of the right to pursue any
13 other lawful remedy.
1 Section 6. The commissioner may after two years destroy or other- Destruction
2 wise dispose of applications for approval of entertainments on Sunday, etc° '^'^''°
3 inspection reports of theatres and halls under section thirty-six of ^^^ ' ^*^' ^'
4 chapter one hundred and forty-three, and applications for permits for
5 special exhibitions of pictures under section eighty-two of said chap-
6 ter. Any proceeds received from their disposal shall be paid to the
7 commonwealth.
1 Section 7. Constables, city marshals, chiefs of police and all other Constables,
2 police officers shall, within their respective cities and towns, aid the governor,'
3 governor in the performance of his duties whenever called upon, and any r86T249, § 2.
4 such officer who refuses so to do when called upon shall be punished by a jf^l'l''''
5 fine of not more than one hundred dollars or by imprisonment for not Jlys'il^sV'
6 more than three months. p. s. 103, § 12. r. l. los, § 9.
1 Section 8. County commissioners may appoint as police officers County poUce.
2 persons who are in the employment of the county, who shall, when on powers and
3 duty, wear in plain sight a metallic badge inscribed with the words isggTiao,
4 "County Police" and the name of the county for which they are ap- r. lTi'os. § 10.
5 pointed. Such officers may preserve order in any court house or in any j^°|' ^**'
6 room or building used for county business and upon the adjoining prem- i^^ iviass. 280.
7 ises. They may, without a warrant, arrest idle, intoxicated or disorderly
8 persons \\ho by their presence or conduct obstruct or annoy persons
9 using county buildings or premises, or who violate section ninety-seven
10 of chapter two hundred and sixty-six, and may take persons so arrested
11 to the nearest police station or other place of lawful detention.
SPECUL police officers.
1 Section 9. The governor may appoint two or more agents of the Massachusetts
2 Massachusetts Society for the Prevention of Cruelty to Children as the Prevention
3 special state police officers for a term of three years, who shall be subject chiuren^
4 to removal by the governor, shall serve without pay and shall have and
1903, 333.
1528
POLICE.
[Chap. 147.
exercise tlaroughout the commonwealth the powers of state pohce officers 5
to serve warrants and other criminal processes, except the authority to 6
arrest ^^^tholIt a warrant. 7
Massachusetts
Society for
Prevention of
Cruelty to
Animals.
1909,302, § 1.
1912,384, § 1.
1918, 99.
Section 10. The governor may appoint, at the request of the Mas-
sachusetts Society for the Prevention of Cruelty to Animals, duly ac-
credited agents of that society as special police officers to serve for one
year, subject to removal by the governor. Such officers shall serve with-
out pay, except their regular compensation as agents of said society.
They shall receive no fees for ser\'ices or return of any criminal process
and shall have throughout the commonwealth the powers of constables
and police officers to arrest and detain any person ^^olating any law for
the prevention of cruelty to animals.
Reserve police
force.
1896. 314,
§5 1.4.
R. L. 108, § 28.
213 Mass. 15.
RESERVE POLICE FORCE IN CITIES.
Section 11. Any city, except Boston, in which the city council, 1
with the approval of the mayor, accepts this and the two follo'W'ing sec- 2
tions or has accepted corresponding pro\asions of earlier laws, may estab- 3
lish a reserve police force; and appointments thereto shall, subject to 4
chapter thirty-one, be made in the same manner as appointments to the 5
regular police force of said city. 6
Number of
members.
1896,314, § 2.
R. L. 108, I 27.
Section 12. The number of members of such reserve force shall not 1
exceed five in cities in which the number of members of the regular force 2
does not exceed fifteen. If the number of members of the regular force 3
exceeds fifteen, one member may be added to the reserve force for every 4
three of the regular force above fifteen and not above thirty; one for 5
every five of the regular force above thirty and not abo^•e eighty; and 6
one for every ten of the regular force above eighty. 7
Powers, duties,
compensation.
1896, 314, §3.
R. L. 108, § 28.
Section 13. The mayor, chief of police or city marshal of a city 1
in which such reserve force is established may assign the members thereof 2
to duty in said city whenever and for such length of time as said mayor, 3
chief of police or marshal may deem necessary; and M'hen on duty the 4
members of said reserve force shall have all the powers and duties of 5
members of the regular police force of said city. The compensation of 6
the members of said reserve force shall be fixed by the city council. 7
Police in
cities and
towns.
1908, 476,
§§1,3.
DAYS OFF FOR POLICE.
Section 14. Members of the police department of every city, except 1
Boston and such cities as have accepted chapter two hundred and ten 2
of the acts of nineteen hundred and eleven or chapter one hundred and 3
sLxty-six of the acts of nineteen hundred and twenty, and of every town 4
which accepted chapter four hundred and seventy-six of the acts of nine- 5
teen hundred and eight and afterward did not accept chapter two hundred 6
and ten of the acts of nineteen hundred and eleven or chapter one hun- 7
dred and sixty-six of the acts of nineteen hundred and twenty, shall be 8
excused from duty for one day out of every thirty without loss of pay. 9
ilu^lio^^'' Section 15. Except in Boston, members of the police department 1
§§ 1. 3. ' of every town which accepted chapter two hundred and ten of the acts 2
of nineteen hundred and eleven and did not accept chapter one hundred 3
Chap. 147.] police. 1529
4 and sixty-six of the acts of nineteen hundred and twenty shall be excused
5 from duty for one day out of every fifteen without loss of pay.
1 Section 16. Except in Boston, members of the police department same subject.
2 of every town which accepted chapter one hundred and sixty-six of the §§1, -i, 5.'
3 acts of nineteen hundred and twenty shall be excused from duty for one
4 day out of every eight without loss of pay.
1 Section 17. The time and manner of excusing members of police Same subject.
2 departments- from duty in any town subject to any of the three preceding §§ i,'2. '
3 sections shall be determined by the chief, superintendent or other officer §§'i''2^^°'
4 or board at the head of the police department. A member so excused §5"°' 2.'''''
5 shall be exempt from duty and from attendance at a police station or
6 other place, but otherwise shall be subject to all laws, rules and regu-
7 lations relating to members of the department to which he belongs. The
8 chief, superintendent or other officer or board at the head of the police
9 department of any such town may, in case of any public emergency, or of
10 any unusual demand for the services of the police in that town, prevent
1 1 any member of the department from taking the day off at the time when
12 he is entitled thereto, or at the time assigned therefor, provided that such
13 day off shall be granted to him as soon thereafter as is practicable. In ^^
14 no case shall the number of such days off be less than twelve in each
15 year in a town subject to section fourteen, or twenty-four in each year
16 in a town subject to section fifteen, or forty-five in each year in a town
17 subject to section sixteen, and they shall be in addition to any annual
18 vacation now or hereafter allowed to members of the said departments,
19 and such annual vacation shall not be diminished on account thereof.
POLICE MATRONS.
1 Section 18. In every city having a population of over thirty thou- Police matrons
2 sand inhabitants as shown by the latest census, state or national, except i8S7?234, § 1.
3 Boston, the mayor shall, and in any other city the mayor, and in Bos- ^ ^l! 10s, § 32.
4 ton, the police commissioner, may designate one or more police stations
5 for the detention and confinement of females under arrest, and for the
6 detention and lodging of females not under arrest, within such city. Such
7 mayor or police commissioner may at any time designate additional sta-
8 tions, or may discontinue any stations so designated ; but one such sta-
9 tion shall always remain so designated, except in Boston. The police
10 commissioner of Boston and the mayor of any other city shall appoint,
11 as soon as may be after any station has been so designated, one or two
12 police matrons to be attached thereto.
1 Section 19. A woman shall not be appointed a police matron unless Tenure of
2 she is suitable therefor and has been recommended in writing by at least dut'ies.^'''^'^'
3 ten women of good standing, residents of the city where the appoint- }g|g; \l\\ ^ ^"
4 ment is to be made. A police matron may be removed by the mayor or ^- ^- 1°*' 5 33.
5 police commissioner, as the case may be, by written order stating the
6 cause of removal. Upon her death, resignation or removal her successor
7 shall be appointed as soon as may be. She shall receive a reasonable
8 compensation, which shall be fixed, except in Boston, by the city council,
9 and in Boston, by the concurrent action of the city council and of the
10 police commissioner, and shall be paid by the city treasurer upon the req-
11 uisition of the body fixing her compensation. If only one police matron
1530
PRIVATE DETECTIVES.
[Chap. 147.
is attached to a station, she shall reside within a reasonable distance 12
thereof and shall be ready to respond to a call therefrom at any hour of 13
the day or night. If two police matrons are attached to a station, the 14
hours during which they shall respond to calls therefrom, respectively, 15
shall be so fixed by the mayor or police commissioner that one of them 16
shall be ready to respond at any hour of the day and night, and each such 17
matron shall, during the hours so fixed for her, remain within a reasonable 18
distance of such station and be ready to respond to ajiy call therefrom. 19
One of such matrons shall remain constantly at the police station to 20
which she is attached, ready for service, so long as any female is detained, 21
lodged or held under arrest therein. A police matron shall have the entire 22
care and charge of all females held under arrest, detained or lodged in 23
the station to which she is attached, and she may call upon the officer in 24
command of such station for assistance. She shall be subject to the 25
authority of the head of the police department of the city where she 26
serves, and to the rules and regulations, consistent with sections eighteen 27
to twenty, inclusive, which may be prescribed by such authority; but 28
she shall not be subject to the control or direction of any police officer 29
attached to a station except the officer in command thereof at the time. 30
In every station to which a police matron is attached, the mayor or police 31
commissioner shall, at the expense of the city, provide sufficient and 32
proper accommodation for females held under arrest, detained or lodged 33
therein. 34
Duties of
matron.
1887, 234, § 4.
1888, 181.
K. L. 108, § 34.
Section 20. If a female is arrested and taken to a police station to 1
which a matron is attached or, if not under arrest, is detained or lodged 2
therein, the police officer there in command shall cause the matron to be 3
summoned forthwith; and if in a city in which a police matron has been 4
appointed, or in Boston, a female is arrested and taken to a station to 5
which no matron is attached, or is received therein for the purpose of 6
detention or lodging, such oflficer shall cause her to be removed as soon 7
as possible to the nearest station to which a matron is attached, or in 8
Boston, to the house of detention, and the city treasurer shall pay the 9
reasonable expense of such removal upon the requisition of the head of 10
the police department. Such remo\al of a female shall not deprive any 11
court of any jurisdiction which it would otherwise have had. 12
stTt'on!" Section 21. The words "police station" or "station" in the three 1
d^fin*^ d°'" preceding sections shall mean any place in which persons are temporarily 2
1887, 234, § 5. confined under arrest. R. l. los, § 35. 3
License
required.
1879, 305, § 7.
P. S. 103, §7.
1898, 486.
R. L. 108, § 36.
1919, 271,
§§ 1. 10.
217 Mass. 294.
private detectives.
Section 22. No person shall engage in the business of or solicit busi- 1
ness as a private detective, or the business commonly transacted by a 2
private detective, under any name or title whatsoever, without first ob- 3
taining a license so to do as provided in sections twenty-three to thirtj-, 4
inclusive. Op. a. g. (iqio) 119. 5
Reqxiirementa
for license,
1919, 271, § 2.
Section 23. The said license may be granted by the commissioner 1
to any reputable citizen of the United States, or to any firm or corpora- 2
tion making written application therefor. The persons making the 3
application shall be not less than twenty-one years of age, and shall 4
have had at least three years' experience as investigators. The hokler 5
CH-^P. 147.] PRIVATE DETECTIVES. 1531
6 of a license may employ as many agents, operatives and assistants as
7 may be deemed necessary by the licensee for the conduct of the business.
1 Section 24. Application for the license shall be made on blank forms Application
2 to be furnished by the commissioner. The material facts stated in the ig'^ig.^ln! § 3.
3 application shall be verified by the oath of the applicants, or, in the case
4 of corporations, by the oath of the resident manager or superintendent
5 to whom the license may be issued. The application shall contain the
6 certificates of at least three reputable citizens of the commonwealth,
7 residing in the town where the applicant proposes in his application to
8 estabHsh his principal place of business, and said certificates shall be
9 received as evidence of the good repute of the applicants, and as evidence
10 that the representations made in the application are true.
1 Section 25. The license shall be granted for one year, and shall contents
2 state therein the name and address of the principal office or place of 1919,271, §4.
3 business of the licensee, and the name under which the licensed business
4 is to be conducted.
1 Section 26. For each license, the licensee, if an individual, shall fgig, 2^i°l5.
2 pay to the commissioner the sum of one hundred dollars annually, and, ^^'' ^^^^- ^^*-
3 if a partnership or corporation, the sum of two hundred dollars annually,
4 and shall give to the commissioner a bond in the sum of five thousand
5 dollars, executed by the applicant as principal and by a surety company
6 authorized to do business in the commonwealth as surety. The bond
7 shall be in such form as the commissioner may prescribe, conditioned
8 upon the honest conduct of the business of the licensee, and the right
9 of any person injured by the wilful, malicious or wrongful act of the
10 licensee to bring in his own name an action on the bond.
1 Section 27. A license may be revoked at any time by the commis- Revocation.
2 sioner for good cause shown; provided, that due notice shall have been • ' ■« •
3 given to the licensee to appear before the commissioner to show cause
4 why the license should not be revoked.
1 Section 28. Any person who is or has been an employee of a licensee Penalty for
2 and who divulges any information gained by him in the said employ- infomatlon or
3 ment except as his employer may direct, or as he may be required by "port* ^"'^"^
4 law to do, or who wilfully makes a false report to his employer, shall be i9i9.27i, § 7.
5 punished by a fine of not more than five hundred dollars or by imprison-
6 ment for not more than one year, or both.
1 Section 29. Any person other than an agent, employee or assistant Penalty for
2 of a licensee hereunder, and any corporation acting as a private detective out license.
3 without obtaining a license in accordance with sections twenty-three to p. s.' 103*,' § 8."
4 thirty, inclusive, shall be punished by a fine of not more than five hun- 1919, 271,'
5 dred dollars or by imprisonment for a term not exceeding one jear, or *'^®' ^°-
6 both; but no corporation shall be liable to the said penalty if its resident
7 manager or superintendent is duly licensed under said sections.
1 Section 30. Sections twenty-two to twenty-nine, inclusive, shall not ^f^^ll^^l^^
2 apply to any detective or officer belonging to the police force of the 221029, in-
3 commonwealth, or of any subdivision thereof, while engaged in the per- 1919, 271. § s.
1532
LICENSED BOXING MATCHES.
[Ch.'IP. 147.
formance of his official duties ; nor to a charitable, philanthropic or law 4
enforcement society or association duly incorporated under the laws of 5
the commonwealth, nor to any agent thereof while engaged in the dis- 6
charge of his duties as such agent, provided the society or organiza- 7
tion is promoted and maintained for the public good and not for private 8
profit; nor to any person employed by any person as an investigator in 9
connection with the business of such employer, and whose services are 10
not let out to another for profit or gain; nor to any regularly estabhshed 11
credit reporting or mercantile agency. 12
List of police
to be sent to
commissioner.
1892, 290.
R. L. 108,
§38.
1916,241. § 1.
LIST OF POLICE.
Section 31. The clerk of each town in which a chief of police or city 1
marshal is appointed shall, witliin one week after such appointment, 2
notify the commissioner of the name of the person so appointed; and 3
the clerk of each town not having a chief of police shall annually, on 4
October first, send to the commissioner the names of all the police officers 5
and constables in such town. If he neglects or refuses so to do, he shall 6
be punished by a fine of fifty dollars. 7
Unlicensed
boxing matciies
forbidden.
1920, C19, § 3.
Op. A. c;.
(1920) 300.
LICENSED BOXING MATCHES.
Section 32. No boxing or sparring match or exhibition for a prize 1
or a purse, or at wliich an admission fee is charged, either directly or in- 2
directly, in the form of dues or otherwise, shall take place or be conducted 3
in this commonwealth except in pursuance of a license granted as herein- 4
after provided by the state boxing commission, in sections thirty-two 5
to forty-seven, inclusive, called the commission. In no case shall any 6
boxing or sparring match or exliibition occur on Sunday. Applications 7
for the license shall be accompanied by such fee, not less than twenty-five 8
nor more than eight hundred dollars, as the commission may establish 9
on the basis of the population of the city or town in which the match or 10
exliibition is to be held. Any persons holding, conducting, participating 11
in or attending a match or exhibition held without a license, as provided 12
in the following section, shall be punished by a fine not exceeding one 13
hundred dollars or by imprisonment for a term not exceeding three 14
months, or both. In the case of exhibitions or bouts held in accordance 15
with the rules and regulations of such amateur organizations as may be 16
approved by the commission, the commission may issue special licenses 17
without the requirement of a bond as provided in section thirty-four or IS
of payment of the annual fee. 19
Licenses SECTION 33. The commission may, subject to the provisions of sec- 1
matches. tious thJrty-two to forty-scvcu, inclusive, issue licenses to conduct boxing 2
' ^ ' or sparring matches and exhibitions, which shall expire on December 3
thirty-first of the year of issue. 4
Bond.
1920, 619, § 5.
Section 34. No license as aforesaid shall be granted unless the 1
licensee has executed and filed with the commission a bond in a penal 2
sum of five thousand dollars, with such surety or sureties as shall be 3
satisfactory to the commission, running to the commission, conditioned 4
upon the payment to the commonwealth of the sums mentioned in section 5
forty, and upon faithful compliance by the licensee with the provisions G
of sections tliirty-two to forty-seven, inclusi^■e, the rules and regulations 7
Ch.\P. 147.] LICENSED BOXING MATCHES. 1533
8 of the commission, and with such other laws of the commonwealth as
9 may be applicable to anj'thing done by the licensee in pursuance of the
10 license. The bond shall also pro\ide for a forfeiture to the common-
11 wealth, recoverable at the suit of the attorney general, of such sum, not
12 exceeding one thousand dollars, as may be stipulated in the bond for
13 each case of non-compliance.
1 Section 35. No person shall act, except at a purely amateur match Licenses for
2 or exhibition, directly or indirectly, as physician, referee, judge, time- 1^20^619, § 6.
3 keeper, professional boxer or as manager, trainer or second of such a
4 boxer, at a boxing or sparring match or exhibition unless hcensed by the
5 commission upon receipt of such classified fee, not exceeding twenty-
6 five dollars, as the commission may fix. For the purposes of sections
7 thirty-two to forty-seven, inclusive, a professional boxer is one who
8 competes for a money prize or teaches or pursues or assists in the practice
9 of boxing as a means of obtaining a livelihood or pecuniary gain. Phy-
10 sicians who desire to officiate without charge at amatem* boxing or
11 sparring matches or exhibitions shall be licensed without charge.
1 Section 36. At every boxing or sparring match or exhibition there Referee and
2 shall be in attendance a referee, duly licensed under the provisions of i92o?^6i9, § 7.
3 sections thirty-two to forty-seven, inclusive, who shall direct and control
4 the same. The referee shall have fidl power to stop the match whenever
5 he deems it advisable because of the physical condition of the contestants
6 or one of them, or when one of the contestants is clearly outclassed by
7 liis opponent, or for other sufficient reason. The referee shall have power
8 in liis discretion to declare forfeited any prize, remuneration or purse or
9 any part thereof belonging to the contestants or one of them if, in his
10 judgment, such contestant or contestants are not or were not competing
11 in good faith. There shall also be in attendance two duly licensed judges
12 who shall, at the termination of every such boxing or sparring match or
13 exhibition, render their decision. If they are unable to agree, the decision
14 shall be rendered by the referee. The fees of the referee and other licensed
15 officials shall be fixed by said commission, and shall be paid by the
16 licensed organization prior to the exhibition.
1 Section 37. At any boxing or sparring match or exhibition there physician.
2 shall be in attendance a duly licensed physician, whose duty it shall be '^'°' *'^®' ^ *•
3 to observe the physical condition of the boxers and advise the referee or
4 judges with regard thereto. Any competent physician who has had not
5 less than three years' experience as a medical practitioner may be hcensed.
6 No boxer shall be permitted to enter the ring unless, not more than
7 three hours before, a physician licensed under the pro\'isions of sec-
8 tions thirty-two to forty-seven, inclusive, shall certify in writing that
9 the boxer is physically fit to engage in the proposed contest. The phy-
10 sician's fee, as fixed by the commission, shall be paid by the licensee
11 conducting the match or exliibition.
1 Section 38. Boxing or starring matches or exhibitions shall not Number
2 exceed ten rounds in length, and no roimd shall exceed three minutes. Gloves.
3 The contestants shall wear during the contest gloves weighing at least
4 six ounces each. No contestant shall participate in more than ten such
5 rounds during any period of twenty-four hours.
1534
LICENSED BOXING MATCHES.
[CiLU'. 147.
Section 39. No contestant under eighteen shall be permitted to en- 1
Age of
participants
i92of e^fg^'^io S^S^ ^^ ^^^ boxing or sparring match or exliibition. No person under 2
sixteen shall be admitted to or be present at any boxing or sparring 3
match or exhibition. . 4
Payment
to common-
wealth.
1920, 619, §
11.
Section 40. Every licensee holding or conducting any such boxing 1
or sparring match or exhibition shall, witliin se^'enty-t\vo hours after its 2
conclusion, pay to the state treasurer a sum equal to five per cent of the 3
total gross receipts from the sale of tickets or from admission fees; pro- 4
vided, that if such match or exhibition is conducted as an incidental 5
feature in an event or entertainment of a different character, such portion 6
of the total receipts shall be paid to the commonwealth as the commis- 7
sion may determine or as may be fixed by rule adopted under section 8
forty-six. Witliin said time the licensee shall furnish to the commission 9
a report, duly verified by the treasurer and secretary, showing the exact 10
number of tickets sold and admission fees collected for the contest, and 11
the gross receipts thereof, and such other data as the commission may 12
require. 13
Tickets not
to be sold
beyond
capacity of
haU.
1920. 619, 5 12.
Section 41. No licensee under section tliirty-three shall sell or cause
to be sold or issued more tickets or invitations purporting to admit to
any such match or exhibition, or otherwise admit to the same, more
persons than are admissible according to the authorized capacity of
the building, or part thereof actually used therefor.
o/siSpeM?on Section 42. Any license may be revoked or suspended by the com- 1
i92oT6i9, 1 13. mission for a violation of any provision of sections thirty-two to forty- 2
seven, inclusive, or of any other law of the commonwealth or of any rule 3
or regulation adopted by the commission or whenever the licensee has, 4
in the judgment of the commission, been guilty of any act or offence 5
detrimental to the public interest. 6
Licensee
not to have
financial
interest in
boxer.
1920, 619, §
Section 43. No licensee under section thirty-three shall have, 1
directly or indirectly, any financial interest in a boxer competing on 2
premises owned or leased by the licensee, or in which the licensee is 3
otherwise interested. No contestant in such a match or exhibition shall 4
be paid for services before the same are rendered, and should it be de- 5
termined by the judges and referee that a contestant did not give an 6
honest exhibition of his skill, his services shall not be remunerated. 7
^1°^% Section 44. The commission shall have the same authority to
igloTerg!'! i6. summon and require the attendance and testimony of witnesses as to
all matters within its jurisdiction as is conferred upon city councils
by section eight of chapter two hundred and thirty-tliree, and sec-
tions nine, ten and eleven of said chapter shall apply to witnesses so
summoned.
1
2
3
4
5
6
may'enjoin"^ SECTION 45. The supcHor court shall ha\'e jurisdiction in equity
uijicensed upon any information filed by the commission, the attorney general, the
1920, 619, § 17. district attorney for the district, the police authorities of the city or
town where the boxing or sparring match or exliibition is held or is
announced to be held, or by any five legal voters of the commonwealth
stating that a certain building, tenement or place is used for boxing
Chap. 147.] licensed boxing matches. 1535
7 or sparring matches or exhibitions by an individual, group, partner-
8 ship, club, corporation or association not Hcensed under section thirty-
9 three, or contrary to any provision of sections tliirty-two to forty-seven,
10 inclusive, or that a boxing or sparring match or exhibition is being ad-
11 vertised or announced, or has been advertised or announced, to take
12 place in a certain building or place, or that a certain individual, club,
13 corporation or association is selling, exchanging or giving away tickets,
14 tokens or symbols purporting to entitle the holder to the right or privi-
15 lege of attending a certain boxing or spai-ring match or exliibition not
16 licensed by the commission and contrary to the provisions of sections
17 thirty-two to forty-seven, inclusive, to enjoin and abate the same as a
18 common nuisance.
1 Section 46. The commissioner, in consultation with the other mem- Rules and
2 bers of the commission, may make such rules and regulations for the Rfport'°°^'
3 administration and enforcement of sections thirty-two to forty-seven, ^^'°' '''^' ^ ^*'
4 inclusive, as he may deem necessary, subject to the approval of the gov-
5 ernor and council. Such rules and regulations may provide for and
6 regulate the granting of a special permit for exliibitions where no de-
7 cision is to be rendered and where a skilled boxer or boxers merely dem-
8 onstrate the science of boxing. The commissioner shall make an annual
9 report to the general court on or before the first Wednesday in January
10 of the acts of the commission, together with any recommendations for
11 legislation which he may deem desirable.
1 Section 47. The remainder of the sums received under section forty, Distribution
2 after paying the expense to the commonwealth of administering sections ceiveTby com-
3 thirty-two to forty-seven, inclusive, shall, annually on or before Novem- "SreiQ.'^i i9.
4 ber first, be distributed by the state treasurer to the several towns in n^ooi'sob
5 proportion to the amounts collected from licensees acting therein under
6 said sections.
1 Section 48. Sections tliirty-two to forty-seven, inclusive, shall be sections 32
2 in force in any city or town which accepts said sections in the manner si'vtjin°effcct
3 provided in the following section or has accepted corresponding pro- towns^wh"c1i
4 visions of earlier laws in the manner provided therein and has not on jSn^eig'^T^o
5 a resubmission under section fifty voted against said sections.
1 Section 49. Sections thirty-two to forty-seven, inclusive, shall take Acceptance
2 effect in a city if accepted by the voters at a city election; provided, towns'^'' """^
3 that a petition signed by not less than ten per cent of the registered '^"°' ^*^' ^ ""'
4 voters is filed with the city clerk not less than thirty days before the
5 election. Said sections shall take effect in a town on their acceptance
6 by the voters at an annual or special town meeting, the question having
7 been submitted upon a like petition; and the selectmen shall upon a like
8 petition call a special town meeting for the purpose of voting upon such
9 acceptance.
1 Section 50. In any city or town in which the provisions of sections Resubmission
2 thirty-two to forty-seven, inclusive, are in force, said sections shall again 32To''4'7.™
3 be submitted to the voters at any municipal election; provided, that a ^^^°' ''''*• ^ ^''
4 petition to that effect signed by not less than ten per cent of the voters
5 is filed with the city or town clerk not less than thirty days before the
1536
FraE PREVENTION.
[CH.4P. 148.
election. If upon such resubmission the voters vote against said sec- 6
tions, they shall cease to have effect in that city or town until reaccepted 7
by the voters as provided in the preceding section. 8
Certain pro-
visions of law
_ Section 51. Sections nine to twelve, inclusive, of chapter two hun-
to°bo?fi''^'''^'° '^^^^ ^^'^ sixty-five and section twenty-eight of chapter one hundred and
eighty shall not apply to any boxing or sparring match or exhibition li-
censed under section tliirty-tliree and conducted under and in accord-
ance with sections thirty-two to forty-seven, inclusive, and the rules
and regulations issued under section forty-six.
matches.
1920, 619, § 22.
REFERENCES.
State police may visit pawnbrokers, Chap. 140, § 73.
May examine books of persons making collateral loans. Id., § 87.
Must carrj' out directions of super\-isor of loan agencies. Id., § 112.
Powers of state police in reference to explosives and inflammable compounds,
Chap. 148.
Powers of state poUce in reference to buildings, Chap. 143.
Powers in relation to cinematographs, Id., |§ 72-85.
Powers as to inspection of public buildings as to drains, etc.. Chap. 143, § 42.
Powers as to theatres. Id., § 36 et seq.
Licensing exhibition on Sunday, Chap. 136, § 4.
Pensions for state poUce, Chap. 32, § 6S.
Composition of state bo-xing commission. Chap. 22, § 12.
CHAPTER 148
FIRE PREVENTION.
Sect.
DEFINITIONS.
1. Definitions.
APPLICATION OF CERTAIN SECTIONS.
2. Application of certain sections.
INVESTIGATION OF FIRES.
3. Duties of certain officials.
4. Duties of marshal.
5. Powers of inspectors.
6. Removal of combustible materials.
7. Penalty.
8. Report of fires.
9. Report to insurance companies, etc.
EXPLOSn'ES.
10. Rules for explosives.
11. Rules and regulations.
12. Appropriation for expert assistance and
for a laboratory.
13. Manufacture of fireworks and fire-
crackers.
14. License for storing, etc., explosives.
15. Inflammable fluids in motor vehicles.
16. Penalty.
17. Penalty.
18. Powers of courts.
Sect.
19. Officials designated by marshal to grant
permits.
20. Inspectors of petroleum.
21. Oils must be inspected.
22. Ordinances, etc., as to inspection of
oils.
23. Penalty.
24. Blasting bond.
25. -Action on bond.
26. Power of courts.
27. Damages for illegal use, etc., of explo-
metropolitan fire prevention district.
28. District.
29. Apportionment of salaries and expenses.
30. Powers of marshal.
31. Delegation of powers.
32. Paint or inflammable fluids.
33. Combustible materials.
34. Removal of combustible refuse.
35. Use of salamanders.
36. Automatic sprinklers.
37. Dry pipes in basements.
38. Penalty.
39. Rules as to fires and fire protection.
40. Rules, application. Hearing, notice.
4 1 . Orders to occupant or owner.
Ch-ip. 148.]
FIRE PREVENTION.
1537
Sect.
42. Investigation and report by heads of
fire departments.
43. Penalty.
44. Entering buildings.
45. Appeals.
46. Investigation of fires.
47. Reports by insurance companies.
48. Record of fires.
49. Study of methods of fire prevention.
50. Report of commissioner.
51. Penalty.
GENERAL PBOVISIOSS.
52. Possession of bombs and explosives.
53. Notice of seizure.
54. Tanks for storage of fluid.
Sect.
55. Rules and regulations.
56. Explosive golf balls.
57. Blank cartridges, toy pistols, fire-
works, etc.
58. Explosive stove polish.
59. Penalty.
60. Dangerous illuminating oils, etc.
61. Same subject.
02. Penalty for selling naphtha under de-
ceptive name.
63. Search warrant for explosives illegally
kept.
64. Forfeiture of explosives illegally kept.
65. Matches.
66. Fire balloons.
DEFINITIONS.
1 Section 1. In this chapter the following words, unless a different Definitions.
2 meaning is required by the context or is specifically prescribed, shall have '^^*' ''°^'
3 the following meanings:
4 "Commissioner", the commissioner of public safety.
5 "Department", the department of public safety.
6 "Division", the division of fire prevention of the department of public
7 safety.
8 "Inspector", an inspector of the division of fire prevention of the
9 department of public safety.
10 "Marshal", the state fire marshal.
11 "Metropolitan district", the metropoHtan fire prevention district
12 described in section twenty-eight.
application of certain sections.
1 Section 2. Sections six, ten and tliirteen to twenty-three, inclusive, Application
2 shall not apply to the metropolitan district. Sections twenty-eight to sectiOTs'."
3 fifty-one, inclusive, shall apply only to the said district. 1920] 436, 1 1^'
investigation of fires.
1 Section 3. The marshal in Boston, the board of fire engineers in Duties of
2 cities and in towns in which such a board is established, whether the or- officlafs.
3 ganized fire district includes within its limits the whole territory of the \lll[ 4ft; | f
4 town or not, and the selectmen in towns in which no fire district is }|g|' |q|' ^ ^■
5 organized and no board of fire engineers is established, shall investigate ?n„o'?42^^'
6 the cause and circumstances of every fire in such city or town by which §§ T.'f
7 property has been destroyed or damaged, especially to ascertain whether 1904! 4.33! 1 1.
8 it was caused by carelessness or design. They shall begin such investi- If^^ou^iV.
9 gations within two daj-s, excluding Sunday, after such fire, and the marshal '^'^ ^°'^^' ^'^^'
10 may, in his discretion, supervise and direct the same. The board making
11 investigations of fires may notify the said marshal, and shall within one
12 week after the fire file with him a written statement of all the facts relative
13 to the cause and origin of the fire, tlie kind, value and ownership of the
14 property destroyed, and such information as he may require. He shall
15 keep in his office a record of all fires occurring in the commonwealth, with
16 the results of said investigation. Such record shall be open to public
1538
FIRE PREVENTION.
[Chap. 148.
Duties of
marshal.
18S6. 354, §
1894, 444,
«3,4.
R. L. 32, § :
1902, 142,
§§ 1.2.
1903, 365, 5
1904, 433, §
1919, 350,
§ 101.
2 0p. A.G.
inspection, and copies of such portions as the commissioner of insurance 17
requires shall be forwarded to him before January fifteenth. 18
Section 4. The marshal shall investigate or cause to be investigated 1
the cause and circumstances of all fires of which he has notice, as provided 2
in the preceding section, by which property has been damaged or de- 3
stroyed, especially to ascertain whether the fire was caused by carelessness 4
or design. For these purposes the marshal or some person designated 5
by the commissioner may summon and examine on oath any person sup- 6
posed to know or have means of knowing any material facts toucliing 7
the subject of investigation. Such witnesses may be kept apart and 8
examined separately, and such examination shall be reduced to writing, 9
and false swearing therein shall be deemed perjury and be punishable as 10
such. Any justice of the municipal court of the city of Boston or of the 1 1
superior court, upon application of the marshal or some person designated 12
by the commissioner, may compel the attendance of such witnesses and 13
the giving of such testimony before him in the same manner and to the 14
same extent as before said court. If upon such investigation he believes 15
that the evidence is sufficient to charge any person with crime in causing 16
the fire, he shall make a complaint therefor, and shall furnish the proper 17
officers with the e\adence and names of witnesses obtained by him. He 18
shall, when required, report to the commissioner of insurance his pro- 19
ceedings and the progress in prosecutions for causing fires and the results 20
thereof. 21
Powers of
inspectors.
1894, 444, § 4.
R. L. 32. § 4.
1902, 142,
§1 1.2.
1903, 365, § 1.
1905, 433, § 1.
1919, 350,
§ 104.
Removal of
combustible
materials.
1894, 444, § 5.
R. L. 32, § 6.
1902, 142,
§§ 1.2.
1903, 365, § 1.
1904, 433, I 1.
1919, 350,
§ 104.
1920, 436.
lOp. A. G. 211
Section 5. Any inspector may, in the performance of the duties 1
imposed by this chapter, at reasonable hours enter upon and examine any 2
building or premises where any fire has occurred, or other buildings or 3
premises adjoining or near the same, with the consent of the occupant 4
thereof. 5
Section 6. In cities and towns which accept this section or have 1
accepted corresponding provisions of earlier laws, the marshal, or any 2
person designated by liim, the cliiefs of fire departments in cities, and 3
the chief engineer, or the chairman of the board of selectmen in towns 4
having no engineer, may, and upon complaint of a person having an in- 5
terest in any building or premises or property adjacent thereto, shall, 6
at all reasonable hoius, enter into buildings and upon premises Mitliin 7
their jurisdiction and make an investigation as to the existence of con- 8
ditions likely to cause fire. They shall in M-riting order such conditions, 9
if existing, to be remedied, and whenever such officers or persons find in 10
any building or upon any premises any accumulation of combustible 11
rubbish, including waste paper, rags, cardboard, string, packing material, 12
sawdust, shavings, sticks, waste leather or rubber, broken boxes or bar- 13
rels or other refuse that is or may become dangerous as a fire menace to 14
such buildings or premises, they shall in \ATiting order the same to be 15
removed or such conditions to be remedied. The owner or occupant of 16
any such building or premises may, witliin twenty-four hours after notice 17
of such an order from any person other than the marshal, apply to the 18
marshal, by whom the matter shall forthwith be investigated. Unless he 19
revokes the order, it shall remain in force and be at once obeyed by said 20
owner or occupant, who, if he refuses or neglects to comply therewith, 21
shall be punished by a fine of not less than ten nor more than fifty dol- 22
lars for each day during which such neglect or refusal continues. 23
Chap. 148.] fire pre\'ention. 1539
1 Section 7. Any city or town officer named in section three who Penalty.
2 neglects or refuses to comply with any requirement of the preceding ism! 444! § 6.
3 sections shall be punished by a fine of not less than twenty-five nor more ^' ^' ^"' ^ ®'
4 than two hundred dollars.
1 Section 8. The marshal shall submit annually, before February fif- f^^"^*-"^
2 teenth, a detailed report of all official action in relation to fires to the JUf'H^'^"-
3 commissioner of insurance, who shall embody the material portions thereof §§s.'9.
4 in his annual report. R. L.32. § s. 1902, 142, §§ 1, 2.
1903, 365, § 1. 1904, 433, § 1, 1919. 350, § 101.
1 Section 9. The marshal may report to insurance companies, to Report to
2 owners of property, or to other persons interested in the subject matter pTniS^e'tc™™
3 of an investigation of the cause and circumstances of a fire any informa- i9io,328, § i.
4 tion obtained by such investigation which may in his opinion require
5 attention from or by such insurance companies, owners of propertj' or
6 other persons.
explosives.
1 Section 10. The department may make rules and regulations for the Rules for
2 keeping, storage, use, manufacture, sale, handlirjg, transportation or isTiTeiyb.
3 other disposition of gunpowder, dynamite, crude petroleum or any of §§"'1/^'
4 its products, or explosive or inflammable fluids or compounds, tablets, p%*'fo2,
5 torpedoes or any explosives of a like nature, or any other explosives, and |§ f^'jof ^^'
6 may prescribe the materials and construction of buildings to be used §§ s^. ss,' 94.
7 for any of the said purposes, except that cities and towns may by ordi- 1964. 370,
8 nances or by-laws prohibit the sale or use of fireworks or firecrackers 1905, 2so, § 1.
9 within the city or town, or may limit the time within which firecrackers iliO'li^^^sss,
10 and torpedoes may be used.
107 Mass. 188. 189 Mass. 377. Penalty, 5 IG.
155 Mass. 531. 217 Mass. 1S5.
1 Section 11. The marshal shall submit to the commissioner rules and ^"'"".^ ?"<*
, . , . . „ . , , . . regulations.
2 regulations to carrj' out the provisions of sections ten and thirty-nine, 1919.350.
3 which shall take efi'ect subject to section thirty-seven of chapter tliirty
4 when approved by the commissioner and by the governor and council,
5 and on such dates as they may fix.
1 Section 12. The marshal may expend the amount annually appro- Appropriation
2 priated for maintaining a laboratory for the division and the employ- assistance
3 ment of expert assistance to aid in the enforcement of the laws relative fablratory.
4 to explosives and inflammable fluids and compounds.
1914,421,5 1. 1915,220. 1916, 65, § 1. 1918, 275, § 4.
1 Section 13. No building shall be used for the manufacture of fire- Manufacture
2 works or firecrackers without a license from the aldermen or selectmen and'fire^?'^ "^
3 and a permit from the marshal. i9io, 565, § 2. Penalty, § le. crackers.
1 Section 14. No building or other structure shall, except as pro\'ided License for
SLonnti etc
2 in section thirteen or fifteen, be used for the keeping, storage, manu- explosives.
. . . 1866 285 § 2
3 facture or sale of any of the articles named in section ten unless the iseg! 152] § e!
4 aldermen or selectmen shall have granted a license therefor for one year rIi,; io2!§ii4'.
5 from the date thereof, after a public hearing, fourteen days' public notice \IqI\ Isq; | ?;
G of which shall have been given at the expense of the applicant, and unless \l°^'_ IS5; | };
1540
FIRE PREVENTION.
[CiLVP. 148.
1913,452, § 1.
1916, 162.
168 Mass. 388.
185 Mass. 64.
190 Mass. 280.
217 Mass. 185.
3 Op. A. G. 52.
4 Op. A. G. 405,
426.
Op. A. G. (1920)
134, 148.
Penalty, § 16.
a permit shall have been jjranted therefor by the marshal or by some of- 7
ficial designated by liim for that purpose; provided, that any building or 8
other structure once used under a license and permit granted as afore- 9
said, or any building or other structure lawfully used for any of said piu-- 10
poses, may be continued in such use from year to year if the owner or 11
occupant thereof shall annually, while such use continues, file for regis- 12
tration with the clerk of the city or town where such building or other 13
structure is situated, and with the marshal or the official designated 14
by him to grant permits in such city or town, a certificate reciting such 15
use and occupancy. The department may by regulation prescribe the 16
amount of explosives, crude petroleum or any of its products, or of any 17
other inflammable fluid or compound that may be kept for private use 18
in a building or other structure without a license, permit or registration, 19
or any of them. 20
The right to use a building or other structure for any of said purposes 21
may be revoked for cause, after notice and a hearing given to such owner 22
or occupant, by the aldermen or selectmen having authority to grant 23
licenses for such use, or by the marshal. A fee of one dollar may be 24
charged for the license and a like sum for the permit herein provided 2.5
for, and one half of said sum for the registration of the said certificate. 26
Such building or structure shall always be subject to such alterations 27
in construction and to such regulations of its use in respect to protection 28
against fire or explosion as the department may prescribe. 29
Inflammable
fluids in
motor vehicles.
1911,477, § I.
4 Op. A. G. 397.
Section 15. Gasoline or any other volatile inflammable fluid which
emits a ^'apor at a temperature below one hundred degrees Fahrenheit
when tested in the open air shall, when in any motor vehicle which is in
a building or other structure, be deemed to be kept in such building or
other structure within the meaning of the preceding section; provided,
that this section shall not apply to any building in existence on July
first, nineteen hundred and eleven, in which not more than two auto-
mobiles or motor vehicles are kept, if such building or part thereof is
not used either for human habitation or for holding gatherings of more
than twenty persons, or for giving entertainments, instruction or employ-
ment to more than that number.
1
2
3
4
5
6
9
10
11
Penalty.
1904, 370, § 4.
1905, 2,80, § 3.
1910, 565,
§S 2. 5.
Section 16. Whoever keeps, stores, uses, manufactures, sells, handles
or otherwise disposes of any of the articles mentioned in section ten, in
violation of section thirteen or fourteen or of any regulation, ordinance
or by-law made under section ten, or whoever violates any regulation
made imder section fourteen, shall, except as provided in section seven-
teen, be punished by a fine of not more than one hundred dollars or by
imprisonment for not more than one month, or both.
Penalty.
1871,6", § 4.
1877,216, § 6.
P. S. 102, § 64.
R. L. 102.
§ 101.
1910, 588,
§11.4.
Section 17. Whoever knowingly violates or knowingly causes or per- 1
mits the violation of any regulation atlopted and prescribed for the trans- 2
portation of gunpowder and other explosives or explosive or inflammable 3
fluids or compounds shall be punished by a fine of not more than one 4
thousand dollars or by imprisonment for not more than one j'ear, or both. 5
Powers of
courts.
1S94, 399, § 5.
R. L. 102,
§ 117.
Section 18. The supreme judicial or superior court may restrain 1
the erection, occupation or use of a building in violation of section four- 2
teen, or of any regulation made thereunder. 3
Chap. 148.] FraE prevention. 1541
1 Section 19. The marshal may designate some officer of any city or officials
2 town who, when so designated, may grant, in accordance with rules and ufarfhai to ^
3 regulations estabhslied by the department, the permits required by sec- fgo"' Iso" §"1;
4 tions thirteen and fourteen or by the regulations made under section four- 5m°'§^4^' ^ "'
5 teen. Such officer shall grant such permits and keep a record of them.
6 A fee of fifty cents may be charged for any permit except as provided in
7 section fourteen. The marshal may revoke any permit under section
8 thirteen, and such a permit may be revoked for cause by any officer who
9 granted it.
1 Section 20. The mayor of a city, the selectmen of a town of more inspectors of
2 than fifteen hundred inliabitants, and, upon the wTitten application of i86o°262l'
3 five or more citizens of a town of less than fifteen hundred inhabitants, fleV.lse,
4 the selectmen thereof, shall annually appoint one or more inspectors of 11,4', ^'52, § 1.
5 petroleum, who, before entering upon their official duties, shall be sworn, P- |- ^^^^^ ''■
6 and who shall not be interested in the sale of crude petroleum or in the |g'°^ ■,„.
7 sale or manufacture of petroleum or earth rock oil or any of their products, iis Mass'. 548.
8 Their compensation shall be fixed in cities by the aldermen and in towns
9 by the selectmen and shall be paid by persons who require their services.
1 Section 21. No person shall sell or keep for sale, at wholesale or retail, °ap eXa*'"'
2 for illuminating purposes, any kerosene, refined petroleum or any product j||;J' ^p. § s.
3 of petroleum, unless it has been inspected and approved by any inspector § n;' 345, § 2.
4 authorized in the commonwealth. p. s. s9, § 7. 18S2, 250.
1885. 122. §1. R. L. 102, § 110. 1911,204.5 2. Penalty, § 23.
1 Section 22. Cities and towns may adopt ordinances, by-laws and ^/J^'^as^tr'
2 regulations, consistent with law, relative to the inspection of the oils jJ^^P^g''""
3 named in the preceding section which have not been inspected and 1882,250.
4 approved by an inspector. 1885,122,51. r. l.io2,§iii. 1911,204,53.
1 Section 23. \Vhoe\-er violates section twenty-one or any provision of f8"6'*2ii2 « 3
2 an ordinance, by-law or regulation adopted under section twenty-two, J?'f'j\^-'
3 or, being an inspector appointed under section twenty, is guilty of fraud, 345,'§ 2.'
4 deceit or culpable negligence in the performance of his duties, shall be 1882, 250.
5 punished by a fine of not more than one hundred dollars or by imprison- r. l! 102,'
6 ment for not more than one month, or both. ^ ^^^'
1 Section 24. Before the issue of a permit to use an explosive in the Blasting bond.
2 blasting of rock or any other sub.stance as prescribed by the department, 1914', ils! 1 1.
3 the applicant for the permit shall file with the clerk of the citj' or town
4 where the blasting is to be done a bond running to the city or town, with
5 sureties appro\'ed by the treasurer thereof, for such penal sum, not exceed-
6 ing ten thousand dollars, as the marshal or the officer granting the permit
7 shall determine to be necessary in order to cover the risk of damage that
S might ensue from the blasting; pro\-idcd, that the marshal or the officer
9 granting the permit may determine that a single and blanket bond in
10 a penal sum not exceeding fifteen thousand dollars is sufficient to cover
1 1 tiie risk of damage from all bla.sting operations of the applicant, either
12 under the permit so issued or under future permits to use explosives in
lo blasting operations. The bond shall be conditioned upon the payment
14 of any loss, damage or injury resulting to persons or property by reason
15 of the use or keeping of said ex-plosive.
1542
FIRE PREVENTION.
[Chap. 148.
Action on
bond.
1911, 325, I 2.
Section 25. Action on a bond filed under the preceding section may 1
be brought by any persons to whom loss, damage or injury has resulted 2
by reason of the use or keeping of said explosive, and shall be brought in 3
the names of and for the use and at the cost and expense of such persons; 4
but in no event shall action be brought on the bond for personal injury 5
of an employee of the person receiving the permit. If claims on any bond 6
are established to an amount greater than the penal sum thereof, such 7
claims shall be paid pro rata to the amount of the penal sum, and execu- 8
tions shall issue accordingly. 9
Power of
courts.
1899,
242.
R. L.
102,
§95.
1904,
370,
§ 1.
1905,
280,
§ 1.
1914,
795,
§3.
1916,
138.
Damages for
illegal use,
etc., 1
of ex-
plosives.
1877,
210.
§ 10.
P. S.
102,
§ 06.
R. L.
102,
5 103
1904,
370,
§ 1.
Section 26. The superior court shall have jurisdiction in equity,
upon the petition of the commonwealth or of a city or town, to enforce
the laws of the commonwealth and the regulations of the department
relative to the blasting of rock, stone or other substance with any
explosive.
Section 27. Whoe^•e^ suffers injury by the explosion of an explosive
which is being kept or transported contrary to the provisions of this
chapter or of the regulations of the department may recover damages
therefor in tort against the persons who so violate said provisions or
regulations.
1905, 280, § 1. 1914, 795, § 3. 1910, 138. 189 Mass. 377.
District.
1914, 795,
§§ 1, 26.
4 Op. A. G. 32
METROPOLITAN FIRE PREVENTION DISTRICT.
Section 28. The metropolitan district shall include the following 1
cities and towns and the territory comprised in them, to wit: Arlington, 2
Belmont, Boston, Brookline, Cambridge, Chelsea, Everett, Lynn, 3
Maiden, Medford, IMelrose, INIilton, Newton, Quincy, Revere, Saugus, 4
Somerville, Waltham, Watertown, Winchester, Winthrop and Woburn, 5
and all other cities and towns Mhich accept sections twenty-eight to 6
fifty-one, inclusive, or ha\'e accepted corresponding provisions of earlier 7
laws by a two thirds vote of the city council or by the town at a town 8
meeting. The words "heads of fire departments", as used in sec- 9
tions thirty-one to fifty-one, inclusive, shall mean the fire commis- 10
sioner or board of fire commissioners in those cities in the metropolitan 1 1
district that have such an officer or officers, the commissioner of public 12
safety in Cambridge, the chief executive officer of the fire department 13
of each of the other cities and towns within the metropolitan district, 14
and the chief executive officer of the fire department of any fire district 15
in any one or more of said cities or towns. AH the provisions of sections 16
twenty-eight to fifty-one, inclusive, shall apply to such fire districts. 17
Apportionment
of salaries and
expenses.
1914, 795, § 25.
1920, 111.
Section 29. Such portion of tlie salaries of the marshal and of all
persons appointed or employed under him, of the rent and office expenses,
and other proper expenses and charges incurred by him in the discharge
of his duties as are properly charged against the metropolitan district
shall be apportioned annually by the state treasurer among the cities
and towns in the metropolitan district, one half in proportion to their
last annual taxable valuation and one half in proportion to the popula-
tion as determined by the next preceding federal or state census. The
amount so apportioned shall be added to their proportion of the state
tax.
1
2
3
4
5
6
7
8
9
10
ClL-VP. 148.] FIKE PREVENTION. 1543
1 Section 30. The marshal shall have within the metropolitan dis- Powers of
2 trict the powers given by sections ten, thirteen, fourteen, twenty, twenty- ist?, tie, § ii.
3 one and twenty-two to license persons or premises, or to grant permits r.l.\o2,^ ^^'
4 for, or to inspect or regulate, the keeping, storage, use, manufacture, sale, ig\^ 795
5 handling, transportation or other disposition of gunpowder, dynamite, f^ig^j3s
6 nitroglycerine, camphine or any similar fluids or compounds, crude pe- isisi sp. 101,
7 troleum or any of its products, or any explosive or inflammable fluids op' a. g.
8 or compounds, tablets, torpedoes, rockets, toy pistols, fireworks, fire- op.^'.tf.'
9 crackers, or any other explosives, and the use of engines and furnaces *^®^°' ^°"'
10 as described in section one himdred and fifteen of chapter one hundred
11 and forty; provided, that the city council of a city or the selectmen
12 of a town may disapprove the granting of such a license or permit, and
13 upon such disapproval the permit or license shall be refused. In Boston
14 certificates of renewal of licenses as provided in section fourteen shall
15 be filed annually for registration with the fire commissioner, accom-
16 panied by a fee of one dollar.
1 Section 31. The marshal may delegate the granting and issuing of ^^'^'^^^'j.""
2 any licenses or permits authorized by sections thirty to fifty-one, inclusive, isi*. 795,' § 4.
3 or the carrying out of any lawful rule, order or regulation of the depart- (1920)' 302.
4 ment, or any inspection reciuired under said sections, to the head of the
5 fire department or to any other designated officer in any city or town in
6 the metropolitan district.
1 Section 32. No paint, oil, benzine, naphtha or other inflammable Paint or in-
2 fluid shall be kept or stored in bulk or barrel otherwise than in the tank a^T.^ "
3 of an automobile, motor boat or stationary engine, in total quantity 1 op! a' G.^397.
4 exceeding ten gallons, in any part of an_y building used for habitation, or p^^^], « 51
5 \\'ithin fifty feet of any building used for dwelling purposes, unless such
6 paint, oil or other inflammable fluid is enclosed within a fireproof room
7 or structure, constructed and arranged to the satisfaction of the marshal;
8 and no paint, oil, benzine, naphtha or other inflammable fluid, except
9 for domestic purposes, shall be kept, used, stored or sold in any part
10 of any building used for habitation unless a permit therefor has first
11 been obtained from the marshal under such terms and conditions as he
12 may prescribe.
1 Section 33. No part of any building used for habitation, nor that Combustible
2 part of any lot within fifty feet of any building so used, shall be used for i9u, 795', § 7.
3 the storage, keeping or handling of any combustible article for other than Penalty, § 51.
4 domestic purposes, or of any article or material that may be dangerous
5 to the public safety as a fire menace, unless a permit has first been ob-
6 tained therefor from the marshal. No part of any such building shall
7 be used as a carpenter's shop, nor for the storage, keeping or handling
8 of feed, hay, straw, excelsior, shavings, sawdust, cotton, paper stock,
9 feathers or rags, except under such terms and conditions as the marshal
10 may prescribe.
1 Section 34. The marshal or such person as he may designate may Removal of
2 require the removal and destruction of any heap or collection of refuse or refuse!^ '
3 debris that in his opinion may become dangerous as a fire menace. ^^"' '^^' ^'
4 Neglect on the part of either the owner or occupant, or both, to remove Po^^'ty' 5 si.
5 the cause of complaint under this or the preceding section, after notice
1544
FIRE PREVENTION.
[Chap. 148.
thereof has been served, shall be deemed a refusal; and the marshal or 6
the person whom he may designate may enter upon the premises and 7
remove such material or article and the containers thereof as may be 8
covered by or mentioned in the notice issued. The material or articles 9
removed, if of no substantial value, shall be destroyed; otherwise they 10
shall be placed in storage, and the total costs attending such action shall 1 1
be paid by the owner or occupant. 12
Use of
salamanders.
1914, 795, § 9.
Penalty, § 51.
Section 35. No salamander or stove for drying plaster shall be used 1
in any building except under such conditions as may be prescribed by the 2
marshal; and no such salamander or stove shall be set upon a wooden 3
floor unless it is raised above the floor at least four inches and set upon 4
brick or other incombustible material in a bed of sand at least two inches 5
thick, spread upon the floor and covering an area of at least two feet in 6
all directions larger than the area of the salamander or stove. 7
Penalty, § 51.
fprinkiere" SECTION 36. Any building used in whole or in part for the business 1
Iod'a^gVs^' °^ woodworking, or for the business of manufacturing or working upon 2
wooden, basket, rattan or cane goods or articles, or tow, shavings, excel- 3
sior, oakum, rope, twine, string, thread, bagging, paper, paper stock, 4
cardboard, rags, cotton or linen, or cotton or linen garments or goods, 5
or rubber, feathers, paint, grease, soap, oil, varnish, petroleum, gasoline, 6
kerosene, benzine, naphtha or other inflammable fluids, and any build- 7
ing used in whole or in part for the business of keeping or storing any such 8
goods or articles, except in such small quantities as are usual for domestic 9
use or for use in connection with and as incident to some business other 10
than such keeping or storing, shall, upon the order of the marshal, be 11
equipped with automatic sprinklers; provided, that no such order shall 12
apply to any building unless four or more persons live or are usually 13
employed therein above the second floor. 14
P^^P'Pf^'"' Section 37. The basements of any buildings shall, upon written no- 1
1914, 795, § 11. tice by the marshal to the owners of the buildings, be equipped with 2
Penalty, 1 51. such dry pipes with outside connections as he may prescribe. 3
Penalty.
1914, 795,
Section 38. Owners of buildings who, within six months after having 1
received wTitten notice from the marshal under section thirty-six or 2
thirty-seven, fail to comply with the requirement of such notice shall be 3
punished by a fine of not more than one thousand dollars. 4
Rules as to
fires and tire
protection.
1914, 795, § 1.3.
4 Op. A. G. 5S0.
Op. A. G.
(1920) 124.
Section 39. In addition to the powers given by sections thirty to 1
thirty-eight, inclusive, the marshal may make orders and rules relating 2
to fires, fire protection and fire hazard binding throughout the metropoli- 3
tan district, or part thereof, or binding upon any person or class of persons 4
within said district, limited, however, to the following subjects: 5
A. Requiring the keeping of portable fire extinguishers, buckets of 6
water or other portable fire extinguishing devices on any premises by the 7
occupant thereof, and prescribing the number and situation of such 8
devices. 9
B. Prohibiting or regulating the accumulation and requiring the 10
removal of combustible rubbish, including waste paper, cardboard, 11
string, packing material, sawdust, shavings, sticks, rags, waste leather 12
Chap. 148.] fire prevention. 1545
13 and rubber, boxes, barrels, broken furniture and other similar light or
14 combustible refuse.
15 C. Prohibiting or regulating the setting or burning of fires out of
16 doors.
17 D. Causing obstacles that may interfere with the means of exit to be
18 removed from floors, halls, stairways and fire escapes.
19 E. Ordering the remedying of any condition found to exist in or about
20 any building or other premises or any ship or vessel in violation of any
21 law, ordinance, by-law, rule or order in respect to fires and the prevention
22 of fire.
23 F. Causing any vessel moored to or anchored near any dock or pier
24 to be removed and secured in some designated place, if such vessel is on
25 fire or in danger of catching fire, or is by reason of its condition or the
26 nature of its cargo a menace to shipping or other property.
27 G. Requiring and regulating fire drills in theatres, public places of
28 amusement and public and private schools.
29 H. Requiring the cleaning of chimney flues and vent pipes.
30 I. Requiring proper safeguards to be placed and maintained about
31 or over roof skylights.
32 J. Prohibiting or regulating smoking in factories, workshops and
33 mercantile establishments.
34 K. Requiring that all signs and advertising devices erected on build-
35 ings shall be approved by said marshal.
36 L. Causing to be made public all violations of fire prevention laws by
37 posting placards on buildings or premises, and by publishing in the daily
38 newspapers the names of the owners and specifying the buildings in
39 which the violation occurs.
40 M. Defining the classes of buildings to be equipped with sprinkler
41 protection as provided by section thirty-six.
1 Section 40. The marshal may provide that any rule shall apply Rules. appU-
2 generally throughout the metropolitan district or to any specified part Hea'ring,
3 thereof or to any class or description of premises. No such rules shall °°"'='=-
4 be established until after a public hearing, of which notice shall have
5 been given by publication for at least two successive weeks in at least two
6 daily newspapers published in Boston and in two newspapers published
7 in the metropolitan district outside of Boston.
1 Section 41. If buildings or other premises are owned by one person Orders to
2 and occupied by another under lease or otherwise, the orders of the owne'r^"*""^
3 marshal shall apply to the occupant alone, except where the rules or 4 op. a^ G.V72.
4 orders require the making of additions to or changes in the premises
5 themselves, such as would immediately become real estate and be the
6 property of the owner of the premises. In such cases the rules or orders
7 shall aft'ect the owner and not the occupant; and unless it is otherwise
8 agreed between the owner and the occupant, the occupant whose use of
9 the premises has caused the making of such additions or changes, in
10 addition to his rent or other payments, shall, after the additions or
11 changes are made, pay a reasonable per cent of the cost thereof annually
12 to the owner of the premises. No rule or order shall be made or en-
13 forced which requires an expenditure by the owner or occupant of more
14 than five per cent of the last annual assessed valuation of the land and
15 buildings to which such rule or order relates.
1546
FIRE PREVENTION.
[Chap. 148.
Investigation
and report by
heads of fire
departments.
1914, 795, § 15.
Penaltv.
1914, 795, § 16.
Entering
buildings.
1914, 795, § 17
Appeals.
1914. 795, § 18.
Op. A. G.
(1920) 45,
134, 302.
Section 42. The marshal may require and order the heads of fire
departments to investigate, observe and report to him all matters re-
lating to fire hazard and fire prevention that he may designate, especially
all violations occurring within their respective cities or towns of laws,
or of ordinances, by-laws, rules or orders made by the various cities and
towns, or by the marshal, relating to fires, fire hazard and fire protection.
Section 43. If any city or town, or any head of a fire department, or
any officer, servant or agent of the commonwealth or of any city or town
refuses or unreasonably neglects to obey any lawful rule, order or regu-
lation of the marshal, such city or town, upon information presented by
him, shall be liable to a fine of not more than one thousand dollars, and
such head of a fire department or other person shall be punished by a
fine of not more than fifty dollars, and tlie rule or order may, upon ap-
plication of the marshal, be enforced by the supreme judicial or superior 8
court by 'UTit of mandamus or otherwise. Violation or unreasonable 9
neglect of such rules or orders by any person other than as aforesaid 10
shall be punished by a fine of not more than ten dollars for each day 11
during which such violation continues after notice to the person violating 12
such rule or order. Such notice may be gi^-en by personal service or by 1.3
posting the same in a conspicuous place on the premises affected thereby. 14
Section 44. The marshal or any person designated by him may 1
enter at any reasonable hour any building or other premises or any ship 2
or vessel to make inspection, or to enforce any law, ordinance or by- 3
law or any rule or order of the marshal, without being guilty of trespass; 4
provided, that there is reason to suspect the existence of circumstances 5
dangerous to the public safety as a fire menace. 6
Section 45. The marshal shall hear and determine all appeals from 1
the acts and decisions of the heads of fire departments and other per- 2
sons acting or purporting to act under his authority, done or made or 3
purporting to be done or made under the provisions of sections thirty 4
to fifty-one, inclusive, and shall make all necessary and proper orders 5
thereon. Any person aggrieved by any such action of the head of a fire 6
department or other person may appeal to the marshal. 7
Investigation
of fires.
1914, 795, § 19.
Section 46. Heads of fire departments within the metropolitan dis- 1
trict shall investigate or cause to be investigated the cause, origin and 2
circumstances of every fire occurring in their respective cities, towns or 3
fire districts by which property has been destroyed or damaged, and, so 4
far as possible, determine whether the fire was the result of carelessness 5
or design. Such investigation shall be begun immediately upon the occur- 6
rence of the fire by the head of the department in whose territory the fire 7
occurred, or by some person designated by him; and if after making such 8
investigation it appears to the head of the department that the fire is of 9
suspicious origin, he shall immediately notify the marshal of the fact. 10
Every fire occurring in the metropolitan district shall be reported in 11
writing to the marshal within three days after the occurrence of the same 12
by the officer in whose jurisdiction the fire occurred. Such report shall 13
be in the form prescribed by the marshal and shall contain a statement 14
of all facts relating to the cause and origin of the fire that can be ascer- 15
tained, the extent of damage thereof, the insurance upon the property 16
damaged, and such other information as may be required. 17
Chap. 148.] fire prevention. 1547
1 Section 47. The marshal may require every fire insurance company Reports by
2 authorized to transact business in the metropolitan district to report to compan'ies.
3 him, through the secretary or some other officer of the company designated ^®^^' ^®*' ^ '"'
4 by the board of directors, all fire losses on property insured in such com-
5 pany, giving the date and location of the fire. Such report shall be mailed
6 to the marshal within three days after loss on each fire, and the char-
7 acter of property destroyed or damaged and the supposed cause of the
8 fire shall be reported within ten days after adjustment is made.
1 Section 48. The marshal shall keep in his office a record of all fires Record of
2 occurring in the metropolitan district and of all the facts concerning iqu_ 795, 5 21.
3 the same, including statistics as to the extent of such fires and the damage
4 caused thereby and whether such losses were covered by insurance, and,
5 if so, in what amount. The record shall be made daily from the reports
6 made by the heads of fire departments and shall be public.
1 Section 49. The marshal shall study fire hazard and fire prevention study of
2 and all matters relating thereto, hear suggestions and complaints from "re'p^evenUon.
3 all persons and from all cities and towns in the metropolitan district, ^^^*' '^^' ^ ^*'
4 ad\ise \\dth the officers of such cities and towns, and make suggestions
5 to the general court and to the cities and towns looking to the improve-
6 ment of the laws, ordinances and by-laws relating to fire departments,
7 construction of buildings, building or fire limits, use and occupation of
8 buildings and other premises, protection of existing buildings, fire escapes
9 and other life saving devices, segregation and licensing of trades dangerous
10 by reason of fire hazard, and all other matters relating to fire preven-
11 tion and fire hazard.
1 Section 50. The commissioner shall make an annual report of the Report of
2 acts of the division under sections thirty-one to fifty-one, inclusive, with i9i4°'795°T23.
3 such statistics as he may desire, and may recommend any legislation flf^^^^'
4 which he may deem desirable. 1919, 5. 1920, 2.
1 Section 51. Except as otherwise provided, any person violating any Penalty.
2 provision of sections thirty to fifty, inclusive, shall be liable to a fine of ^®^*' ^^^' ^ '^'
3 fifty dollars, or, in case of a continuing offence after notice of such \'iola-
4 tion, to a fine of not more than ten dollars for every day during which the
5 violation continues.
GENERAL PROVISIONS.
1 Section 52. No person, unless authorized by a license or permit duly Possession of
2 issued as required by this chapter, shall have in his possession or under his expi'oslve""*
3 control any bombs or explosives. Jfi^; ^la.
4 Whoever violates any provision of this section shall be punished by p^^"']oo
5 a fine of not more than three hundred dollars or by imprisonment for |§ ^^"J"'\,
6 not more than one year, or both, and any bomb or explosive owned by §§90-98"'
7 him or found in his possession or under his control shall be forfeited to isos! 280!
8 the commonwealth. Any officer qualified to serve criminal process may igillsls.'
9 arrest without a warrant any person violating this section. ^^ ^' ^■
1 Section 53. Notice of the seizure of any bomb or explosive owned f^°fi"°'
2 bj' or found in the possession or under the control of any person violating i^i^, 323, § 2,
3 the preceding section shall be sent to the marshal by the officer making
4 the seizure immediately after the guilt of such person is established
1548
FIRE PREVENTION.
[Chap. 148.
by a final adjudication in any prosecution brought against him for the 5
said violation, and thereupon the bomb or explosi\'e so seized shall be 6
delivered to the marshal and destroyed or sold at his discretion, and lie 7
shall pay any proceeds to the commomvealth. 8
Tanks for
storage of
fluid.
1919. 303,
§§ 1, 3.
Section 54. No person shall construct, maintain or use any tank or 1
container of more than ten thousand gallons capacity, imless constructed 2
principally of wood, for the storage of any fluid other than water, unless 3
the same is underground, without first securing a permit therefor from 4
the marshal. Whoever ^■iolates this section or a rule or regulation made 5
under the following section shall be punished by a fine of not less than 6
fiftv nor more than one thousand dollars. 7
Rules and
regulations.
1919, 303. § 2.
Explosive
golf balls.
1913. 722.
S§1,2.
Section 55. The department shall make rules and regulations govern- 1
ing the construction, use and maintenance of tanks to which the pre- 2
ceding section applies. Such rules and regulations shall not take effect 3
until approved by the governor and council, and filed in the office of the 4
state secretary. 5
Section 56. Whoever manufactures or sells or knowingly uses, or 1
has in possession for the purpose of sale, any golf ball containing any 2
acid, fluid, gas or other substance tending to cause the ball to explode 3
and to inflict bodily injury shall for the first offence be punished by a fine 4
of not more than five hundre<^l dollars, and for any subsequent offence by 5
a fine of not more than one thousand dollars or by imprisonment for not 6
more than one year, or both. 7
Blank
cartridges, toy
pistols, fire-
works, etc.
1805, 55.
1823, 149, § 2.
1826, 3, § 1.
1828, 62, § 1.
R. S. 58.
§§5-7.
1847, 51.
G. S. 88,
§§46-48.
1877. 216,
§§ 1-3.
P. S. 102,
§§ 54-56,
59-61.
18S2, 272.
R. L. 102,
§§ 87-89, 91,
96-98.
1904, 370.
1905. 280.
1910,565. § 1.
1913. 4.52.
Op. A. G.
(1917) 66.
Penalty, § 59.
Section 57. No person shall sell or keep for sale any blank cartridge, 1
toy pistol, toy gun or toy cannon that can be used to fire a blank cart- 2
ridge; or sell or keep for sale, or fire, explode or cause to explode any 3
blank cartridge or bomb, or sell or keep for sale, or set oft", ex-plode or 4
cause to explode any fireworks containing any picric acid or picrates, 5
or any firecracker exceeding two inches in length and three eighths of an 6
inch in diameter or of a greater explosi\e power than a firecracker of such 7
size containing black gunpowder only; provided, that this section shall 8
not apply to illuminating fireworks set otT between the hours of seven 9
o'clock in the afternoon and twelve o'clock midnight, excepting "those 10
containing picric acid or picrates, or to the .sale of any article herein 11
named to be shipped directly out of the commonwealth, or to the sale 12
or use of explosives in the firing of salutes by official authorities, or to 13
the sale or use of blank cartridges for a duly licensed show or theatre 14
or for signal purposes in athletic sports, or to experiments at a factory 15
for ex-plosives, or to the firing of salutes with cannon on shore or on boats 16
where a permit has been secured from the marshal or some officer desig- 17
nated by him therefor, or to the sale of blank cartridges for the use of, or 18
their use by, the militia or any organization of war veterans, or in teach- 19
ing the use of firearms by experts on days other than holidays. 20
Explosive
stove polish.
1917, 153. § 1.
Section 58. No person shall manufacture, store, keep for sale, sell
or transport any compound for use as a stove polish containing any
Penalty. § 59. Hquid Of compouud whatsoever which will emit a gas that will flash
at a temperature of less than one hundred degrees Fahrenheit, except
that foundry paste which contains inflammable compound, if packed in
Chap. 148.] fire prevention. 1549
6 metal containers, sealed by fusion and weighing in gross not less than
7 five pounds, and if such container is labelled " Dangerous — Inflammable
8 compound — Keep away from fire, heat and lights" may be manu-
9 factured, stored, kept for sale, sold or transported for use only by stove
10 foundries, stove manufacturers and stove dealers on their own premises
11 under regulations prescribed by the marshal. The flash point of said
12 compound shall be ascertained by use of either Abel-Pensky's or Pensky-
13 Martens' closed cup instrument, or by some other method approved by
14 the marshal.
1 Section 59. Violation of any pro\'ision of section fifty-seven or fifty- Penalty.
2 eight shall be punished by a fine of not more than one hundred dollars it^l.' as,' 1 1.'
3 or by imprisonment for not more than one month, or both. ^' ^' ^^' ^ ^°
p. S. 102. § 57. 1B04. .370, § 4. 1910, 565, 5 5.
R. L. 102, § 90. 1905, 280, § 3. 1917, 153, § 2.
1 Section 60. Whoever mixes for sale naphtha and illuminating oils Dangerous
2 or naphtha and oils to be used for fuel in dwellings or other buildings mUet""'"^
3 where human life is endangered or exposed, or sells or oft'ers for sale such \lll] iH 1 1;
4 mi.xture, or sells or oft'ers for sale, except for remanufacture, illuminat- ^sfs g?'/!"^'
5 ing or fuel oils made from coal or petroleum which will evaporate a gas P J-^^"^'
6 under one hundred degrees Fahrenheit or ignite at a temperature of less io4 Mass 64
7 than one hundred and ten degrees Fahrenheit, to be ascertained by the ii8Mas5^44i!
8 application of Tagliabue's or some other approved instrument, shall be
9 punished by a fine of not more than one hundred dollars or by impris-
10 onment for not more than one month, or both, and shall also be liable for
11 any damage suffered by any person from the explosion or ignition of such
12 oil thus unlawfully sold or kept or offered for sale. Such oil thus un-
13 lawfully sold or kept or offered for sale, and the casks or packages con-
14 taining the same, shall be forfeited and sold, and the proceeds shall be
15 equally divided between the informer and the commonwealth.
1 Section 61. For the purposes of the preceding section, illuminating same subject.
2 or fuel oils made from coal or petroleum and having an igniting point of \ttl', 152; 1 3
3 less than one hundred and ten degrees Fahrenheit, to be determined as i'8l5,9s\§^2™
4 therein provided, shall be deemed to be mi.xed with naphtha, and shall fioj^°^'
5 be branded unsafe for illuminating purposes or for use as fuel.
1 Section 62. Whoever, under an assumed name, sells or keeps or offers Penalty for
2 for sale naphtha shall be punished by a fine of not more than one hun- undeftTeceptu'e
3 dred dollars or by imprisonment for not more than one month, or both, )'867!2Sfi. § 5.
4 and shall be subject to the liabihties set forth in section sixty. ^'s'loi'in
R. L. 102, I 108. 104 Mass. 64. 118 Mass. 441. 211 Mass. 60.
1 Section 63. Upon complaint made to a court or justice authorized f^^"^^^'^^:
2 to issue warrants in criminal cases that the complainant has probable plosives iiie-
3 cause to suspect and does suspect that gunpowder, dvnamite or an\ other i823, ha, § 2.
t^i."*. t| SOS RO & 9
4 explosives, crude petroleum or any of its products, or ex^jlosive or inflam- r."s'58,'§ 8.'
5 mable fluids are kept or are to be found in any place contrary to this chap- a^.'ls. § 49.
6 ter or regulations made hereunder, such court or justice may issue a search JI77; Ji,^; 1 1]
7 warrant in conformity with chapter two hundred and seventy-six, so far j'jfg^Sg
8 as applicable, commanding the officer to whom the warrant is directed to R l 102,
9 enter any shop, building, manufactory, vehicle or vessel specified in the
10 warrant, and there make dfligent search for the articles specified in the
11 warrant, and make return of his doings forthwith to the court or justice
1550
FIRE PREVENTION.
[Chap. 148.
having jurisdiction thereof. Warrants issued for crude petroleum or any 12
of its products or explosive or inflammable fluids may be directed to an 1.3
inspector appointed under section twenty, to an engineer of a fire depart- 14
ment or to a fireward. 15
Forfeiture of
explosives
illegallv kept.
1877.216, §8.
P. S. 102, § 79
P. L. 102,
§ 121.
Section 64. Articles seized under the preceding section may, after 1
due notice and hearing, be adjudged to be forfeited, and may be ordered 2
to be sold or destroyed in such manner as the court or magistrate may 3
direct, and the proceeds, if any, paid into the county treasury. 4
Matches.
1909. 184,
§§ 1.2.
Section 05. Whoever keeps matches for sale or use in any store unless 1
the same are in unbroken cases or in a metal or other fireproof receptacle 2
with the cover closed, except when it is necessarj' to obtain access thereto, 3
shall be punished by a fine of not more than fifty dollars. 4
Fire balloons.
1910, 141.
Section 66. Whoever liberates a fire balloon shall be punished by a 1
fine of not more than one hundred dollars or by imprisonment for not 2
more than one month, or both. 3
references.
Outdoor fires, Chap. 48, §§ 13-1.5.
See Chap. 48, § 58, as to tenure of office of chiefs of fire departments in the metro-
politan fire prevention district.
§ 40. Rules to be filed with state secretary, Chap. 30, § 37.
Chap. 149.]
LABOR XSD INDUSTRIES.
1551
TITLE XXI.
LABOR AND INDUSTRIES.
Chapter 149. Labor and Industries.
Ca.\PTER 150. Conciliation and Arbitration of Industrial Disputes.
Ch.\pter 151. The Minimum Wage.
Ch.\pter 152. Workmen's Compensation.
Chapter 153. Liability of Employers to Employees for Injuries not resulting in
Death.
Chapter 154. Assignment of Wages.
CHAPTER 149.
LABOR AND INDUSTRIES.
Sect.
definitions.
1. Definitions.
DUTIES AND POWERS OF DEPARTMENT OF
LABOR AND INDUSTRIES.
2. Duties and powers in general.
3. Inspection.
4. Report of disease to department of
public health.
5. Investigations.
6. Investigations as to safety and health.
7. Committees to recommend rules.
8. Hearings on proposed rules.
9. Appeal.
10. Powers of members or employees.
11. Reports to department by physicians.
12. Rules of department as to safety pre-
vail over rules of insurance com-
panies.
13. Violation of rules forbidden.
14. Annual report.
15. Inspection districts.
16. Penalty for inspector accepting a re-
ward.
17. Powers of inspection.
18. Duties of industrial health inspector.
GENERAL PROVISIONS AS TO EMPLOYMENT.
19. Interfering with emplojTnent of a per-
son forbidden.
20. Compelling a person not to join a
labor organization.
21. Fraudulent advertisements concern-
ing emplojTnent.
Sect.
22. Advertising for employees during
strikes.
23. Same subject.
24. Peaceful persuasion not penalized.
PUBLIC EMPLOYMENT.
25. Public emploj'ee may select lodging,
etc.
26. Preference to veterans and citizens in
public work. Wages.
27. Dispute as to wages.
28. Actions against cities or towns for
labor.
29. Security for payment of labor on
public works.
30. Eight hour day and forty-eight hour
week for certain public employees.
31. Eight hour day for certain employees
in certain cities and towns.
32. Definitions.
33. Limitation of sections 30 and 31.
34. Contracts for pubUc work to contain
stipulation as to eight hour day.
35. Penalty for violating section 30, 31
or 34.
36. Eight hour day not applicable in cer-
tain cases.
37. Nine hour day in certain cities and
towns.
38. Vacations for certain public em-
plojees.
39. Hours of labor of officers, etc., of
state penal institutions.
40. Hours of labor in county institutions.
1552
LABOR AND INDUSTRIES.
[Chap. 149.
Sect.
41. Laborers, etc.. employed by the com-
monwealth to be given Saturday
half holiday.
42. Employees of commonwealth to be on
day work basi.s if possible.
43. Equal opportunity of employment for
all citizens.
44. Holiday for veterans on Memorial
Day.
PRIVATE EMPLOYMENT.
45. Penalty for requiring labor on holiday.
46. Requiring illegal number of hours to
make up for holiday forbidden.
47. One day's rest in seven.
48. Same subject.
49. Application of two preceding sections.
50. Exceptions.
51. List of persons working on Sunday.
52. Time book. Penalties for violating
sections 51 and 52.
WORK BY WOMEN AND CHILDREN.
53. Heavy boxes moved by women to be
provided with casters, etc.
54. Investigations of core rooms where
women are employed.
55. Employment of women shortly Ix'fore
and after confinement forbidden.
56. Hours of labor for A'omen and chil-
dren.
57. Penalty for violation of preceding sec-
tion.
58. Women and minors operating eleva-
tors.
59. Night labor for women.
60. Employment of children under four-
teen.
61. Employment of children under six-
teen.
62. Employment of minors under eighteen.
63. Department may determine processes
which are injiwious to children.
64. Employment of persons under twenty-
one.
65. Hours of labor of children under six-
teen.
66. Hours of labor of boys under eighteen
and girls under twenty-one.
67. Same subject.
68. Employment of minors as messengers.
etc., regulated.
69. Street trades for children in certain
cities regulated.
70. Same subject.
71. Issue of badges.
72. Wearing of badges, etc.
73. Hours of street trades for boys.
74. Lists of hours of employment of minors
to be posted.
75. Forms of lists to be furnished by (he
department.
76. Duties of inspectors.
77; Powers of attendance officers.
Sect.
78. Penalty for violation of statutes as to
employing minors.
79. Penalty for hindering inspectors, etc.
80. Penalty for selling articles to be il-
legally sold by minors engaged in
street trades.
81. Penalty on parent or guardian, etc.
82. Penalty on officials.
S3. Penalty on minors.
84. Service of process for violation of sec-
tions relating to employment of
children.
85. Application of sections 60 to 83, in-
clusive.
86. Employment of children under sixteen
without employment certificates,
etc., forbidden.
87. Employment certificates. Issue.
88. School record required for employ-
ment certificate, issue of.
89. Contents of employment certificate.
90. Penalties for illegal employment of
children under sixteen, altering em-
ployment certificate, etc.
91. Employer to discharge child who does
not attend a continuation school if
required to do so.
92. Duties of attendance officers and in-
spectors in regard to illegal employ-
ment of children.
93. Further duties of attendance officers.
94. Educational certificates, etc., to be
shown on request of officials.
95. Educational certificates for minors be-
tween sixteen and twenty-one.
96. Application of sections 86 to 95, in-
clusive.
97. Penalty for illegal employment of
minor without educational certifi-
cate.
98. Penalty on parent, etc., allowing.
minor to be employed without edu-
cational certificate.
99. Hours for meals for women and chil-
dren.
100. Same subject.
101. Application of the two preceding sec-
tions.
102. Working during mealtime without
knowledge of superintendent, etc.
103. Seats for women and children.
104. Children under fifteen not allowed to-
appear in theatrical exhibitions, etc.
105. License not to be granted lor exhibi-
tions in which children under fifteen-
take part.
PROVISIONS AS TO HEALTH AND SAFETY.
106. Drinking water. '
107. Water for humidifying.
108. Thermometers for testing humidity.
109. Section 108 not applicable to textile
factories equipped with other ap--
proved testing devices.
Chap. 149.]
L.\BOR AND INDUSTRIES.
1553
Sect,
110.
111.
112.
113.
114.
115.
116.
117.
118.
119.
120.
121.
122.
123.
124.
125.
126.
127.
128.
129.
130.
131.
132.
133.
134.
135.
136.
137.
138.
139.
140.
141.
142.
Limits of humidity.
Sources of water for humidifying.
Penalty for violation of sections 108
to 111, inclusive.
Factories, etc., must be properly
lighted, ventilated and kept clean.
Investigations by industrial health in-
spectors as to effect of industries on
eyesight.
Devices for preventing injury to eyes.
Penalty for violation of order re-
quiring such devices.
Investigation as to lighting on request
of employees or inspector of depart-
ment of public safety.
Ventilation of factories.
Devices for removal of dust.
Emery wheels, etc., to be provided
with devices for removing dust.
Same subject.
Application of sections 119 and 120.
Penalty for violation of sections 117
to 121, inclusive.
Inspection of factories, etc., not
equipped with dust removers.
Communication with engine room.
Penalty for violation of preceding sec-
tion.
Doors not to be locked during working
hours.
Guards for gears, etc.
Traversing carriages of certain ma-
chines.
Openings in hoistways, etc., to be
guarded.
Storage of explosives.
Guards for shuttles.
Suction shuttles prohibited.
Toilet facilities.
Apportionment of expense of changing
toilet facilities.
Prosecutions for violation of two pre-
ceding sections.
Xotice to department of public health
of unsanitary conditions.
Toilet rooms in foundries.
Penalty for injuring toilet appliances.
Lockers for clothes.
Spittoons.
Medical appliances, etc.
Cloths for cleaning printing presses.
Sect.
146. Penalties.
147. Clothing
wealth.
made outside common-
MANUFACTURB OF CLOTHING IN TENEMENT
HOUSES.
143. License.
144. Notice to local boards of health.
145. Tags for clothing made in unlicensed
tenement houses.
WEEKLY PAYMENT OF WAGES.
148. Weekly payment of wages.
149. Warrant for violation of preceding
section.
150. Complaint for violation of section 148.
151. Payment in manufactories when over
one hundred employed.
152. Deductions for tardiness.
153. Weavers' fines.
154. Same subject.
155. Specifications for weavers.
156. Same subject.
157. Penalty for violation of section 155
and for interference with inspector.
158. Deduction from wages of women or
children for stopping machinery.
159. Notice of discharge.
FREE EMPLOYMENT OFFICES.
160. Free employment offices. Report.
161. Superintendents and clerks.
162. Records of applicants for employment.
163. Fees prohibited.
164. Preference to residents.
165. Reports.
166. Appropriation for expenses.
167. Bulletins as to demand for employ-
ment.
168. Posting bulletins.
STATISTICS OF LABOR AND MANUFACTURES.
169. Commissioner, etc., may require at-
tendance of witnesses, etc.
170. Statistics of labor and manufactures.
171. Schedules for collecting statistics.
172. Information collected not to be so pub-
lished as to disclose private affairs.
173. Distribution or sale of old papers.
COMMISSION ON FOREIGN AND DOMESTIC
COMMERCE.
174. Duties.
MISCELL.^NEOUS PROVISIONS.
175. Use of bells, etc.
176. Emergency police officer.
177. Assistance of police officers to protect
property.
178. Voting of employees.
179. Posting notices.
ISO. General penalty.
DEFINITIONS.
1 Section 1. In this chapter the following words, unless a different D^jfi'",';""^^
2 meaning is required by the context or is specifically prescribed, shall
3 have the following meanings:
5.
1W)4, .=.I)S, ^ 57,
R. L. 100. § 8.
1554 LABOR AND INDUSTRIES. [Ch.\P. 149.
If limits "Associate commissioners", the associate commissioners of the de- 4
1911 241: partment of labor and industries. 5
1912.191:726. "Buildings used for industrial purposes" or "industrial establish- 6
1913.813. ments" shall include factories, workshops, bakeries, mechanical es- 7
ilui.fis, §], tablishments, laundries, foundries, tenement house workrooms, all 8
1919.^224; 350. othcr buildings or parts thereof where manufacturing is carried on, and 9
|§ 66, 69, mercantile establishments as defined in this section. 10
"Child", a person under eighteen. 11
"Commissioner", the commissioner of labor and industries. 12
"Co-operative courses", courses approved as such by the department 13
of education and conducted in public schools where technical or related 14
instruction is given in conjunction with practical experience by employ- 15
ment in co-operating factories, manufacturing, mechanical or mercantile 16
establishments or workshops. 17
"Department", the department of labor and industries. 18
"Employment", any trade, occupation or branch of industry, any 19
particular method or process used therein, and the ser\'ice of any par- 20
ticular employer; but it shall not include private, domestic service or 21
service as a farm laborer. 22
"Extraordinary emergency", danger to property, life, public safety 23
or public health. 24
"Factory", any premises where mechanical power is used in aid of 25
any manufacturing process there carried on. 26
"Industrial disease" or "occupational disease", any ailment or 27
disease caused by the nature or circumstances of the employment. 28
"Industrial health inspector", an inspector qualified by training 29
and experience in matters relating to health and sanitation. 30
"Inspector", an inspector of the department of labor and industries, 31
except an inspector of the division of standards. 32
"Iron works", a mill, forge or any premises where any process is 33
carried on for converting iron into malleable iron, steel or tin plate, 34
or for otherwise making or converting steel. 35
4 0p'a Gii?; "Manufacturing establishments", any premises, room or place used 36
for the purpose of making, altering, repairing, ornamenting, finishing 37
or adapting for sale any article or part thereof. 38
"Mechanical establishments", any premises, other than a factory as 39
above defined, where machinery is employed in connection with any 40
work or process carried on therein. 41
4 Op a' g' 137 "Mercantile estabhshments ", any premises used for the purposes of 42
trade in the pm-chase or sale of any goods or merchandise, and any 43
premises used for a restaurant or for publicly providing and serving 44
meals. 45
"Place of employment", every place, whether indoors or out or under- 46
ground, and the premises appurtenant thereto, into, in or upon which 47
any employee goes or remains either temporarily or regularly in the 48
com'se of his employment. 49
"Print works", any premises where the process of printing figures, 50
patterns or designs upon yarn or cloth, or upon any woven or felted 51
fabric not paper, is carried on. 52
"Safe" or "safety", such freedom from danger to life, safety and 53
health of employees as the nature of the employment will reasonably 54
permit. 55
"Woman", a female eighteen or over. 56
"Workshop", any premises, room or place, not a factory as above 57
CH-^P. 149.] L.\BOR AND INDUSTRIES. 1555
58 defined, wherein manual labor is exercised by way of trade or for pur-
59 poses of gain in or incidental to a process of making, altering, repairing,
60 ornamenting, finishing or adapting for sale any article or part thereof,
61 and to which or over which premises, room or place the employer of
62 the persons working therein has the right of access or control; but the
63 exercise of such manual labor in a private house or private room by
64 the family dwelling therein or by any of them, or if a majority of the
65 persons therein employed are members of such family, shall not of
66 itself constitute such house or room a workshop.
DUTIES AND POWERS OF DEPARTMENT OF LABOR AND INDUSTRIES.
1 Section 2. The department shall, except as otherwise specifically Duties and
2 provided, enforce the provisions of this chapter, and shall have all neces- general"'
3 sary powers therefor. i876, 216. i877. 214, 1 7.
IS79. 305, § 12. 1884. 52. § 3. R. L. 108. 5 8.
1880, 181. 1887. 21S. 1907. 413: 537, § 5.
1881, 137. 1888. 426. §§ 10, 14. 1912, 726, §§ 4, 5.
P. S. 103, §10. 1894,382, §1; 1914. 474, §2.
1882, 266, I 6. 481, §§ 2, 35. 55. 1919, 350, § 69.
1 Section 3. The inspection and investigation carried on by the inspection.
2 department shall be a regular and systematic inspection and investi- i9i6!308!
3 gation of all places of employment and the conditions of safety and '^^^' ^^°' ^ ^^'
4 health pertaining thereto.
1 Section 4. The department shall promptly report to the depart- Report of dis-
2 ment of public health all cases of disease in industrial establishments ment^of public''
3 affecting the health of the community. health.
1912, 726, § 6. 1919, 350, §§ 69, 96.
1 Section 5. The department may investigate conditions existing investigations.
2 in any line of industry, and such investigations may be extended out- Igle, n5',|2.
3 side of the commonwealth to procure information to promote industrial i^iS'^oo, §69.
4 development or to impro\-e industrial conditions. It shall receive all
5 complaints concerning conditions existing in any industry carried on
6 in the commonwealth, or concerning alleged violations of any laws
7 enforced under its direction, and shall thereupon make or direct all
8 needful and appropriate investigations and prosecutions.
1 Section 6. It shall investigate from time to time employments and investigations
~ , . . as to safety and
2 places of employment, and determine what suitable safety devices or '^*''!,"'^„„
3 other reasonable means or requirements for the prevention of accidents wis. sis,' § i.'
4 shall be adopted or followed in any or all such employments or places of IseVa^s. 407.
5 employment; and also shall determine what suitable devices or other
6 reasonable means or requirements for the prevention of industrial or
7 occupational diseases shall be adopted or followed in any or all such
8 employments or places of employment; and shall make reasonable rules,
9 regulations and orders applicable to either employers or employees or
10 both for the prevention of accidents and the prevention of industrial or
11 occupational diseases.
1 Section 7. The commissioner and associate commissioners of the committees to
2 department may appoint committees, on which employers and em- rS™"""""^
3 ployees shall be represented, to make such investigations and recom- Joli; 30s: ^ ^'
4 mend rules and regulations. 1919, 330, § 76.
1556
LABOR AND INDUSTRIES.
[Chap. 149.
Hearings on
proposed
rules.
1913, 813,
§§2,7.
1919,350,
§§69,71.
Section 8. Before adopting any rule or regulation under section 1
six, a public hearing shall be given, and not less than ten days before 2
the hearing a notice thereof shall be published in at least three news- 3
papers, of which one shall be published in Boston. Such rules or regu- 4
lations shall, when approved by the associate commissioners, be pub- 5
lished in like manner, and, subject to section thirty-seven of chapter 6
thirty, shall take effect thirty days after such publication or at such 7
later time as the associate commissioners may fix. Before adopting 8
any order a hearing shall be given thereon, of which a notice of not less 9
than ten days shall be given to the persons affected thereby. 10
Appeal.
1919, 350,
78.
Section 9. Any person affected by an order, rule or regulation of 1
the department may appeal to the associate commissioners within 2
such time as they by vote may fix, but not less than ten days after 3
notice of the ofder or the taking effect of the rules or regulations. The 4
associate commissioners shall thereupon gi\e a hearing, and thereafter 5
may amend, suspend or revoke such order, rule or regulation. Pending 6
the hearing the commissioner may suspend the order, rule or regulation 7
appealed from. Any person aggrieved by an order approved by the 8
associate commissioners may appeal to the superior court within fifteen 9
days after the date of approval. The superior court may annul the 10
order if it is found to exceed the authority of the department, and 11
upon petition of the commissioner may enforce all \'alid orders issued 12
by the department. This section shall not deprive any person of any 13
other lawful remedy. 14
menSersOT SECTION 10. In ordcr to make investigations under section six,
i9\'3°si3'*s 5 members or employees of the department may at any time enter places
19161308! of emplo^inent when being used for business purposes. 1919, 350, § 69. 3
1
2
Reports to
department by
physicians.
1913, 813, § 6.
1916,308.
1919,350,
§§ 68, 69, 95. .
Section 11. The department may require every physician treating 1
a patient whom he belie\'es to be suffering from any ailment or disease 2
contracted as a result of the nature, circumstances or conditions of 3
the patient's employment to report such information relating thereto 4
as it may require, within such time as it may fix, and it may issue a list 5
of such diseases which shall be regularly reported upon by physicians, 6
and may add to or change such list at any time. Copies of all such 7
reports and all statistics and data compiled therefrom shall be kept by 8
it, and shall be furnished on request to the department of industrial 9
accidents and the department of public health. 10
department as SECTION 12. If any rule or regulation made under authority of 1
to safety pre- scctiou sixt\'-four of chaptcr one hundred antl fiftv-two conflicts with 2
vail overrules ,...«* .. eii ■ i
of insurance or diffcrs irom a rule or regulation of the department, its rule or regula- 3
companies. , . , n -i a
1913, 813, § 10. tion shall prevail. loie, sos. I9i9, 350, § 69. 4
Section 13. No person shall violate any reasonable rule, regulation,
Violation of
rules forbidden.
1913. 1^3, § 13. order or requirement made by the department under section six
1919] 350'. § 69. eleven. Penalty, § ISO.
Annual report
1871,394, § 6.
1877! 214; §6. eluding the reports required by sections one hundred and sixty and
Section 14. The commissioner shall make an annual report, in- 1
2
Chap. 149.] l.\bor and industries. 1557
3 one hundred and seventy of this chapter, section ten of chapter one is79, 305, § 3.
4 hundred and fifty, section fifteen of chapter one hundred and fifty- §§3.11.'
5 one, and section fifty-seven of chapter ninety-eight.
1894, 481, § 59. 1912, 726, § 14. 1918, 189, § 1.
R, L. 108, § 2. 1914, 533. 1919, 350, §§ 8, 69.
1 Section 15. With the approval of the associate commissioners inspection
2 the commissioner may divide the commonwealth into inspection dis- io'i^tIb, § 9.
3 tricts, and assign the necessary number of inspectors thereto. §§ ot,^7^o.'
1 Section 16. An inspector who directly or indirectly receives a Penalty for
2 reward, gift or gratuity on account of his oflBcial services shall be ITcceptog a
3 punished by a fine of not more than one hundred dollars or by imprison- 58n!^394,
4 ment for not more than three months, and shall also be discharged from ||^^' ^^. , g
5 office. 1S77, 214, § 10. 1879, 305, § 6.
P. S. 103, §6; 104, § 24. 1894, 481, § 50. 1912, 726, § 10.
1882, 266, § 5. R. L. 108, § 6. 133 Mass. 233.
1 Section 17. For the enforcement of the provisions of this chapter, Powers of
2 the commissioner, the director of the di\-ision of industrial safety and 'is76,'^2'°6"'
3 inspectors may enter all buildings and parts thereof used for industrial Jlycj'.iosifl^.
4 purposes and examine the methods of protection from accident, the p^'f/o^g^ « lo
5 means of escape from fire, the sanitary provisions, the lighting and means issi p^' 5 6.
6 of ventilation, and make investigations as to the employment of women iss?! 218.
7 and minors and as to compliance with all provisions of this chapter. §§ 16, u.'
1894, 481, §2; 534, §3. R. L. 106, § 67; 108. § 8. 1912, 726, §§ 6, 11.
1895,144,5 3. 1907,413. 1919,350,5 75.
1901, 370, § 2. 1909. 514, §§ 117, 145.
1 Section 18. Every industrial health inspector shall inform himself ^ju'sfrra'i
2 concerning the health of all minors employed in factories within his health
insT)6Ctor.
3 district; and whenever he may deem it advisable or necessary, he shall 1907,537, §3.
4 call the ill health or physical unfitness of any minor to the attention of 1919', 350' § 69.
5 his parents, guardians or employer and of the department.
GENERAL PROVISIONS AS TO EMPLO'i'JIENT.
1 Section 19. No person shall, by intimidation or force, prevent interfering
2 or seek to prevent a person from entering into or continuing in the ment'of apeV-
3 employment of any person. is75, 211, § 2. ^°° forbidden.
p. S. 74, § 2. 1909, 514. §§ 18, 145, 167 Mass. 92.
1894, 508, § 2. 128 Mass. 70.
R. L. 106, § 11. 147 Mass. 212. Penalty, § ISO.
1 Section 20. No person shall, himself or by his agent, coerce or compelling a
2 compel a person into a written or oral agreement not to join or become foinTiabor*"
3 a member of a labor organization as a condition of his securing employ- igl^^'lso!""'
4 ment or continuing in the employment of such person.
1894,437; 1909,514, 236 Mass. 504.
508, § 3. §§ 19, 145.
R. L. 106. § 12. 188 Mass. 353. Penalty, § 180.
1 Section 21. Whoever knowingly causes to be printed or published advertise- "^
2 a false or fraudulent notice or advertisement for help or for obtaining mentscon-
cerning
3 work or emplojTnent shall be punished by a fine of not more than five en.pioynient.
4 hundred dollars or by imprisonment for not more than three months, or 1909! sui
5 both. ""•"^-
1558
LABOR AND INDUSTRIES.
[Chap. 149.
Advertising for
employees
during strikes.
1910,445. § 1.
1914.347,
5U.6.
216 Mass. 350.
Section 22. If an employer, during the continuance of a strike, 1
lockout or other labor trouble among his employees, publicly adver- 2
tises in newspapers or by posters or otherwise for employees, or by 3
himself or his agents solicits persons to work for him to fill the places 4
of strikers, he shall plainly and explicitly mention in such advertise- 5
ments or oral or written solicitations that a strike, lockout or other labor 6
trouble exists among his employees. 7
Duty of board of conciliation under §§22 and 23, Chap, 150. § 4.
Same subject.
1910,445, § 2.
1914,347.
B 2-4. C.
1915, lOS.
1916, 143.
1919,350, § 09.
207 Mass. 394.
Section 23. No person, during the continuance of a strike, lockout 1
or other labor trouble among his employees or those of another person, 2
shall directly or indirectly procure or attempt to procure, or assist in 3
any way in procuring or attempting to procure, persons to fill the places 4
of employees invoh-ed in such strike, lockout or other labor trouble, if 5
such persons are or have been solicited by means of ad\ertisements or 6
oral or written statements in which it has not been plainly and explicitly 7
mentioned that a strike, lockout or other labor trouble exists in the 8
establishment where such persons are to be employed. This provision 9
shall apply whether such ad\'ertisements or oral or written solicitations 10
were made within or without the commonwealth. 11
After investigation by and upon complaint of the department, any 12
person violating any pro\-ision of this or the preceding section shall 13
be punished by a fine of not more than one hundred dollars. 14
Peaceful per-
suasion not
penalized.
1913, 690.
231 Mass. 220.
235 Mass. 269.
236 Mass. 310.
Section 24. No person shall be punished criminally, or held liable 1
or answerable in any action at law or suit in equity, for persuading or 2
attempting to persuade, by printing or otherwise, any other person to do 3
anything, or to pursue any line of conduct not unlawful or actionable 4
or in violation of any marital or other legal duty, unless such persuasion 5
or attempt to persuade is accompanied by injury or threat of injury to 6
the person, property, business or occupation of the person persuaded 7
or attempted to be persuaded, or by disorder or other unlawful conduct 8
on the part of the person persuading or attempting to persuade, or is 9
a part of an unlawful or actionable conspiracy. 10
PUBLIC EMPLOYMENT.
Public em-
ployee may
select lodging,
1900, 469.
R. L. 106, § 13,
1909,614,
§§ 20, 145.
Section 25. Every employee in public work shall lodge, board and 1
trade where and with whom he elects; and no person or his agents or 2
employees under contract with the commonwealth, a county, city or 3
town, or with a department, board, commission or officer acting there- 4
for, for the doing of public work shall directly or indirectly require, as 5
Penalty, § 180. ^ condition of employment therein, that the employee shall lodge, board 6
or trade at a particular place or with a particular person. This section 7
shall be made a part of the contract for such employment. 8
Preference to
veterans and
citizens in
public work.
Wages.
1S96, 494.
R. L. 100, § 14.
1904,311.
1909, 614,
B21, 145.
1914,474, I 1.
1917.200.
1919, 253.
223 Mass. 109.
Section 26. In the employment of mechanics, teamsters and 1
laborers in the construction of public works by the commonwealth, or 2
by a county, town or district, or. by persons contracting therewith for 3
such construction, preference shall first be given to citizens of the com- 4
monwealth who have served in the army or navy of the United States 5
in time of war and have been honorably discharged therefrom or re- 6
leased from active duty therein, and who are qualified to perform the 7
work to which the employment relates; and secondly, to citizens of 8
225 Mass. 292.
Chap. 149.] labor and industries. 1559
9 the commonwealth generally, and, if they cannot be obtained in suffi- ^q's^'soo'^ """
10 cient numbers, then to citizens of the United States; and every contract "
11 for such work shall contain a provision to this effect. The wages for a
12 day's work paid to mechanics and teamsters emploj-ed in the construc-
13 tion of public works as aforesaid shall be not less than the customary
14 and pre\-ailing rate of wages for a day's work in the same trade or occu-
15 pation in the locality where such public works are constructed; pro-
16 vided, that no town in the construction of public works shall be required
17 to give preference to veterans not residents of such town, over citizens
18 thereof. Any contractor who knowingly and wilfully violates this sec-
19 tion shall be punished by a fine of not more than one hundred dollars.
1 Section 27. In case of any dispute as to such customary and pre- Dispute as
2 vailing rate of wages, the department shall investigate the wages paid i<ii4?474, §2.
3 in the trade or occupation in the locality where such public works are ^^^®' ^^°' ^ ^^•
4 under construction, and decide what rate of wages shall be paid.
1 Section 28. A person to whom a debt is due for labor performed in Actions
2 constructing a building, sewer or drain, or water works or other public of tmiis'tif
3 works owned by a town, under a contract with any person having 'i^ggoS-o.
4 authority from or rightfully acting for such town in furnishing such f^^- g^^ § 57.
5 labor, shall have a right of action against such town to recover such ^L^^v'^^-ns
6 debt if, within thirty days after he ceases to perform such labor, he n's Mass. 201!
7 files in the clerk's office of the town against which he claims such right
8 of action a written statement under oath of the amount of the debt
9 so due to him, and the names of the persons for whom and by whose
10 employment the labor was performed, and if, within sixty days after
11 he ceases to perform such labor, he commences such action. Such
12 right of action shall not be lost by reason of a mistake in stating the
13 amount due; but the claimant shall not recover as damages a larger
14 amount than is named in said statement as due to him, with interest.
15 No person who has contracted to furnish labor other than his own in
16 such construction shall have such right of action.
1 Section 29. Officers or agents who contract in behalf of any county, security for
2 Qity or town for the construction or repair of public buildings or other iTboTonpub-
3 public works shall obtain sufficient security, by bond or otherwise, for igol^Sg.
4 payment by the contractor and sub-contractors for labor performed or §§°|3,*i«.
5 furnished and materials used in such construction or repair; but to .'olViss 494
6 obtain the benefit of such security the claimant shall file in the office of 206 Mass! ass'.
, p 1 •* J. 1 1 J i» -11 Mass. 113.
7 the county treasurer or of the city or town clerk a sworn statement of 21s Mass. 535.
8 his claim within sixty days after the claimant ceases to perform labor 233 Mais. 420.
9 or furnish labor or materials. 235 Mass. 203. 230 Mass. 319.
1 Section 30. The service of all laborers, workmen and mechanics Eight hour day
2 now or hereafter employed by the commonwealth or any county therein iVour week for'
3 or any town which, by vote of the city council, or of the A-oters at a emptoyw"'''"'
4 town meeting, accepts this section or has accepted section one of chapter \ll°' ^l^
5 two hundred and fortv of the General Acts of nineteen hundred and J*^,-*' ^os- 1 7-
0 SLxteen, or by any contractor or sun-contractor tor or upon any public 1900..517,
7 works of the commonwealth or of any county therein or of any such 1907. 269. § 1 ;
8 town is hereby restricted to eight hours in any one day and to forty- 1909.514,
9 eight hours in any one week. No officer of the commonwealth or of any fgu^'.iM', §*r
1560
LABOR AND INDUSTRIES.
[Chap. 149.
1916,240, county or of any such town, no such contractor or sub-contractor or 10
iyMass.416. other person whose duty it is to employ, direct or control the service of 11
lOi^A^G^w. such laborers, workmen or mechanics shall require- or permit any such 12
fTs^ig?*^'**^' laborer, workman or mechanic to work more than eight hours in any 13
3 Op. A. G. 93, one day, or more than forty-eight hours in any one week, except in cases 14
567
4 Op. A. G. 20, of extraordinary emergency.
Op. a. G. (1919) 42.
15
!20.
I 1.
Eiglit hour day
for certain em-
ployees in cer-
tain cities and
towns.
1899, 344.
1900, 357.
R. L. 106,
1906, 517,
1909, 514.
§§ 42, 145.
1911,494, § 1.
208 Mass. 619,
220 Mass. 416.
226 Mass. 517.
2 Op. A. G. 442.
3 Op. A. G.
93, 567.
4 Op. AG. 443
Section 31. The service of all laborers, workmen and mechanics 1
now or hereafter employed by any town which has accepted section 2
twenty of chapter one hundred and six of the Revised Laws, or section 3
forty-two of chapter five hundred and fourteen of the acts of nineteen 4
hundred and nine, or said section forty-two, as affected by chapter four 5
hundred and ninety-four of the acts of nineteen hundred and eleven, 6
and which has not accepted section one of chapter two hundred and 7
forty of the General Acts of nineteen hundred and sixteen, or by any 8
contractor or sub-contractor for or upon any public works of any such 9
town, is hereby restricted to eight hours in any one day. No officer of 10
any such town, no such contractor or sub-contractor or other person 11
whose duty it is to employ, direct or control the service of such laborers, 12
workmen or mechanics shall require or permit any such laborer, work- 13
man or mechanic to work more than eight hours in any one day, except 14
in cases of extraordinary emergency. But any such town may accept 15
the preceding section and shall thereupon become subject thereto. 16
i907?269T§ 1; Section 32. In construing sections thirty and thirty-one, engineers 1
1909 514 ^ 37 shall be regarded as mechanics, and a threat of loss of employment or a 2
i9ii!494!§ 1. threat to obstruct or prevent the obtaining of emploj-ment or to refrain 3
1916! 240! I 1.
from employing in the future shall be considered to be "requiring'
Section 33. It shall not be a violation of section thirty or thirty-
Limitation of
sections 30 '.' ~, — ^~ ~~ '" ."' " " ~". . *' ~~ *'
1906^517 6 1 *^"® *^' ^^ ^^^ event of a Saturday half lioliday being given to a laborer,
1907,' 269! § 1; workmau or mechanic, his hours of labor upon other working days
1909, 514, § 37, are increased sufficiently to make a total of fortv-eight hours for his
1911, 494, § 1. 1 I I . c'
1916, 240, s 1. week s work.
Contracts for
public work to
contain stipula-
tion as to eight
hour day.
1893, 406.
1894, 508, § S.
R. L. 106, § 21.
1906, 517, § 2.
1907, 269, § 2.
1909, 514,
§§ 38, 145.
1911,494, § 2.
3 Op. A. G. 73.
4 Op. A. G. 303.
Section 34. Every contract, except for the purchase of material or 1
supplies, to which the commonwealth, or any county or any town which 2
has accepted section twenty of chapter one hundred and six of the 3
Revised Laws, is a party, involving the employment of laborers, work- 4
men or mechanics, shall contain a stipulation that no laborer, workman 5
or mechanic working within the commonwealth, in the employ of the 6
contractor, sub-contractor or other person doing or contracting to do 7
the whole or a part of the work contemplated by the contract, shall be 8
requested or required to work more than eight hours in any one day, 9
and every such contract not containing this stipulation shall be null 10
and void. 11
vkSating'sec- Section 35. Any agent or official of the commonwealth or of any 1
OT.34^''' ^' county, city or town, or any contractor or sub-contractor, or any agent or 2
1907' ^ot' § 3 P^^son acting on behalf of any contractor or sub-contractor, who \'iolates 3
i909!5i4!§46 section thirty, thirty-one or thirty-four shall be punished by a fine of 4
■ ' ' not more than one thousand dollars or by imprisonment for six months, 5
or both. 6
Chap. 149.] labor and industries. 1561
1 Section 36. Sections thirty, thirty-one and thirty-four shall not Eight imur day
2 apply to the preparation, printing, shipment and delivery of ballots to "n ce'naincasls.
3 be used at a caucus, primary, state, city or town election, nor during igosi sui § 39.
4 the sessions of the general court to persons employed in legislative \l\l' ■*"-'^' ^ *•
) 34, 99, 101.
-SIB. 240, § 2.
5 printing or binding; nor shall they apply to persons employed in any '-jis. so. §2;
6 state, county or municipal institution, on a farm, or in the care of the 1919,3.50,
7 grounds, in the stable, ni the domestic or kitchen and dining room
8 service or in store rooms or offices, or to persons employed by the com-
9 missioners of the Massachusetts nautical school, on boats maintained
10 by the state police for the enforcement of certain laws in the waters of
11 the commonwealth, or in connection with the care and maintenance
12 of state armories, or to the purchase, operation or lease of farm ma-
13 chinery by the department of agriculture.
1 Section 37. In any town not subject to section thirty or thirty- Nine hour day
2 one nine hours shall constitute a day's work for all laborers, workmen and'^towSs'^'*'^^
3 and mechanics employed by or on behalf of such town. issi. 350. 1^90, 375.
1S94. 508. § 7. R. L. 100, § 19. 1909, 514, §§ 43. 145. 1 Op. A. G. 10.
1 Section 38. All laborers, workmen and mechanics permanently vacations for
2 in the employ of the commonwealth or the metropolitan district com- employee". "^
3 mission who are within the provisions of section thirty as affected by '^j'!^ 1^2 ; 350,
4 sections thirty-two and thirty-six shall be entitled to an annual vaca- op'a^g^^^^'
5 tion of at least twelve working days with pay. dsi'') 1*2.
1 Section 39. The hours of labor of officers, instructors and such Hours of labor
2 other employees of state penal institutions as are described in section °l "tate penal '
3 thirty-six shall not exceed sixty in each week, and every such officer, jgos^s]?"!'
4 instructor or employee whose presence is required at the institution i?09;5i4!
5 seven days a week shall be given at least two days' vacation in each
6 month, without loss of pay, in addition to the regular annual \'acation.
7 This section shall not prevent the warden or superintendent from re-
8 quiring the services of all his officers, instructors and employees to
9 assist in recapturing an escaped prisoner or in any case of extraordinary
10 emergency.
1 Section 40. Officers, watchmen and matrons employed by counties Hours of labor
2 in penal and reformatory institutions shall be subject to sections thirty, InstftutTOns.
3 thirty-two and thirty-three. The hours of labor of such other em- \^f' Hij § 00
4 ployees of county jails and houses of correction as are described in Jgog's^l §55
5 section thirty-six Shall not exceed sixty in each week, and every such 1914; 023! §1.
6 employee whose presence is required at such institutions seven days a
7 week shall be given at least two days of vacation in each month, without
8 loss of pay in addition to any annual vacation. A county oflScer re-
9 quiring an employee to work more than sixty hours in a week shall be .
10 punished by a fine of not less than twenty-five nor more than fifty
11 dollars.
1 Section 41. Except as provided in section sLxty-five of chapter Laborers, etc.,
2 ninety-two, all laborers, workmen and mechanics employed by the X^'commo.^-
3 commonwealth in any capacity, or by any officer, department or board E^en'satu'rday
4 on behalf of the commonwealth, who are permanent employees or who i;iu''i;s8,Ti.
5 have been certified under the ci\il service laws, and whose services can }^Jg' ^p'
6 be dispensed with, shall be given a half holiday on every Saturday in s'§5.'rT'"
7 the year without loss of pay. 3 op. a. g. ei. §§ 6,i 65."
1562
LABOR AND INDUSTRIES.
[ClL^.P. 149.
rammZ^^"' SECTION 42. So far as possible, all work by laborers, workmen and
dav'work basis" ™echanics employed by the commonwealth or by any officer, depart-
'Ap°°1'!?1«-. - ment, board or commission on behalf of the commonwealth, shall be
1914,688.
1915. 2S8.
on the day work basis.
1918,262, §§5,6.
Equal oppor-
tunity of
eniployment
for all citizens.
1920. 376.
Section 43. The application of a citizen of the commonwealth for
employment in any department of the commonwealth or of any political
subdivision thereof or in any department of a street railway company,
operated, owned, controlled or financially aided in any way by the com-
monwealth, or by any political subdivision thereof, shall not be affected
by the applicant's national origin, race or color.
Holiday for
veterans on
Alemorial
Dav.
1920, 531.
Section 44. No veteran, as defined in section twenty-one of chapter 1
thirty-one, in the service of the commonwealth or of any county, city or 2
town therein, or of the metropolitan district commission, except police- 3
men and firemen and members of the department of public safety doing 4
police duty, shall be required to perform any service on Memorial Day. 5
Such veterans, if employed as policemen or firemen by the metropolitan 6
district commission or by any city or town, may be granted leave of 7
absence without loss of pay on Memorial Day by the said commission 8
or by the governing authorities in cities and towns. 9
Penalty for re-
quiring labor
on holiday.
1911, 151,
§§ 1,2.
private employment.
Section 45. Whoever recjuires an employee to work in any mill 1
or factory on any legal holiday, except to perform such work as is both 2
absolutely necessary and can lawfully be performed on Sunday, shall be 3
punished by a fine of not more than five hundred dollars. 4
Requiring
illegal number
of hours to
make up for
holiday for-
bidden.
1913,359, § 1.
Section 46. No person shall requu-e or request any employee of a 1
manufacturing or mechanical establishment to work more hours in any 2
one day than is limited by law, in order to make up time lost by reason 3
of a legal holiday. Penalty, § iso. 4
One day 's rest
in seven.
1907, 677.
1909. 514,
§§ 52. 145.
1913,619,
§§1.2.
Section 47. Whoever, except at the request of the employee, re-
quires an employee engaged in any commercial occupation or in the
work of any industrial process not subject to the following section or in
the work of transportation or communication to do on Sunday the
usual work of his occupation, unless he is allowed during the sLx days
next ensuing twenty-four consecutive hours without labor, shall be
punished by a fine of not more than fifty dollars; but this and the
following section shall not be construed as allowing any work on Sunday
not otherwise authorized by law.
Same subject.
1913,019,
§§1,6,
Section 48. Every employer of labor engaged in carrying on any 1
manufacturing or mercantile establishment in the commonwealth shall 2
allow e\ery person, except those specified in section fifty, employed in 3
such manufacturing or mercantile establishment at least twenty-four 4
consecutive hours of rest in every seven consecutive days. No employer 5
shall operate any such manufacturing or mercantile establishment on 6
Sunday unless he has complied with section fifty-one. Whoever violates 7
this section shall be punished by a fine of fifty dollars. 8
Chap. 149.] labor and industries. 1563
1 Section 49. The two preceding sections shall not apply to es- Application of
2 tabiishinents used for the manufacture or distribution of gas, electricity, 'rc'tion"'' '"*
3 milk or water, hotels, restaurants, drug stores, livery stables or garages, \to9. In. ^ ^'
4 nor to the transportation, sale or delivery of food. i9i3, eia, § 5. s§ =^' ^*^-
1 Section 50. Sections forty-seven and forty-eight shall not apply to Exceptions.
2 (a) janitors; (b) watchmen; (c) employees whose duties include no work '^^^' ^'^' ^ "'
3 on Sunday other than (1) setting sponges in bakeries, (2) caring for
4 live animals, (3) maintaining fires, (4) caring for machinery'; (d) em-
5 ployees engaged in the preparation, printing, publication, sale or de-
6 livery of newspapers; (e) farm or personal service; (/) any labor called
7 for by an emergency that could not reasonably have been anticipated.
1 Section 51. Before operating on Sunday, every employer subject i-ist of persons
2 to section forty-eight shall post in a conspicuous place on the premises sunda^^ °"
3 a schedule containing a list of his emploj'ees who are required or allowed iglglssoileg.
4 to work on Sunday and designating the day of rest for each, and shall
5 file a copy of such schedule with the department, and promptly file with
6 it a copy of every change therein. No employee shall be required or
7 allowed to work on the day of rest designated for him.
1 Section 52. Every employer subject to section forty-eight shall keep Time book.
2 a time book, open to inspection by the department, showing the names viofating
3 and addresses of all employees and the hours worked by each of them and'52.^^'
4 in each day. Whoever violates this or the preceding section shall be Sj'^le'^'
5 punished by a fine of fifty dollars. 1919, 350, § 69.
WORK BY women AND CHILDREN.
1 Section 53. Boxes, baskets and other receptacles weighing with Heavy boxes
2 their contents seventy-five pounds or over, which are to be mo\'ed by womln to be
3 female employees in any manufacturing or mechanical establishment, ca°t"^s';1.t'c."''
4 shall be provided with pulleys or casters connected with such boxes or 5^\^'2"'''
5 other receptacles, so as to be moved easily from place to place in such J^h. 241.
6 establishments. Whoever violates this section shall be punished by
7 a fine of not more than fifty dollars for every day during which such
8 violation continues.
1 Section 54. The department shall investigate core rooms where investigations
2 women are employed, and shall make rules regulating the employment wh^e'^won^n
3 of women therein. The rules shall relate to the structure and location ^gll.^ssf |§ 1,
4 of the rooms, the emission of gases and fumes from ovens, and the size i^il^ss^'s 69
5 and weight which the women shall be allowed to lift or work on. A
6 copy of the rules shall be posted in every core room where \\omen are
7 employed. Whoever violates any such rule shall be punished by a fine
8 of not less than twenty-five nor more than five hundred dollars.
1 Section 55. No female person shall knowingly be employed in Employment of
2 laboring in a mercantile, manufacturing or mechanical establishment be°fo're'and°alter
3 within two weeks before or four weeks after childbirth. The foregoing for^bidd^n."'
4 pro\'ision shall be included in the notice with regard to the employment §1^^!^®'
5 of women required to be posted in such establishments. Penalty, § iso.
1564 LABOR AND INDUSTRIES. [ChAP. 149.
fo?wome!fand SECTION 56. No child and no woman shall be employed in laboring 1
is42,'iio, § 3 in any factory or workshop, or in any manufacturing, mercantile, me- 2
1867 285^^2 chauical establishment, telegraph office or telephone exchange, or by 3
1874! 221.' 1 1. any express or transportation company more than nine hours in any 4
p".s.'74, §4. one day; and in no case shall the hours of labor exceed forty-eight in a 5
1S84', 275, week, except that in manufacturing establishments where the employ- 6
1886, lo. ment is determined by the department to be by seasons, the number 7
1892; 35?! 1 1! of such hours in any week may exceed forty-eight, but not fifty-two, 8
s§^?6^ii' provided that the total number of such hours in any year shall not 9
1900. 3 jS. exceed an average of forty-eight hours a week for the whole year, ex- 10
R. l!io6. eluding Sundays and holidays; and if any child or woman shall be 11
1902,435. employed in more than one such place, the total number of hours of 12
■ i9os! 645! such employment shall not exceed forty-eight hours in any one week. 13
§§°47^4|;i45 Every employer, except those hereinafter designated, shall post in a 14
191''' 452- 477 couspicuous placc in every room where such persons are employed a 15
1913! 758; 831, printed notice stating the number of hours' work required of them on 16
1915, 57j^ each day of the week, the hours of beginning and stopping work, and 17
1919! 113; the hours when the time allowed for meals begins and ends, or, in 18
35o! I U. case of mercantile establishments and of establishments exempted from 19
222 Mass! 299! sections ninety-nine and one hundred, the time, if any, allowed for 20
30 '^A^G ^•'(ig nieals. The emplovanent of any such person at any time other than 21
4 0p-A G. ns. as stated in said printed notice shall be deemed a violation of this 22
(1917)42. section unless it appears that such employment was to make up time 23
(1919) (i3'. lost on a previous day of the same week in consequence of the stopping 24
a920) 160. of machinery upon which such person was employed or dependent for 25
Penalty. § 180 employment; but no stopping of machinery for less than thirty con- 26
secutive minutes shall justify such overtime employment, nor shall 27
such overtime employment be authorized until a written report of the 28
day and hour of its occurrence and its duration is sent to the depart- 29
ment, nor shall such overtime employment be authorized because of 30
the stopping of machinery for the celebration of any holiday. Every 31
employer engaged in furnishing public service, or in any other kind of 32
business in respect to which the department shall find that public ne- 33
cessity or convenience requires the employment of children or women 34
by shifts during different periods or parts of the day, shall post in a 35
conspicuous place in every room where such persons are employed a 36
printed notice stating separately the hours of employment for each 37
shift or tour of duty and the amount of time alloweci for meals. A list 38
by name of the employees, stating in which shift each is employed, 39
shall be kept on file at each place of employment for inspection by em- 40
ployees and by officers charged with the enforcement of the law. In 41
cases of extraordinary emergency or extraordinary public requirement, 42
this section shall not apply to employers engaged in public service or 43
in other kinds of business in which shifts may be required as herein- 44
before stated; but in such cases no employment in excess of the hours 45
hereby authorized shall be considered as legalized until a MTitten report 46
of the day and hour of its occurrence and its duration is sent to the 47
department. 48
vfolationof SECTION 57. A parent or guardian who permits a child under his 1
se'ctTon'"'^ control to be employed in violation of the preceding section, and any 2
G*^s'42'|3 person who, either for himself or as superintendent, overseer or agent 3
1867. 285, 1 3. for another, employs any person in violation of said section, or fails 4
1879! 207! to post the notice required by it, or makes a false report of the stopping 5
Chap. 149.] labor and industries. 1565
6 of machinery, shall be punished by a fine of not less than fifty nor more isso, 194, § 2.
7 than one hundred dollars. i8S4, 275, § 2. iss-, 2so. § 1. . . . ^ .
1S94. 508, |§ 59-Gl. R. L. 106, § 25. 1909, 514, §§ 49, 145. 210 Mass. 387.
1 Section 58. Any law restricting the hours of women and minors women and
2 laboring in factories or workshops, or in mercantile, manufactm-ing or Sing'^devators.
3 mechanical establishments, shall, unless it is otherwise expressly pro- ^"^^^ "'■
4 vided, apply to women and minors operating elevators in such establish-
5 ments, or in any building occupied in whole or in part by any such
6 establishment, or in any office building.
1 Section 59. No person, and no agent or officer of a person, shall ^of^en"''"'^ '"'
2 employ a woman over twenty-one in any capacity for the purpose of li^S'if^-
3 manufacturing before six o'clock in the morning or after ten o'clock isg?. sos.
4 in the evening, or in the manufacture of textile goods after six o'clock r. l.'ioo, § 27.
5 in the evening. Whoever violates any provision of this section shall igon^lil;
6 be punished by a fine of not less than twenty nor more than fifty iop''a.*g.209.
7 dollars.
1 Section 60. No person shall employ a minor under fourteen or Employment of
2 permit him to work in or about or in connection with any factory, work- fourtee"."'"'^'^
3 shop, manufacturing, mechanical or mercantile establishment, barber Igre^sl^^V'
4 shop, bootblack stand or establishment, public stable, garage, brick or fjfa "'gl^^ ''
5 lumber yard, telephone exchange, telegraph or messenger office, or in i885[222;
6 the construction or repair of buildings, or in any contract or wage §§ i.'2.
7 earning industry carried on in tenement or other houses. No such i894!508;
8 minor shall be employed at work performed for wage or other com- is98!'494, § 1.
9 pensation, to whomsoever payable, during the hours when the public 1965; 267,' | f*'
10 schools are in session, nor shall he be employed at work before half past \^'^- f^f 5 ^■
11 six o'clock in the morning or after six o'clock in the evening. §§56,145.
1913, 779, § 14; 209 Mass. 489. Penalty, § 78.
831, § 1. 2 0p. A.G. 616.
204 Maas. 18. 3 Op. A. G. 177.
1 Section 61. No person shall employ a minor under sixteen or Employment of
2 permit him to work in operating or assisting in operating any of the sii'teln" ^"^"^
3 following machines: (1) cu-cular or band saws, (2) wood shapers, (3) Ullisos!^''
4 wood jointers, (4) planers, (5) picker machines or machines used in f^^ I'/ol ^ 42
5 picking wool, cotton, hair or other material, (6) paperlace machines, st'7'3^145
6 (7) leather burnishing machines, (8) job or cylinder printing presses i?i3,'83i,'
7 operated by power other than foot power, (9) stamping machines used 1920, 298.
8 in sheet metal and tinware or in paper or leather manufacturing or Penalty, § 78.
9 in washer and nut factories, (10) metal or paper cutting machines, (11)
10 corner staying machines in paper box factories, (12) corrugating rolls
11 such as are used in corrugated paper or in roofing, or washboard fac-
12 tories, (13) steam boilers, (14) dough brakes or cracker machinery of any
13 description, (15) wire or iron straightening or drawing machinery, (10)
14 rolling mill machinery, (17) power punches or shears, (18) washing or
15 grinding or mixing machinery, (19) calender rolls in paper and rubber
16 manufacturing or other heavy rolls driven by power, (20) laundering
17 machinery, (21) upon or in connection with any dangerous electrical
18 machinery or appliances, or in adjusting or assisting in adjusting any
19 hazardous belt to any machinery, or in oiling or cleaning hazardous
20 machinery, or in proximity to any hazardous or unguarded belts, ma-
1566
LABOR AND INDUSTRIES.
[Chap. 149.
chinery or gearing while such machinery or gearing is in motion; or 21
in scaffolding; or in heavy work in the building trades; or in stripping, 22
assorting, manufacturing or packing tobacco; or in any tunnel; or in 23
a public bowling alley; or in a pool or billiard room. No such minor 24
shall be employed or permitted to operate, clean or repair a freight 25
elevator; violation of this provision shall be punished by a fine of not 26
more than one hundred dollars. 27
Employment
minors under
eighteen.
1913 831, § 5,
Penalty, § 78.
°' Section 62. No person shall employ a minor under eighteen or 1
permit him to work: (1) in or about blast furnaces; (2) in the operation 2
or management of hoisting machines; (3) in oiling or cleaning hazardous 3
machinery in motion; (4) in the operation or use of any polishing or 4
buffing wheel; (5) at switch tending; (6) at gate tending; (7) at track 5
repairing; (8) as a brakeman, fireman, engineer, motorman or con- 6
ductor upon a railroad or railway; (9) as a fireman or engineer upon 7
any boat or vessel; (10) in operating motor vehicles of any description; 8
(11) in or about establishments wherein gunpowder, nitroglycerine, 9
dynamite or other high or dangerous explosive is manufactured or 10
compounded; (12) in the manufacture of white or yellow phosphorus 11
or phosphorus matches; (13) in any distillery, brewery, or any other 12
establishment where malt or alcoholic liquors are manufactured, packed, 13
wrapped or bottled; (14) in that part of any hotel, theatre, concert hall, 14
place of amusement or other establishment where intoxicating liquors 15
are sold. This section shall not prohibit the employment of minors in 16
drug stores. 17
Department
may determine
processes which
are injurious to
cliildren.
1901. 164.
R. L. 106, § 44.
1909. 514, § 75.
1910,404.
1913,831,
§§4,6.
1919, 311, S 1;
350, § 69.
Penalty, § 78.
Section 63. The department may, after a hearing duly held, deter- 1
mine whether or not any particular trade, process of manufacture or 2
occupation, in which the employment of minors under the age of sixteen 3
or eighteen is not forbidden by law, or any particular method of carry- 4
ing on such trade, process of manufacture or occupation, is sufficiently 5
dangerous or is sufficiently injurious to the health or morals of minors 6
under sixteen or eighteen to justify their exclusion therefrom. No 7
minor under sixteen or eighteen shall be employed or permitted to work 8
in any trade, process or occupation thus determined to be dangerous or 9
injurious to such minors, respectively. 10
Employment of
persons under
twentv-one.
1913,831, § 7.
Penalty, § 78.
Section 64. No person shall employ a minor or permit him to work 1
in, about or in connection with any saloon or bar room where alcoholic 2
liquors are sold. No person shall knowingly take or send any such 3
minor or cause or permit him to be sent to any disorderly house or 4
house of prostitution or assignation or other immoral place of resort 5
or amusement. 6
Hours of labor
of children
under sixteen.
1913,805, § 1;
831, §8.
1919,311,
§ l,cl.S.
4 Op. A. G. 257.
Penalty, § 78.
Section 65. No person shall employ a minor under sixteen or 1
permit him to work in, about or in connection with any establishment 2
or occupation named in section sixty for more than six days in any one 3
week, or more than forty-eight hours in any one week, or more than eight 4
hours in any one day, or before half past six o'clock in the morning, or 5
after six o'clock in the evening. The time spent by such a minor in 6
a continuation school or course of instruction as required by section 7
twenty-two of chapter seventy-one shall be reckoned as a part of the 8
time he is permitted to work. 9
Chap. 149.] labor and industries. 1567
1 Section 66. No person shall employ a boy under eighteen or a Hours of labor
2 girl undei- twenty-one or permit such a boy or girl to work in, about eigi'teen"an"
3 or in connection with any establishment or occupation named in sec- fwenfy-one.
4 tion sixty before five o'clock in the morning or after ten o'clock in the is92;83^'
5 evening, or in the manufacture of textile goods after six o'clock in the Jf^jl^^yf'
6 evening; provided, that girls under twenty-one may be employed as k. L.ioe. § 27.
7 operators in regular service telephone exchanges until, but not after, 1909'. 514;
8 eleven o'clock in the evening. 1913. S3i.§9. 1917,294. §§si, 145,
1 Op. A. G. 209. 4 Op. A. G. 257. Penalty, § 78.
1 Section 67. Except as limited by section fifty-six, no person shall f^^^lsij^^'^g
2 employ a boy under eighteen or a girl under twenty-one or permit such J^J^'^^^
3 a boy or girl to work in, about or in connection with any establishment ' .
4 or occupation named in section sixty for more than six days in a week,
5 or more than fifty-four hours in a week, or more than ten hours in a day.
1 Section 68. Except for the delivery of messages directly con- Employment of
2 nected with the business of conducting or publishing a newspaper to ^n'gers,''etc!!^'
3 a newspaper office or directly between newspaper offices, no person \'Qu%li\ § i.
4 shall employ a minor or permit him to work as messenger for a tele- i^'s. S3i. § lo.
5 graph, telephone or messenger company in the distribution, transmis- Penalty, § 78.
6 sion or delivery of goods or messages before five o'clock in the morning
7 or after ten o'clock in the evening.
1 Section 69. No boy under twelve and no girl under eighteen shall, f'or cwidrelfln
2 in any city of over fifty thousand inhabitants, sell, expose or offer for Ji^u'JgJpj''''''
3 sale any newspapers, magazines, periodicals or any other articles of isis.ssi, § ii.
4 merchandise of any description, or exercise the trade of bootblack or Penalty, § 83.
5 scavenger, or any other trade, in any street or public place. *
1 Section 70. No boy under sixteen shall in any such city engage same subject.
2 in any of the trades or occupations mentioned in the preceding section
3 unless he complies with all the provisions of the three following sections '° ty. § s .
4 and with all of the legal requirements concerning school attendance,
5 and unless a badge has been issued to him by the officer authorized
6 to issue employment certificates in the city where such boy resides.
1 Section 71. Such badge shall not be issued until the officer issuing issue of badges.
2 the same shall have received, examined, approved and filed evidence
3 that such boy is twelve or over, which shall consist of the proof of age
4 required by section eighty-seven for the issuing of an employment certifi-
5 cate. Such officer may refuse to issue such badge to any boy who in
6 his opinion, after due investigation, is found physically or mentally in-
7 competent or unable to do such work in addition to the regular school
8 attendance required by law.
1 Section 72. The badge shall be worn, conspicuously exposed at all li^^f^l"\°l
2 times, by such boy while so working. No boy to whom the said badge i9i3. ssi. § u.
3 has been issued shall transfer the same to any other boy. He shall Penalty, § sa.
4 exhibit the same upon demand at any time to any officer mentioned in
5 section seventy-seven. The school committee of any city may make
6 further regulations and requirements for issuing such badges.
1568
LABOR AND INDUSTRIES.
[Chap. 149.
"ades flr^boys. SECTION 73. No boy undcF Sixteen shall engage in any of the trades
1913. 831, § 15. or occupations mentioned in section sixty-nine in any street or public
Penalty, § S3, placc after nine o'clock in the evening or before five o'clock in the morn-
ing, nor, unless provided with an employment certificate, during the
hours when the public schools in the city where such boy resides, or
the school which such boy attends, are in session.
empioymenrof^ SECTION 74. Exccpt as providcd in section fifty-six, every person 1
minors to be employing any minor in any establishment mentioned in section sixty 2
1913,831. § 16. shall keep posted in a conspicuous place in the room where such minor 3
Penalty, § 78. is employed or permitted to work a printed notice stating the number 4
of hours such minor is required or permitted to work on each day of 5
the week, with the total for the week, the hours of commencing and 6
stopping work, and the hours w-hen the time allowed for meals begins 7
and ends for each day of the week. 8
The employment of any minor at any time other than as stated in 9
said printed notice shall be deemed a violation of this section. The 10.
terms of such notice for any week or part thereof shall not be changed 11
after the beginning of labor on the first day of the week without the 12
written consent of the commissioner. 13
to™furm's'hed Section 75. The department, after approval by the attorney
ment"^ ''^''"^'' gcueral, shall, upon application, furnish the printed forms of the lists
1887' ^80 1 ^^^ notices required by sections fifty-six and seventy-four to all persons
1894', sos', § 11, required to post the same. i9oi. 113. r. l. loe, §§ 23. 24. 1902. 435.
1908.645. 1911,484, §1. 1915,57.
1909.514. 1912.477. 1916,222.
§§47,48,145. 1913, 758; 831, § IS. 1919. 113; 350, § 69.
Duties of
inspectors.
1913,831, §18.
Section 76. Inspectors shall visit and inspect the places of em- 1
ployment mentioned in sections sixty to sixty-eight, inclusive, and shall 2
ascertain whether any minors are employed therein contrary to said 3
sections. They shall report to the school authorities any cases of chil- 4
dren under si.xteen discharged for illegal employment. Any person may 5
prosecute violations of sections sixty to seventy-four, inclusive. 6
Powers of
attendance
officers.
1913, 831, § 19.
Section 77. Sections sixty-nine to seventy-three, inclusive, relating 1
to minors engaged in the occupations mentioned in section sixty-nine, 2
shall be enforced by school attendance officers, who are hereby vested 3
with full police powers for the purpose, and by police officers. The 4
school committee of each city may appoint or designate one or more 5
special attendance officers to have supervision over minors engaged 6
in such occupations and over the enforcement of said sections. ' 7
Penalty for
violation of
statutes as to
employing
minors.
1911,629, § 2.
1913,831, §20.
Section 78. Whoever, by himself or for others, or through agents, 1
servants or foremen, employs, induces or permits any minor to work 2
contrary to any provision of sections sixty to seventy-four, inclusive, 3
shall, except as provided in section sixty-one, be punished for a first 4
offence by a fine of not less than ten nor more than fifty dollars or by im- 5
prisonment for not more than one month, or both, and for a subsequent 6
offence by a fine of not less than fifty nor more than two hundred dollars 7
or by imprisonment for not more than two months, or both. The em- 8
ployment of any minor in violation of any provision of said sections, 9
after the person employing such minor has been notified thereof in 10
Ch.\P. 149.] LABOR .VND INDUSTRIES. 1569
11 writing by any authorized inspector or school attendance officer, shall
12 constitute a separate offence for every day during which the employ-
13 ment continues.
1 Section 79. Any person who hinders or delavs any authorized P«°f'ty ^°T
• 111 m -1 !>■ i>i-i- hiudenng in-
2 inspector or school attendance oincer ui the periormance oi his duties, spectors. etc.
3 or who refuses to admit to or locks out any such inspector or officer
4 from any place which such inspector or officer is authorized to inspect,
5 or who refuses to give to such inspector or officer such information as
6 may be required for the proper enforcement of sections sixty to seventy-
7 four, inclusive, shall be punished by a fine of not less than twenty-five
8 nor more than two hundred dollars or by imprisonment for not more
9 than two months, or both.
1 Section SO. Whoe\'er furnishes or sells to any minor any article Penalty for
2 of any description with the knowledge that the minor intends to sell to'belifegaiiy^
3 such article in violation of any provision of sections sixty-nine to seventy- engag«Un°°™
4 three, inclusive, or after ha\'ing recei\'ed written notice to this effect f9f3'83i''f22
5 from any officer charged with the enforcement thereof, or knowingly
6 procures or encourages any minor to violate any provisions of said sec-
7 tions, shall be punished by a fine of not less than ten nor more than
8 two hundred dollars or by imprisonment for not more than two months,
9 or both.
1 Section 81. Any parent, guardian or custodian having a minor Penalty on
2 under his control who compels or permits such minor to work in vio- gSardfan%tc.
3 lation of any provision of sections sixty to seventy-four, inclusive, or I9i3,s3i,§23.
4 knowingly certifies to any materially false statement for the purpose of
5 obtaining the illegal employment of such minor, shall for a first offence be
6 punished by a fine of not less than two nor more than ten dollars or by
7 imprisonment for not more than five days, or both; and for a subsequent
8 offence by a fine of not less than five nor more than twenty-five dollars
9 or by imprisonment for not more than ten days, or both.
1 Section 82. i\.ny inspector, school attendance officer, superintend- ^^"^ais °°
2 ent of schools or other person authorized to issue the badges required i9i3, sai. § 24.
3 by section seventy, or any other person charged with the enforcement
4 of any of the provisions of sections sixty to eighty-three, inclusive, who
5 knowingly violates or fails to comply with any provision of said sections,
6 shall be punished by a fine of not less than ten nor more than two hun-
7 dred dollars or bv imprisonment for not more than two months, or
8 both.
1 Section 83. Any minor who engages in any of the trades or occu- Penalty on
2 pations mentioned in section sixty-nine in violation of any pro\ision of igis.'sai, § 25.
3 sections sixty-nine, seventy or seventy-two to seventy-four, inclusi\-e,
4 shall for the first offence be warned by the officers mentioned in section
5 seventy-seven, and the parent, guardian or custodian shall be notified.
6 In case of a second violation, such minor may be arrested and dealt with
7 as a delinquent child, or, if over seventeen, shall be punished by a fine
8 not exceeding fifteen dollars. Upon the recommendation of the principal
9 or chief executive officer of the school which such minor attends, or upon
10 the complaint of any school attendance officer, police officer or proba-
11 tion officer, the badge of any minor violating any provision of sections
1570
LABOR AND INDUSTRIES.
[Chap. 149.
seventy to seventy-three, inclusive, or who becomes dehnquent or fails 12
to comply with all legal requirements concerning school attendance, 13
may be revoked for three months by the officer issuing the same and 14
the badge taken from such minor. If any minor refuses to surrender 1.5
such badge, or works at any of the occupations mentioned in section 1(5
sixty-nine after notice of the revocation of such badge, he shall be deemed 17
to have violated section seventy. 18
Service of proc-
ess for violation
of sections re-
lating to em-
ployment of
children.
190fi,499, §5.
1900,514.
§§ 63, 145.
191.1, 831,
§2C.
Section 84. A summons or warrant issued by any court or trial 1
justice having jurisdiction of the violation of any provision of sections 2
sixty to eighty-three, inclusive, or sections ninety to ninety-seven, 3
inclusive, may be served at the direction of the court or justice by an 4
inspector or by a school attendance officer or by any officer qualified to 5
serve criminal process. 6
Application of SECTION 85. Scctious sixty to cightv-three, inclusive, shall not apply 1
sections 60 to . . ■' ,1 1 i»/r „
83, inclusive, to the juveiule reiorinatories, other than the Massachusetts reforma- 2
1919! 35o! § 56. tory, or prevent minors of any age from receiving manual training or 3
(1919) 117. industrial education in or in connection with any school which has 4
duly been approved by the school committee or by the department 5
of education. ^ 6
Employment of
children under
sixteen with-
out employ-
ment certifi-
cates, etc.,
forbidden.
1836, 24.5, S 1.
1849, 220. I 1.
1855, 379.
1858, S3. § 1.
G. S. 42, § 1.
1867,285, § 1
1876, 52, S 2.
1878, 237,
§§ 1,5.
1880, 137.
P. S. 48,
§5 2, 3.
1888,348. § 2,
1892,352.
1894.508,
§§ 14,69.
1898, 494,
U 2, 6.
R. L. 106,
§§ 29, 33.
1906, 499.
§§ 4,6.
1909, 514,
Ǥ 57, 64, 145.
1913,779,
§§ 15,22.
1916, 95, § 2.
1919, 292, § 12;
350, §§ 56, 69.
Section 86. No person shall employ a child between fourteen and 1
sixteen or permit him to work in, about or in connection with any 2
factory, workshop, manufacturing, mechanical or mercantile establish- 3
ment unless the person employing him procures and keeps on file, ac- 4
cessible to the attendance officers of the town, to agents of the depart- 5
ment of education, and to the department of labor and industries or 6
its authorized agents or inspectors, the employment certificate issued 7
to such child, and keeps a complete list of the names and ages of all 8
such children employed therein conspicuously posted near the principal 9
entrance of the building where they are employed; pro\ided, that 10
pupils in co-operative courses in public schools may be employed by 11
any co-operating factory, manufacturing, mechanical or mercantile 12
establishment or workshop upon securing from the superintendent 13
of schools a special certificate covering this type of employment. On 14
termination of the employment of a child whose employment certificate 15
is on file, said certificate shall be returned by the employer within two 16
days after said termination to the office of the superintendent of schools 17
or school committee from which it was issued. Any person who retains 18
an emploATiient certificate contrary to this section shall be punished 19
by a fine of not less than ten nor more than one hundred dollars. 20
Further penalt.v, § 90.
Employment
certificates.
Lssue.
1888, 348. I 5.
1894, 608, I 19.
1898, 494, § 3.
R. L. 106, § ,30
1905, 267, § 2.
1909, 514,
« 58. 145.
1910. 257, § 3.
1911,269, § 11
1913, 779, § 16;
805, §§5,7.
1914,316.
1919, 62; 311.
§§3 (2), 5.
Section 87. An employment certificate shall be issued only by the 1
superintendent of schools or by a person authorized by him in writing, 2
or, where there is no superintendent of schools, by a person authorized 3
in writing by the school committee of the town where the child to 4
whom it is issued resides during his employment, or, if the child resides 5
outside the commonwealth, of the town where the child is to be em- 6
ployed; provided, that no member of a school committee or other 7
person authorized as aforesaid shall have authority to issue such cer- 8
tificate for any child then in or about to enter such person's own em- 9
ployment or the employment of a firm or corporation of which he is a 10
Chap. 149.] _ labor and industries. 1571
11 member, officer or employee. If an employment certificate is issued
12 to a child under sixteen authorizing employment in a town other
13 than that of his residence, a duplicate thereof shall be sent forthwith to
14 the superintendent of schools of the town where the employment is
15 authorized.
16 The person issuing an employment certificate shall, before issuing
17 it, receive, examine, approve and file the following papers, duly
18 executed:
19 (1) A pledge or promise, signed by the employer or by an authorized
20 manager or superintendent, setting forth the character of the specific
21 employment, the number of hours per day during which the child is
22 to be regularly employed, and the name and address of the employer,
23 in which pledge or promise the employer agrees to employ the child in
24 accordance with this chapter, and to return the employment certificate
25 as prov'ided in the preceding .section.
26 (2) The school record of such child, filled out and signed as pro-
27 vided in the following section, except when such record may be waived
28 thereunder.
29 (3) A certificate, signed by a school or family physician, or by a
30 physician appointed by the school committee, stating that the child
31 has been thoroughly examined by said physician, and in his opinion
32 is in sufficiently sound health and physically able to perform the work
33 which the child intends to do.
34 (4) Evidence of age, showing that the child is fourteen, which shall
35 consist of one of the following proofs of age:
36 (a) A birth certificate, or a duly attested transcript thereof, made
37 by a registrar of vital statistics or other officer charged with the duty
38 of recording births.
39 {b) A baptismal certificate, or a duly attested transcript thereof,
40 showing the age and date of baptism of the child.
41 (c) If none of the aforesaid proofs of age is obtainable, and only in
42 such case, the person issuing employment certificates may accept in
43 lieu thereof a passport or a duly attested immigration record, or tran-
44 script thereof, showing the age of the child, or other official or religious
45 record of the child's age; provided, that it shall appear to the satis-
46 faction of said person that the same is good and suflScient evidence of
47 the child's age.
48 (d) If none of the aforesaid proofs of age is obtainable, and only in
49 such case, the person issuing employment certificates may accept in
50 lieu thereof a record of age as given on the register of the school which
51 the child first attended in the commonwealth; provided, that such
52 record was kept for at least two years during the time when such child
53 attended school.
54 (e) If none of the aforesaid proofs of age is obtainable, and only in
55 such case, the person issuing employment certificates may receive the
56 signed statement of the school physician, or of the physician appointed
57 by the school committee, stating that after examination it is the opinion
58 of such physician that the child is at least fourteen. Such physician's
59 statement shall be accompanied by a statement signed by the child's
60 parent, guardian or custodian, or, if such child has no parent, guardian
61 or custodian, by the signed statement of the next adult friend. Such
62 signed statement shall contain the name, date and place of birth and
63 residence of the child, and shall certify that the parent, guardian, cus-
64 todian or next friend signing it is unable to produce any of the proofs
1572
LABOR AND INDUSTRIES.
[Chap. 149.
of age specified in this section. Such statement shall be so signed in the 65
presence of the person issuing the employment certificate. The person 66
issuing emplojTnent certificates may, before issuing a certificate, re- 67
quire the parent, guardian, custodian, or next adult friend of the child 68
to appear and approve in WTiting the issuance of said certificate. 69
A certificate relating to the age or place of birth of any child or to 70
any other fact sought to be established in relation to school attendance 71
shall be issued, upon request, by a town clerk, and no fee shall be 72
charged therefor by a town clerk or other official. 73
The superintendent of schools or a person authorized by him in 74
writing may revoke the employment certificate or home permit of any 75
child failing to attend a continuation school or course of instruction 76
when so required by sections twenty-two and twenty-five of chapter 77
seventy-one. Whenever such a certificate authorizing employment of a 78
child elsewhere than in his place of residence is held by him the super- 79
intendent of schools of the town of his employment shall forthwith 80
notify the superintendent of schools issuing the certificate of the child's 81
failure to comply with said section twenty-two. 82
School record
required for
employment
certificate,
issue of.
1S9S. 494, § 4.
R. L. 106.1 31.
1904,432.
190.5,213.
1907,224.
1909.514,
5S59, 145.
1913,779,5 17.
1914,580.
1916,66.
1919, 292, § 13.
Section 88. The school record required by the preceding section 1
shall be filled out and signed by the principal or teacher in charge of 2
the school which the child last attended, and shall be furnished only to 3
a child who, after due examination and investigation, is found to be 4
entitled thereto. Said school record shall state the grade last com- 5
pleted by such child and the studies pursued in completion thereof. It 6
shall state the number of days during which such child has attended 7
school during the twelve months next preceding the time of application 8
for said school record. It shall also gi^•e the name, date of birth, and 9
the residence of the child as shown on the records of the school and the 10
name of the parent, guardian or custodian. If the school record is not 11
obtainable from the principal or teacher in charge of the school which 12
such child last attended, the requirement of a school record may be 13
waived. 14
No such school record shall be issued or accepted and no employ- 15
ment certificate granted unless the child possesses the educational 16
qualifications described in section one of chapter seventy-six; provided, 17
that a child over fourteen who does not possess such cjualifications may 18
be granted a limited employment certificate good only on days when 19
school is not in session. 20
No such school record shall be issued or accepted unless the child has 21
regularly attended the pubHc or other lawfully approvetl schools for 22
not less than one hundred and thirty days after becoming thirteen; 23
provided, that the school record may be accepted in the case of a person 24
who has been an attendant at a public day or other lawfully approved 25
school for a period of not less than seven years, if in the opinion of the 26
superintendent of schools such person is mentally incapable of acquiring 27
the educational qualifications herein prescribed; and provided, further, 28
that the superintendent may suspend this requirement in any case 29
when in his opinion the interests of the child will best be served thereby. 30
Spfoymen't SECTION 89. The employment certificate required under this chap- 1
ils*8^34s*' *^^ shall state the name, sex, date and place of birth and the place of 2
5§4. 9. residence of the child, and describe the color of his hair and eyes and 3
Chap. 149.] labor and industries. 1573
4 any distinguishing facial marks. It shall certify that the child named Jgg^'gos'^ ''
5 in such certificate has personally appeared before the person issuing fy/'A*-*"--
6 the certificate and has been examined, and, except in the case of a §§ s.'o.
7 limited certificate, found to possess the educational qualifications de- 1009] 514,'
8 scribed in section one of chapter seventy-six, and that all the papers re- ilio!'257!'§ 4.
9 quired by section eighty-seven have been duly examined, approved and l9l4;3[6.' ^ '*'
10 filed and that all the conditions and requirements for issuing an employ- 4 0^'i^G\o'''
11 ment certificate have been fulfilled. It shall state the grade last com-
12 pleted by said child. Every such certificate shall be signed in the pres-
13 ence of the person issuing the same by the child in whose name it is
14 issued. It shall state the name of the employer for whom, and the
15 nature of the employment in which, the certificate authorizes the child
16 to be employed. It shall bear a number, show the date of its issue and be
17 signed by the person issuing it. No fee shall be exacted by a town clerk
18 or other official for an employment certificate or for any paper required
19 by sections eighty-seven to ninety-five, inclusive. No duplicate employ-
20 ment certificate shall be issued until it shall appear to the satisfaction
21 of the person authorized to issue certificates that the original has been
22 lost. A record giving all the facts contained on every employment certifi-
23 cate issued shall be filed in the oflSce issuing tlie same, together with the
24 papers required by section eighty-seven. A record shall also be kept of
25 the names and addresses of all children to whom certificates have been
26 refused, together with the names of the schools which said children
27 should attend and the reasons for refusal. All the aforesaid records and
28 papers shall be preserved until such children, if living, have become
29 sixteen. Such records and statistics concerning the issuance of em-
30 ployment certificates as may be prescribed by the department of educa-
31 tion shall be kept, and shall be open to the mspection of said department,
32 its officers or agents. The blank certificates and other papers required in
33 connection with the issuing of emplo^-ment certificates and educational
34 certificates under this chapter shall be furnished to the local school
35 committees by the department of labor and industries, by which they
36 shall be prepared after conference with the department of education
37 and the approval of the forms thereof by the attorney general. Said
38 certificates and papers may bear explanatory matter necessary to facili-
39 tate the enforcement of this chapter or to comply with future legislative
40 requirements.
1 Section 90. Wlioever employs a child under sixteen, or whoever Penalties for
2 procures, or, having under his control a child under sixteen, permits ment d'cEif-''"
3 him to be employed in violation of section eighty-six, shall be pun- si^teen^altering
4 ished by a fine of not less than ten nor more than fifty dollars or cerUfiraTe.'etc.
5 by imprisonment for not more than one month; and whoever con- JUg'Po'll
6 tinues to employ a child under sixteen in violation of said section, after isss! ss, § 2.
7 being notified thereof by a school attendance officer or b'S' an inspector, lioi. 285, § 3.
8 shall for every day thereafter while such employment continues be p. s.'48.'5§i,'4;
9 punished by a fine of not less than fifty nor more than two hundred JHf; llt[ § 1.
10 dollars or by imprisonment for not more than two months; and who- Jsgf,' soli I iv.
11 ever forges, or procures to be forged, or assists in forging a certificate r^lIos §33
12 of birth or other evidence of the age of such child, and whoe\er presents '^o'''*^^'
13 or assists in presenting a forged certificate or evidence of birth to the 1909.514.
14 superintendent of schools or to a person authorized by law to issue i9io.'249.'
15 certificates, for the purpose of fraudulently obtaining the employment \l\l] 70^' * '^'
16 certificate required by section eighty-six, shall be punished by a fine of 209 Mass. 489.
1574
LABOR AND INDUSTRIES.
[Chap. 149.
not less than ten nor more than five hundred dollars or by imprison- 17
ment for not more than one year, or both. \Vhoe\'er, being authorized 18
to sign an employment certificate, knowingly certifies to any materially 19
false statement therein shall be punished by a fine of not less than ten 20
nor more than two hundred dollars. Whoever, without authority, 21
alters an employment certificate after the same is issued shall be pun- 22
ished by a fine of ten dollars. 2.3
Employer to
discharge child
who does not
attend a con-
tinuation
school if re-
quired to do so.
1913,805, § 6.
1919.311, § 4.
Section 91. The employer of any minor between fourteen and 1
sixteen who is required by section twenty-two of chapter seventy-one 2
to attend a continuation school or course of instruction shall cease .3
forthwith to employ such minor when notified in writing by the superin- 4
tendent of schools, or by his representative duly authorized in writing, 5
having jurisdiction over such minor's attendance, of his non-attendance G
in accordance with said section. An employer failing to comply with 7
this section shall be punished by a fine of not less than ten nor more S
than one hundred dollars. 9
Duties of
attendance
olBcers and
inspectors in
regard to illegal
employment of
children-
1878, 257, I 3.
P. S. 48, § 6.
1888,348. § 8.
1894, 508. § 23.
1898, 494, § 8.
R. L. 1011, § 34.
1900, 499. § 2.
1909,514.
§§ 62, 145.
1913. 779, § 20.
1919, 350, § 69.
Penalty, § 180.
Section 92. Attendance officers may visit the factories, workshops, 1
manufacturing, mechanical and mercantile establishments, theatres, 2
and places of public exhibition in their se\eral towns, and ascertain 3
whether any children are employed therein contrary to this chapter, 4
and shall report in writing any cases of such illegal emplojTiient to the 5
superintendent of schools or the school committee and to the depart- 6
ment or its authorized officers or agents. Inspectors shall visit all 7
factories, workshops, manufacturing, mechanical and mercantile estab- 8
lishments within their respective districts, and ascertain whether any 9
children are employed therein contrary to this chapter, and shall enter 10
complaint against whome\'er is found to have violated any of its pro\i- 11
sions. No inspector shall knowingly or wilfully violate any provision 12
of this section. 13
Further duties
of attendance
officers.
1906, 499. ^ 3.
1909.514,
§§ 63, 145
1913.779. § 21.
Penalty. § ISO.
Educational
certificates,
etc.. to be
shown on re-
quest of
officials.
1878, 257, 5 3.
P. S. 48, i 6.
1888. 348,
5§8,9.
1894,508,
§§ 23, 07.
Section 93. An attendance oflncer shall apprehend and take to 1
school, without a warrant, any minor employed in any factory, work- 2
shop, manufacturing, mechanical or mercantile establishment, or in 3
any theatre or place of public exhibition contrary to this chapter; and 4
such attendance officer shall forthwith report to the district court or 5
trial justice within whose judicial district the illegal employment occurs 6
the evidence in his possession relating to the illegal employment of any 7
minor so apprehended, and shall make complaint against whomever 8
the court or trial justice may direct. No attendance officer shall know- 9
ingly and wilfully violate any provision of this section. 10
Section 94. Inspectors, agents of the department of education 1
and attendance officers may require that the employment or educational 2
certificates and lists of minors employed in factories, workshops, manu- 3
facturing, mechanical or mercantile establishments shall be produced 4
for their inspection. A failure so to do upon request shall be prima 5
facie evidence of the illegal employment of any minor whose certificate 6
is not produced or whose name is not so listed. 7
1S98, 494, §§ 6. 8. 1906, 499, 5§ 4,6. 1913, 779, | 22.
R. L. 106, §§ 33. 34.
1909,514,
I 4,6.
I 64. 145.
1919, 350, § 56.
Educational
certificates for
minors be-
tween sixteen
Section 95. No minor over sixteen and under twenty-one shall be 1
employed in a factory, workshop, manufacturing, mechanical or mer- 2
Ch.\P. 14:9.] LABOR AND INDUSTRIES. 1575
3 cantile establishment, except as provided for pupils in co-operative md twenty-
4 courses, unless his employer procures and keeps on file an educational iss?, 433, § 2.
5 certificate showing the age of the minor and his ability or inability to issn! 135: ^ ^'
6 reatl and write as hereinafter provided. Such certificates shall be issued j|g]; 5^^;
7 by the person authorized by section eighty-seven to issue employment f^glj^g^
8 certificates. The person authorized to issue such educational certifi- Me.'^^^'
9 cates shall, so far as practicable, require the proof of age stated in said §§ 33, 35.'
10 section. He shall examine the minor and certify whether or not he loofiUgg]
11 possesses the educational qualifications described in section one of iIos.sh,
12 chapter seventy-six. Every such certificate shall be signed, in the pres- flis^Vra, '"'
13 ence of the person issuing it, by the minor in whose name it is issued. fgil^'g^s^ § 3,
14 Everv emnlover of such minors shall keep their educational certifi- ^ ^
•' f, •' _, . , .' . . , Further
15 cates accessible to any officer mentioned in section ninety-two and penalty, §97.
16 shall return said certificates to the office from which they were issued
17 within two days after the date of the termination of the employment of
18 said minors. If the educational certificate of any minor o\er sixteen
19 and under twenty-one fails to show that said minor possesses the edu-
20 cational qualifications described in section one of chapter seventy-six,
21 no person shall employ such minor while a public evening school is main-
22 tained in the town where the minor resides, unless such minor is a regular
23 attendant at such evening school or at a day school and presents to his
24 employer each week a school record of such attendance. When such
25 record shows unexcused absences, such attendance shall be deemed to
26 be irregular and insufficient. The person authorized to issue educational
27 certificates, or teachers acting under his authority, may, however, excuse
28 justifiable absence. Whoever retains an educational certificate contrary
29 to this section shall be punished by a fine of not less than ten nor more
30 than one hundred dollars.
1 Section 96. Sections eighty-six to ninety-five, inclusive, shall not f^^.P^J^^'^'^^g^"'
2 pre\'ent children of any age from recei\'ing manual training or Indus- 95 inriusive.^^
3 trial education in or in connection with any school in the common- 1919! 356! § se!
4 wealth duly approved by the local school committee or by the depart-
5 ment of education.
1 Section 97. Whoever employs a minor in violation of section j'l'™'^',*^ _'",^^^,
2 ninetv-five shall be punished by a fine of not more than one hundred niMt Jf miii<:.r
„ 1 ,, • ^ „,„ without educit-
3 dollars. ISS?. 433, § 2. 1889, 135. 1891, 317. tional certifi-
1894, 508, § 70. R. L. 108, § 35. 1909, 614, « 66, 145. ^ate.
1898, 494, § 7. 1902, 183. 1913, 779, § 23.
1 Section 98. A parent, guardian or custodian who permits a minor Penalty on
2 to be employed in violation of section ninety-five shall be punished allowing" minor
3 by a fine of not more than twenty dollars. Fines imposed under this w.thouTcduca-''
4 and the preceding section shall enure to the use of the evening schools ^'^°^^' ''^''■''^-
5 of the town where the violation occurs.
1887, 433, § 2. 1894, 508, § 70. 1902, 183.
1.S89, 135. 1898, 494, § 7. 1909, 514, §§ 66, 145.
1891, 317. li. L. 106, § 35. 1913, 779, § 23.
1 Section 99. W^omen and children, five or more in number, who are Hours for
2 employed in the same factory shall be allowed their mealtimes at the women °md
3 same hour, except that any such persons who begin work in such factory 5887,1"5, § i.
4 at a later hour in the morning than other such persons employed therein ^^^fj "^f 1 1^;
5 may be allowed their mealtimes at a different hour; but no such If^j^^}^
6 persons shall be employed during the regular meal hour in tending the 210 Mass. 387,
1576 LABOR AND INDUSTRIES. [ChAP. 149.
machines or doing the work of any other women or children in addition 7
to their own. 8
ilsytlis'^'^'' Section 100. No child or woman shall be employed for more than 1
i894'.5os, s'^ hours at one time in a factory or workshop in which five or more 2
R £''106 ^^'-"'^ persons are employed without an interval of at least forty-five 3
lim'sii minutes for a meal; but such child or woman may be so employed for 4
§§68.71,' 145. not more than six and one half hours at one time if such employment 5
ends not later than one o'clock in the afternoon and if he or she is then 6
dismissed from the factory or workshop for the remainder of the day; or 7
for not more than seven and one half hours at one time if he or she is 8
allowed sufficient opportunity for eating a lunch during tlie continuance 9
of such employment, and if such employment ends not later than two 10
o'clock in the afternoon, and he or she is then dismissed from the factory 11
or workshop for the remainder of the day. An employer, superintendent, 12
overseer or agent who violates any provision of this or the preceding 13
section shall be punished by a fine of not less than fifty nor more than 14
one hundred dollars. 1.5
Application of SECTION 101. The two preceding sections shall not applv to iron 1
the two preced- -ii i i i- i "^^ .'
'"^S'=?,''?°| . works, glass works, paper mills, letterpress establishments, print works, 2
1S94.' 508', § 28. blcacliing works or dveing works; and the department, if it is proved to 3
isJosiisM,' ' ■ its satisfaction that in any other class of factories or workshops it is 4
ili2!'726% 5. necessary, by reason of the continuous nature of the processes or of 5
1919,350, §69. special circumstances affecting .such class, to exempt it from the two 6
preceding sections and that such exemption can be made without injury 7
to the health of the women or children affected thereby, may, with the 8
appro\'al of the governor, issue a certificate granting such exemption, 9
public notice whereof shall, without expense to the commonwealth, 10
be given in the manner directed by said department. 11
nie°Ii'time''""°° SECTION 102. If a Hiiuor or a woman shall, without the orders, 1
edge™'super- conscut or knowledge of the employer or of the superintendent, over- 2
issylfi's' I's- ^^^^ ^^ other agent of the employer, labor in a manufacturing or me- 3
280. '§1; '336. ' chanical establishment, factory or workshop during a part of any time 4
§§ U.29.' allowed for meals in such establishment, factory or workshop, according 5
1909! 514.' ' to the notice required by section fifty-six, and if a copy of such notice 6
§§ <o, 145. ^^.^^ posted in a conspicuous place in the room where such labor was 7
performed, with a rule of the establishment, factory or workshop for- 8
bidding such minor or woman to labor during such time, neither the 9
employer nor a superintendent, overseer or other agent of the employer 10
shall be held responsible for such labor. 11
'wmfei^and SECTION 103. \Mioever cmploys women or children in any manu- 1
iss2!^i50, § 1. facturing, mechanical or mercantile establishment shall provide for 2
§1^36*7'?' *'^^"" ^^^ ^^^'^ permit them to use suitable seats whenever they are not 3
R- L.'iols, § 41. necessarily engaged in the active duties of their emplo\nnent, and shall 4
§§ 72, 145. also pro\-ide for their use and permit them to use suitable seats while 5
"' ** at work, except when the work cannot properly be performed in a sitting 6
position. Whoever violates this section shall be punished by a fine of 7
not less than ten nor more than thirty dollars. 8
nhetn^Hor^^' Section 104. No person shall employ, exliibit or sell, apprentice or 1
apprar'in" give away, a child under fifteen for the purpose of employing or ex- 2
Chap. 149.] labor and industries. 1577
3 hibiting him in dancing on the stage, playing on musical instruments, theatrical cxhi-
, . . ,1 . • ■ ]• s ■ A. bitions. etc.
4 smging, walkmg on a wire or rope, or riding or periorming as a gymnast, is7j. 172.
5 contortionist or acrobat in a circus, theatrical exhibition or in any public isgi.Ms! *'
6 place, or cause, procure or encourage such child to engage therein; but i89s^'3g4
7 this section shall not prevent the education of children in vocal and f^^- Jo]'' i ^'^•
8 instrumental music or dancing or their employment as musicians in a .|K%"'^,<,
9 church, chapel, school or school exhibition, or prevent their taking part ~
10 in any festi\'al, concert or musical exhibition upon the special written
11 permission of the aldermen or selectmen. Whoever violates this section
12 shall be punished by a fine of not more than two hundred dollars or by
1.3 imprisonment for not more than six months.
1 Section 105. A license shall not be granted for a theatrical exhibi- License not to
2 tion or public show in which children under fifteen are employed as exhibitions in
,-, . , , J • • J • !• J p , . , -* ■ which children
.j acrobats or contortionists or in any reats 01 gymnastics or equestrianism, under fifteen
4 or in which such children attending the public schools are employed or 1874.^279!
5 allowed to take part as performers on the stage in any capacity, or if, Rs*.'4f,§9.
6 in the opinion of the board authorized to grant licenses, such children J*®^' lot', f 4"
7 are employed in such a manner as to corrupt their morals or impair Is^v-^us
8 their health; but this section shall not prevent granting the special per-
9 mission authorized by the preceding section.
PROVISIONS as to health AND SAFETY.
1 Section lOG. All industrial establishments shall provide fresh and PQlJo'^Jiov"'"''*^'''
2 pure drinking water to which their employees shall have access during '^ot! 5,^7. § 5.
3 working hours. Any person owning, in whole or in part, managing, « 78, 145.
4 controlling or superintending any industrial establishment in which this " '^'
5 section is violated shall, on the complaint of the local board of health,
6 the selectmen of a town or an inspector, be punished by a fine of one
7 hundred dollars.
1 Section 107. The water used for humidifying purposes bj' any water for
2 person operating a factory or workshop shall be of sucli a degree of 1908,325',"*
3 purity as not to give rise to any impure or foul odors, and shall be so ^^ ^' ^'
4 used as not to be injurious to the health of persons employed in such
5 factories or workshops. Whoever violates this section shall be punished
6 by a fine of not less than ten nor more than one thousand dollars.
1 Section 108. In every weaving and spinning department in a textile Thermometers
2 factory wherein water is introduced for humidifying purposes there humfdity^
3 shall be provided, maintained and kept in correct working order, for {olS'tloifs:
4 the purpose of recording and regulating the humidity of the atmosphere '"'"• ^^°' ^ '^^■
5 and the temperature, at least one set of standardized wet and dry bulb Penalty, § 112.
() thermometers, and, if requu-ed by an inspector, two sets of such ther-
7 mometers, and the following regulations shall be observed in their use:
8 (a) The thermometers shall be placed as directed or sanctioned by an
9 inspector, and be plainly visible to the workers, (b) The occupier or
10 manager or person for the time being in charge of the weaving or spin-
11 ning department shall read the thermometers thrice in the day, namely,
12 between seven and eight o'clock in the forenoon, between ten and eleven
13 o'clock in the forenoon and between three and four o'clock, except in
14 rooms lighted by gas, and then between four and five o'clock, in the
15 afternoon of e\ery day when persons are employed in any weaving
1578
LABOR AND INDUSTRIES.
[CH.\P. 149.
or spinning department, and he shall record the readings of each ther- 16
mometer in such department at each of the said times upon a form 17
provided therefor, which, together with the regulations relating thereto, 18
shall be furnished by the department of labor and industries. The 19
records of the readings shall not be destroyed until the inspector in 20
whose district the factory is situated has examined them and given his 21
consent to their destruction. 22
Section 109. The preceding section shall not apply to textile
factories ecjuipped with such a number and type of standardized self-
Section 108
not applicable
to textile
factories ...
equipped with registering hygrometers, or psychrometers, or such a hygrometric
otherapproved " o *. tD x. .o
testing devices.
1010,543,
H2,3.
1912,726, §5.
1919. 350, § 69.
system as the department appro\'es, or using the sling hygrometer
frequently to determine the actual moisture and temperature of the
weaving or spinning department; provided, that the manner of using
all such instruments or such system is approved by the industrial health
inspector in whose district the factory is situated, and that the records
of the readings from said instruments or system are not destroyed with-
out the knowledge and consent of such inspector.
1
2
3
4
5
6
7
8
9
10
Limits of
humidity.
1910,543, § 4,
Section 110. No owner, occupier or manager or person for the
time being in charge of a textile factory shall permit the relative hu-
Pcnaity, § 112. midity in a weaving or spinning department in the textile factory under
his control to exceed the following limits:
I.
II.
III
I.
II.
III.
Dry Bulb
Wet Bulb
Dry Bulb
Wet Bulb
Thermometer
Thermometer
Percentage
Thermometer
Thermometer
Percentage
Readings.
Readings.
of
Readings.
Readings.
of
Desrees
Degrees
Humidity.
Decrees
Degrees
Humidity.
Fahr.
Fahr.
Fahr.
Fahr.
60
58
88
78
73.5
77
61
59
88
79
74.5
77.5
62
60
88
80
75.5
77.5
63
61
88
81
76
76
64
62
88
82
76.5
74
65
63
88
83
77.5
74
66
64
88
84
78
72
67
65
88
85
79
72
68
66
88
86
80
72
69
67
88
87
80,5
71
70
68
88
88
SI. 5
71
71
68.5
85.5
89
.82.5
71
72
69
84
90
83
69
73
70
84
91
.S3. 5
68
74
70.5
81.5
92
84-5
68
75
71.5
81.5
93
85.5
68
76
72
79
94
86
66
77
73
79
95
87
66
Sources of
water for
humidifying.
1910. 543, § 5.
1912, 726 § 5.
1919, 350, § 69.
Penalty, § 112,
Section 111. Water used for humidifying purposes in a textile 1
factory shall be taken either from a public suppK' of drinking water, or 2
from some other source of pure water, or from a supply of water which, 3
although in the opinion of the department not suitable for drinking 4
purposes, is sufficiently free from impurities to be not dangerous to 5
the health of employees when used for humidifying puri)oses; aiul all 6
ducts for the introduction or distribution of humidified air shall be 7
kept clean. 8
Section 112. ^Yhoever fails to comply with any provision of sec- 1
tions one hundred and eiijht to one hundred and ele\'en, inclusive, after 2
Penalty for
violation of
sections 108 to
1910,543.5 6; being requested so to do bv an inspector, shall be punished bv a fine of 3
1912,726,15. 4. 4.U cr... ] II "^ ' 1
not more than nttv dollars. 4
Chap. 149.] labor and industries. 1579
1 Section 11.3. Every factory, workshop, manufacturing, mechanical nfus'tTeprop-'
2 and mercantile establishment shall be well lighted, well \entilated and ffb- lighted.
,..,. ventilated and
3 kept clean and tree from unsanitary conditions, according to reasonable kept dean.
4 rules and regulations adopted by the department with reference thereto, p.'s. ro4,'§ i.i.
1894,481, § 23. 1907.503,5 2. 1912,318.
R. L. 104, § 41. 1909, 514, §§ 94, 145. 1914, 32S, § 2.
1 Section 114. The industrial health inspectors shall, when obtaining investigations
2 information concerning the proper lighting of industrial establishments, heaith'i^spe!-
3 make such investigation concerning the eye and vision in their relation ofTndustries'on
4 to occupational diseases, including injuries to the eyes of employees igif ^^Js ^ i
5 and to the pathological effects produced or promoted by the circum- }9J2. 726, § s
6 stances under which the various occupations are carried on, as in the
7 opinion of the department is practicable, and it shall from time to time
8 issue such printed matter containing suggestions to employers and
9 employees for the protection of the eyes of the employees as it may
10 deem advisable.
1 Section 115. If it appears to an inspector that in anv industrial Devices for
2 establishment, from the nature of the work or the machinery used in jury to eyes.
3 connection therewith, or from other circumstances, there is danger of in- violation of
4 jury to the eyes of employees engaged in such work, and that the danger sucrd"vice"."^
5 of injury may be decreased or prevented by any mechanical device or jfy.'s."'^'
6 other practicable means, he shall, if the department so directs, order in ^f'l;!^'''
7 writing that such de\dce or other means shall be provided therein; and iais.sso, § C9.
8 the proprietors and managers of the industrial establishment shall coni-
9 ph' with the order. Violations of this section shall be punished by a fine
10 of not less than five nor more than two hundred dollars for each week
11 during which the violation continues, but a criminal prosecution for
12 such violation shall not be begun unless a person has for four weeks
13 after the receipt of a written order from an inspector neglected to com-
14 ply therewith.
1 Section 116. Upon the request of any inspector of the division of investigation
2 inspection of the department of public safety or upon the request of on request of
3 any five employees in a factory or workshop, the department shall hl^pe^toror
4 investigate and ascertain whether or not such factory • or workshop pub"i' STfety"'
5 is adequately lighted. If the department is of opinion, after such IffJ"^'
6 investigation, that the factory or workshop is not properly lighted, ss'gg^foj
7 it shall notify the owner or person in charge, anfl shall specify what
8 changes should be made in order to light it properly, and the owner or
9 lessee thereof shall make the changes so specified as soon as it can be
10 done with reasonable tliligence. If such owner or lessee fails to comply
11 with any such order he shall be punished by a fine of not more than
12 five hundred dollars, provided such failure is not the result of causes
13 beyond his control.
1 _ Section 117. A factory where five or more persons and a work- ventilation
of fartorles.
1S87. 173. § 1.
-- - 37.
51.
2 shop where five or more women or children are employed shall, while
3 work is carried on therein, be so ventilated that the air shall not become ]^^f jg^' |
4 so impure as to be injurious to the health of the persons employed li%^}*,
5 therein, and so that all gases, vapors, dust or other impurities injurious
6 to health, generated in the course of the manufacturing process or
83. 14.';
Penalty. § 12
1580
LABOR AND INDUSTRIES.
[Chap. 149.
handicraft carried on therein, shall so far as practicable be rendered 7
harmless. 8
Section 118. If, in such a workshop or factory, any process is
Devices for
removal of
^qI' 1VQ « 9 carried on bv which dust is caused which may be inlialed to an iniurious
188/. 176, i ■:■ » 1 1 1 . l' - .
1894.508,138. extent by tlie persons employed therein, and it appears to an inspector
1909! S14.' " that such inlialation would be substantially diminished without unreason-
able expense by the use of a fan or by other mechanical means, such fan
enaty, . ^^ Qthcr mechauical means, if he so directs, shall be provided, main-
tained and used.
Emery wheels,
etc., to be pro-
vided with
devices for
removing dust.
1903. 475, § 1.
1909. 514,
§§ 86, 145.
Penalty, § 122.
Section 119. Any person operating a factory or workshop where 1
emery wheels or belts or buffing wheels or belts injurious to the health 2
of employees are used shall provide such wheels and belts with a hood 3
or hopper connected with suction pipes, and with fans or blowers, in 4
accordance with the following section, which apparatus shall be .so 5
placed and operated as to protect any person using such wheel or belt 6
from the particles or dust produced by its operation, and to convey 7
the particles or dust either outside of the building or to some receptacle 8
so placed as to receive and confine them. 9
fmire!'"' Section 120. Every such wheel shall be fitted with a sheet iron or
i9o"9 M4, ^^^^ ^^o^ hood or hopper of such form and so placed that the particles
IS 87, 145. or (lust produced by the operation of the wheel or of any belt connected
Penalty, § 122. therewith shall fall or will be thrown into such hood or hopper by cen-
trifugal force; and the fans or blowers shall be of such size and shall
be run at such speed as will produce a volume and velocity of air in
the suction and discharge pipes sufficient to convey all particles or
dust from the hood or hopper through the suction pipes and so outside
of the building or to a receptacle as aforesaid. The suction pipes and
connections shall be suitable and efficacious, and such as shall be ap-
proved by an inspector.
1
2
o
O
4
5
6
9
10
11
Application of
sections 119
and 120.
1903, 475, § 4.
1909, 514,
§§ 88, 145.
Section 121. The two preceding sections shall not apply to grind-
ing machines upon which water is used at the point of grinding con-
tact, nor to solid emery wheels used in sawmills or in planing mills
or in other woodworking establishments, nor to any emery wheel six
inches or less in diameter used in establishments where the principal
business is not emery wheel grinding.
Penalty for
violation of
sections 117 to
121, inclusive.
1887, 173, § 3.
1894, 508, § 39.
R. L. 106, § 53.
1903, 475, § 0.
1909. 514,
§§ 85, 90, 145.
1912, 726,
§§S,S.
1915, 69.
Section 122. Violations of sections one hundred and seventeen to 1
one hundred and twenty-one, inclusive, shall be punished for the first 2
offence by a fine of not less than twenty-five nor more than one hundred 3
dollars, and for a subsequent offence by the fine aforesaid or by im- 4
prisonment in jail for not more than two months, or both. A criminal 5
prosecution for the violation of section one hundred and seventeen or 6
one hundred and eighteen shall not be begun unless an employer has 7
for four weeks after the receipt of a written order from an inspector 8
neglected to comply therewith. 9
fa°ct''orie°etcl Section 123. Lispcctors, upou receipt of a notice signed by any 1
S?th dui?''^'' person having knowledge of the . facts that any factory or workshop 2
subject to sections one hundred and nineteen and one hundred and 3
removers.
Chap. 149.] labor and industries. 1581
4 twenty is not provided with the apparatus prescribed thereby, shall Jgolisu;^^'
5 visit and inspect such factory or workshop, and for that purpose may flil^/ig^-
6 enter therein during working hours; and if they ascertain that the
7 owner, proprietor or manager thereof has failed to comply with said
8 sections, they shall make complaint to a court or trial justice ha\ing
9 jurisdiction, and cause such owner, proprietor or manager to be
10 prosecuted.
1 Section 124. In every manufacturing establishment where the Communica-
2 machinery is operated by steam, communication shall be provided engine room.
3 between each room where such machinery is placed and the room where \tlo] 179' '' ''
4 the engineer is stationed by means of speaking tubes, electric bells or ^^l] '{H] | fg;
5 appliances to control the motive power, or such other means as shall 19°^^ ^^*'
6 be satisfactory to an inspector, if in his opinion such communication
7 is necessary.
1 Section 125. An occupant or manager of a manufacturing establish- Penalty tor
2 ment who ^•iolates the preceding section shall forfeit to the common- ^reced?ng°
3 wealth not less than twenty-five nor more than one hundred dollars. is'86°i73.
4 No prosecution for such \'iolation shall be begun unless a person has }||J;4|?;
5 for four weeks after the receipt of a written order from an inspector ^^ ^-' °^-
6 neglected to comply therewith.
R. L. 101, §§ 3S, 39. 1909. 514, §§ 91, 92. 145.
1 Section 126. No outside or inside doors of any building where Doori> not to
2 operatives are employed shall be so locked, bolted or otherwise fastened mgwo/king"^"
3 during the hours of labor as to prevent free egress. Any person ha\'ing iss4!s2,
4 charge of a building or room therein any exit door of which shall be fs94' 4^1
5 found locked, bolted or otherwise fastened contrary to this section 5 §53,«l
6 shall be punished by a fine of not less than twenty-five nor more than i?09. 514,'
7 five hundred dollars or by imprisonment for not more than one year, io^.'see.'
8 or both.
1 Section 127. The belting, shafting, gearing, drums and all ma- Guards tor
2 chinery having movable parts in all factories, workshops, mechanical fsTT^'a^'l^ § 1.
3 and mercantile establishments, if so placed as, in the opinion of the fs94', 1st'. | 23.
4 department, to be dangerous to employees while engaged in their ordi- fgoVios'l"^-'"
5 nary duties, shall be securely guarded so far as practicable. No ma- fql^Ku
6 chinery except steam engines in a factorv, workshop, mechanical or §5 94, 145.
• • *' . . . . 191'^31S
7 mercantile establishment shall be cleaned while running if wTitten ob- 1914! 32s! § 2.
8 jection is made by an inspector. laio, 350, § 09. Penalty, § iso,
1 Section 128. The owner of a cotton factory erected after INIay Traversing
2 twenty-eighth, eighteen hundred and ninety-six, in which there is any certain'""
3 traversing carriage of a self-acting mule installed, or of any cotton fac- isgel'sll'.
4 tory erected previously to such date in which thereafter such traversing fgogjit'lgs^'
5 carriage is installed, who permits such carriage to travel within twelve
6 inches of any pillar, column, pier or fixed structure, shall be punished
7 by a fine of not less than twenty nor more than fifty dollars.
1 Section 129. The openings of hoistways, hatchways and well ho'isl'wa^^'"
2 holes upon every floor of a factory or mercantile building shall be pro- ^'.^g^^'"/^
3 tected by sufficient trapdoors or self-closing hatches, or such other is". 214, § 2.
4 safeguards as an inspector directs; and due diligence shall be used to rs82.2os. ^"'
1582
LABOR AND INDUSTRIES.
[Chap. 149.
R ^L loi 1 43 keep such trapdoors closed at all times except when in actual use by 5
1913' 806 i 13' ^^^ occupant of the building ha^■ing the use and control of the same. G
202 Mass. 82. 213 Mass 573. Penalty, § ISO.
Section 130. Explosive or inflammable compounds shall not be so 1
stored or used in anv factory as to obstruct or render hazardous the 2
3
100. 145. Penalty, § ISO.
Storage of
e.\plosives.
1.S81, 137, § 1.
P. S. 104, § 21. .
1894,481, §46. egrcss of operatives in case or fare.
R. L. 104, I 47. 1909,314,
Ciuards for
shuttles.
1904, 347.
1909, 514,
§§ 101, 143.
1919, 350, §
69.
Section 131. Any person owning, managing or operating a factory 1
where looms are used shall equip them with such guards or other devices 2
as will prevent injury to employees from shuttles falling or being thrown 3
from the looms. Such guards or devices shall be made of such material 4
and be placed in such manner as shall be appro\Td by the department. 5
Whoever violates this section shall be punished by a fine of not more 6
than one hundred dollars for every week during which the violation 7
continues. 8
Suction
shuttles
prohibited.
1911,281,
§S 1.2.
Section 132. No proprietor of a factory nor any officer or agent or 1
other person shall require or permit the use of suction shuttles, or any 2
form of shuttle in the use of which any part of the shuttle or any 3
thread is put in the mouth or touched by the lips of the operator. 4
Whoever violates this section shall be punished by a fine of not less 5
than fiftv dollars. 6
7ss7,'i(«.'''''^^ Section 133. In every industrial establishment there shall be
1888 305 provided suitable, adequate and convenient water closets and washing
R^f 106 1 4- ^^^^ilities, separate for each sex and plainly so designated, of such
1909! 514,' number, in such location, and so constructed, lighted, ventilated
§§ 79, 145.
1914, 328, § 1;
726.
1919, 350, § 69.
Penalty, § ISO.
in sucn location, ana so constructea, ugnteci, A'entuatea, ar-
ranged and maintained as may be determined by such reasonable rules
and regulations as the department may adopt. No person shall be
allowed to use a closet or privy provided for the use of persons of the
opposite sex. If any such establishment is so located that a connection 8
with a sewer system is, in the opinion of the department, impossible or 9
impracticable, it shall provide such suitable toilet and washing facilities 10
as the department may require. 11
men? ofTx- Section 134. The owner, lessee or occupant of every such establish-
Png toiTet"^^"^ ment shall make the changes necessary to conform thereto. If such
1888*305 changes are made upon the order of an inspector by the occupant or
1894! .508, § 34. lesscc, hc mav, within thirtv davs after completion, bring an action against
1909! 614.' any other person having an interest in such premises, and may recover
i9]0,'239,'§ 1. such proportion of the expense of making such changes as the court ad-
judges should justly and equitably be borne by the defendant.
Sr^vlora'uol'of Section 135. A Criminal prosecution shall not be begun against a 1
sriionf""'"" person for a violation of any pro\ision of the two preceding sections 2
1894: 608. 1 36 unlcss he has, for four weeks after the receipt of a ^\Titten notice from an 3
Kg^L! 106'. § 50. inspector of the changes necessary to coini>ly with said .sections, neg- 4
i9if'259^«2 l^<^ted to make such changes. A notice shall be sufficient under this 5
section if given to one member of a firm, or to the clerk, cashier, secre- 6
tary, agent or any other officer having charge of the business of a cor- 7
poration, or to its attorney, or. in case of a foreign corporation, to the 8
Chap. 149.] labor and industries. 1583
9 officer having charge of such factory or workshop; and such officer
10 shall be personally liable for the amount of any fine if a judgment
11 against the corporation is unsatisfied.
1 Section 136. If it appears to an inspector that any act, neglect or Notice to de-
2 fault in relation to any drain, water closet, earth closet, privy, ash pit, pubUcTeaTth
3 water supply, nuisance or other matter in any industrial establishment fonSiUm^^''
4 is punishable or remediable under any law relative to the preservation JsU'soU 35
5 of the public health, but not under this chapter, he shall give written f^^- loj'- § *^-
6 notice thereof to the board of health of the town where such establish- §§ si. hs
7 ment is situated, and such board of health shall thereupon inquire into
8 the subject of the notice and enforce the laws relative thereto.
1 Section 1.37. The proprietor of every foundry engaged in the XoUet rooms
2 casting of iron, brass, steel or other metal, and employing ten or more igoe^Sso"^'*'
3 men, shall establish and maintain, except in towns where it would be |§%2^,'h5.
4 impracticable by reason of the absence of public or private sewerage
5 or of any running water system, a toilet room of suitable size and con-
6 dition for the men to change their clothes therein, and provided with
7 wash bowls, sinks or other suitable set appliances connected with run-
8 ning hot and cold water, and also a water closet connected with running
9 water and separated from the said toilet room. The said water closet
10 and toilet room shall be connected directly with the foundry building,
11 properly heated, \-entilated and protected, so far as may be reasonably
12 practicable, from the dust of the foundry. Whoever fails to comply
13 with this section after being requested so to do by an inspector shall be
14 punished by a fine of not more than fifty dollars.
1 Section 138. Whoever wilfully destroys, defaces, injures or defiles Penalty for
2 any toilet appliances provided in any place of employment shall be LppUaifce™ ^'
3 punished by a fine of not more than fifty dollars. 1914, i64.
1 Section 139. In any mercantile or manufacturing establishment Lockers tor
2 or hotel where the nature of the work renders it necessary for any or all lyitiais,
3 employees, before beginning work, to make a substantially complete 1917,72.
4 change of clothing, exclusive of underclothing, separate lockers, closets
5 or other receptacles, each with a lock and key, shall be pro\'ided for the
6 use of such employees. Whoever violates this section shall be punished
7 by a fine of not less than five nor more than twenty dollars.
1 Section 140. Suitable receptacles for expectoration shall be pro- spittoons.
2 vided in all factories and workshops by the proprietors thereof, the Hog, lli. ~'
3 same to be of such form, construction and number as shall be satis- ^^ ^°^- '*^-
4 factory to the board of health of the town where the factory or workshop ^''"»'''*>' § '*o
5 is situated.
1 Section 141. Every person operating a factory or shop where Medical appii-
2 machinery is used for any manufacturing or other purpose except for igoyt'm.
3 elevators, or for heating or hoisting apparatus, shall keep and maintain, j§"fo//H5.
4 free of expense to the employees, such medical or surgical chest, or jgJj'Sffi
5 both, as shall be required by the department, containing plasters, band- wis! iio!
6 ages, absorbent cotton, gauze, and all other necessary medicines, instru-
7 ments and appliances for the treatment of persons injured or taken
1584
LABOR AND INDUSTRIES.
[Chap. 149.
ill upon the premises. Every such person employing one hundred or 8
more persons shall, if so required by the department, provide accom- 9
modations satisfactory to it for the treatment of persons injured or 10
taken ill upon the premises, and also suitable and sanitary facilities for 11
heating or warming food to be consumed by those employees of the 12
factory or shop who so desire. Every person carrying on a mercantile 1.3
establishment where twenty or more women or children are employed 14
shall in the manner aforesaid provide such medical and surgical chest 15
as the department may require. Whoever violates any provision hereof 16
shall be punished by a fine of not less than five nor more than five 17
hundred dollars for every week during which such violation continues. 18
draning^print- SECTION 142. All publishers and printers shall use a sanitary cloth 1
ine presses. Qv Other Sanitary material in cleaning their presses. Penalty, § iso. 2
License.
1891,357, § 1.
1892,296, § 1.
1S93, 246, ^ 1,
1894, 508, § 44.
1898, 150, § 1,
R. L. 106, § 50.
1905, 238.
1907, 537, § 5.
1909,514,
§§ 106, 145.
1912, 726, § 5.
1919. 350, § 09.
Penalty, § 146.
MANUFACTURE OF CLOTHING IN TENEMENT HOUSES.
Section 143. A room or apartment in a tenement or dwelling 1
house shall not be used for the purpose of making, altering, repairing 2
or finishing therein wearing apparel of any description, except by the 3
members of the family dwelling therein; and a family desiring to make, 4
alter, repair or finish wearing apparel of any description in a room or 5
apartment in a tenement or dwelling house shall first procure a license 6
therefor from the department. A license may be applied for by and 7
issuetl to any member of a family desiring to do such work. No person 8
shall hire, employ or contract with a member of a family which does 9
not hold a license therefor to make, alter, repair or finish such wearing 10
apparel in any room or apartment in a tenement or dwelling house as 11
aforesaid. Every room or apartment where such wearing apparel is 12
made, altered, repaired or finished shall be kept in a cleanly condition 13
and be subject to the inspection and examination of the department to 14
ascertain whether said room or apartment or such wearing apparel or 15
any parts thereof are clean antl free from vermin and from infectious or 16
contagious matter. A room or apartment in a tenement or dwelling 17
house, which is not used for living or sleeping purposes and is not con- 18
nected with a room or apartment used for living or sleeping purposes and 19
has a separate and distinct entrance from the outside shall not be subject 20
to this section, nor shall this section prevent the employment of a tailor 21
or seamstress by any j^erson or family for the making of wearing apparel 22
for the use of such person or family. Every person hiring, employing 23
or contracting with a member of a family holding a license hereumler 24
for making, altering, repairing or finishing wearing apparel to be done 25
outside the premises of such person shall keep a register of the names 26
and addresses plainly written in English of the persons so hired, em- 27
ployed or contracted with, and shall forward a copy of such register 28
once a month to the department. 29
Notice to local
boarcLs of
health.
1891,357, § 2.
1893, 248, 5 2.
1894, 508, § 45.
1898, 1.50, § 2.
R. L. 106, § 57.
1907, 537, § 5.
1909. 514,
§§ 107, 145.
Section 144. If an inspector finds evidence of infectious or con-
tagious disease or of vermin present in a workshop, or in a room or
apartment in a tenement or dwelling house where wearing apparel is
made, altered or repaired, or in goods manufactured or in process of
manufacture therein, he shall report tlie same to the department, which
shall notify the local boanl of health to examine said workshop, room
CH.A.P. 149.] L.4.B0R AND mDUSTRIES. 1585
7 or apartment and the materials used therein; and if the board of health 1912.726, § 5.
8 finds that said workshop, tenement or dwelHng house is in an unhealthy ' ' ' "
9 condition, and that the clothing and materials used therein are unfit
10 for use, it shall issue such orders as public safety may require.
1 Section 145. Whoever sells or exposes for sale wearing apparel of i^^^n/^d'e'^n'un-
2 any description made in a tenement or dwelling house for which the licensed tene-
i, .1 1 11* 1.1 111' -11 J.* nient houses.
3 family dwelhng therem has not procured the license required by section isgi.ssr. §4.
4 one hundred and forty-three shall have affixed to each article of wearing Hm. he. § i.
5 apparel a tag or label not less than two inches in length and one inch {fgl; fso.' 1 1.^'
6 in width, upon which shall legibly be printed or written the words " tene- ^g^- if^ ^ ^^'
7 ment made" and the name of the state and town where such article §§ 10s. 145.
8 was made. Penalty, § 146.
1 Section 146. No person shall sell or expose for sale anv such article Penalties.
1 ftQ 1 Q -^7
2 of wearing apparel without a tag or label as aforesaid affixed thereto, §§ ,5,'?.
3 or wilfully remove, alter or destroy such tag or label upon any such |f^|;|*'''
4 article when exposed for sale, or sell or expose for sale any such article §5^48,^°3%6.
5 with a false or fraudulent label affixed thereto. Whoever violates any R^ ^^ ^°^'
6 provision of this section or section one hundred and forty-three or one ^?''^if*?;,
7 hundred and forty-fi^'e shall be punished by a fine of not less than fifty 145.
8 nor more than five hundred dollars.
1 Section 147. If it is reported to an inspector or to the department clothing made
2 that ready made articles of wearing apparel of any description are monweaith
3 being shipped to this commonwealth, having been manufactured under 1892,' 296,' § 2.
4 unhealthy conditions, said inspector shall examine said goods and the \lll[ %s, | %.
5 condition of their manufacture; and if they contain vermin or have I907 mt'Is"
6 been made in improper places or under unhealthy conditions, he shall l?°f;o*\*J5
7 so report to the department, which shall thereupon notify the depart- 1912, 726. s 5.
8 ment of public health, which shall make such orders as are necessary
9 to protect the public health.
weekly payment of wages.
1 Section 148. Every person engaged in carrying on a hotel or club weekly pay-
2 in a city, or a factory, workshop, manufacturing, mechanical or mer- i's79, i28"*^^'
3 cantile establishment, mine, quarry, railroad or street railway, or tele- f88li,^8*7',^ ^^'
4 phone, telegraph, express or water company, or in the erection, alter- flsV.I'gg. § 1.
5 ation, repair or removal of any building or structure, or the construction HH' HI ^ '•
6 or repair of any railroad, street railway, road, bridge, sewer, gas, water \l^^■^g^^
7 or electric light works, pipes or lines, shall pay weekly each employee i896!24i;334.
8 engaged in his business the wages earned by him to within six days of i899,'247:
9 the date of said payment; but any employee leaving his emplojinent rT: to?)', 1 62.
10 shall be paid in full on the following regular pay day; and any em- Hollt^'.
11 ployee discharged from such employment shall be paid in full on the Jg^^'^g^-
12 (lay of his discharge, or in Boston as soon as the laws requiring pay St^^jg^^tis
13 rolls, bills and accounts to he certified shall have been complied with; 1910.350. '
14 and the commonwealth, its departments, officers, boards and commis- i9H.'i47:
15 sions shall so pay every mechanic, workman and laborer employed by }9}6;229.
16 it or them, and every person employed by it or them in any penal or Igififlo.sn?.
17 charitable institution; and every county and city shall so pay every l^gjJassHa
18 employee engaged in its business the wages or salary earned by him, un- }7| Mass! 230:
19 less such mechanic, workman, laborer or employee requests in writing to i95MaS548'.
1586
LABOR AND INDUSTRIES.
[Chap. 149.
206 Mass. 417.
2 Op. A. G. 175.
Op. A. G.
(1919) 112.
be paid in a different manner; and every town shall so pay each em- 20
ployee in its business if so required by him; but an employee absent 21
from his regular place of labor at a time fixed for pajonent shall be paid 22
thereafter on demand. This section shall not apply to an employee of 23
a co-operative corporation or association if he is a stockholder therein 24
unless he requests such corporation to pay him weekly. The depart- 25
ment of public utilities, after hearing, may exempt any railroad cor- 26
poration from paying weekly any of its employees if it appears that 27
such employees prefer less frequent payments, and that their interests 28
and the interests of the public will not suffer thereby. No person shall 29
by a special contract with an employee or by any other means exempt 30
himself from this section or section one hundred and fifty. Whoever 31
violates this section shall be punished by a fine of not less than ten nor -32
more than fiftv dollars. 33
Warrant for
violation of
preceding
section.
1915.214.
Section 149. A justice or clerk of a district com-t, or a trial justice, 1
may upon the application of any employee issue a summons to an em- 2
ployer to appear and show cause why a warrant should not issue against 3
him for a violation of the preceding section. Upon the return of such 4
summons and after a hearing the justice may issue a warrant upon the 5
complaint of any such employee. 6
Complaint for
violation of
section 148.
1886. 87.
§§ 2-4.
1887, 399. § 2.
1891. 239.
1894, 508,
§§ 52-54.
1895, 438.
R. L. 106, § 63.
1909, 514,
§§ 113. 145.
1916, 14.
1919, 350, § 69.
206 Mass. 417.
Section 150. The department may make complaint against any 1
person for a violation of section one hundred and forty-eight within 2
three months after the date thereof. On the trial no defence for failure 3
to pay as required, other than the attachment of such wages by trustee 4
process or a valid assignment thereof or a \alid set-off against the same, 5
or the absence of the employee from his regular place of labor at the 6
time of payment, or an actual tender to such employee at the time of 7
payment of the wages so earned by him, shall be valid. The defendant 8
shall not set up as a defence a payment of wages after the bringing 9
of the complaint. An assignment of future wages payable weekly under 10
section one hundred and forty-eight shall not be valid if made to the 11
person from whom such wages are to become due or to any person on 12
his behalf, or if made or procured to be made to another person for the 13
purpose of relieving the employer from the obligation to pay weekly. 14
manX!;tories SECTION 151. Pcrsons Carrying on any manufactm-ing business em-
when over one ploviug onc hundred or more persons shall, on the da-s- chosen as pav
hundred i . o i !■ i ■ i i ' , • • i *■
employed. day, pav such ot their emplo\'ees as are on that dav working in the
1911 249 51.'. . ' .
manufacturing establishment, before the close of the regular working
hours.
Deductions for
tardiness.
1911,249, § 2.
1918. 192.
§§ 1.2.
Section 152. There shall not be deducted from the wages of an
employee in any factory, workshop, manufacturing, mechanical or mer-
cantile establishment, or from the wages of a mechanic, workman or
laborer, on account of the employee's coming late to work, a sum in
excess of the proportionate wage which would ha-\'e been earned during
the time actually lost. Whoever violates this or the preceding section
shall be punished by a fine of not more than fifty dollars.
Weavers' fines,
1887.361, S 1
Section 153. No system used by manufacturers for grading the 1
1892' 410 i ]■ '^^'^'"^ o^ ^ weaver shall affect or lessen the wages of the wea^•er except 2
1894. 508. § 55 for imperfectious in his own work; and in no case shall the wages of 3
CH-\.P. 149.] LABOR .\ND INDUSTRIES. 1587
4 those engaged in weaA'ing be affected by fines or otherwise unless the R l. loe, § 64.
5 imperfections complained of are first exhibited and pointed out to the §§ii4. 145.
6 person whose wages are to be aiTected; and a fine shall not be imposed
7 upon any person for imperfect weaving unless this section is first com-
8 plied with and the amount of the fines is agreed upon by both parties.
1 Section 154. No employer shall impose a fine upon an employee same subject^.
2 engaged at weaving for imperfections arising during the process of is92!4io!§2J
3 wea\ing. ^^^^oever violates this or the preceding section shall for the \i^t lol, | u.
4 first offence be punished by a fine of not more than one hundred dollars jj^f'if/i^jg
5 and for a subsequent offence by a fine of not more than three hundred it^''.?^'
6 dollars. 155 Mass. 117. 172 Mass. 230. 212 Mass. 315.
1 Section 155. The occupier or manager of every cotton factory shall fP^^weaver""^
2 supply to each person engaged as a weaver in said factory and paid by j\*^/' ^Qe•|}i-
3 the piece, cut or yard a printed or written ticket with each warp which woi'. 304,' § 1.
4 shall contain the following specifications as to the work to be done and §§ ih. 145.
5 wages paid : the number of cuts, the number of yards per cut or piece, penalty, § 157.
6 the price per yard, cut or piece, the number of picks per inch and the
7 number of reeds to the inch. Said occupier or manager shall also supply
8 to each person engaged as a frame tender a specification of the number
9 of roving and price per hank, and to each person engaged as a warper
10 or web drawer a specification of the number of threads in the warp and
11 the rate of compensation, and to each operative paid by the pound a
12 specification of the price to be paid per pound; said specification shall
13 be furnished in each case on a printed or WTitten ticket within three
14 days after said operative begins work.
1 Section 156. The occupier or manager of every textile factory same subject.
2 shall post in every room where any employees work by the job, in §§ i^. '
3 legible writing or printing, and in sufficient numbers to be easily acces- r.°i,.'io6!^ ^'
4 sible to such employees, specifications of the character of each kind of ||o5^'3ol, § 2.
5 work to be done by them, and the rate of compensation. Such specifi- J^°{'i|\*js
6 cations in the case of weaving rooms shall state the intended and maxi- i«
7 mum length of a cut or piece, the count per inch of reed, and the 1919! 193!
S number of picks per inch, width of loom, width of cloth woven in the 1920, 417.
9 loom, and the price per cut or piece, or per pound; or, if pajinent is
10 made per pick or per yard, the price per pick or per yard; and each
11 warp shall bear a designating ticket or mark of identification. In roving
12 or spinning rooms, the number of ro\ing or yarn and the price per hank
13 for each size machine shall be stated; and each machine shall bear a
14 ticket stating the number of the roving or j'arn made upon it. In spooling
15 rooms the boxes shall bear a ticket stating the number of pounds the box
16 contains and the price per pound. The maximum length of a cut or
17 piece shall not exceed its intended length by more than three per cent;
18 but if it appears that a variation in excess of the amount hereinbefore
19 set forth has been caused in whole or in part by any weaver in the em-
20 ploy of any person charged with the violation of this section, it shall be
21 deemed a sufficient defence to a prosecution. The said specifications
22 shall also contain a detailed schedule of the method of computation of
23 the price of cotton or silk or mixed cotton and silk weaving to be paid
24 by the said occupier or manager, and no particular in the specifications
25 shall be expressed by means of symbols, but every particular shall be
1588
LABOR AND INDUSTRIES.
[Chap. 149.
sufficiently clear and complete to enable the operativ'e to determine 26
readily the price payable for the cut or piece. Violation of any provision 27
of this section shall for the first offence be punished by a fnne of one 28
hundred dollars, for the second offence by a fine of two hundred dollars, 29
and for a subsequent offence by a fine of five hundred dollars or by im- 30
prisonment for not more than one month, or both. 31
Penalty for vio-
lation of section
15o and for
interference
with inspector.
1894, 534, § 2.
1901,370. § 2,
R. L. 106. § 68.
1905,304, § 3.
1909,514,
§§ lis, 145.
Section 157. Violation of any provision of section one hundred 1
and fifty-five shall for the first offence be punished by a fine of not 2
less than twenty-five nor more than fifty dollars, and for a subsequent 3
offence by a fine of not less than fifty nor more than one hundred 4
dollars. Whoever interferes with an inspector in the discharge of his 5
duties in connection with the two preceding sections shall be punished 6
as provided in this section. . 7
f°om"wagesGf Section 158. Dcductions shall not be made from the wages of
women orchil- ^-oinen or children paid by the day or hour, and employed in manu-
dren for stop- . i • i i i- i i -i i • •
pin|niachinery. facturiug or mcchanical establishments, while machinery is stopped,
R. h. 106, § 69. if said women or children are refused the privilege of leaving the mill
§§119,145. while the damage to said machinery is being repaired; and if they are
detained in their workrooms during such time they shall not be com-
pelled to make up time lost by such stopping unless compensated there-
for at their regular rates of wages. Whoever violates this section shall
be punished by a fine of not more than twenty dollars.
discharge SECTION 159. A persou engaged in manufacturing who requires
i,*'^?' 2^11^5 1 from his employees, under penalty or forfeiture of a part of the wages
1894, 608. §1. earned by them, a notice of intention to leave such employ shall be
R. L. 106, § 10. liable to a like forfeiture, if, without similar notice, he discharges an
1909.514, 1
H 120, 145. employee.
FREE EMPLOYMENT OFFICES.
Section 160. The department may establish and maintain in such 1
cities as may be selected by it after investigation, with the approval of 2
the governor and council, emplo,\Tnent offices for the purpose of bring- 3
ing together those seeking employment and those desiring to employ, 4
and may maintain such offices now established. The commissioner 5
shall make an annual report as to free employment offices. 6
fnt^'s^anc'uierks Section 161. The commissioucr shall appoint for each of the offices 1
1900,435, provided for in the preceding section a superintendent who shall, under 2
1908. 485, § 1. the direction of the commissioner, perform the duties hereinafter set 3
§s 2,' 145. forth or such as he may require. The commissioner may also appoint 4
1919.350, 4. ^^ assistant superintendent and such clerks as he may deem necessary 5
for the proper conduct of the business of said employment offices. The 6
location of each office established under the preceding section shall be 7
plainly indicated by a proper sign. S
Records of ap-
pHcants for
employment
1906, 435, S 3.
1908,485, I 2.
1909, 514,
§§ 3, 145.
1911, 158.
1920, 412.
Section 162. The superintendents of said employment offices shall
recei\'e applications from those seeking employment and from those
desiring to employ, and shall register them in such manner as may be
prescribed by the commissioner, and shall take such other action as
the commissioner may deem best to promote the purposes of said offices.
Chap. 149.] labor and industries. 1589
6 Said superintendents shall also receive applications from alien immi-
7 grants seeking employment in agricultural labor and from those de-
8 siring to employ immigrants in agricultural labor, and shall take such
9 other action as the commissioner may deem best to promote a more
10 general distribution of alien immigrants throughout the agricultural sec-
11 tions of the commonwealth. In directing applicants for employment to
12 an employer in whose establishment a strike is in progress, the com-
13 missioner, superintendents or other departmental employees shall inform
14 the applicant of the strike.
1 Section 163. No fees shall in any case be taken from those seeking Fees pro-
2 the benefits of said employment offices. Any superintendent or clerk 1900^435,
3 who directly or indirectly charges or receives any fee in the performance ino*8,4S5, § 3.
4 of his duties shall be punished by a fine of not more than one hundred §|°4'f4|'
5 dollars or by imprisonment in jail for not more than one month, and
6 shall be disqualified from holding further connection with said office.
1 Section 164. In registering applications for employment and for Preference to
2 employees wanted, preference shall be given to residents of the common- lyoef^s, § 5.
3 wealth. 1909, 514. §§ 5. 145. 2 0p. a. g. 175. 1908, 435, §4.
1 Section 165. Each superintendent shall make to the commissioner Reports.
2 such reports of applications for labor or employment and of other de- igos] tit', 1 1'.
3 tails of the work of his office as the commissioner may require. The ^f'e.Hs.'
4 commissioner shall cause reports showing the business of the several 5s"9"*7o'
5 offices to be prepared at regular intervals and to be exchanged among
6 the said offices, and shall supply them to the newspapers and to citizens
7 upon request; and the several superintendents shall post such reports
8 in a conspicuous place in their offices so that they may be open to public
9 inspection.
1 Section 166. There shall be allowed and paid, upon the approval Appropriation
.. (. i. IP . . tor expenses.
2 of the commissioner, for salaries and for contingent expenses in con- 'soo. 435, § s.
3 nection with the establishment and maintenance of free employ- §§ i.'2.
4 ment offices, such sum as the general court may annually appropriate 1909! su!
5 therefor. ^^ '■ "^•
1 Section 167. The commissioner may furnish weekly to the clerks Bulletins as to
2 of all towns in the commonwealth printed bulletins showing the demand empuTyment.
3 for employment, classified by occupations to such extent as may be \loq] f^\ ^ '■
4 practicable and indicating the town where the employees are wanted. \l^^ ^*^q
5 Such information shall be based upon the applications for employees ^5 69, 70.
6 under this chapter.
1 Section 168. Every town clerk shall post the lists received as afore- Posting
2 said in one or more conspicuous places in the town. A town clerk who iimsoH.
3 fails to comply with this section shall be punished by a fine of not more ilol' sw
4 than ten dollars. slo.'iw.'
statistics of labor and manufactures.
1 Section 169. For the purpose of compiling statistics as required by Commissioner,
2 the following section, the commissioner or a person in the department qiSre'attcnd-
3 designated by him may require the attendance of witnesses and the
ance of wit-
nesses, etc.
1590
LABOR AND INDUSTRIES.
[ClLAP. 149.
1869,
Res.
102.
PS.
31, S
i H.
R. L.
107,
is 2
1908,
462.
1 l'
1909,
371,
5§2,
10.
Statistics of
labor
and
manufactures.
1869,
Res.
102.
1876,
178.
1877,
248,
§1.
1878,
264,
§ 1.
1880,
193,
§ 1.
18S1,
293,
§ 1.
P. S.
4, §7:
31, § 13.
1882,
6, § 1.
1885,
369.
1886,
174.
1888,
23.
1889,
124;
440, 1
5 7.
1890,
97.
1894,
393,
§7.
1900, 225.
Schedules for
collecting
statistics.
1886,
174,
§ 1.
R.L.
107,
§ •').
1909,
371.
SS4,
10.
1919,
■sao.
l§ OS
1, 70.
production of books and documents, and may examine witnesses on 4
oath; and such witnesses shall be examined in the same manner and 5
paid the same fees as in the superior court. 6
1912, 560, § 1. 1919, 350, § 69.
Section 170. The commissioner shall make an annual report of the
acts of the department relative to statistics. He shall prepare annually
for distribution as public documents a report on the statistics of labor
which shall embody statistical and other information relating especially
to labor affairs in the commonwealth, and a report on the statistics of
manufactures to be gathered as pro^dded in the following section. The
state secretary shall print for the use of the department and other pur-
poses such numbers of these reports as the supervisor of administration
may designate. The commissioner may publish, at such intervals
as he deems expedient, bulletins or special reports relative to industrial
or economic matters. R L.g, § 7-, io7, § 2.
1908, 462,
1909, 371, I
1910, S3.
§1,2.
! 3, 10.
1913, 358.
1918, 189, S
257, § 9.
1.2:
1919, 5; 350,
§§ 69, 70.
1920, 2.
Section 171. The commissioner shall prepare a schedule for the
collection of such data as may, in his judgment, be desirable for the
proper presentation of statistics of manufactures and the promotion of
the industrial welfare of the commonwealth; and the said schedule,
unless modified by the director, shall embody incjuiries as to —
(1) Name of person, partnershij) or corporation.
(2) Kind of goods manufactured or business done.
(3) Number of partners or stockholders.
(4) Capital invested.
(5) Principal stock or raw material used, and total value thereof.
(6) Gross quantity and vahw of articles manufactured.
(7) Average number of persons employed, distingui^iing as to sex,
adults and children.
(8) Smallest number of persons employed and in what month.
(9) Largest number of persons employed and in what month.
(10) Total wages, not including salaries of managers, paid during
the year, distinguishing as to sex, adults and children.
(11) Proportion that the business of the year bore to the greatest
capacity for production of the establishment.
(12) Number of weeks in operation during the year, part time being
reduced to full time.
The said schedule shall be sent by mail annually, on or before
December fifteenth, to the owner, operator or manager of every manu-
facturing establishment in the commonwealth; and such owner, oper-
ator or manager, or any other person to whom the schedule is sent,
shall answer the inquu-ies thereon and retm-n the same to the depart-
ment, properly certified as to its accuracy, not later than January
twentieth following, but the commissioner may extend the time. The
commissioner may suspend the operation of this section, in years when
the United States takes a census of manufactures in IMassachusetts,
to such degree as may be necessary in order to facilitate co-operation
between said department and the federal census authorities in the
collection and compilation of the statistics of IMassachusetts manu-
factures in such census years, and the avoidance of needless duplication
of labor and expense.
1
2
o
O
4
5
6
7
8
9
10
11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
Chap. 149.] labor and industries. 1591
1 Section 172. Information so collected shall not be used by the information
2 department, either by publication or in any other manner, so as to dis- tobesoput.-
3 close the private affairs of any person, and the department shall hold df^close'' '°
4 all such information to be strictly confidential. Any officer, agent or isse^m'^f?'
5 employee of said department who violates this provision shall be f^^- 'o^- 5 s-
6 punished by a fine of not more than five hundred dollars or by im- §§5,'io. '
7 prisonment for not more than one year; but this section shall not be
8 construed as prohibiting said department from tabulating and publish-
9 ing such information relative to manufacturing corporations as may be
10 required by law to be filed with other state departments.
1 Section 173. The commissioner, having first obtained authority Distribution
2 from the governor and council, may destroy or sell all such records, piperl"
3 papers and schedules accumulated in the division as in his judgment r^^l' 107, § 4.
4 are of no value. i909, 371, §§ 9. 10. 1919, sso, §§ eg, 70.
COMJIISSION ON foreign AND DOMESTIC COMMERCE.
1 Section 174. The commission on foreign and domestic commerce Duties.
2 shall take such measures as it may deem suitable to develop and increase {920! 514, § 3.
3 the foreign and domestic commerce of the commonwealth, and shall co-
4 operate with any similar public bodies or officials in de\'eloping and in-
5 creasing such commerce. The commission, on behalf of the common-
6 wealth, may accept contributions, and, subject to the approval of the
7 governor and council, may expend the same and also such sums as may
8 be appropriated, by the general court, to carry out the purpose of this
9 section.
MISCELLANEOUS PROVISIONS.
1 Section 175. Manufacturers and others employing workmen may, useotbeiis,
2 for the purpose of giving notice to them, ring bells and use whistles 1883.84.
3 and gongs of such size and weight and in such manner and at such fg^- l°l'_ ^ ^■
4 hours as the aldermen or selectmen may designate in ^^Titing. ^§ 33, 145.
133 Mass. 289. 130 Mass. 239.
1 Section 176. If, in an emergency, special police officers are ap- Emergency
2 pointed, under the name of police officers or any other name, to act as is92r4°i3.Ti.
3 police officers for cjuelling a riot or disturbance or for protecting fgog, 5?!; ^ ''"
4 property, no non-resident of the commonwealth shall be so appointed §§34,115.
5 unless he is a regular employee of the person whose property he is so
6 appointed to protect.
1 Section 177. A person may, if his property is in danger, call upon Assistance ot
2 the regular police authorities in the commonwealth for assistance in t'o°prot°e"t'^'''*
3 its protection, and this and the preceding section shall not limit or fsg^f^s. § 2.
4 diminish such right; but no person shall request or authorize any f^g^- ^J"!' 5 1^-
5 person or body of persons not residents of the commonwealth, except 5§ 35, 145.
6 regular employees, to assist such person with arms in the defence of
7 his property, and no such request or authority shall justify an assault
8 or attack with arms by a non-resident. Whoever, being an employer
9 of labor, requests or authorizes assistance in violation of this section,
10 and whoever renders such assistance with arms, shall be severally liable
11 in damages to each person injured in person or property thereby.
1592
CONCILIATION AND ARBITRATION.
[Chap. 1.50.
Voting of
employees.
1887. 272, § 1.
1890. 423,
|§ 143, 144.
1893,417,
§§ 7, 336.
1894, 608.
§§4.78.
1898, 548,
§§ 5, 409.
Section 17S. No owner, superintendent or overseer in any manu- 1
facturing, mechanical or mercantile establishment shall employ or 2
permit to be employed therein any person entitled to vote at an elec- 3
tion, dm-ing the period of two hours after the opening of the polls in the 4
voting precinct, ward or town in which such person is entitled to vote, 5
if he shall make application for leave of absence during such period. 6
i35,413. 1907, .560, §§5, 447. 450. Penalty, § ISO.
R. L. 11, §
1902, 384.
1904, 334.
1907, .560, §§5,447,450.
1909, 514, § 45.
1913, S35, §§ 5,488,503.
f9i4',"2l)3,°§'r^' Section 179. The department may require employers to post in con- 1
1919, 350, § 69. gpjcuous positious in any place of employment such placards, posters or 2
signs for the information of employees as it may issue. 3
peTaUy. Section 180. Whoever violates a provision of this chapter for 1
1890.423, which no specific penalty is provided shall be punished by a fine of not 2
1892, 410, § 2. ixiore than one hundred dollars. i893, 4i7, § 336. i894, sos, § 78. 3
1898, 548, § 409. 1906, 499, §§ 2, 3. 1911,229.13.
1900,469. 1907, 560, §§ 447, 456. 1913, 359, § 2; 779.
R. L. 1I,§413: 1909, 514, §§ 20, 36, §§20,21; 813, § 13;
106, § § 13, 70. 45, 62, 63, 145. 835, § 488.
REFERENCES.
Construction of factory, Chap. 143, § 15.
Temporary flooring of building in course of construction, Id., §§ 17-19.
Fire escapes in factories, Id., § 21.
Keeping fire escapes and stairways clear, Id., §§ 21-23.
Duties of department in relation to employees in bakeries. Chap. Ill, §§ 39-41.
Composition of commission on foreign and domestic commerce, Chap. 23, § 10.
CHAPTER 150.
CONCILIATION AND ARBITRATION OF INDUSTRL\L DISPUTES.
Sect.
1. Duties of board of conciliation and arbi-
tration.
2. Rules of procedure.
3. Conciliation.
4. Advertising during strikes.
5. Arbitration.
Sect.
6. Application for arbitration.
7. E.xpert assistants.
8. Witnesses.
9. Local boards.
10. Report.
Wcfof ran- Section 1. The board of conciliation and arbitration of the depart- 1
ciUationand nicnt of labor and industries, in this chapter called the board, shall per- 2
arbitration. ,,. -iii-i n
1919, 350, § 72. form the duties required by this chapter. 3
Rules of
procedure.
1886, 263, § 2.
R. L. 106, § 1.
Section 2. The department of labor and industries shall from time to 1
time establish rules of procedure for the board. 2
1909, 514, § 10. 1919, 350, §§ 71, 72.
?887,'269,°"' Section 3. The mayor of a city or the selectmen of a town, ha\-ing
R L 106, § 2 knowledge that a strike or lockout is seriously tlireatened or has actually
J?2?' IfJ't , occurred therein, shall at once give notice to the board. Notice mav be
1904, 313, §1-.,, Ill 1*1
1909.514, § 11. given by the employer or by the employees concerned in the controversy,
1919! 35o', § 72. strike or lockout. When the board has knowledge that a strike or lock-
out, which involves an employer and liis present or former employees.
CeL\P. 150.] CONCILIATION AND ARBITRATION, 1593
7 is seriously threatened or has actually occurred, and such employer at
8 that time is employing, or upon the occurrence of the strike or lockout
9 was employing, not less than twenty-five persons in the same general line
10 of business in any town in the commonwealth, the board shall, as soon as
11 may be, communicate with such employer and employees and endeavor
12 by mediation to obtain an amicable settlement, or endeavor to persuade
13 them to submit the controversy to a local board of conciliation and ar-
14 bitration established under section nine or to the board. If a settle-
15 ment is not agreed upon and the parties refuse to submit the matter
16 in dispute to arbitration, the board shall investigate the cause of such
17 controversy and ascertain which of the parties thereto is mainly respon-
18 sible or blameworthy for the existence or continuance of the same, and
19 shall, unless a settlement of the controversy is reached, make and pub-
20 lish a report finding such cause and assigning such responsibility or
21 blame. The board may employ agents to assist in said investigation.
22 It shall, upon the request of the governor, investigate and report upon
23 a controversy if in his opinion it seriously affects or threatens seriously
24 to affect the public welfare. The board shall have the same powers for
25 the foregoing purpose as are given to it by sections five to eight, inclu-
26 sive. The board shall by publication or otherwise inform employers and
27 employees of their duty to give notice to the board before resorting to
28 a strike or lockout and of the provisions of this chapter affecting the
29 rights of employers and employees relative to industrial disputes.
1 Section 4. The provisions of sections twenty-two and twenty-three Advertising
2 of chapter one hundred and forty-nine relative to advertising during igi';"!!!^'^'^^'
3 strikes shall cease to be operative when the board shall determine that If's/I*"'
4 the business of the employer, in respect to which the strike or other labor J^ie. 89.^
5 trouble occm'red, is being carried on in the normal and usual manner and 216 Mass. 356.
6 to the normal and usual extent. Upon the application of the employer,
7 this question shall be determined by said board, but only after a full
8 hearing at which all persons involved shall be entitled to be heard and
9 represented by counsel. The board shall give at least three days' notice of
10 the hearing to the strikers and employees by publication in at least three
11 daily newspapers published in the commonwealth, and by mailing a
12 copy of said notice, postage prepaid, to the employers and to the accred-
13 ited representatives of the strikers or workmen interested, when their
14 addresses are known; and in every case the board shall make every
15 reasonable and diligent effort to give notice to said strikers or interested
16 workmen.
1 Section 5. If a controversy not involving questions which may be Arbitration.
2 the subject of an action at law or suit in equity exists between a person §§ a'/s. 6.'
3 employing not less than twenty-five persons in the same general line of ^^l[ iol'. 1 3.
4 business and his employees, the board shall, upon application as pro- Jgog; II4'. 1 12.
5 vided in the following section, as soon as practicable visit the place Op a. g.
6 where the controversy exists and make careful inquiry into its cause, and
7 may, with the consent of the governor, conduct such inquiry outside the
8 commonwealth. The board shall hear all persons interested who come
9 before it, advise the respective parties what ought to be done or sub-
10 mitted to by either or both to adjust said controversy, and make a
11 WTitten decision thereof which shall at once be made public, shall be
12 open to public inspection and shall be recorded by the board. A short
1594
CONCILIATION AND ARBITRATION.
[Chap. 1.50.
statement thereof may, in the discretion of the board, be pubhshed in 13
the annual report, and the board shall cause a copy thereof to be filed 14
with the clerk of the town in which said business is carried on. Said 15
decision shall for six months be binding upon the parties who join in 16
said application, or until the expiration of sixty days after either party 17
has given notice in writing to the other party and to the board of his 18
intention not to be boimd thereby. Such notice may be given to said 19
employees by posting it in tliree conspicuous places in the shop or fac- 20
tory where they work. 21
Application
arbitration.
188b, 263, §
1887. 269, §
1890, 385, §
R. L. 106, §
1904,313, §
1909, S14. §
Section 6. The application shall be signed bj' the employer or by a 1
majority of his employees in the department of the business in which 2
the controversy exists, or by their didy authorized agent, or by both par- 3
ties, and if signed by an agent claiming to represent a majority of the 4
employees, the board shall satisfy itself that he is didy authorized so to 5
do; but the names of the employees giving the authority shall be kept 6
secret. The application shall contain a concise statement of the existing 7
controversy and a promise to continue in business or at work without 8
any lockout or strike until the decision of the board, if made within tliree 9
weeks after the date of filing the application. The board shall forthwith, 10
after such filing, cause public notice to be given of the time and place for 11
a hearing on the application, unless both parties join in the application 12
and present therewith a written request that no public notice be given. 13
If such request is made, notice of the hearings .shall be given to the parties 14
in such manner as the board may order, and the board may give public 15
notice thereof, notwithstanding such request. If the petitioner or peti- 16
tioners fail to perform the promise made in the application, the board 17
shall proceed no further thereon without the written consent of the ad- 18
verse party. 19
Expert
assistants.
1890, 385, §
1892, 382, §
R.L. 106, §
1904,313, §
1909,514, §
1919, 350, §
1920, 361.
Section 7. In all controversies in which application is made under 1
the preceding section, each party may, in writing, nominate fit persons 2
to act in the case as expert assistants to the board, and the board may 3
appoint one from among the persons so nominated by each party. Said 4
experts shall be skilled in and conversant with the business or trade con- 5
cerning which the controversy exists; they shall be sworn by a member 6
of the board to the faithful performance of their official duties, and a 7
record of their oath shall be made in the case. Said ex-perts shall, 8
if required, attend the sessions of the board, and under its direction 9
shall obtain and report information concerning the wages paid and the 10
methods and grades of work prevailing in establislmients within the 11
commonwealth similar to that in which the controversy exists, and they 12
may submit to the board at any time before a final decision any facts, 13
advice, arguments or suggestions which they may consider applicable 14
to the case. No decision of said board shall be annomiced in a case in 15
which said experts have acted without notice to them of a time and place 16
for a final conference on the matters included in the proposed decision. 17
Such exjjerts shall receive from the commonwealth a sum not exceeding 18
ten dollars each for every day of actual service and their necessary travel- 19
ing expenses. The board may appoint such additional experts as it 20
considers necessary, who shall be qualified in fike manner and, under the 21
direction of the board, shall perform like duties and be paid the same 22
fees as the ex-perts who are nominated by the parties. 23
Chap. 151.
THE MIMMlil WAGE.
1595
1 Section S. In all investigations, and inquiries or proceedings con- witnesses.
2 ducted by the board, any member thereof may summon witnesses, may §5 3.'s. '
3 administer oaths, take testimony, and require the production of books r^^l.' loei § 6.
4 and documents. Each witness shall certify in writing the amount of his }9i|;f4t: ^ ^^'
5 travel and attendance, and the amount due to him shall be paid forth- ^^^^' ^^o. § 72.
6 with by the board.
1 Section 9. The parties to any controversy described in section fi^'e {'gs?'2g|''5 7
2 may submit it in writing to a local board of conciliation anfl arbitration, iss?! 209; | i.
3 which may be composed either of three members mutually agreed upon, 1909. 514! § I'o.
4 or of a member chosen by the employer, a member chosen by the em- ^®^*' ^^^' ^ ^'
5 ployees or their authorized representative, and a third, who shall be
6 chairman, chosen by the other two. Such local board shall have and
7 exercise, relative to matters referred to it, all the powers of the state
8 board, and its decision shall have such binding effect as may be agreed
9 upon in the written submission. Such local board shall have exclusive
10 jurisdiction of the controversy submitted to it, but it may ask the advice
11 and assistance of the state board. The decision of such local board
12 shall be rendered within ten days after the close of any hearing held by
13 it, and shall forthwith be filed with the clerk of the city or town where
14 the controversy arose, and a copy thereof shall be forwarded by said
15 clerk to the state board. Each of such arbitrators shall be entitled to
16 receive from the treasury of the city or town where the controversy
1 7 arose, with the approval in writing of the mayor of the city or the select-
18 men of the town, the sum of tliree dollars for each day of actual serAnce,
19 not exceeding ten dollars for any one arbitration.
1 Section 10. The commissioner of labor and industries shall make an Report.
2 annual report of the acts of the board in performing the duties required r. l! loa. § 1.'
3 by this chapter.
1909, 514, § 10.
1918, 257, § 476.
1919. 5; 350, §§8, 72.
1920. 2.
REFERENCE.
Witness fees, Chap. 262, § 29.
CHAPTER 151
THE MINIMUM WAGE.
Sect.
1. Certain duties of the board of concilia-
tion and arbitration relative to wages
paid to females.
2. Wage boards.
3. Duties of wage boards.
4. Review of report of wage boards. Ap-
peal to court. Publication of find-
ings, etc.
5. Powers as to rate.s of wages.
6. Special license.
7. Wages of minors.
Sect.
S. Register of women and minors.
9. Certain statistics to be furnished to the
commission.
10. Penalty for discrimination.
11. Names of certain employers to be pub-
lished.
12. Penalty for refusal to publish findings.
13. No liabihty for publication except for
wilful misrepresentation.
14. Posting notices.
15. Annual report. ,
1 Section 1 . The board of conciliation and arbitration of the depart- Certain duties
2 ment of labor and industries in performing the duties required by this of conciliation
3 chapter shall be known as the minimum wage commission, in this chap- relative to'""'"
1596
THE MINIMUM WAGE.
[CiL\P. 151.
wages paid to ter Called the commission. It shall investigate the M-ages paid to female 4
ml.fof., §3. employees in any occupation if it has reason to believe that the wages 5
Li^Mass! 99! ■ paid to a substantial number of such employees are inadequate to supply 6
the necessary cost of living and to maintain the worker in health. 7
Wage boards.
1912, 706, § 4.
1914, 368, § 1.
1919, 72;
3.50, § 71.
1920, 48.
4 Op. A. G.
447. 494.
Duties of
wage boards.
1912, 706, 5 5.
1913, 673, I 1.
4 Op. A. G.
494.
Section 2. If after such investigation the commission is of the opin- 1
ion that in the occupation in question the wages paid to a substantial 2
number of female employees are inadequate to supply the necessary cost 3
of living and to maintain the worker in health, it shall establish a wage 4
board consisting of an equal number of representatives of employers in 5
the occupation in question, and of persons to represent the female em- 6
ployees in said occupation, and of one or more disinterested persons 7
appointed by it to represent the public; but the representatives of the S
public shall not exceed one half of the number of representatives of either 9
of the other parties. The commission shall give notice to employers and 10
employees in said occupation by publication or otherwise of its deter- 11
mination to establish a wage board and of the number of representatives 12
of employers and of employees to be chosen therefor, and shall request 13
that said employers and employees, respectively, nominate such repre- 14
sentatives by furnishing names to it. 15
The representatives of employers and employees shall be selected by 16
the commission from names furnished by the employers and by the em- 17
ployees, respectively; provided, that the same are furnished within ten 18
days after such request; and provided, further, that at least twice as 19
many names, respectively, are furnished as are required. If less than 20
this number of names are furnished for representatives, either of em- 21
ployers or of employees, at least one half the names so furnished shall be 22
selected, and the remaining places necessary may be filled by the com- 23
mission by appointments made directly from employers, including officers 24
of corporations, associations and partnerships, or from employees in the 25
occupation, as the case may be. The commission shall designate as 26
chairman one of the representatives of the public, and shall make rules 27
and regulations governing the selection of members and the modes of 28
procedure of the wage boards, and shall exercise exclusive jurisdiction 29
over all questions arising with reference to the validity of the procedure 30
and of the determinations of the wage boards. The members of wage 31
boards shall be compensated at the same rate as jurors, and they shall 32
be allowed the necessary traveling and clerical expenses incurred in the 33
performance of their duties, these payments to be made from the appro- 34
priation for the expenses of the commission. The commission may fill 35
vacancies arising in a duly constituted wage board by appointing a suffi- 36
cient number of suitable persons to complete the representation of the 37
employers, employees or public, as the case may be. 38
Section 3. The commission may transmit to each wage board all 1
pertinent information in its possession relative to the wages paid in the 2
occupation in question. Each wage board shall take into consideration 3
the needs of the employees, the financial condition of the occupation 4
and the probable effect thereon of any increase in the minimum wages 5
paid, and shall endeavor to determine the minimum wage, whether by 6
time rate or piece rate, suitable for a female employee of ordinary ability 7
in the occupation in question, or for any or all of the branches thereof, 8
and also suitable minimum wages for learners and apprentices and for 9
minors under eighteen, ^^'hen a majority of the members of a wage 10
Chap. 151.] the minimum wage. 1597
11 board shall agree upon minimum wage determination, they shall report
12 such determination to the commission, together with the reasons therefor
13 and the facts relating thereto.
1 Section 4. Upon receipt of a report from a wage board, the com- Review of
2 mission shall review the same, and may approve or disapprove any or "fge boards.
3 all of the determinations recommended, or may recommit the subject to tout™' *°
4 the same wage board or to a new one. If the commission approves any g"(nng's*'e"c°'
5 or all of the determinations of the wage board it shall, after not less than iw2. 70fi, § 6.
6 fourteen days' notice to employers paying a wage less than the mini- wn'. ses! § 2.
7 mum wage approved, give a public hearing to such employers, and if, ci9'i9)'6.'
S after such public hearing, the commission finally approves the de-
9 termination, it shall enter a decree of its findings and note thereon the
10 names of employers, so far as they may be known to it, who fail or refuse
11 to accept such minimum wage and agree to abide by it. The commis-
12 sion shall thereafter publish at such times and in such manner as it may
13 deem advisable a summary of its findings and of its recommendations.
14 It shall also at such times and in such manner as it shall deem advisable
15 publish the facts, as it may find them to be, as to the acceptance of its
16 recommendations by the employers engaged in the industry to which any
17 of its recommendations relate, and may publish the names of employers
18 whom it finds to be following or refusing to follow such recommenda-
19 tions. An employer who files a declaration under oath in the supreme
20 judicial or superior court to the effect that compliance with the recom-
21 mendation of the commission would render it impossible for him to con-
22 duct his business at a reasonable profit shall be entitled to a review of
23 said recommendation by the coiu"t under the rules of equity procedure.
24 The burden of proving the averments of said declaration shall be upon
25 the complainant. If, after such review, the court finds the averments of
26 the declaration to be sustained, it may issue an order restraining the com-
27 mission from publishing the name of the complainant as one who refuses
28 to comply with its recommendations. But such review, or any order
29 issued by the court thereupon, shall not be an adjudication affecting the
30 commission as to any employer other than the complainant, and shall in
31 no way affect its right to publish the names of those employers who
32 comply with its recommendations. The type in which the employers'
33 names shall be printed shall not be smaller than that in which the news
34 matter of the newspaper is printed. The publication shall be attested
35 by the signatures of at least a majority of the commission.
1 Section 5. Whenever a minimum wage rate has been established Powers as to
, , , . ^ . . p . , rates of wages.
2 m any occupation, the commission mav, upon petition of either em- 1912. 70fi, § s.
,* , .A*. ..*... 1920, 387.
3 ployers or employees, or it in its opinion such action is necessary to meet
4 changes in the cost of living may without such petition, reconvene the
5 wage board or establish a new one, and any recommendation made by
6 such wage board shall be dealt with in the same manner as the original
7 recommendation of a wage board.
1 Section 6. For any occupation in which a minimum time rate only Special license.
2 has been established, the commission may issue to any woman physically 1919] 350', § "'2.
3 defective a special license authorizing the employment of the licensee for (lais) 7.'
4 a wage less than the legal minimum wage; provided, that it is not less
5 than the special minimum wage fixed for that person.
1598
THE MINIMUM WAGE.
[Cli\P. 151.
^nors°' Section 7. The commission may at any time inquire into the wages 1
1912. 706, § 10. paid to minors in any occupation in which the majority of employees are 2
minors, and may, after giving public hearings, determine minimum wages 3
suitable therefor. When the commission has made such a determination, 4
it may proceed in the same manner as if the determination had been 5
recommended to it by a wage board. 6
Register of
women and
minors.
1912, 70fi, § 11,
1913, 330.
1914, 368, § 4.
1919, 76; 350,
§72.
6
9
Section S. Every employer of women and minors shall keep a reg-
ister of the names, addresses and occupations of all women and minors
employed by him, together with a record of the amount paid each week
to each woman and minor, and if the commission shall so require, shall
also keep for a specified period, not exceeding six months, a record of the
hours worked by such employees, and shall, on request of the commis-
sion or of the department of labor and industries, permit the commission
or any of its members or agents, or the department or any duly accredited
agent thereof, to inspect the said register and to examine such parts of
the books and records of employers as relate to the wages paid to women 10
and minors, and the hours worked by such employees. Any employer 11
failing to keep a register or records as herein provided, or refusing to 12
permit their inspection or examination, shall be punished by a fine of not V.)
less than five nor more than fifty dollars. The commission may also sub- 14
poena witnesses, administer oaths and take testimony, and require the 15
production of books and documents. Such witnesses shall be summoned IG
in the same manner and be paid by the commonwealth the same fees 17
as witnesses before the superior court. IS
Certain sta-
tistics to be
furnished to
the commission.
1912, 706, § 12.
1919, 350, I 69.
Section 9. Upon request of the commission, the department of labor 1
and industries shall cause to be gathered such statistics and other data 2
as the commission may require, and the cost thereof shall be paid out of .3
the appropriation made for the expenses of the commission in reference to 4
the minimum wage. 5
Penalty for
discrimination.
1912, 706, § 13.
1913, 673, § 3.
1914, 368, § 5.
Section 10. No employer shall discharge or in any other manner 1
discriminate against any employee because such employee has testified, 2
or is about to testify, or has served or is about to serve upon a wage 3
board, or is or has been active in the formation thereof, or has given or 4
is about to give information concerning the conditions of such employee's 5
employment, or because the employer believes that the employee may G
testify, or may serve upon a wage board, or may give information con- 7
cerning the conditions of the employee's employment, in any in^•estiga- S
tion or proceeding relative to the enforcement of this chapter. Whoever 9
violates this section shall be punished by a fine of not less than two hun- 10
dred nor more than one thousand dollars. ■ 1 1
certafnem- Section 11. The commissiou shall from time to time determine 1
"ISibhed' '''' whether employers in each occupation investigated are obeying its de- 2
23i"m °''' m'^' '^^^^^' ^^'^ shall publish, in the manner provided in section four, the name 3
of any employer whom it finds to be violating any such decree. 4
refusaUo""^ Section 12. Any newspaper refusing or neglecting to publish the 1
m"'^''*'' ^°''" findings, decrees or notices of the commission at its regular rates for the 2
1912 706, §15. space taken shall be punished b\' a fine of not less than one hundred 3
231 Mass. 99. , ,, ^ •
dollars. 4
Ch-^p. 152.]
WORKMEN S COMPENSATION.
1599
1 Section 13. No member of the commission, and no newspaper No liability
2 publisher, proprietor, editor or employee thereof, shall be liable to an exc^p" fo™ '°"
3 action for damages for publishing the name of any employer as pro- JVpreseSt!ation.
4 \'ided for in tliis chapter, unless such publication contains some wilful 23i"Ma"3s. 99^''
5 misrepresentation.
Section 14. The commission may require employers in any occupa- Posting
notices.
1915, 65.
2 tion to post notices of its hearings or of nominations for wage boards, or
3 of decrees that -apply to theii" employees, in such reasonable way and slofiJg.
4 for such length of time as it may direct. Whoever refuses or fails to post
5 such notices or decrees, when so required, shall be punished by a fine of
6 not less than five nor more than fifty dollars. The department of labor
7 and industries shall enforce this section.
1 Section 15. The commissioner of labor and industries shall make Annual report^
2 an annual report of the acts of the commission in performing the duties 1919! 350,'
3 required by this chapter.
18, 71.
CHAPTER 152.
WORKMEN'S COMPENSATION.
Sect.
1. Definitions.
2. Powers and duties of department.
3. Duties of division of industrial training.
i. Annual report.
PROCEDHBE.
5. Rules, process, witnesses.
6. Agreement for compensation.
7. Hearing by one member.
8. Investigation by the member.
9. Examination by physician.
10. Hearing by reviewing board.
11. Powers of superior court.
12. Weekly payments may be changed.
13. Fees of phy.sicians, etc.
14. Frivolous proceedings. Costs.
15. Legal liability for injuries. Election,
etc.
16. Decision of department. Enforcement.
17. Decision of department, etc., not sus-
pended by appeal.
18. Independent contractor, etc.
19. Notice of injuries to be given to
department.
20. Hospital records admissible as evidence.
21. Notice to employees.
22. Same subject.
23. Acceptance of payment, etc., by em-
ployee releases employer from liabil-
ity, etc.
24. Notice by employee to retain rights at
common law.
25. Payment of judgment by insured.
Sect.
PAYMENTS.
26. Payments.
27. Misconduct by employee bars compen-
sation.
28. Misconduct by employer. Double com-
pensation.
29. Waiting period.
30. Medical services, etc.
31. Death.
32. Dependents.
33. Funeral expenses.
34. Total incapacity.
35. Partial incapacity.
36. Payments for certain specific injuries.
37. Method of payment for certain in-
juries.
38. Savings, etc., not to be deducted.
39. PajTuents in case of death.
40. Guardian, etc., may claim rights.
41. Notice and claim.
42. Form of notice.
43. Ser\ace of notice.
44. Notice not invalid for inaccuracy,
etc.
45. Examination by physician.
46. Rights to compensation cannot be
waived.
47. Payment not assignable.
48. Lump sums in lieu of weekly pay-
ments.
49. Claim.
50. Interest in appealed cases.
51. Compensation of young employee. ,
1600
WORKMEN S COMPENSATION.
[Ch.\p. 152.
Sect.
INSURANCE COMPANIES.
52. Insurance companies.
63. Mutual companies.
54. Form of insurance policy.
55. Approval by commissioner of insurance.
56. Joint and several poUcies.
57. Deposit by company of value of out-
standing claims.
58. Commissioner to compute value.
59. Expenses of custody of deposit.
60. Penalty for failure to make deposit.
61. Bond of foreign company.
62. Foreign companies ceasing to do busi-
ness.
63. Information by insurance companies on
request of the department.
Sect.
64. Rules by insurer.
65. Special fund for certain payments.
MISCELLANEOUS PKOVISIONS.
66. Modification of liability.
67. Application of the preceding section.
6S. Application of certain other laws.
69. Compensation by the commonwealth,
etc.
70. Procedure.
71. Other remedies excluded.
72. Waiver of rights by employee.
73. Election between compensation and
pension.
74. Application of sections 69 to 75.
75. Agents for enforcing sections 69 to 74.
Definitions.
1911. 751,
V, § 2.
1913. 568.
1914, 708, i 13.
215 Mass. 96.
223 Mass. 187.
225 Mass. 349.
227 Mass. 456.
228 Mass. 334.
229 Mass. 325.
234 Mass. 137,
145.
222 Mass. 401,
53S. 563.
223 Mass. 378.
224 Mass. 86.
225 Mass. 66.
216 Mass. 51.
217 Mass. 86.
218 Mass. 404.
219 Mass. 244,
560.
220 Mass. 290.
222 Mass. 487.
227 Mass. 106,
237
228'Mas3. 316.
230 Mass. 600.
231 Mass. 313.
233 Mass. 570.
232 Mass. 487.
Section 1. The following words as used in this chapter shall, unless 1
a different meaning is plainly required by the context or specifically pre- 2
scribed, have the following meanings: 3
(1) "Average weekly wages", the earnings of the injured employee 4
during the period of twelve calendar months immediately preceding the 5
date of injury, divided by fifty-two; but if the injured employee lost 6
more than two weeks' time during such period, the earnings for the remain- 7
der of such twelve calendar months shall be divided by the number of 8
weeks remaming after the time so lost has been deducted, ^^^le^e, by 9
reason of the shortness of the time during which the employee has been 10
in the employment of his employer or the nature or terms of the employ- 11
ment, it is impracticable to compute the average weekly wages, as above 12
defined, regard may be had to the average weekly amount which, during 1.3
the twelve months previous to the injury, was being earned by a person 14
in the same grade employed at the same work by the same employer, 15
or, if there is no person so employed, by a person in the same grade em- 16
ployed in the same class of emplojTnent and in the same district. 17
(2) "Department", the department of industrial accidents. 18
(.3) "Dependents", members of the employee's family or next of kin 19
who were wholly or partly dependent upon the earnings of the employee 20
for support at the time of the injury. 22s Mass. sss. 21
229 Mass. 435. 231 Mass. 261. 233 Mass. 287. 236 Mass. 204.
(4) "Employee", every person in the service of another under any 22
contract of hire, express or implied, oral or \\Titten, except masters of and 23
seamen on vessels engaged in interstate or foreign commerce, and except 24
one whose employment is not in the usual course of the trade, business, 25
profession or occupation of his employer. Any reference to an employee 26
who has been injured shall, when the emploj-ee is dead, also include his 27
legal representati\es, dependents and other persons to whom compensa- 28
tion may be payable. 29
(5) "Employer" includes the legal representative of a deceased 30
employer. 31
(6) "Insured" or "insured person", an employer who has provided 32
by insurance for the payment to his employees of the compensation 33
required by this chapter. 34
(7) "Insurer", any insurance company which has insured the com- 35
pensation payable by an employer under this chapter. 36
CiL\.p. 152.] workmen's compensation. 1601
37 (8) "Reviewing board", the reviewing board designated under section 1917,297. § 1.
38 three of chapter twenty-four.
1 Section 2. The department shall make all necessary inspections and juJ^^of"''
2 investigations relating to causes of injuries for which compensation may department.
3 be claimed, and for this purpose any member or employee thereof may
4 at any time enter places of empIo;y^nent when being used for business
5 pm-poses. It shall also have the powers and duties set forth in this
G chapter.
1 Section 3. The division of industrial training shall aid the persons Duties of
2 whose earning capacity has been impaired by industrial accident while fnairstriaf
3 residents of the commonwealth in obtaining such education, training and i9''i8'23i, § 3,
4 employment as will tend to restore their earning capacity. It may co-
5 operate with the United States government, and in co-operation with
6 the department of education may establish and maintain, or assist in so
7 doing in schools or institutions supported wholly or in part by the com-
8 monwealth, such courses as it may deem expedient, and otherwise may
9 act in such manner as it may deem necessary to accomplish the purpose
10 of this section.
1 Section 4. The department shall make an annual report, and shall fj'i4"65yf's°i*'
2 include therein a detailed description of the work of the division of in- isisi 231! § 1.
3 dustrial training. It may issue bulletins containing information relating
4 to such work.
procedure.
1 Section 5. The department may make rules consistent with this Rules, process,
2 chapter for carrying out its provisions. Process and procedure shall be igiTlrli'.
3 as simple and summary as reasonably may be. The department or any i9'i'2f In. § s.
4 member thereof may subpoena witnesses, administer oaths, and examine 2i9*Ma"s3' Is^'
5 such parts of the books and records of the parties to a proceeding as re- ^28 Mass. 213.
6 late to questions ui dhspute. Lpon the written request 01 the depart- 233 Mass. 297.
7 ment or of any member thereof, together with interrogatories and cross- (1917) 77.
8 interrogatories, if any there be, filed with the clerk of the superior court
9 for any county, commissions to take depositions of persons or witnesses
10 residing without the commonwealth, or in foreign countries, or letters
11 rogatory to a court in another state or to a court in a foreign country,
12 shall forthwith issue from the said superior court, as in cases pending
13 therein; and upon the return of the said depositions or answers to letters
14 rogatory the same shall be opened by the clerk of the court issuing the
15 commissions or letters, and the said clerk shall endorse thereon the date
16 when a deposition or answer to letters rogatory was received, and the
17 same shall forthwith be delivered to the department. No entry fee shall
18 be charged in such cases. The fee for attending as a witness before the
19 department shall be one dollar and fifty cents a day; for attending before
20 a member of the department, fifty cents a day; in both cases, five cents
21a mile for travel out and home. The superior court may enforce by proper
22 proceedings the provisions of this section relating to the attendance and
23 testimony of witnesses and the examination of books and records.
1 Section 6. If the insurer and the injured employee reach an agree- Agreement
2 ment in regard to compensation, a memorandum thereof shall be filed p^lmtTon.
3 with the department, and, if approved by it, the memorandum shall for in's*^^"
1602
WORKMEN S COMPENSATION.
[Chap. 152.
all purposes be enforceable under section eleven.
1912, 571. § 9.
231 Mass' 469! be approved bv said department only when the terms conform to this
233 Mass. 4S5. „!,,„<.
234 Mass. o. Cliaptcr
Such agreements shall 4
5
6
Hearing by
one member.
1911. 751,
III. § 5.
1912, 571, § 10.
1914, 70S, § 9.
1917, 297, § 2.
218 Mass. 346.
228 Ma.ss. 213.
231 Mass. 469.
236 Mass. 588.
Section 7. If the insurer and the injured employee fail to reach an
agreement in regard to compensation, or if they ha\-e reached such an
agreement, which has been signed and filed in accordance with this
chapter, and compensation has been paid or is due in accordance there-
with, and the parties thereto then disagree as to the continuance of any
weekly payments under such agreement, either party may notify the
department, which shall thereupon assign the case for hearing by a mem-
ber thereof.
Investigation
bv ttie member.
1911, 751,
III, §7.
1912,571, § 12.
1917, 297, § 4.
215 Mass. 480.
216 Mass. 51.
220 Mass. 17.
222 Mass. 487.
227 Mass, 470,
558.
232 Mass. 487.
235 Mass. 387.
Section 8. Such member shall make such inquiries and in\estiga-
tions as shall be deemed necessary. The hearing shall be held in the town
where the accident occurred or in such other place as the department
may designate; and the decision of the member, together with a state-
ment of the evidence, his findings of fact, rulings of law, and other matters
pertinent to questions arising before him, shall be filed with the depart-
ment. Unless a claim for re\iew is filed by either party within seven
davs, the decision shall be enforceable under section ele\'en.
Examination
by physician.
1911,751,
III, §8.
1914, 708, § 10.
1916,72.
219 Mass. 189.
Section 9. The department or any member thereof may appoint a 1
duly qualified impartial physician to examine the injured employee and 2
to report. The fee for this service shall be five dollars and traveling ex- 3
penses, but the department may allow additional reasonable amounts in 4
extraordinary cases, and the insurer shall reimburse the department for 5
the amount so paid. The report of the physician shall be admissible as 6
evidence in any proceeding before the department or a member thereof; 7
provided, that the employee and the insurer have seasonably been fur- 8
nished with copies thereof. 9
Hearing by
reviewing
hoard.
1911,751,111,
§ 10.
1912, 571, § 13.
1917, 297,
§§ 1, 6.
219 Mass. 189.
222 Mass. 98.
223 Mass. 378.
227 Mass. 269,
456.
Section 10. If a claim for a re\-iew is filed under section eight, the
reviewing board shall hear the parties, and may hear evidence in regard to
pertinent matters and may revise the decision in whole or in part, or may
refer the matter back to the member for further findings of fact, and
shall file its decision with the records of the proceedings and notify the
parties. No party shall as of right be entitled to a second hearing upon
questions of fact. 234 Mass. 475. 236 Mass. 588.
Powers of
superior
court.
1911.751.
§ 11.
1912, 571,
§ 14.
1917, 297,
§§ 1,7.
215 Mass.
497.
216 Mass.
586.
217 Mass.
76.
219 Mass.
222 Mass.
226 Mass.
228 Mass.
230 Mass.
231 Mass.
402.
232 Mass.
Ill,
480.
51,
36,
430.
1.
143.
31.
583.
297,
487.
Section 11. Any party in interest may present certified copies of
an order or decision of the reviewing board, a decision of a member from
which no claim for review has been filed within the time allowed therefor,
or a memorandum of agreement appro\ed by the department, and all
papers in connection therewith, to the superior court for the county in
which the injury occurred or for the county of Suft'olk, whereupon said
court shall render a decree in accordance therewith and notify the parties.
Such decree shall have the same effect, and all proceedings in relation 8
thereto shall thereafter be the same, as though rendered in a suit duly 9
heard and determined by said court, except that there shall be no appeal 10
therefrom upon questions of fact or where the decree is based upon all
decision of a member or a memorandum of agreement, and except that 12
there .shall be no appeal from a decree based upon an order or decision 13
10.
Chap. 152.] workmen's compens.^tion. 1603
14 of the re\ie\ving board which has not been presented to the court within 23.3 Mass. 4,ss.
15 ten days after the notice of the fihng thereof by said board. Upon the
16 presentation to it of a certified copy of a decision ending, diminisliing or
17 increasing a weekly payment under the following section, the court shall
IS revoke or modify the decree to conform to such decision.
1 Section 12. Questions as to a weekly payment may be heard and cent's' ma>^be
2 decided bv the re\iewing board or any member of the department, and "!!fi"5:^'', „,
3 the reviewing board or siicii member may, m accordance with the evidence § 12.
•• • • 1914 70S § 11
4 and subject to this chapter, issue any order deemed advisable. If the im'. 297! § 8. '
5 case is heard and decided by a member, his decision may be reviewed 235 Mass. 387.
6 under sections eight and ten.
1 Section 13. Fees of attorneys and physicians and charges of hospitals Fees of
2 for services under this chapter shall be subject to the approval of the i9n,'75ifiii°'
3 department. If the insurer and any physician or hospital, or the em- fg\'^- 708, § 12.
4 ployee and any attorney, fail to agree as to the amount to be paid for 2?6\iaM' 292
5 such ser\"ices, either party may notify the department, which may there- 22s Mass. 142.
6 upon assign the case for hearing by a member thereof. The member
7 shall report the facts to the department for decision, and the decision
8 shall be enforceable under section eleven.
1 Section 14. If the reviewing board, any member of the department Frivolous
2 or any court before which proceedings under this chapter are brought ^oTt^ "'^^'
3 determines that such proceedings have been brought, prosecuted or 5^/4' "'^' "'■
4 defended without reasonable ground, the whole cost of the proceedings l^^i^Jslso
5 shall be assessed upon the party who has so brought, prosecuted or de- 219 Mass. ise.
6 fended them.
1 Section 15. Where the injury for which compensation is payable Lesaiiia-
2 was caused under circumstances creating a legal liability in some person iUjunes!'^
.') other than the insured to pay damages in respect thereof, the employee fgii'^Sifiii,
4 may at his option proceed either at law against that person to recover |gi| ^^g
5 damages or against the insurer for compensation under this chapter, 21U iiass. ssb.
() but not against both; and if compensation be paid under this chapter, seo.
^ . 1 • P • , 1 r J.I I • ■ , 222 Mass. 306.
t the insurer may enforce, in the name or the employee or in its own name 225 Mass. 151.
8 and for its own benefit, the liability of such other person; and in case the I31 Mass! i70.
9 insurer recovers a sum greater than that paid by it to the employee,
lU four fifths of the excess shall be paid to the employee.
1 Section 16. Questions arising under this chapter, if not settled by Decision of
2 agreement by the parties interested therein, shall, except as otherwise Enlorcement.
:? provided in this chapter, be determined by the department. The decisions i^'^'^.J' ''si. m.
4 of the department shall for all purposes be enforceable under section jgJ^M^gs' ul'^'
5 eleven.
1 Section 17. Orders or decisions of the reviewing board or depart- Decision of
2 ment, decrees of the superior court upon such orders, decisions of a erc'^not"""'
' 3 member of the department from which no claim for re\iew has been bjf appeaf.
4 filed within the time allowed therefor, or memoranda of agreements ItWuss.so.
5 approved by the department shall ha\e efi'ect, notwithstanding an ^■'° ^'*'''- ^'''^■
6 appeal, until it is otherwise ordered by a justice of the supreme judicial
7 court, who may in any county suspend or modify such decree, order or
8 decision, during the pendency of the appeal.
1604
WORKMEN S COJIPENSATION.
[Chap. 152.
Independent
contractor,
etc.
1911,751,111.
§17.
21S Mass. 1.
224 Mass. 571.
225 Ma-ss. 1.
226 Mass. 1.
228 Mass. Slfi.
229 Mass. 193,
573.
232 Mass. 4 50,
458.
233 Mass. 577.
234 Mass. 330.
Section 18. If an insured person enters into a contract, written or 1
oral, with an independent contractor to do such person's work, or if such 2
a contractor enters into a contract with a sub-contractor to do all or 3
any part of the work comprised in such contract with the insured, and 4
the insurer would, if such work were executed by employees iinmedi- 5
ately employed by the insured, be liable to pay compensation under this 6
chapter to those employees, the insurer shall pay to such employees 7
any compensation which would be payable to them under this chapter if 8
the independent or sub-contractors were insured persons. The insurer, 9
however, shall be entitled to recover indemnity from any other person 10
who would have been liable to such employees independently of this 11
section; and if the insurer has paid compensation under this section, it 12
may enforce, in the name of the employee or in its own name and for its 1.3
benefit, the liability of such other person. This section shall not apply 14
to any contract of an independent or sub-contractor which is merely 15
ancillary and incidental to, and is no part of or process in, the trade or 16
business carried on by the insured, nor to any case where the injury 17
occurred elsewhere than on, in or about the premises on which the con- 18
tractor has undertaken to execute the work for the insured or which are 19
under the control or management of the insured. 20
Notice of in-
juries to be
given to de-
partment.
1911,751,111,
§ 18.
1913, 746, § 1.
217 Mass. 223.
228 Mass. 31.
231 Mass. 529.
Hospital
records ad-
missible as
evidence.
1919, 198.
Section 19. Every employer shall hereafter keep a record of all in- 1
juries, fatal or otherwise, received by his employees in the course of their 2
employment. Within forty-eight hours, not counting Sundays and legal 3
holidays, after the occurrence of an injury, a written report thereof 4
shall be made to the department on blanks to be procured from it. Upon 5
the termination of the disability of the injured employee, the employer 6
shall make a supplemental report upon blanks to be procured from it. 7
If the disability extends beyond a period of sixty days, the employer 8
shall report to the department at the end of such period that the injured 9
employee is still disabled, and upon the termination of the disability 10
shall file a final supplemental report as provided above. 11
The said reports shall contain the name and nature of the business of 12
the employer, the situation of the establishment, the name, age, sex 13
and occupation of the injured employee, and shall state the date and hour 14
of any accident causing the injury, the nature and cause of the injury, 15
and other information required by the department. 16
Employers refusing or neglecting to make the report required by this 17
section shall be punished by a fine of not more than fifty dollars. 18
Copies of reports of injuries filed by employers with the department 19
and statistics and data compiled therefrom shall be kept available by it, 20
and shall be furnished on request to the department of labor and indus- 21
tries for its own use. 22
Within sixty days after the termination of the disability of the injured 23
employee, the insurer shall file with the department a statement showing 24
the total payments made or to be made for compensation and for medical 25
services for such injured employee. 26
Section 20. Copies of hospital records kept in accordance with sec-
tion seventy of chapter one hundred and ele\en, certified by the persons
in custody thereof to be true and complete, shall be admissible in evi-
dence in proceedings before the department or any member thereof. The
department or any member, before admitting any such copy in evidence,
may require the party offering the same to produce the original record.
Chap. 152.] workmen's compensation. , 1605
1 Section 21. Every insured person shall, as soon as he secures a Notice to
2 policy, give written or printed notice to all persons under contract of i<)n,°75riv,
3 hire with him that he has provided for payment to injured employees by Lf kass. 220.
4 the insurer. 233 Mass. .570.
1 Section 22. Every insured person shall give written or printed notice Same subject
o
to e\ery person with whom he is about to enter into a contract of hire §
1011,751. IV.
il.
.'^ that he has provided for payment to injured employees by the insurer. 2'i's^MaIs' 34h'''
4 An employer ceasing to be insured shall, on or before the day on which ||| |^^^^ ^U
5 his policy expires, give written or printed notice thereof to all persons 233 Mass. 570.
(') under contract with him. In case of the renewal of the policy no notice
7 shall be required. He shall file a copy of said notice with the depart-
8 ment. The notices required by this and the preceding section may be
9 given in the manner therein provided or in such other manner as may
10 be approved by the department.
1 Section 23. If an employee of an insured person files any claim Acceptance of
2 with or accepts payment from the insurer on account of personal injury, by^eTpioye'e""
3' or makes any agreement, or submits to a hearing before a member of the ''j^Jj^eTfrom
4 department under section eight, such action shall constitute a release to liability, etc.
5 the insured of all claims or demands at law, if any, arising from the injury, v, § '1.
1 Section 24. An employee of an insured person shall be held to have Notice by
2 waived his right of action at common law to recover damages for per- retain^tgiit''3
3 sonal injuries if he shall not have given his employer, at the time of his 5'^'^™'""'°°
4 contract of hire, written notice that he claimed such right, or, if the con- J^Ps^''''
5 tract of hire was made before the employer became an insured person, if .',fl,j^;j'lj*^g' l^^^
6 the employee shall not have given the said notice within thirty days of 21s Mass^ sw.
7 notice of such insurance. An employee who has given notice to his em- 222 Mass^ sw;.
8 ploycr that he claimed his right of action at common law may waive such iU Mass! 1^"'
9 claim by a written notice, which shall take effect five days after it is de- |,33 .£1' Ito.
10 livered to the employer or his agent. The notices required by this section ^^^ ^^'^^- ^^■
1 1 shall be given in such manner as the department may approve.
1 Section 25. If an insured person who has complied with the rules, Payment of
2 regulations and demands of the insurer is required by a judgment of a insurrf."' ^^
3 court to pay to an employee any damages on account of personal injury iv'§22.''
4 sustained by such employee during the period covered by insurance, the -'* '^'''^=- ^'**'-
5 in,surer shall pay to the insured the full amount of such judgment and the
6 cost assessed therewith if the insured shall have given the insurer written
7 notice of the bringing of the action in which the judgment was recovered
8 and an opportunity to appear and defend the same.
payments.
1 Section 26. If an employee who has not given notice of liis claim Payments.
2 of common law rights of action, under section twenty-four, or who has ii,'§'/.^''
3 given such notice and has waived the same, receives a personal injury |5| ^"2 If/
4 arising out of and in the course of his employment, he shall be paid ^^y^^gg 3,,
5 compensation by the insurer, as hereinafter provided, if his employer 76,223,388.'
6 is an insured person at the time of the injury.
218 Mass. 1. 223 Mass. 5(1. 139. 228 Mass. 57.
219 Mass. 488. 224 Mass. 554, 558. 229 Mass. 165, 193. 407.
220 Mass. 17, 526, .581. 225 Mass. 174, 220. 230 Mass, 99, 326, 429.
222 Mass. 1, 226 Mass. 591. 235 Mass. 309, 598.
98, 163, 487. 227 Mass. 341, 4.52. 236 Mass. 241, 342. 473, .542.
1606
WORKMEN S COMPENSATION.
[Chap. ]:)2.
Misconduct by
employee bars
compensation.
1911. 751,
n. S2.
Misconduct
by employer.
Double com-
pensation.
1911, 751,
II. §3.
1912, 571, 5 1.
218 Mass. 8.
227 Mass. 55.
230 Mass. 272.
231 Mass. 132.
236 Mass. 407.
Section 27. If the employee is injured by reason of his serious and
wilful misconduct, he shall not receive compensation.
218 Mass. 158.
223 Mass. 139.
Section 28. If the employee is injured by reason of the serious and
wilful misconduct of an insured person or of any person regularly intrusted
with and exercising the powers of superintendence, the amounts of com-
pensation hereinafter provided shall be doubled. In such case the insured
shall repay to the insurer the extra compensation paid to the employee.
If a claim is made under this section the insured may appear and defend
against such claim onlv.
Waiting period.
1911, 751,
II, § 4.
1916, 90.
Section 29. No compensation shall be paid for any injury which does
not incapacitate the employee for a period of at least ten days from earning
full wages, but if incapacity extends beyond such period, compensation
shall begin on the ele\'enth day after the injury. When compensation
shall ha\e begun it shall not be discontinued except with the written
assent of the employee or the approval of the department or a mem-
ber thereof; pro^■ided, that such compensation shall be paid in accord-
ance with section thirty -five if the employee in fact earns wages after
the original agreement is filed.
Medical
services, etc.
1911,751,
U, § 5.
1914, 708, § 1.
1917, 198.
1920, 324.
217 Mass. 589.
219 Mass. 420.
223 Mass. 540.
226 Mass. 292.
228 Mass. 257.
229 Mass. 302,
335.
Death.
1911, 751,
II, § 6.
1914, 70S, § 2.
216 Mass. .5811.
217 Mass. 3.
192.
218 Mass. 278.
219 Mass. 498.
220 Mass. 526.
222 Mass. 401.
223 Mass. 187.
225 Mass. 349.
229 Mass. 48,
435.
230 Mass. 152,
326.
231 Ma-ss. 261.
234 Mass. 5.
Section 30. During the first two weeks after the injury, and, if the 1
employee is not immediately incapacitated thereby from earning full 2
wages, then from the time of such incapacity, and in unusual cases, in the -i
discretion of the department, for a longer period, the insurer shall furnish 4
adequate and reasonable me<lical and hospital services, and medicines 5
if needed. The employee may select a physician other than the one 6
pro\'ided by the insurer; and in case he shall be treated by a physician 7
of his own selection, or where, in case of emergency or for other justifi- 8
able cause, a physician other than the one provided by the insurer is 9
called in to treat the injured employee, the reasonable cost of his ser\ices 10
shall be paid by the insurer, subject to the approval of the department. 11
Such approval shall be granted only if the department finds that the 12
employee was so treated by such physician or that there was such emer- 13
gency or justifiable cause, and in all cases that the services were adequate 14
and reasonable and the charges reasonable. In any case where the de- 15
partment is of opinion that the fitting of the employee with an artificial 16
eye or limb, or other mechanical appHance, will promote his restoration 17
to industry, it may order that he be provided with such an artificial eye, IS
limb or appliance, at the expense of the insurer. 19
Section 31. If death results from the injury, the insurer shall pay 1
the <lependents of the employee wholly dependent upon his earnings for 2
support at the time of injury a weekly payment equal to two thirds of 3
his average weekly wages, but not more than ten dollars nor less than 4
four dollars a week for a period of five hundred weeks from the date of 5
the injury; but in no case shall the amount be more than four thousand 6
dollars. If the employee leaves dependents only partially dependent 7
upon his earnings for support at the time of his injury, the insurer 8
shall pay such dependents a weekly compensation equal to the same 9
proportion of the weekly payments for the benefit of persons wholly 10
dependent as the amount contributed by the employee to such partial 11
dependents bears to the annual earnings of the deceased at the time of 12
Chap. 152.] workmen's compensation. 1607
13 liis injury. \Yhen weekly payments have been made to an injured em-
14 ployee before his death, tlie compensation to dependents shall begin from
1.5 the date of the last payment, but shall not continue more than five
16 himdred weeks from the date of the injury.
1 Section 32. The following persons shall be conclusively presumed ^^i''i^°7'^Y'*^'
2 to be wholly dependent for support upon a deceased employee: ii. § 7.
1914, 70S, § 3. 1919. 204.
3 (a) A wife upon a husband with whom she li\es at the time of his 215 Mass. 497.
4 death, or from whom, at the time of his death, the department shall find 217 Mass! 79^
5 the wife was li\dng apart for justifiable cause or because he had deserted 219 Mass. 140.
6 her. The findings of the department upon the questions of such justifiable 223 Mass' 378
7 cause and desertion shall be final. 224 Mass. se, 592.
227 Mass. 456. 229 Mass. 454, 521. 230 Mass. 152.
8 (b) A husband upon a wife with whom he lives at the time of her death.
9 (c) Children under the age of eighteen years (or o\er said age, if JJS K"^^ "'■
10 physically or mentally incapacitated from earning) upon the parent 79, 192.
11 with whom they are living at the time of the death of such parent, there 225 Mass! aia
12 being no surviving dependent parent; provided, that in case of the death 232 Mass! 212.
13 of an employee who has at the time of his death living children by a former ^s* m^=^- s.
14 wife or husband, under the age of eighteen years (or over said age, if ^■**' -^'"^'^ ^°*-
15 physically or mentally incapacitated from earning), said children shall
16 be conclusively presumed to be wholly dependent for support upon such
17 deceased employee, and the death benefit shall be diAided between the
18 surviving wife or husband and all the children of the deceased employee
19 in equal shares, the sur\i\ing wife or husband taking the same share as
20 a child. The total sum due the sur\i\ing wife or husband and her or his
21 own children shall be paid directly to the wife or husband for her or his
22 own use and for the benefit of her or his own children, and the sums due
23 to the children by the former wife or husband of the deceased employee
24 shall be paid to their guardians or legal representatives for the benefit of
25 such children.
26 (d) Children under the age of sixteen years (or over said age but 234 Mass. 152.
27 physically or mentally incapacitated from earning) upon a parent who
28 was at the time of his death legally bound to support although li\'ing
29 apart from such child or children.
30 In all other cases questions of dependency, in whole or in part, shall ^H mIH' tf^'
31 be determined in accordance with the fact as the fact mav be at the time ^w Jiass. 140.
_,-„,.. , . , , .„ , . ', 222 Mass. 401,
32 or the injury; and in such other cases, 11 there is more than one person 563.
33 wholly dependent the death benefit shall be divided equally among them, 227 Mass! 455!
34 and persons partly dependent, if any, shall receive no part thereof, and if 454, 52T.''
35 there is no one wholly dependent and more than one person partly de- I31 ^JajJ %i
36 pendent, the death benefit shall be divided among them according to the
37 relative extent of their dependency.
1 Section 33. In all cases the insurer shall pay the reasonable expense Funeral
2 of burial, not exceeding one hundred dollars. If the employee leaves i9ii°7m,
3 dependents, such sum shall be a part of the compensation payable, and jg^l ^jgq.
4 shall to that extent shorten the period of payment. 215 Mass. 497.
1 Section 34. Wliile the incapacity for work resulting from the injury xotai in-
2 is total, the insurer shall pay the injured employee a weekly compensation i9ii"75i,
3 equal to two thirds of his average weekly wages, but not more than Igil^yos, § 4.
1608
WORKMEN S COMPENSATION.
[ClL\P. 152.
1917, 249, § 1.
1918, 113.
1919, 197.
21.5 Ma8s. 96,
217 Mass. 3.
sixteen dollars nor less than seven dollars a week; and the period covered 4
by such compensation shall not be greater than five hundred weeks nor 5
the amount more than four thousand dollars. 6
218 Mass. 8, 141.
219 Mass. 189, 430.
223 Mass. 273, 288.
227 Mass. 55.
228 Mass. 334.
229 Mass. 325.
Partial in-
capacity.
1911,751,11,
§ 10.
1914, 708, § 5.
1919, 205.
217 Mass. 3.
218 Mass. 8.
219 Mass. 4.30.
220 Mass. 351.
222 Mass. 4(51.
229 Mass. 325.
235 Mass. 408.
Section 35. While the incapacity for work resulting from the injury
is partial, the insurer shall pay the injured employee a weekly compen-
sation equal to two thirds of the difference between his average weekly
wages before the injury and the average weekly wages which he is able
to earn thereafter, but not more than sixteen dollars a week; and the
amount of such compensation shall not be more than four thousand
dollars.
ce*tS'n''spec'ific SECTION 36. lu case of the following specified injuries the amounts
HiT 751, hereinafter named shall be paid in addition to all other compensation :
II. § 11- 1912, 571, § 2. 1913, 445; 69G. 1914, 708, § 6. 218 Mass. 8.
218 Mass. 8.
226 Mass. 131.
228 Mass. 211.
217 Mass. 3,
511.
227 Mass. 269.
217 Mass. 511.
219 Mass. 136.
221 Mass. 54.
223 Mass. 346.
(a) For the loss by severance of both hands at or above the wTist, or 3
both feet at or above the ankle, or the loss of one hand and one foot, or 4
the reduction to one tenth of normal vision in both eyes with glasses, 5
two thirds of the average weekly wages of the injured person, but not 6
more than ten dollars nor less than four dollars a w-eek for a period of 7
one hundred weeks. 8
(b) For the loss by severance of either hand at or above the wrist, of 9
either foot at or above the ankle, or the reduction to one tenth of normal 10
vision in either eye with glasses, two thirds of the average weekly wages of 11
the injured person for each hand or foot so severed, but not more than 12
ten dollars nor less than four dollars a week for a period of fifty weeks. 13
(c) For the loss by severance at or above the second joint of two or 14
more fingers, including thumbs, of the same hand or of two or more toes 15
of the same foot, two thirds of the average weekly wages of the injured 16
person, but not more than ten dollars nor less than four dollars a week, 17
for a period of twenty-five weeks, for each hand or foot so injured. 18
(d) For the loss by severance of at least one phalange of a finger, thumb 19
or toe, two thirds of the average weekly wages of the injured person, but 20
not more than ten dollars nor less than four dollars a week, for a period 21
of twelve weeks, for each hand or foot so injured. 22
(e) The additional amounts provided for in this section in case of the 23
loss of a hand, foot, thumb, finger, toe or phalange shall also be paid for 24
the number of weeks above specified if the injury is such that the hand, 25
foot, thumb, finger, toe or phalange is not lost but so injured as to be 26
permanently incapable of use. 27
Method of
payment for
certain in-
juries.
1919, 27
,§2.
Section 37. Whenever an employee who has previously suffered 1
a personal injury resulting in the loss by severance, or the permanent 2
incapacity, of one hand at or above the wrist or one foot at or above the 3
ankle, or the reduction to one tenth of normal vision of one eye with glasses, 4
incurs further disability by the loss or permanent incapacity of a hand 5
or foot or the reduction to one tenth of normal vision in an eye, by reason 6
of a personal injury for which compensation is required by this chapter, 7
he, or his dependent, if death results from the injury, shall be paid the 8
compensation provided for by sections thirty-one, thirty-two, thirty- 9
four or thirty-five, in tlie following manner: 10
Chap. 152.] workmen's compensation. 1609
11 One half of such compensation .shall be paid by the state treasurer
12 from the fund established by section sixty-fi\-e, anfl the other half by the
1.3 insurer, but the adrlitional compensation required by section thirty-six
14 shall be paid by the insurer.
1 Section 3S. No savings or insurance of the injured employee inde- savings, etc.,
2 pendent of this chapter shall be considered in determining the corapensa- deducted.
.3 tion payable thereunder, nor shall benefits derived from any other source l^i2! '^'' '''
4 than the insurer be considered in such determination. 229 Mass. 435.
1 Section 39. The compensation payable in case of the death of the Payments in
2 injured employee shall be paid to his legal representative; or, if he has iaTi,°7M,''n,
3 no legal representati\e, to his dependents; or, if he leaves no dependents, ^gj| ^^g ^ ~
4 to the persons to whom payment of the expenses for the last sickness ^j^ Mass. sse.
5 and burial is due. If pa\Tnent is made to the legal representative of the 231 Mass.' 399!
6 deceased employee, it shall be paid by him to the dependents or other
7 persons entitled thereto under this chapter. When the appointment of
8 a legal representative of a deceased employee, not otherwise necessary,
9 is required to comply with this chapter, the insurer shall furnish or pay
10 for legal services rendered in connection with the appointment of such
1 1 representative, or in connection with his duties, and shall pay the neces-
12 sary disbursements for such appointment, the necessary expenses of such
13 representative and reasonable compensation to him for time necessarily
14 spent in complying therewith. Said payments shall be in addition to
15 sums paid for compensation.
1 Section 40. If an injured employee is mentally incompetent or is Guardian,
2 a minor when any right or privilege accrues to him, his guardian or next cfaim°rights
3 friend may in his behalf claim and exercise such right or privilege. ^^H' '°'' '^'
233 Mass. 570.
1 Section 41. No proceedings for compensation for an injury shall J}°'^"''"''
2 be maintained unless a notice thereof shall have been given to the in- v)n, 751. 11,
3 surer or insured as soon as practicable after the happening thereof, and 21- Mass. 223.
4 unless the claim for compensation with respect to such injury has been 223 mLs'. 346^
5 made within six months after its occurrence, or, in case of the death of 225 Mass. 203.
6 the employee, or in the event of his physical or mental incapacity, within 22? Mass Isg^
7 six months after death or the removal of such incapacity. ^"O-
228 Mass. 31, 213. 231 Mass. 225, 489.
1 Section 42. The said notice shall be in writing, and shall state in Form of
2 ordinary language the time, place and cause of the injury, and shall be i9ii77si, ii,
3 signed by the person injured, or, in case of his death, by his legal repre- i9\| 172.
4 sentative, or by a person to whom payments may be due under this ^ly'lf^g, 223
5 chapter, or by a person in behalf of anv one of them. Any form of written 222 jiass. 434.
„ ^ . .' *^. , , • . , ■' . , 226 Mass. CO.
0 communication signed by a person who may give the notice as abo\'e 231 Mass. 225.
7 provided, containing the information that the person has been so in-
8 jured, giving the time, place and cause of the injury, shall be considered
9 a sufficient notice.
1 Section 43. The notice shall be served upon the insurer or an officer Service of
2 or agent thereof, or upon the insuretl, or upon one insured person if there 1911T751. 11,
3 is more than one, or upon any officer or agent of a corporation if the liV^Mass. 223.
4 insured is a corporation, by delivering it to the person on whom it is to 222 Mass. 434.
IGIO
WORKMEN S COMPENSATION.
[Chap. 152.
be served, or leaving it at his residence or place of business, or by sending 5
it by registered mail addressed to the person on whom it is to be served, 6
at his last known residence or place of business. 7
Notice not
invalid for
inaccuracy, etc.
1911. 751. II,
§ 18.
1920. 22.'i. § 1.
217 Mass. 223.
222 Mass. 434.
223 Mass. 342.
226 Mass. GO.
227 Mass. 470.
228 Mass. 31.
232 Mass. 181.
Section 44. Such notice shall not be held invalid or insufficient
by reason of any inaccuracy in stating the time, place or cause of the
injury unless it is shown that it was the intention to mislead and that
the insurer was in fact misled thereby. Want of notice shall not bar
proceedings, if it be shown tliat tiie insurer, insured or agent had knowl-
edge of the injury, or if it is found that the insurer was not prejudiced
bv such want of notice.
Examination
by physician.
1911, 761, II,
§ 19.
1912, 571, § 4.
215 Mass. 480.
Section 4,5. After an employee has received an iujiu'v, and from
time to time thereafter during the continuance of his disability he shall,
if requested by the insiu-er or insured, submit to an examination by a
registered physician, furnished and paid for by the insurer or the insured.
The employee may have a physician pro\ided and paid for by himself
present at the examination. If he refuses to submit to the examination
or in any way obstructs it, his right to compensation shall be suspended,
and his compensation during tlie period of suspension may be forfeited.
Rights to
compensation
cannot be
waived.
Section 46. No agreement by any employee to wai\e his rights to 1
compensation shall be valid. 1911.751, n,§ 20. 215 Mass. 4so. 2
Payment not
assignable.
1911, 751, II,
§ 21.
Lump sums in
lieu of weekly
payments.
1911, 751, II,
522.
1914, 708, § S.
226 Mass. 444.
230 Mass. SCO.
Section 47. No payment shall be assignable or subject to attach- 1
ment, or be liable in any way for debts. 2
Section 48. Whenever any weekly payment has been continued for 1
not less than six months, tlie liability therefor may, in unusual cases 2
where the parties agree and the department deems it to be for the best in- 3
terests of the employee or his dependents, be redeemed by the payment, 4
in whole or in part, by the insurer of a lump sum to be fixed by the de- 5
partment, not exceeding the amount provided by this chapter. The 6
department may at any time in case of a minor who has received per- 7
manently disabling injuries, either partial or total, pro\ide that he be 8
compensated in whole or in part by the payment of a lump sum, of an 9
amount to be fixed by the department, not exceeding the amount pro- 10
vide<l by this chapter. 1 1
Claim.
1912,571, § 5.
1918, 119.
1920, 223, ^ 2.
223 Mass. 342,
346, 378.
225 Mass. 203
226 Mass. 131,
380.
227 Mass. 450.
228 Mass. 213.
230 Mass. 9.
231 Mass. 4G9.
Section 49. The claim for compensation shall be in writing, and 1
shall state the time, place, cause and nature of the injury. It shall be 2
signed by the person injured, or, in the event of his death, by his legal 3
representative, or by a person to whom payments may be due, or by a 4
person in behalf of any of them, and shall be filed with the department. 5
A claim for compensation shall not be held invalid or insufficient by
reason of any inaccuracy in stating the time, place, cause or nature of tiie
injury unless it is shown that it was the intention to mislead and that
the Insurer was in fact misled thereby. Failure to make a claim -within
the time fixed by section forty-one shall not bar proceedings under this 10
chapter if it is found that it was occasioned by mistake or other reason- 11
able cause, or if it is found that the insurer was not prejudiced by the 12
delay. ^ -^
Chap. 152.] workmen's compensation. 1(511
1 Section 50. Whenever any question in\ol\-ing the compensation of '"'"^f^j'"
2 an injured employee or his dependents is appealed to the supreme judi- J^f^^ ^gg j^
0 cial court, and the decision is in favor of the employee or his depend-
4 ents, interest to the date of payment sliall be paid by the insurer on all
5 sums due as compensation to such employee or dependents.
1 Section 51. Whenever an employee is injured under circumstances Compensation
2 entitling him to compensation, if it be established that the injured em- °mp°oyee.
3 ploj'ee was of such age and experience when injured that, under natural 22s''Mats; 334.
4 conditions, his wages would be expected to increase, that fact may be con- §5^ ^ass. sm.
5 sidered in determining his weekly wages.
INStJKANCE companies.
1 Section 52. Any liability insurance company authorized to do busi- J°n"pame's
2 ness in the commonwealth may insure the liability to pay the compensa- y ^s's'**'
3 tion provided for by this chapter; and when any such company insures 1912,571, § i7;
4 the payment of such compensation it shall file with the commissioner 2i8'Ma8s. i.
5 of insurance its classifications of risks and premiums relating thereto I op"^ aI'g^m.
6 and subsequent proposed classifications or premiums, which shall not
7 take effect until approved by the commissioner of insurance as adequate
8 for the risks to which they respectively apply. The commissioner may
9 withdraw his approval.
1 Section 53. Any mutual liability insurance company authorized to Mutual
2 do business in this commonwealth may with the approval of the commis- wix'Tsriv,
3 sioner of insiu-ance distribute its risks into groups in accordance with i9i6%oo.Vi.
4 the nature of the business and the degree of the liability of injury and
5 with like approval fix by and for such groups in accordance with the
6 experience of each group all premiums, assessments and dividends; but
7 all the funds of the company both actual and contingent shall be avail-
S able for the payment of any claim against the company.
1 Section 54. Policies of workmen's compensation insurance issued or Form of in-
2 delivered in the commonwealth shall cover separately and for a separate i9i5?'2S7,°§?.'
3 consideration all the liabilities which are imposed upon an insurer by
4 this chapter, whatever other contingencies may be insured by riders
5 attached thereto or endorsements thereon. On the face of such policies
6 shall be printed conspicuously the words " Insinance under this policy
7 is in Class of the company's Workmen's Compen-
8 sation Classification Manual", and in the blank thus provided the
9 number or other designation in said manual under which the said policy
10 is written shall be placed before the policy is issued.
1 Section 55. No such policy of insurance shall be issued or delivered fammiZlimeT
2 until a copy thereof has been filed with the commissioner of insurance igoy^sT'u"''^ ^9
3 at least thirty days prior to such issue or delivery, unless before the ex- isis', 287', § 2.
4 piration of the thirty days the said commissioner shall have approved
5 the form of the policy in writing, nor if the commissioner notifies the
6 company in wxiting that in his opinion the form of said policy does not
7 comply with the laws of the commonwealth, specifying the reasons for
8 his opinion; provided, that upon petition of the company the opinion of
9 the commissioner shall be subject to review by the supreme judicial court.
1612
WORKMEN S COMPENSATION.
[Chap. 152.
Any policy of insurance issued in ^^oIation of this section or of sec- 10
tion fifty-six or sixty shall be valid and binding upon the company 11
issuing it, and the rights, duties and obligations of the parties thereto 12
shall be determined by this chapter and chapter one hundred and 13
seventy-five. 14
Joint and
several
policies.
1918, 216.
Section 56. Two or more insurance companies authorized to issue
such insurance policies in the commonwealth may unite in issuing joint
and several workmen's compensation policies which may be headed by
the names of all such companies. Such policies shall be subject to ap-
proval by the commissioner of insurance.
Deposit by
company of
value of out-
standing
claims.
1919, 226, § 1.
Section 57. The commissioner of insurance in his discretion may 1
at any time require an insurance company to deposit in cash or approved 2
securities w-ith the state treasurer the present value as computed by 3
him of all or any part of its outstanding claims incurred under the pro- 4
visions of this chapter. The state treasurer shall make from such deposit 5
the payments to those entitled thereto under this chapter and as pro- 6
vided therein, upon the written request and under the direction of the 7
department, or may, if the company so elects, transfer from time to time 8
to a trustee appointed by the company and approved by the department 9
any part of the funds reasonably necessary for making the said payments 10
promptly, and the trustee shall make the same in accordance with the 11
instructions of the department. The state treasurer shall keep a sepa- 12
rate account with the company of the amount so received, the amount 13
of interest earned and the payments made. In case the amounts so de- 14
posited prove or seem likely to prove to be insufficient from transfer of 15
funds or otherwise, the commissioner may require the company to deposit 16
such additional sums as he may deem necessary. If the amounts deposited 17
prove to be larger than required, portions thereof may from time to 18
time be refunded to the company by the state treasurer, subject to the 19
approval of the department and the commissioner. If any balance re- 20
mains after payment of all sums due to injured workmen or their depend- 21
ents, the state treasurer shall return the balance to the company upon 22
notice from the department that there is no likelihood of further pay- 23
ments becoming due on account of the said claims. 24
Commissioner
to compute
value.
1919, 226. § 2.
Section 58. The commissioner of insurance shall compute the pres- 1
ent value of outstanding claims on the basis of information furnished by 2
the department, and shall assume a rate of interest not higher than four 3
per cent. 4
Expenses of
custody of
deposit.
1919. 226, § 3.
Section 59. When a deposit is made with the state treasurer under 1
section fifty-seven, the company shall pay to him a reasonable amount 2
for the expenses of his office, for the custody and disbursements of the 3
deposit. 4
Penalty for
failure to
make deposit.
1919, 226, § 4.
Section 60. An insurance company failing to make a deposit when 1
required under section fifty-seven shall not write policies of workmen's 2
compensation insurance in the commonwealth until such deposit is made. 3
Section 61. Every foreign insurance company transacting the busi- 1
Bond of
foreign
igis'Tss § 2 ^^^^ *-'^ workmen's compensation insurance in the commonwealth shall 2
1916,29. furnish a bond running to the commonwealth, with some suretv com- 3
CiL\.p. 152.] workmen's compensation. 1613
4 pany authorized to transact business in the commomvealth as surety,
5 for such term and such amount and in such form as may be approved
6 by the commissioner of insurance, the bond being conditioned upon the
7 making of the deposits required by the following section. The annual
8 license of such a company shall not be issued or renewed until it has filed
9 with the commissioner a bond as aforesaid covering a future period at
10 least as long as that covered by the license. In place of a bond as afore-
1 1 said the company may furnish other security, upon a like condition, sat-
12 isfactory to the commissioner.
1 Section 62. Every such foreign insurance company shall, within five Foreign
2 days after its withdrawal from the transaction of business in the com- ceasmTto'do
3 monwealtli or after the revocation of its license issued by the commis- i9i5"'i'83, 1 1.
4 sioner of insurance or of his refusal to renew it, deposit with a trustee
5 to be named by the department an amount eciual to twenty-five per cent
6 of its obligations incurred or to be incurred under workmen's compen-
7 sation policies issued to employers in the commonwealth; and within
8 thirty days after such withdrawal, revocation of or refusal to renew a
9 license, such company shall deposit with said trustee an amoimt equal to
10 the remainder of such obligations incurred or to be incurred, the amount
11 of which obligations shall be determined by the department. The ^
12 amounts so deposited shall be available for tlie payment of the said obli-
13 gations of the company to the same extent as if the company had con-
14 tinned to transact business in the commonwealth, and the trustee so
15 receiving said deposits shall pay sucli obligations at the times and in a
16 manner satisfactory to the department.
1 Section 63. Insurance companies insuring employees under this chap- information
2 ter shall, at the request of the department, furnish it in writing any compa'niea'on
3 information required in connection with the administration by said depanLeLt''^
4 department of this chapter, including any statistics and the names of i^'^' ™*' ^ ^^•
5 all employers insured by them.
1 Section 64. The insurer shall make and enforce reasonable rules and i^si'^er''^
2 regulations for the prevention of injuries on the premises of insured per- i^U' ''^^^ ^^^
3 sons, and for this purpose inspectors of the insurer shall have free access 1919.350, § 69.
4 to all such premises during regular working hours. Insured persons or
5 employees thereof aggrieved by such rules or regulations may petition
6 the department of labor and industries for a rexnew, and it may affirm,
7 amend or annul the rule or regulation.
1 Section 65. For every case of personal injury resulting in death Special fund
2 covered by this chapter, when there are no dependents, the insurance p°aymenjs!
3 company shall pay into the treasury of the commonwealth one hundred ^®'°' ^'"' ^ ''
4 dollars. Such payments shall constitute a special fund in the custody of
5 the state treasurer who shall make payments therefrom upon the written
6 order of the department for the purposes set forth in section thirty-seven.
miscellaneous provisions.
1 Section 66. In an action to recover damages for personal injury Modification
2 sustained by an employee in the course of his employment, or for death loii, 751".'
3 resulting from personal injury so sustained, it shall not be a defence — 209 Maes. mr.
4 1. That the employee was negligent; 2i5Ma.s.4so.
1614
WORKMEN S COMPENSATION.
[Chap. 152.
222 Mass. 65.
223 Mass. 3S6.
227 Mass. 237.
2. That the injury was caused by the negligence of a fellow employee; 6
3. That the employee had assumed the risk of the injury. 6
228 Mass. 147.
230 Mass. 309.
-Application
of the pre-
ceding section.
1911,751, I.
§§ 2, 3.
209 Mass. 607.
217 Mass. o.
Application of
certain otiier
laws.
1911,751,
I. §4.
1913, 807, § 4.
225 Mass. 220.
Section 67. The preceding section shall not apply to actions to re- 1
cover damages for personal injuries sustained by domestic servants and 2
farm laborers, nor to actions for such injuries received by employees of 3
an insured person. 225 Mass. 220. 230 Mass. 102. 3 Op. a. g. 569. 4
Section 68. Chapter one hundred and fifty-three and sections four 1
and seven to ten, inclusive, of chapter two hundred and twenty-nine shall 2
not apply to employees of an insured person, nor to laborers, workmen or 3
mechanics employed by any comity, city, town or district subject to sec- 4
tions sixty-nine to seventy-five, inclusive, while this chapter is in effect. 5
Compensation
by the com-
monwealth,
etc.
1913,807, § 1.
223 Mass. 270.
226 Mass. 517.
227 Mass. 44.
232 Mass. 458.
Op. A. G.
(1917) 68.
Section 69. The commonwealth and any county, city, town or dis- 1
trict having the power of taxation which has accepted chapter eight 2
hundred and seven of the acts of nineteen hundred and thirteen shall 3
pay to laborers, workmen and mechanics employed by it who receive 4
injuries arising out of and in the course of their employment, or, in case 5
of death resvdting from such injury, to the persons entitled thereto, the 6
compensation required by this chapter. Sections sixty-nine to seventy- 7
five, inclusive, shall apply to the commonwealth and to any county, 8
city, town or district having the power of taxation which has accepted 9
said chapter eight hundred and seven of the acts of nineteen hundred 10
and thirteen. 11
Procedure.
1913, S07, §
Section 70. Procedure under sections sixty-nine to seventy-five, in- 1
elusive, and the jiu-isdiction of the department shall be the same as under 2
sections one to sixty-eight, inclu.sive, and the commonwealth or such 3
county, city, town or district shall ha\'e the same rights in proceedings 4
under said sections as the insurer. The state treasurer or the treasurer 5
or officer having similar duties of such county, city, town or district shall 6
pay compensation awarded for injmy to persons in its employment upon 7
proper vouchers without further authority. 8
other
remedies
excluded.
1913, 807. § 3,
223 Mass. 28S.
226 Mass. 517.
227 Mass. 44.
Section 71. Except as provided in the following section, such county, 1
city, town or district shall not be liable in any action for a personal injury 2
sustained by a laborer, workman or mechanic in the course of his employ- 3
ment by such county, city, town or district, or for death resulting from 4
such injury. 5
Waiver of
rights by
employee.
1913, S07. § 4.
Section 72. A laborer, workman or mechanic entering the service of 1
such county, city, town or district who would, if injured, have a right 2
of action against the county, city, town or district by law, may claim 3
or waive his right of action as provided in section twenty-four, and shall 4
be deemed to have waived such right of action unless he claims it. 5
Election
between com-
pensation and
pension.
1913, 807, § 5.
Section 73. Any person entitled to receive compensation as pro-
\ided by section sixty-nine from the commonwealth or from such county,
city, town or district, who is also entitled to a pension by reason of the
same injury, shall elect whether he will receive such compensation or
such pension, and shall not receive both. If a person entitled to such
compensation from the commonwealth or from such county, city, town
Chap. 153.] employers' liability for injuries not fatal.
1615
7 or district receives by special act a pension for the same injury, he shall
S forfeit all claim for compensation ; and any compensation received by him
9 or paid by the commonwealth or by such county, city, town or district
10 which employs him for medical or hospital services rendered to him may
11 be recovered back in an action at law. No further payment shall be
12 awarded by vote or otherwise to any person who has claimed and received
13 compensation under sections sixty-nine to seventy-five, inclusive.
1 Section 74. Sections sixty-nine to seventy-five, inclusive, shall apply Application
2 to all laborers, workmen and mechanics in the service of the common- 09^toy&^^
3 wealth or of such county, city, town or district under any employment 228^MasL!
4 or contract of hire, expressed or implied, oral or WTitten, including those
5 employed in work done in performance of governmental duties as well as
6 those employed in municipal enterprises conducted for gain or profit.
7 For the purposes of said sections all laborers, workmen and mechanics paid
8 by the commonwealth, but serving under boards or commissions exer-
9 cising powers within defined districts, shall be deemed to be in the service
10 of the commonwealth.
§ft.
1 Section 75. Every board, commission and department of the com- Agents for
2 monwealth employing laborers, workmen and mechanics, and every such sect'ions^
3 county, city, town and district shall, through its executive officer or iIis^Im.
4 board, designate a person to act as its agent in furnishing the benefits due ^^ ^' ^■
5 under sections sixty-nine to seventy-five, inclusive. Such agent shall be
6 responsible for the proper carrying out of said sections under the direction
7 and supervision of the department until his agency is revoked and a new
8 agent designated. The name and address of every such agent shall be
9 filed with the department immediately upon his designation. This sec-
10 tion shall not apply to counties, cities, towns and districts which have
1 1 provided by insurance for the payment of compensation requii'ed by this
12 chapter.
REFERENCE.
§ 64. Rules made under this section to be subject to those ot department of
labor and industries, Chap. 149, § 12.
CHAPTER 153.
LIABILITY OF EMPLOYERS TO EMPLOYEES FOR INJURIES NOT
RESULTING IN DEATH.
Sect.
1. Liability.
2. Neglect to notify employer of negligence
or defect bars recovery.
3. Known defect not remedied. Employee
does not assume risk.
4. Assumption of risk by railroad em-
ployees.
Sect.
5. Limit of damages recoverable.
6. Notice of injury.
7. Independent contractor.
S. Insurance fund.
9. Examination of premises.
1 Section 1. If personal injury is caused to an employee, who, at the Liability.
2 time of the injury, is in the exercise of due care by reason of — §§ i,'?.'
3 First, A defect in the condition of the ways, works or machinery is93;3.w! '
4 connected with or used in the business of the employer, which arose {fgy^^g?;
5 from, or had not been discovered or remedied in consequence of, the f; ^j ^^g-
1616
employers' LLA.BILITY FOR INJURIES NOT FATAL. [ChAP. 153.
1908. 420.
1909, 514,
§§ 127, 142.
144 Mass. 198.
145 Mass. 468.
144 Mass. 198.
146 Mass. 586.
148 Mass. 533.
152 Mass. 160.
153 Mass. 460.
155 Mass. 21,
584.
156 Mass. 131,
293, 342, 368,
527.
153 Mass. 112,
356.
156 Mass. 13,
262.
159 Mass. 348,
532.
151 Mass. 245.
negligence of the employer or of a person in his service who had been 6
intrusted by him with the duty of seeing that the ways, works or ma- 7
chinery were in proper condition; or 8
147 Mass, 573.
173 Mass. 42,400.
198 Mass. 337, 398,
532
153 .Mass. 73. 281, 468.
174 Mass. 320, 398.
200 Mass. 188, 522,
546
154 Mass. 29, 248, 407.
175 Mass. 183, 363, 466, 496.
201 Mass. 296, 352,
4fi4
155 -Mass. 21,368.
176 Mass. 135.
202 Mass. 17, 82, 193.
156 Mass. 131, 163, 298.
177 Mass. 69, 144, 170.
228, 340, 491.
158 .Mass. 135, 228, 238, 318.
178 Mass. 9, 485.
203 .Mass. 265, 273,
159 .Mass. 1.
179 Mass. 190.
294, 532.
160 Mass. 131, 152,201,
180 Mass. 113, 363,403.
204 Mass. 42.
230, 248, 260, 457, 554. 557.
181 Mass. 326.
205 Mass. 59, 366.
161 Mass. 153. 368.
182 .Mass. 368, 500.
206 Mass. 463.
162 Mass. 198,312,334.
183 Mass. 13.
207 Mass. 99, 117.
163 Mass. 221, 364.
185 Mass. 82, 442.
208 Mass. 106, 282,
304
164 Mass. 168, 206, 453, 523.
186 Mass. 47, 205.
209 Mass. 65, 81.
165 Mass. 16, 202, 443.
187 Mass. 87, 239, 397.
210 Mass. 344.
166 Mass. 4.
188 Mass. 75, 290, 371,
212 Mass. 271.
167 Mass. 39, 167.
437, 481.
213 .Mass. 148.
406, 588, 590.
189 Mass. 62, 336.
214 Mass. 472.
168 Mass. 1, 40. 217, 219,
191 Mass. 40, 338, 479.
217 Mass. 566.
226, 254, 270, 395, 450.
192 Mass. 257,481, 538.
219 Mass. 277, 399
169 Mass. 67, 541, 574.
193 Mass. 89.
221 Mass. 20, 282.
170 Mass. 298.
194 .Mass. 260, 310,
223 Mass. 509, 521.
171 Mass. 417, 427.
378,412.
226 Mass. 355.
172 .Mass. 50, 89,
196 Mass. 95.
230 Mass. 102, 423,
130, 150, 548.
197 Mass. 550.
446, ,587.
Second, The negligence of a person in the service of the employer 9
who was intrusted with and was exercising superintendence and whose 10
sole or principal duty was that of superintendence, or, in the absence of 11
such superintendent, of a person acting as superintendent with the au- 12
thority or consent of such employer; or 1,3
158 .Mass. 174, 318,
379.
ISO .Mass. 115, 572.
203 Mass. 258, 519, 532.
159 .Mass. 348, 532,
536.
181 Mass. 329, 480.
204 Mass. 130, 197,
160 Mass. 131, 201,
182 Mass. 260, 411,
306, 323, 477.
248, 457, 573.
420, 503.
205 Mass. 270, 283,
161 Mass. 170, 502
184 .Mass. 39, 225, 287.
366,431.
162 Mass. 185, 312,
334.
185 Mass. 139,214.
206 Mass. 227, 305,
163 Mass. 216, 344,
364.
186 .Mass. 99,318,572.
451,458.
164 Mass. 296, 387
187 Mass. 18, 51, 67,
207 Mass. 99, 200, 484.
165Mass. 71,202, 221,
157,229,239,432.686.
208 Mass. 97, 196, 229,
436, 443.
188 Mass. 141, 420.
296, 304, 346, 520.
166 Mass. 48, 268.
189 Mass. 62, 336, 576.
209 Mass. 52, 58, 81, 152.
167 Mass. 23, 52, 588.
190 .Mass. 421.
210 Mass. 177,361.
168 Mass. 10, 226.
191 Mass. 9, 20, 40,
211 Mass. 82, 504.
169 Mass. 416, 485.
269, 479.
212 Mass. 171, 189,
170 Mass. 156, 298
192 .Mass. 319, 415, 538.
271, 577.
171 Mass. 36, 162,
193 Mass. 103, 495.
213 Mass. 125, 143, 145, 148
359,395,417.
194 Mass. 386, 431.
284, 524.
172 Mass. 56, 78.
195 Mass. 168.
214 .Mass. 444,461,472.
150, 222, 324,
196 Mass. 336, 402, 524.
216 Mass. 144, 274, 512.
331,468,504,555.
197 Mass. 43, 550.
217 Mass. 161,309,566.
173 Mass. 26, 105,
198 Mass. 60, 163,
218 Mass. 71.
180, 512.
337, 528, 577.
219 Mass. 6, 144.
174 Mass. 46, 202,
199 Mass. 254, 421, 522.
221 Mass. 20, 195, 282.
442, 453, 455.
200 Mass. 105,221,
222 Mass. 17.
175 Mass. 438.
360,432, 507,522,571.
223 Mass. 335, 521.
176 Mass. 125, 258,
369.
201 Mass. 117, 126,
227 Mass. 135.
177 Mass. 176.422,
565.
269, 393, 486.
228 Mass. 361.
178 Mass, 242, 295.
202 Mass. 17, 228,
229 Mass. 41.
179 .Mass. 307.
480, 554.
230 Mass. 446.
Third, The negligence of a person in the service of the employer who 14
was in charge or control of a signal, switch, locomotive engine, elevated 15
train or train upon a railroad or elevated railway; IG
164 Mass. 296, 523.
166 Mass. 268.
169 Mass. 170.
171 Mass. 249.
173 Mass. 177.
176 Mass. 393.
182 Mass. 237.
188 Mass. 420.
191 Mass. 44.
195 Mass. 437.
199 Mass. 522.
200 .Mass. 422, 551.
203 .Mass. 437.
205 Mass. 540.
207 Mass. 486.
208 Mass. 11, 520.
210 Mass. 271.
211 Mass. 570.
214 Mass. 459.
218 Mass. 45.
220 Mass. 250.
The employee, or his legal representatives, shall, subject to the eight 17
following sections, have the same rights to compensation and of action 18
against the employer as if he had not been an employee, nor in the serv- 19
ice, nor engaged in the work, of the emploj-er. 20
A car in use by or in possession of a railroad corporation, or an ele- 21
vated car in use by or in possession of an elevated railway corporation, 22
shall be considered as a part of the ways, works or machinery of the cor- 23
poration which uses or has it in possession, within the meaning of clause 24
Chap. 153.] ejiployers' liability for injuries not fatal. 1617
25 first, whether owned by such corporation or by some other company or
26 person. One or more cars which are in motion, whether attached to an
27 engine or not, shall constitute a train within the meaning of clause tliird,
28 and whoever, as a part of his duty for the time being, physically con-
29 trols or directs the movements of a signal, switch, locomotive engine,
30 elevated train or train shall be deemed to be a person in charge or control
31 of a signal, switch, locomotive engine, elevated train or train within the
32 meaning of said clause.
33 This section shall not apply to injuries caused to domestic servants or i97 Mass, 391.
34 farm laborers by fellow employees.
1 Section 2. An employee or his legal representatives shall not be Neglect to
2 entitled under section one of this chapter or under chapter two hmi- pfoycroT
3 dred and twenty-nine to any right of action for damages against his defecTbars""^
4 employer if such employee knew of the defect or negligence which caused j|s°77276 § 5
5 the injury, and failed within a reasonable time to give, or cause to be ^^^- ^™'' § "•
6 given, information thereof to the employer, or to some person superior § i3-i.
7 to himself in the service of the employer who was intrusted with general iss Mass! ass.
8 superintendence. 192 Mass. 257.
1 Section 3. If a defect in the ways, works or machinery of an em- Known defect
2 ployer has been reported to the person whose duty it is to remedy said Employee"'
3 defect, or cause it to be remecUed, or to report its existence, and such fSmme risk.
4 defect is not remedied within a reasonable time, and by reason of said 22i*'ji'a*'ss 282
5 defect an employee is injured, such employee shall not be held to have 230 Mass. 5S7.
6 assumed the risk of such injury.
1 Section 4. An employee of a railroad corporation injiu-ed by any Assumption of
2 locomotive, car or train used contrary to any provision of sections one "oad em™
3 hundred and fifty-five and one hundred and fifty-seven to one hmidred i8'95!'3G2. i 7.
4 and fifty-nine, inclusive, of chapter one hundred and si.xty shall not be j'^og.^'^'
5 deemed to have assumed the risk of such injury, although he continues Pfl^ *''^'''
6 in the employment of such corporation after the unlawful use of such J^PPj^'*'
7 locomotive, car or train has been brought to his knowledge. An em- iss Mass. 390.
8 ployee of a railroad corporation injured by any locomotive, car or train
9 by reason of the negligence of any other employee of the corporation
10 shall not be deemed to have assumed the risk of such injury.
1 Section 5. The amount of damages awarded iia an action under sec- Limit of
2 tion one for a personal injury to an employee, in which no damages for recoverable.
3 his death are awarded, shall not exceed four thousand dollars. HH] leo! ^ *'
1S93, 359. R. L. 100, § 74. 203 Mass. 273.
1900, 446. 1909, 514, § 131. 211 Mass. 504.
1 Section 6. No action for the recovery of damages for injury under Notice of
2 section one of this chapter or for death under section four or seven of 1887T270, § 3.
3 chapter two hundred and twenty-nine shall be maintained unless notice J|||; a'eo, \ 2.
4 of the time, place and cause of the injiu-y is given to the employer within ^g' H^-
5 sixty days, and the action is commenced within one year, after the acci- R- l- ^oa, § 75.
6 dent which causes the injurv or death. Such notice shall be in writing, § 132.
.. •> 1910 166
7 signed by the person injured or by a person in his behalf. If the person § 2: 'eii.'
8 injured dies within the time required for giving the notice, liis executor or 1912! 251!
9 administrator may gWe such notice within sixty days after his appoint- i5o*mT^! i90,
10 ment; and in such case the action may be begun within one year after i.'s.Mass 29,
11 the appointment of such executor or administrator. If from physical or igl'lf^gg'*®*-
1618
employers' liability for INJITIIES NOT FATAL. [CiLAP. 153.
156 Mass. 262.
157 Mass. 51.
160 Mass. 143,
201.248.
162 Mass. 334.
163 Mass. 105.
166 Mass, 268.
167 Mass. 595.
170 Mass, 348.
172 Mass. 415.
173 Mass. 177.
175 Mass, 391.
178 Mass, 59.
180 Mass. 69,
270.
182 .Mass. 237.
197 ilass. 178,
586.
198 Mass. 385.
199 Mass. 418.
421.
200 Mass. 284.
201 Mass. 473.
202 Mass. 228.
204 Mass. 197.
209 Mass. 196.
210 Mass. 86.
216 Mass. 512,
552
219'Mass. 164.
228 Mass. 361.
mental incapacity it is impossible for the person injured to give the notice 12
Avithin the time provided in this section, he may gi\-e it within ten days 13
after such incapacity has been removed, and if he dies within said ten 14
days his executor or administrator may give such notice within sixty days 15
after his appointment. If the employer dies without such notice having IG
been given and before the time for giving such notice has elapsed, the 17
notice may be given to his executor or administrator, and the time within IS
which the notice may be gi\en as herein provided shall run from the ap- 19
pointment of the executor or administrator. A notice given under this 20
section shall not be held invalid or insufficient solely by reason of an 21
inaccuracy in stating the time, place or cause of the injury if it is shown 22
that there was no intention to mislead, and that the employer was not 23
in fact misled thereby. If the employer dies without such action having 24
been brought and before the time for bringing the action has elapsed, the 25
action may be begun against his executor or administrator not less than 26
six months and not more than one year after the executor or admin- 27
istrator has given bond for the performance of his trust. Any form of 28
WTitten communication signed by the person so injured, or by some per- 29
son in his behalf, or by his executor or administrator, or by some person 30
in behalf of such executor or administrator, containing the information 31
that the person was so injured, giving the time, place and cause of the 32
injury or death, shall be considered a sufficient notice. 33
Independent
contractor.
1887, 270, § 4,
R L. 106, § 76.
1909, 514,
§ 133,
158 Mass. 232.
190 Mass. 288.
Section 7. If an employer enters into a contract, wTitten or verbal,
with an independent contractor to do a part of such employer's work,
or if such contractor enters into a contract with a sub-contractor to do
all or any part of the work comprised in such contractor's work with
the employer, such contract or sub-contract shall not bar the liability
of the emplo;y'er for injuries to the employees of such contractor or sub-
contractor caused by any defect in the condition of the ways, works, 7
machinery or plant, if they are the property of the employer or are fur- S
iiished by him and if such defect arose, or had not been discovered or 9
remedied, through the negligence of the employer or of some person 10
intrusted by him with the duty of seeing that they were in proper 11
condition. 12
Insurance
fund.
1887. 270, § 6,
R, L, 106, § 78.
1909, 514.
§ 135.
Section 8. An employer who has contributed to an insurance fund 1
created and maintained for the mutual purpose of indemnifying an em- 2
ployee for personal injuries for which compensation may be recovered 3
under section one or to any relief society formed under sections eightj'- 4
six, eighty-seven and eighty-eight of chapter one hundred and fifty-nine, 5
or the corresponding provisions of earlier laws may prove in mitigation 6
of the damages recoverable by an employee under said section one, such 7
proportion of the pecuniary benefit received by such employee from any 8
such fund or society on account of such contribution of said employer as 9
the contribution of such employer to such fund or society bears to the 10
whole contribution thereto. 11
Examination
of premises.
1908, 380.
1909, 514,
§ 141.
221 Mass. 489.
Section 9. A justice of the superior court may, upon petition setting
forth in ordinary language that the servant or employee of a certain per-
son, has been injured in the course of his emplo.^'ment, through some
defect in the ways, works or machinery owned or used by the employer,
and that it is necessary in order to protect the interests of the injured
Chap. 154.]
ASSIGNMENT OF WAGES.
1619
6 person that an examination should be made of the ways, works or ma-
7 chinery tlirough whose defect the injury occurred, and after such notice
8 to tlie employer as any justice of said court may direct or approve, and
9 a hearing, grant an order directing the employer or person in control
10 of such ways, works or machinery to permit the person named in said
11 order to make such examination, under conditions to be set forth in the
12 order.
REFERENCES.
This chapter superseded as to employees whose employers take out workmen's
compensation insurance, Chap. 1.52, § 68.
Presumption of due care of person injured or killed, Chap. 231, § 85.
Recovery for death. Chap. 229.
CHAPTER 154.
ASSIGNMENT OF WAGES.
Sect.
1. Definition of assignment.
2. Requisites for validity of assignments
to secure small loans.
Requisites for validity of other assign-
ments.
3.
Sect.
4. Same subject.
5. Standard form of assignment.
6. Validity against trustee process.
7. Effect of assignment.
1 Section 1. The term "assignment", as used in this chapter, shall Definition of
- , , , . . „ , '^ . assignment.
2 include every mstrument purportmg to transfer an mterest m or an i906, 390, §3.
3 authority to collect the future wages or salary of a person. §123. '
1 Section 2. No assignment of or order for wages or salary to be Requisites for
2 earned in the future to secure a loan of less than three hundred dollars assignme'nts
3 shall be valid against an employer of the person making such assignment {"^n""^ ^™*"
4 or order until the assignment or order is accepted in writing by the em- l^^S'S'^^'
5 plover, nor untU the assignment or order and the acceptance of the same loio, 563.
6 have been filed and recorded with the clerk of the town where the person 1912! urs'. § 6. "
7 making the assignment or order resides, if he is a resident of the com- 221 mS 241!
8 monwealth, or in which he is employed if he is not a resident thereof; nor
9 shall it be valid unless said assignment is substantially in the form pre-
10 scribed in section five. No such assignment or order shall be recorded
11 by the clerk of a town unless it states on its face that the sum of ten
12 dollars per week, as earned, of the wages or salary so assigned is exempt
13 from such assignment or order. No such assignment or order shall be
14 valid when made by a married man unless the written consent of his
15 wife to the making thereof is attached thereto. No such assignment or
16 order shall be valid for a period exceeding one year from the making
17 thereof.
1 Section 3. No assignment of future wages other than one subject to Requisites
2 the preceding section shall be valid for a period exceeding two years from nUiw i'i'i'gn"'
3 the making thereof, nor unless made to secure a debt contracted prior to i9™g"'308
4 or simultaneously with the execution of said assignment, nor unless exe- \^°^- 1'?0' 5 1-
5 cuted in writing in the standard form set forth in section five and signed § 121-^
6 by the assignor in person and not by attorney, nor unless such assignment weVass'. 528.
1620
ASSIGNMENT OF WAGES.
[CiLiP. 154.
197 Mass, 3SS.
205 Mass. 26.
210 Mass. 487.
232 Mass. 42.
states the date of its execution, the money or the money value of goods 7
actually furnished by the assignee and the rate of interest, if any, to be 8
paid thereon. Three fourths of the weekly earnings or wages of the as- 9
signor shall at all times be exempt from assignment, and no assignment 10
shall be valid which does not so state on its face. No such assignment 11
shall be valid when made by a married man unless the written consent 12
of his wife to the making thereof is attached thereto. 13
Same subject.
1906. 390, 5 2.
1909. 514.
§ 122.
207 Mass. 328.
Section 4. No assignment under section three shall be valid unless 1
a copy thereof is delivered to the assignor by the assignee at the date of 2
the execution of such assignment. No such assignment shall be binding 3
on the employer of the assignor until a copy of the assignment and a 4
WTitten account, which shall conform to the requirements hereinafter 5
stated, have been delivered to said employer. The account shall contain 6
a statement of the balance due and of the sums of money received by 7
the assignee, together with the date of every such payment and a state- 8
ment as to whether such payment is interest, a payment on the prin- 9
cipal, or, in case of a loan, a payment on the charge for making and 10
securing it. 11
standard form
of assignment.
1906, 390, § 4.
1909, 514,
§ 124.
I91C. 208, § 2.
235 Mass. 2S4.
Section 5. The standard form of assignment shall be as follows:
Know All Men by these Presents.
That I, of in the county
of , for a valuable consideration, to me paid by ,
of , the receipt whereof I do hereby acknowledge, do hereby
assign and transfer to said all claims and
demands, not exempt by law (which I now have, and all) which within a period
of from the date hereof I may and shall have against my present
employer, and against any person whose employ I shall hereafter enter, (for all
sums of money due and) for all sums of money and demands which, at any time
within said period may and shall become due to me, for services as
To have and to hold the same to the said , his executors, adminis-
trators and assigns, to secure a debt
(1) Of dollars (with interest thereon from , at the
rate of per cent per annum) , for money (or goods) actually furnished
by the assignee amounting to dollars.
(2) Contracted prior to the execution of this assignment (or contracted simul-
taneously with the execution of this assignment).
(3) Three fourths of the weekly earnings or wages, which are
dollars, are exempt from this assignment.
(4) ' Ten dollars per week, as earned, is exempt from this assignment.
In Witness Whereof, I have set my hand this day of
Signed and delivered, in presence of h. m.
M. Received and entered in records of assignment of wages in
clerk's office of the of , book , page
, Clerk.
Validit.v
against trustee
process.
1865, 43,
§§2,3.
P. S. 183, § 39.
R. L. 189, § 34. vvhere the assignor resides at the time of such record
Section 6. No assignment of future earnings shall be valid against
a trustee process, unless before service of the writ upon the alleged trustee
the assignment has been recorded in tiie office of the clerk of the town
1909, 514, § 125.
1910, 563.
8 Cuflh. 151.
1 Gray, 105.
2 Gray, 565.
5 Gray, 49.
7 Gray, ISO.
2 Allen, 407.
9 Allen, 108.
12 Allen, 498.
102 Mass. 2,33,235.
108 Mass. 347.
110 Mass. 204.
115 Mass. 165.
120 Mass. 94.
121 Mass. 167,431.
123 Mass. 353.
124 Mass. 162.
125 Mass. 475.
126 Mass. 117.
131 Mass, 534.
1905, 308.
162 Mass. 662.
184 Mass. 486.
185 Mass. 54.
194 Mass. 579.
205 Mass. 26.
221 Mass. 241.
1 Clause (4) to be used in place of clause (3) only for assignment under section 2.
Chap. 154.] assignment of wages. 1621
1 Section 7. Except as above provided, an assignment of wages made Effect of
2 in accordance with this chapter shall bind all wages earned by the as- i90b,"m § s.
3 signer within the period named in such assignment.
1909, 514, § 12G. 207 Mass. 328. 221 Mass. 241.
REFERENCES.
Release of assignment of wages given as security for a small loan when the loan is
paid, Chap. 140, § 107.
Assignment of rights in retirement funds not valid, Chap. 32, § 91.
1622
GENERAL PROVISIONS RELATRE TO CORPORATIONS. [ChAP. 155.
TITLE XXII.
CORPORATIONS.
Chapter 155. General Provisions relative to Corporations.
Chapter 156. Business Corporations.
Chapter 157. Co-operative Corporations.
Chapter 158. Certain Miscellaneous Corporations.
Chapter 159. Common Carriers.
Chapter 160. Railroads.
Chapter 161. Street Railways.
Chapter 162. Electric Railroads.
Chapter 163. Trackless Trolley Companies.
Chapter 164. Manufacture and Sale of Gas and Electricity.
Chapter 165. Water and Aqueduct Companies.
Chapter 166. Telephone and Telegraph Companies, and Lines for the Transmission
of Electricity.
Chapter 167. Biinks and Banking.
Chapter 168. Savings Banks.
Chapter 169. Deposits with Others than Banks.
Chapter 170. Co-operative Banks.
Chapter 171. Credit Unions.
Chapter 172. Trust Companies.
Chapter 17.3. Mortgage Loan Investment Companies.
Chapter 174. Bond and Investment Companies.
Chapter 175. Insurance.
Chapter 176. Fraternal Benefit Societies.
Chapter 177. Assessment Insurance.
Chapter 178. Savings Bank Life Insurance.
Chapter 179. Proprietors of Wharves, Real Estate lying in Common, and General
Fields.
Chapter 180. Corporations for Charitable and Certain Other Purposes.
Chapter 181. Foreign Corporations.
Chapter 182. Voluntary Associations.
CHAPTER 155.
GENERAL PROVISIONS RELATIVE TO CORPORATIONS.
Sect.
general provisions.
1. Scope of chapter, etc.
2. Duties of commissioner of corporations
and ta.xation.
3. Charters subject to alteration or repeal.
4. Use of names of public service corpora-
tions.
5. Investigation, etc., of use of names of
public service corporations.
Sect.
powers of corporations.
6. General powers.
7. By-laws.
8. Conveyance of land.
9. Corporate name.
10. Change of name.
11. Unauthorized business may be en-
joined.
12. Free beds in hospitals.
Chap. 155.] general provisions EELATI^"E to corporations.
1623
Sect.
organization and meetings.
13. Corporations created by special charter.
14. First meeting of chartered corporations.
15. Meeting called by justice of the peace,
when.
CAPITAL STOCK.
16. Par value of shares.
17. Shares not to be issued for less than par.
18. Preferred stock.
19. Laws governing preferred stock; form
of certificate.
20. Notice to stockholders of increase ; dis-
position of new stock.
21. Executors, etc., may vote.
22. Stock books; corporate records.
23. List of stockholders to be filed with
state secretary.
TRANSFERS OF STOCK.
24. What law governs.
25. Construction.
26. Definitions.
27. Mode of transfer.
28. Powers of infants, incompetents and
fiduciaries not affected.
29. Rights of record owner.
30. Title by delivery may have priority over
title by power of attorney, etc.
31. Delivery by one having no title.
32. Endorsement procured by fraud, etc.
33. Rescission of transfer.
34. Effect of rescission on rights of pur-
chaser for value in good faith.
feECT.
35. Incomplete transfer.
36. Effect of attempted transfer.
37. Warranties.
38. Warranties by mortgagee, etc.
39. New certificates.
40. Lien or restriction to be stated on cer-
tificate.
41. Effect of alteration.
42. New certificate in place of one lost or
destroyed.
43. Endorsement.
44. Who deemed owner of certificate.
45. Transfer of instalment stock.
46. New certificates. Pledge.
UNCL-IIMED DIVIDENDS.
47. List of unclaimed di\-idends to be pub-
lished.
FALSE REPORTS OR STATEMENTS CONCERN-
ING CORPORATIONS.
48. Penalty for false statement.
49. Statement required by foreign law.
DISSOLUTION OF CORPORATIONS.
50. Dissolution of corporations.
51. Continuation for three years to close
concerns.
52. Receivers.
53. Receivers to pay debts and distribute
surplus.
54. Surrender of certificate of incorpora-
tion.
55. Returns to secretary of dissolution.
GENERAL PROVISIONS.
Section 1. The prov-isions of this chapter, unless expressly limited ^^"pL"'^,^
p. S. 105. § 1.
R. L. 109, § 1.
in their application, shall apply to all corporations created by or organ
ized under the laws of the commonwealth, except so far as they are in-
consistent with other proxisions of law relative to particular corporations
or classes of corporations. In this chapter, unless the context otherwise
6 requires, "commissioner" means the commissioner of corporations and
7 taxation.
1919. 350,
§§ 52, 53.
1 Section 2. The commissioner shall examine tlie certificates and Duties of
. . 1*11. . . cominissioner
2 reports relative to corporations submitted to mm under the pro\isions of corporations
3 of law, and make suitable endorsements upon such as conform to the i870, 224. § 6i.
4 requirements of law. He shall keep a record of the names of corpora- e. l. 110, § i.
5 tions which submit certificates to his inspection, of the date of inspec- ^^°^'*^'
§§3,95
6 tion and of his certificates when given, and of the result in brief of his Jgio',!^^' ^ ^"'
7 inspection. He shall report to the attorney general instances of neglect
8 or omission on the part of corporations to comply with the provisions
9 of law for the enforcement of the penalties therefor.
1 Section 3. Every act of incorporation passed since March eleventh, charters sub-
2 eighteen hundred and thirty-one, shall be subject to amendment, altera- ji^no" repeal'.
3 tion or repeal by the general court. All corporations organized under ^g°°^'- ""^•"i-
1624
GENERAL PROVISIONS RELATIVE TO CORPORATIONS. [ChAP. 155.
(Const. Rev.
art. 75.)
1830, 81,
R. S. 38, § 36;
44, § 23.
G. S. 68, I 41.
P. S. 105,
§§2,3.
R.L. 109, § 3.
1903, 437,
§§ 2, 95.
1914, 742.
§§ 12, 199.
general laws shall be subject to such laws as may be hereafter passed 4
affecting or altering their corporate rights or duties or dissolving them. 5
Corporations shall, notwithstanding such repeal or dissolution, be sub- 6
ject to sections fifty-one and fifty-two. Such laws of amendment, alter- 7
ation or repeal or such dissolution shall not take away or impair any 8
remedy which may exist by law consistently wHh said sections against the 9
corporation, its members or officers, for a liability pre\-iously incm-red. 10
23 Pick. 334.
6 Cush. 424.
9 Cush. 604.
4 Grav, 227.
13 Gray, 239.
15 Gray. 106.
4 Allen, 198.
5 .\llen, 230,
11 Allen, 26S.
13 Allen, 29.
103 Masa. 254.
104 Mass. 446.
109 Mass. 103. 506.
118 Mass. 290 561.
123 Mass. 32.
147 Mass. S4S.
212 Mass. 82.
215 Mass. 394.
218 Mass. 387.
Use of names
of public
service cor-
porations.
1913,499. § 1.
1914. 742,
§§ 173, 199.
1919, 350,
§117.
Section 4. No person owning, holding or controlling shares of stock 1
of any public service corporation shall hereafter use any name or title 2
or other words that, in the opinion of the department of public utilities, 3
might lead the public to believe that such person is a public service cor- 4
poration or that its business is that of a pubHc ser\'ice corporation. 5
Investigation,
etc.. of use of
names of publ:
serv-ice cor-
porations.
1913, 499.
§§2,3.
1914, 742,
§§ 173. 199.
1919, 350,
§117.
Section 5. The department of public utilities may investigate and 1
"^ determine whether any person is \-iolating the preceding section; and 2
any person \"iolating any pro\ision thereof shall forfeit to the common- 3
wealth one hundred dollars a day for every day or part thereof during 4
which such ^^olation continues after the determination aforesaid. Any 5
such ^^olation shall forthwith be reported by the department to the 6
attorney general, after said determination and notice thereof to such 7
person. The said forfeiture may be recovered by an information or other 8
appropriate proceeding brought in the supreme judicial or superior court 9
in the name of the attorney general. Upon such information or other 10
proceeding the court may issue an injunction restraining such person 11
from further prosecution of his business within the commonwealth dur- 12
ing the pendency of such proceeding or for all time, and may make such 13
other order or decree as equity and justice may require. 14
This and the preceding section shall not apply to the continued use by 15
any person of any name or title adopted prior to April seventeenth, nine- 10
teen hundred and thirteen. 17
POWERS OF CORPORATIONS.
General
powers.
1808. 65. § 1.
1829. 53, I 1.
1833, 83, I 1.
R. S. 38, I 6;
44, I 1.
G. S. 60, § 2;
68, § 1.
P. S. 105, § 4.
R. L. 109. § 4,
Section 6. A corporation may, in its corporate name, sue and be
sued, appear, prosecute and defend to final judgment or decree and execu-
tion; have a corporate seal, which it may alter at pleasure; elect in such
manner as it may determine all necessary officers, fix their compensation
and define their duties and obligations; and make by-laws and regula-
tions consistent vcith law for its own government, the due and orderly
cb°^(6Md)!(e).' conduct of its affairs and the management of its property.
(h), 95! ' ' 1914, 742, §§ 17, 199. 10 Mass. 91.
By-laws.
1808, 65, 5 1.
1829, 53. § 1.
1833. 83, I 1.
R.S. 38, § 6:
44, § 2.
G. S. 60, § 2;
68, I 7.
P. S. 103. § 5.
R. L, 109. § 5.
Section 7. Every corporation, except those go^'erned by chapter
one himdred and fifty-six, may by its by-laws, except as otherwise ex-
pressly provided, determine the manner of calling and conducting its
meetings; the number of members which shall constitute a quorum; the
number of shares which shall entitle the members to one or more \-otes ;
8 ivi'et^3oi,*32i. the mode of voting by proxy ; the mode of selling shares for the payment
Chap. 155.] general provisions REL.\Tn'E to corporations. 1625
7 of assessments; and the tenure of office of the several officers; and may
S annex suitable penalties to such by-laws, not exceeding twenty dollars
9 for one offence; but no by-law inconsistent with law shall be made by a
10 corporation.
1 Section 8. A corporation may convey land to which it has a legal onand!^""*'
2 title. R. S. 44, § 6. G. S. 68, § 8.
p. S. 105, § 6, R. L. 109, § 6. 11 Allen, 65. 218 Mass. 339.
1 Section 9. A corporation organized under general laws may assume corporate
2 any name which, in the judgment of the commissioner, indicates that it iIm^ss, § e.
3 is a corporation; but it shall not assume the name of another corporation isvo'^wf §8
4 established under the laws of the commonwealth, or of a corporation, firm, ^^^^ ^°^j 5 17.
5 association or person carrying on business in the commonwealth, at the ^.„^o\°?' ^ *;
6 time of such organization or within tlu-ee years prior thereto, or assume i903, 437,
7 a name so similar thereto as to be likely to be mistaken for it, except 1914', 742,
8 with the wTitten consent of said existing corporation, firm or association 1918,257',
9 or of such person previously filed with the commissioner. The supreme fg^ig^^. 333^
10 judicial or superior court shall have jurisdiction in equity, upon the ap- j92{/q^^'
11 plication of any person interested or affected, to enjoin such corporation }i? M"^^ ts|
12 from doing business under a name assumed in violation of this section, 2i2Miis8.'2i9.'
... . . 569
13 although its certificate or articles of organization may have been approved 226 Mass. 42.
14 and a certificate of incorporation may have been issued to it.
1 Section 10. A corporation, except one subject to chapter one hun- change
2 dred and fifty-six or chapters one hundred and sixty to one hundred and i,s9°i^ 306,
3 sixty-tliree, inclusive, may at a meeting duly called for the purpose, by i892^''i9S; 201.
4 vote of two thirds of each class of stock outstanding and entitled to vote, J|^|' ]9|- ^ g
5 or, in case such corporation has no capital stock, by vote of two thirds Ifl^v^g^'
6 of the persons legally qualified to vote in meetings of the corporation, or 1901,422, § 9.
7 by a larger vote if its agreement of association or by-laws shall so require, §§ 9,' 10. '
8 change its name. Articles of amendment signed and sworn to by the 1914! 742!
9 president, treasurer and a majority of the directors or other officers fg^il 350,
10 having the powers of directors, shall within thirty days after such meeting ^^ *^- *''• ^"^•
11 be prepared, setting forth such amendment, and stating that it has duly
12 been adopted by the stockholders. Such amendment shall be submitted
13 to the commissioner who shall examine it, and if he finds that it conforms
14 to the requirements of law, he shall so certify and endorse his approval
15 thereon. Thereupon the state secretary shall direct the officers of the
16 corporation to publish in such form as he may see fit, in a newspaper
17 published in the county where the corporation has its principal office or
18 place of business, notice of such change of name. When the state secre-
19 tary is satisfied that such notice has been published as required by him,
20 he shall upon the payment of a fee of one dollar grant a certificate of
21 the name which the corporation shall bear, which name shall thereafter
22 be its legal name, and he shall cause the article of amendment and the en-
23 dorsements thereon to be recorded in his office. In the case of corpora-
24 tions subject to chapter one hundred and seventy-five, one hundred and
25 seventy-six or one hundred and seventy-seven, the approval of the com-
26 missioner of insiu-ance shall be required before the commissioner of cor-
27 porations and taxation approves the article of amendment. No article
28 of amendment changing the name of any corporation shall take effect
29 until it has been filed in the office of the state secretarv as aforesaid.
1626
GENERAL PROVISIONS RELATIVE TO CORPORATIONS. [ChAP. 155.
Unauthorized
business may
be enjoined.
1906. 372.
19fi Mass. 458.
197 Mass. 194.
198 Mass. 413.
215 Mass. 394.
220 Mass. 536.
Section 11. Upon an information in equity by the attorney general
at the relation of the commissioner, the supreme judicial court may
restrain by injunction any corporation from assuming or exercising any
franchise or privilege or transacting any kind of business not authorized
bv its charter and the laws of the commonwealth.
Free beds in
hospitals.
1889, 258.
R. L. 110. §50.
1903. 437.
§§ 94, 95.
1914, 742.
§§ 60, 199.
1919, 333, § 15.
Section 12. Every corporation may, by a vote of a majority of each 1
class of stock outstanding and entitled to vote, appropriate not more 2
than five thousand dollars or an annual sum of not more than five hundred 3
dollars for the support of free beds in one or more hospitals in the com- 4
raonwealth, for the use of its employees. 1920, 2. 5
Corporations
created by
special charter.
1866, 264, § 1.
G. S. 68. § 2.
P. S. 105, § 8.
1898. 336.
R. L. 109, § 12.
1903, 437,
§§ 6, 95.
organization and meetings.
Section 13. A corporation created by special charter shall, if no time 1
is limited therein, be organized within two years after the passage of 2
its act of incorporation. Within thirty days after the final adjournment 3
of the meeting for organization of any such corporation, the recording 4
officer thereof shall make, sign, swear to and file in the office of the state 5
secretary a certificate stating the date on which the meeting for organiza- 6
tion was held, the names of the officers elected at such meeting and the 7
amount of capital stock, if any, fixed under its charter. 8
First meeting
of chartered
corporations.
1808, 65, § 2.
1829, 53, § 2.
1833, 83, § 2.
R. S. 44, § 3.
1855, 140.
G. S. 68, § 3.
P. S. 105, § 9.
R. L. 109. § 13.
1903, 437,
§§ 6, 9. 95.
1918,257,
§347.
1919, 5.
1920, 2.
16 Mass. 94.
3 Met. 282.
11 Gush. 369.
Section 14. The first meeting of such corporation, luJess otherwise 1
provided in its act of incorporation, shall be called by a notice, signed by 2
the person or by a majority of the persons named in such act, setting 3
forth the time, place and purposes of the meeting, and delivered seven 4
days at least before the meeting to each member or published in a news- 5
paper of the county where the corporation is established. If all the 6
persons so named shall, in writing, upon the charter or a certified copy 7
thereof, waive such notice and fix the time and place of the meeting, no 8
notice shall be required. The persons so named and their associate sub- 9
scribers to stock before the date of the act shall hold the franchise or 10
privileges granted until the corporation is organized. 11
12 Allen, 362.
98 Mass. 98.
101 Mass. 385.
129 Mass. 540.
146 Mass. 482.
199 Mass. 127, 141.
Meeting called
by justice of
the peace,
when.
1833, 49.
R. ,S. 44, § 4.
G. S. 68, § 5.
P. S. 105, § 11.
R. L. 109, § 15.
1903, 437,
§§21,95.
1906, 463,
II, §§ 34. 258,
III, §§ 1.5, 158.
1914,742,
§§ 19, 199.
Section 15. If, by reason of the death or absence of the officers of a 1
corporation, or other cause, there is no person duly authorized to call or 2
preside at a legal meeting, or if the clerk or other officer refuses or neglects 3
tb call it, a justice of the peace may, upon written application of tlu-ee or 4
more of the members or stockliolders, issue a warrant to any one of them, 5
directing him to call a meeting by giving such notice as is required by law, 6
and may in the same warrant direct him to preside at the meeting until 7
a clerk is duly chosen and qualified if no officer is present legally author- 8
ized to preside. i9i8, 257, § 374. 1919,5. 1920,2. 9
Par value
of shares.
1860, 128, § 1.
1867, 131.
1870, 224, § 7.
1873, 37.
P. S. 105, § 10.
1894, 500.
1898, 503, § 2.
R. L. 109, § IS.
CAPITAL stock.
Section 16. The par value of the common or preferred shares of all
corporations shall be one hundred dollars. Any corporation which may
be organized with shares of a par value other than one hundred dollars
may at a meeting of stockliolders called for the purpose change the par
value of its shares to that amount if a certificate of such change shall,
within ten days thereafter, be made, signed and sworn to by its president,
ClL^P. 155.] GENERAL PROVISIONS RELATIVE TO CORPORATIONS. 1627
7 treasurer and a majority of its directors, or other officers having the 1914,742,
8 powers of directors, and, having been approved as to its form by the
9 commissioner, be filed in the office of the state secretary.
1 Section 17. No corporation shall issue a share for a less amount shares not to
2 to be actually paid in thereon than the par value of the shares at the lessThTn par.
3 date of issue. issi, 133, § le. isss, 167. isso, 104. g. s. 68, § 9.
1871, 392, § 3. P. S. 105, § 17; R. L. 109, § 19.
1873, 39, I 1. 106, § 41. 157 Mass. 68.
1 Section 18. Every corporation may issue preferred stock to an Preferred
2 amount not exceeding at any time the amount of the general stock i<)02,'44i, § i.
3 then outstanding, with such preferences and voting powers or restric- 1913,' ^I; §^5'
4 tions or qualifications thereof as shall be fixed and determined in the |^3^o^i''|g
5 agreement of association at the organization of the corporation; or after i^is. 299, § 4.
6 organization, by a two thirds vote of all the stock, or by a bj'-law adopted
7 by a two thirds vote of all the stock, at a meeting duly called for the
8 purpose. This section shall not apply to corporations organized under
9 chapter one hundred and fifty-six or to railroad corporations or street
10 railway companies.
1 Section 19. Such stock shall be issued subject to all general laws Laws governing
2 governing the issue of capital stock; and each certificate subsequently Esmrof cerSa-'
3 issued of stock in the corporation shall have fully and plainly printed 19*02, 441, § 2.
4 thereon the by-law or vote of the corporation authorizing the issue of §§'36,799.
5 preferred stock.
1 Section 20. If a corporation, not subject to chapter one hundred ^"Jlfhoyers
2 and fifty-six, increases its capital stock and no other provision therefor °^ increase;
. Ill -i* iiipi'i* • • 1 p aisposition of
3 IS made by law, its directors shall forthwith give written notice thereof new stock.
4 to each stockholder who was such at the date of the vote to increase, lan', io9;
5 stating the amount of the increase, the number of shares or fractions of 1S77, 230, § 3.
6 shares of the new stock which such stockholder is entitled to take, and Joo', § 37. ^ ^*''
7 the time, not less than thirty days after the date of such vote, within fjt/'i g'J' ^^^•
8 which such new stock shall be taken; and, within said time, each stock- ^oSV'^'^^' ll^'
9 holder may take at par his proportion of such new shares, according to ibs Mass! 345.
10 the number of his shares at the date of such vote to increase. If, at
11 the expiration of said time, any shares remain untaken, the directors
12 shall sell them by public auction for the benefit of the corporation at
13 not less than the par value thereof.
1 Section 21. An executor, administrator, guardian, conservator. Executors,
2 trustee or person in any other representative or fiduciary capacity shall Isib^ls^ i°2'.'
3 represent the shares of his trust at all meetings of a corporation, and fssl, 98,11^'
4 may vote as a stockholder.
G.S. 68, §11. 1903, 437, §§29, 95. 1914, 742, §§ 21, 199.
P. S. 105. § 13. 1906,403, II. §§38, 9 Cush. 192.
R. L. 109, § 17. 258, III, §§ 19, 158. 101 Mass. 398.
1 Section 22. The agreement of association, an attested copy of the stock books;
2 articles of organization or of articles in amendment of said agreement recorX "
3 or of said articles and of the by-laws, with a reference on the margin of Htl', 111'.
4 the copy of the by-laws to all amendments thereof, and a true record of cP|'(f|,^§| lo,
5 all meetings of stockholders shall be kept by every corporation at its 5|yi°j.,o
6 principal office in the conimonwealth for the inspection of its stock- ism. 201, § i.
7 holders. The stock and transfer books of every corporation, which §§'21-23!
1628
GENERAL PROVISIONS RELATIAT; TO CORPORATIONS. [ChaP. 155.
R. L. 109.
§§ 32. 33, 35.
1903,437,
«30,95.
1906, 463,
II. §§42,258.
III, §§23,158.
1914, 742,
§§24,25,27,
199.
1919, 333, § 17.
1920,2.
194 Mass. 239.
205 Mass. 121.
220 Mass. 224,
380.
221 Mass. 38.
234 Mass. 592.
1 Op. A. G. 278.
List of stock-
holders to be
filed with state
secretary.
1889, 222. § 3.
R. L. 109, §34.
1903, 437, §95.
1914. 742.
§§ 26, 199.
1 Op. A. G. 278.
shall contain a complete list of all stockholders, their residences and^the 8
amount of stock held by each, shall be kept at an office of the corporation 9
in the commonwealth for the inspection of its stockliolders. Said stock 10
and transfer books and said attested copies and records shall be com- 11
petent evidence in any court of the commonwealth. If any officer or 12
agent of a corporation having charge of such copies, books or records 13
refuses or neglects to exhibit them or to submit them to examination as 14
aforesaid, he or the corporation shall be liable to any stockholder for all 15
actual damages sustained by reason of such refusal or neglect, and the 16
supreme judicial or superior court shall have jurisdiction in equity, upon 17
petition of a stockholder, to order any or all of said copies, books or 18
records to be exhibited to him and to such other stockholders as may 19
become parties to said petition, at such a place and time as may be 20
designated in the order. 21
Section 23. A corporation not subject to chapter one hundred and 1
fifty-sLx shall within fifteen days after a written request by a stockholder 2
thereof, made not less than thirty nor more than sixty days prior to the 3
time fixed for the annual meeting of stockholders, cause a complete list 4
of the stockholders as of the sixtieth day prior to the time so fixed, with 5
the residence of and the number of shares belonging to each stockliolder, 6
to be made and filed in the office of the state secretary. The list shall 7
be in such form as the commissioner shall require or approve, and shall 8
be signed and sworn to by the treasurer of the corporation or by some 9
other officer cognizant of the facts specially appointed by the corpora- 10
tion to make the same. If a corporation and its treasurer or other officer 11
so specially appointed omits or neglects to cause a list of stockholders to 12
be so made and filed, they shall each forfeit not more than one thousand 13
dollars to be recovered in the manner provided in section forty-two of 14
chapter one hundred and fifty-eight. 15
TR-ANSFERS OF STOCK.
^CTDs"" Section 24. In any case not provided for by sections twenty-five to
iiiVass". 429.' forty-four, inclusive, the rules of law and equity, including the law mer-
chant, and in particular the rules relating to the law of principal and
agent, executors, administrators and trustees, and to the effect of fraud,
misrepresentation, duress or coercion, mistake, bankruptcy, or other
invalidating cause, shall govern.
Section 25. Sections twenty-four to forty-four, inclusive, shall be
interpreted and construed in such manner as to effectuate their general
purpose to make uniform the law of the states which enact the uniform
stock transfer act.
Construction.
1910, 171, § 19.
1
2
3
4
5
6
1
2
3
4
Definitions.
1910,171, §22.
211 Mass. 429.
224 Mass. 442.
Section 26. (1) In sections twenty-four to forty-four, inclusi\'e, 1
unless the context or subject matter other\\ise requires, the following 2
words shall have the following meanings : 3
"Certificate", a certificate of stock in a corporation organized under 4
the laws of this commonwealth or of another state whose laws are con- 5
sistent with said sections. 6
"DeHvery", voluntary transfer of possession from one person to 7
another. 8
"Person" includes a corporation or partnership or two or more persons 9
haA'ing a joint or common interest. 10
ClLiP. 155.] GENERAL PROVISIONS REL.\TrV'E TO CORPORATIONS. 1629
11 "Purchase" includes to take as mortgagee or as pledgee.
12 "Purchaser" includes mortgagee and pledgee.
13 "Shares", a share or shares of stock in a corporation organized under
14 the laws of this commonwealth or of another state whose laws are con-
15 sistent \\ith said sections.
16 "State" includes state, territory, district and insular possession of
17 the United States.
18 "Transfer", transfer of legal title.
19 "Title", legal title, not including a merely equitable or beneficial
20 owTiership or interest.
21 "Value", any consideration sufficient to support a simple contract.
22 An antecedent or pre-existing obligation, whether for money or not,
23 constitutes value if a certificate is taken either in satisfaction thereof or
24 as security therefor.
25 (2) A thing is done in "good faith" within the meaning of said sections
26 when it is in fact done honestly, whether it be done negligently or not.
1 Section 27. Title to a certificate and to the shares represented ^^^(°/
2 thereby shall be transferred only — isol'ls'll'
3 (a) By delivery of the certificate endorsed either in blank or to a speci- 1S29', 53|^§ 4'.
4 fied person by the person appearing by the certificate to be the owner of r. s.'3s.'§ 12-
5 the shares represented thereby; or ililfis.*"
6 (b) By delivery of the certificate and a separate document containing es.f n*';'65!H.
7 a wTitten assignment of the certificate or a power of attorney to sell, Jgyg' 224' i m'
8 assign or transfer the same or the shares represented thereby, signed JSZi' f-V 1 44
9 by the person appearing by the certificate to be the owner of the shares p. s.'ioe"'? so;'
10 represented thereby. Such assignment or power of attorney may be §66; 113, §'13.
11 either in blank or to a specified person. il^Iim;
12 This section shall be applicable although the charter or articles of |is;iV°.'§s9:
13 organization or code of regulations or by-laws of the corporation issu- ^i^ ^ ^*' '^^'
14 ing the certificate, and the certificate itself, pro\'ide that the shares repre- 3?23' 423:
15 sented thereby shall be transferable only on the books of the corporation i906. 463,'ii. '
16 or shall be registered by a registrar or transferred by a transfer agent. §§ 22! 15s'.
1910, 171, §§ 1, 24. 150 Mass. 200. 193 Mass. 522.
1914, 742. |§ 23, 199. 159 Mass. 64. 216 Mass. 330.
12 Gray, 213, 227. 182 Mass. 555. 219 Mass. 405.
8 Allen, 15. 190 Mass. 509. 234 Mass. 568.
138 Mass. 240.
1 Section 28. Sections twenty-four to forty-four, inclusi\'e, shall not Powers of
2 be construed as enlarging the powers of an infant or other person lack- petents and
3 ing full legal capacity, or of a trustee, executor or administrator, or other affected.'''^
4 fiduciary, to make a valid endorsement, assignment or power of attorney. ^^^°' ^''^' ^'
1 Section 29. Sections twenty-four to forty-four, inclusi\-e, shall not Rights of
2 be construed as forbidding a corporation — i79s, 59. § s.'
3 (a) To recognize the exclusive right of a person registered on its books g'. s. es! § 4!
4 as the owner of shares to receive di\-idends, and to vote as such owner; or p**s.' fol,' § 24;
5 (6) To hold liable for calls and assessments a person registered on its }ss4^22g
6 books as the owner of shares. R- l. 109, §§ 36, 37-, 123, § 12.
1903, 423; 437, §§ 28, 95. 1910, 171, §§ 3, 24.
1906, 463, II, §§ 41, 258, 1914, 742, §§ 23, 199.
HI, §§ 22, 158.
1 Section 30. The title of a transferee of a certificate under a power Title by
2 of attorney or assignment not WTitten upon the certificate, and the title have priority
1630
GENERAL PROVISIONS RELATrVE TO CORPORATIONS. [ChAP. 155.
over title by
power of
attornev, etc.
1910, 171, § 4.
Delivery by
one having
no title.
1910. 171, § 5.
211 Mass. 429.
21B Mass. 330.
of any person claiming under such transferee, shall cease and determine if, 3
at any time prior to the surrender of the certificate to the corporation 4
issuing it, another person, for value in good faith, and without notice of the 5
prior transfer, shall purchase and obtain delivery of such certificate with 6
the endorsement of the person appearing by the certificate to be the owner 7
thereof, or shall purchase and obtain delivery of such certificate and the 8
WTitten assignment or power of attorney of such person though contained 9
in a separate document. 10
Section 31. The delivery of a certificate to transfer title in accord- 1
ance with section twenty-seven shall be effectual, except as proxided in 2
section thirty-three, though made by one ha^'ing no right of possession 3
and ha\-ing no authority from the owner of the certificate or from the 4
person purporting to transfer the title. 5
Endorsement
procured by
fraud, etc.
1910, 171, I 6.
Section 32. The endorsement of a certificate by the person appear- 1
ing by the certificate to be the owner of the shares represented thereby 2
shall be effectual, except as pro\ided in the following section, though the 3
endorser or transferor — 4
(a) Was induced by fraud, duress or mistake to make the endorsement 5
or delivery; or 6
(b) Has revoked the delivery of the certificate, or the authority given 7
by the endorsement or delivery of the certificate; or 8
(c) Has died or become legally incapacitated after the endorsement, 9
whether before or after the delivery of the certificate; or 10
((/) Has received no consideration. 11
Rescission of
transfer.
1910, 171, § 7.
216 Mass. 330.
Effect of
rescission on
rights of pur-
chaser for value
in good faith.
1910, 171, § 8.
Section 33. If the endorsement or delivery of a certificate (a) was
procured by fraud or duress, or (b) was made under such mistake as to
make the endorsement or delivery inequitable; or if the delivery of a
certificate was made (c) Tsithout authority from the o^^'ne^, or (d) after the
o^\-ner's death or legal incapacity, the possession of the certificate may be
reclaimed and the transfer thereof rescinded, unless —
(1) The certificate has been transferred to a purchaser for value in 7
good faith lA-ithout notice of any facts making the transfer WTongful, or 8
(2) The injured person has elected to waive the injury, or has been 9
guilty of laches in endeavoring to enforce his rights. 10
Any court of appropriate jurisdiction may enforce specifically such 11
right to reclaim the possession of the certificate or to rescind the transfer 12
thereof and, pending litigation, may enjoin the further transfer of the 13
certificate, or impound it. 14
Section 34. Although the transfer of a certificate or of shares rep- 1
resented thereby has been rescinded or set aside, nevertheless, if the 2
transferee has possession of the certificate or of a new certificate rep- .3
resenting part or the whole of the same shares of stock, a subsequent 4
transfer of such certificate by the transferee, mediately or immediately, 5
to a purchaser for value in good faith, \\'ithout notice of any facts making 6
the transfer ^^Tongful, shall give such purchaser an indefeasible right to 7
the certificate and the shares represented thereby. 8
transTer'^'^ SECTION 35. The dcfivcry of a certificate by the person appearing by 1
i?,n°<,'^'' L°n the certificate to be the owner thereof, -n-ithout the endorsement requisite 2
220 Mass. 4S0. ' i i 1 l o
224 Mass. 442. for thc trausfcr of the certificate and the shares represented thereby, but 3
Chap. 155.] general provisions relative to corporations. 1631
4 with intent to transfer such certificate or sliares shall impose an obligation,
5 in the absence of an agreement to the contrary, upon the person so de-
6 livering, to complete the transfer by making the necessary endorsement.
7 The transfer shall take effect as of the time when the endorsement is
8 actually made. This obligation mnj' be specifically enforced.
1 Section 36. An attempted transfer of title to a certificate or to the ESect of
2 shares represented thereby without delivery of the certificate shall have tranSe'"'
3 the effect of a promise to transfer, and the obligation, if any, imposed ^^'°' '"'■ ^ '°-
4 by such promise shall be determined by the law governing the forma-
5 tion and performance of contracts.
1 Section 37. A person who for value transfers a certificate, including warranties.
2 one who assigns for value a claim secured by a certificate, unless a con- ^ ^°' ^ ^' ' ^^"
3 trary intention appears, warrants —
4 (a) That the certificate is genuine;
5 (6) That he has a legal right to transfer it; and
6 (c) That he has no knowledge of any fact which would impair the
7 validity of the certificate.
8 In the case of an assignment of a claim secured by a certificate, the
9 liabihty of the assignor upon such warranty shall not exceed the amount
10 of the claim.
1 Section 38. A mortgagee, pledgee, or other holder for security of a warranties by
2 certificate who in good faith demands or receives payment of the debt for i9io,^i7rH2.
3 which such certificate is security, whether from a party to a draft drawn
4 for such debt, or from any other person, shall not by so doing be deemed
5 to represent or to warrant the genuineness of such certificat-e, or the
6 value of the shar«s represented thereby.
1 Section 39. Except where a certificate is lost or destroyed, a cor- New certia-
2 poration shall not be compelled to issue a new certificate for the stock 1910! ivi, § 13.
3 until the old certificate is surrendered to it. 222 Mass. 27.
1 Section 40. There shall be no lien in fa\or of a corporation upon the Lien or re-
2 shares represented by a certificate issued by such corporation, and there stat'ed°on'"' ^
3 shall be no restriction upon the transfer of shares so represented by virtue ^iVa nt § 15.
4 of any by-laws of such corporation, or other^nse, unless the right of the
5 corporation to such lien or the restriction is stated upon the certificate.
1 Section 41. The alteration of a certificate, whether fraudulent or not Efrect of
2 and by whomsoever made, shall not deprive the owner of his title to the isio, i7i, § in.
3 cejtificate and the shares originally represented thereby, and the transfer
4 of such a certificate shall con\ey to the transferee a good title to such
5 certificate iind to the shares originally represented thereby.
1 Section 42. If a certificate has been lost or destroyed, a court of J^t"i^"','are
2 competent iurisdiction mav order the issue of a new certificate therefor of one lost or
„ . » ' . ,. , 11-, destroyed.
6 on seT\ice 01 process upon the corporation and on reasonable notice by isoo, 403, 11,
4 publication, and in any other way which the court may direct, to all per- §§ 24, 1.5s
5 sons interested, and upon satisfactory proof of such loss or destruction ^^'°' "^' ^ ^^'
6 and upon the gi\ing of a bond with sufficient surety to be appro\-ed by
7 the court to protect the corporation or any persons injured by the issue
1632
GENERAL PROVISIONS RELATIVE TO CORPORATIONS. [ChAP. 155.
of the new certificate from any liability or expense, which it or they may 8
incur by reason of the original certificate remaining outstanding. The 9
court may also in its discretion order the payment of the corporation's 10
reasonable costs and counsel fees. 11
The issue of a new certificate under an order of the court as pro\ided 12
in this section, shall not relieve the corporation from liability in damages 13
to a person to whom the original certificate has been or shall be trans- 14
ferred for value without notice of the proceedings or of the issuance of 15
the new certificate. 16
Section thirty-four of chapter one hundred and fifty-six shall apply to 17
railroads and street railways. 18
Endorsement.
1910, 171, §20.
Section 43. A certificate shall be deemed to be endorsed when an
assignment or a power of attorney to sell, assign or transfer the certificate
or the shares represented thereby is wTitten on the certificate and signed
by the person appearing by the certificate to be the owner of the shares
represented thereby, or when the signature of such person is WTitten
without more upon the back of the certificate. In either of such cases
a certificate shall be deemed to be endorsed though it has not been
delivered.
who deemed
owner of
certificate.
1910, 171. §21.
Section 44. The person to whom a certificate was originally issued 1
shall be deemed to be the person appearing by the certificate to be the 2
owner thereof, and of the shares represented thereby, until and unless 3
he endorses the certificate to another specified person, and thereupon 4
such other specified person shall be deemed to be the person appearing 5
by the certificate to be the owner thereof until and unless he also endorses 6
the certificate to another specified person. Subsequent special endorse- 7
ments mav be made with like effect. 8
Transfer of in-
stalment stock.
1903,
423. § 1;
437.:
§28.
New certifi-
cates
Pledge.
1808.
65. § 4.
1829,
S3, § 4.
1833,
187, § 8.
R. S.
38, § 12:
39, § 52.
1838,
98. § 3.
1846,
45.
G. S.
60, § 13;
63, § 11; 68,
§13.
1864,
229, § 10.
1870,
224. § 26.
1871,
381, § 10.
Section 45. Stock shall not be transferred on the books of a cor-
poration if any instalments thereon remain overdue and unpaid.
1914, 742, §§ 23, 199.
Section 46. A transferee under a transfer described in section
twenty-seven, upon delivery of the former certificate to the treasurer of
the corporation, shall be entitled to receive a new certificate. A pledgee
of stock transferred as collateral security shall be entitled to a new cer-
tificate if the instrument of transfer substantially describes the debt or
duty which is intended to be secured thereby. Such new certificate shall
ex-press on its face that it is held as collateral security, and the name of
the pledgor shall be stated thereon, who alone shall be liable as a stock-
holder, and entitled to vote thereon
[30;
1874,372, §44.
P. S, 105. § 25; 106,
112, § 50; 113, § 13.
R. L. 109, § 38; 110, § 2S;
111, § 59; 112, § 18.
1903, 423; 437, §§28. 95.
1906, 463, II. §§ 41, 258,
III. §§ 22, 158.
1914, 742, §§ 23, 199.
11 Gush. 183.
12 Gr.iy, 213.
3 Allen, 342.
8 Allen, 15.
10 Allen. 505.
138 Mass. 240.
150 Mass. 200.
154 Mass. 172.
176 Mass. 442.
182 Mass. 555.
193 Mass. 522.
203 Mass. 480.
206 Mass. 71.
219 Mass. 405.
List of un-
claimed di\-i-
dends to be
published.
1837, 56.
G. S. 68. § 19.
UNCLAIMED DIVIDENDS.
Section 47. Every corporation shall, once in every five years, pub-
lish three times successively in a newspaper in Boston, and also in a
newspaper in the county where the corporation is established, a list of
Chap. 155.] general peovisions relative to corporations.' 1633
4 all dividends which have remained unclaimed for two years or more and ^ |^ 1°^ § 27^
5 the names of the persons to whose credit such dividends stand. \i°S;.*SJ'
ss oJ, 95.
1906, 463. II, §§ 44, 25S, III, §§ 25, 158. 1914, 742, §§ 62, 199.
FALSE REPORTS OR STATEMENTS CONCERNING CORPORATIONS.
1 Section 48. Whoever knowingly makes, executes, files or publishes Penalty for
2 any report or statement required by law to be made, executed, filed or is66,^252';'§™*'
3 published by a corporation in this commonwealth, whether such cor- ^sel^llvfll.
4 poration is organized under the laws of this commonwealth or elsewhere, Pg|^ i^u ^ ^^°'
5 or whoever causes the same to be done, which report or statement is false Ll^^ .,o'
6 in any material representation, shall be punished by a fine of not more § loi. " '
7 than five thousand dollars or by imprisonment for not more than three § ioi.
8 years, or both. i907, 576, § no. 1911, 751, iv,§ i9. 1914, 661, §i.
1 Section 49. Whoever knowingly makes, executes or publishes any statement
2 report or statement required by the law of another state or country to fo?eign1aw!
3 be made, executed, or published by a corporation, or whoever causes the ^^^*' ''^^' ^ "•
4 same to be done, within this commonwealth, which report or statement is
5 false in any material representation, shall be punished by a fine of not
6 more than five thousand dollars or by imprisonment for not more than
7 three years, or both.
DISSOLUTION of CORPORATIONS.
1 Section 50. A corporation which desires to close its affairs may, Dissolution of
2 unless otherwise provided in the agreement of association, by the vote ism?^,'""*'
3 of a majority of its members if it has no capital stock, otherwise by a g. s. es. § 35.
4 vote of a majority of all its stock, or, if two or more classes of stock r. l.'ito, Vs2.
5 have been issued, of a majority of each class outstanding and entitled ss^lf^gj'
6 to vote, authorize a petition for its dissolution to be filed in the supreme Iflj^f ;J''
7 judicial or superior court setting forth in substance the grounds of the iii, §§'i3s,'i58.
8 application; and the court, after notice to parties interested and a hear- §§ si, 199.
9 ing, may decree a dissolution of the corporation. A corporation so dis- §§\^7,^:^8.'
10 solved shall be held to be extinct in all respects as if its corporate exist- y^cray^ 113,
11 ence had expired by the limitation of its charter. ^93.
9 Gray, 34, 99 Mass. 267. 219 ^taa8. 95.
13 Allen, 497. 119 Mass. 447. 227 Mass. 551.
1 Section 51. Every corporation whose charter expires by its own Continuation
2 limitation or is annulled by forfeiture or otherwise, or whose corporate to'^ciosr*'^"
3 existence for other purposes is terminated in any other manner, shall i8i™43.'
4 nevertheless be continued as a body corporate for three years after the g.' f: Is, | se.
5 time when it would have been so dissolved for the purpose of prosecuting ^ ^ '^^ § •*ij
6 and defending suits by or against it and of enabling it gradually to settle J?°|a*^J'
7 and close its aft'airs, to dispose of and convey its property and to divide i9oii,'4o.i ii,
8 its capital stock, but not for the purpose of continuing the business iii,i§'i39,'i58.
9 for which it was established; provided, that the corporate existence of ll'gs, m.
10 such a corporation, for the purposes of any suit brought by or against lH^Ma^ss^Ms.
11 it within said period of three years, shall continue beyond said period j^pj^j^ gJJ-
12 for a further period of sixty days after final judgment in the suit. 123 Mass. 32.
161 Mass. 443. 209 Mass. 105. 228 Mass. 484.
1 Section 52. If the charter of the corporation expires or is annulled, f^^'I'^^j-
2 or if the corporation is dissolved as provided in section fifty, or if its cor- R- s.'44,
3 porate existence for other purposes is terminated in any other manner, is52', 55, § 2.
1634
GENERAL PROVISIONS RELATIVE TO CORPORATIONS. [ChAP. 155.
G. S. 68, §§ 37,
38.
P. S. 105,
§§ 42, 43.
1S84, 203.
R. L. 109,
§54.
1903, 437,
§§ 53, 95.
1905, 15B.
1906, 463, II,
« 228, 258,
HI, §§ HO,
158.
1914, 742,
§§ S6, 199.
1919, 333,
§§ 12, 13.
the supreme judicial or superior court, upon application of a creditor, 4
stockholder or member, shall have jurisdiction in equity to appoint one or 5
more receivers to take charge of its estate and effects and to collect the 6
debts and property due and belonging to it, with power to prosecute 7
and defend suits in its name or otherwise, to appoint agents under them 8
and to do all other acts which might be done by such corporation, if in 9
being, which may be necessary for the final settlement of its unfinished 10
business. The powers of such receivers and the existence of the corpo- 11
ration may be continued as long as the court finds necessary for said 12
purposes. 1920,2. 123 Mass. 32. 13
157 Mass. 77. 209 Mass. 105. 227 Mass. 551.
Receivers to
pay debts and
distribute
surplus.
1833, 145.
R. S. 44, § 10.
1852, 55, § 2.
G. S. 68, § 39.
P. S. 105, § 44.
R. L. 109, § 55.
1903, 437,
§§54,95.
1906, 463. II,
§§ 229, 258,
HI, §§ 141,
158.
Section 53. The receivers shall pay all debts due from the corpora- 1
tion if the funds in their hands are sufficient therefor; and if they are 2
not, they shall distribute them ratably among the creditors who prove 3
their debts in the manner directed by any decree of the court for that 4
purpose. If there is a balance remaining after the payment of the debts, 5
the receivers shall distribute and pay it to those who are justly entitled 6
thereto as having been stockholders or members of the corporation, or 7
their legal representatives. 8
1914, 742, §§87, 199.
1 Gray, 382.
219 Mass. 95.
Surrender of
certificate of
incorporation.
1898, 502.
R. L. 109, § 56.
1906, 463, II,
§§ 230, 258,
in. §§ 142,
158.
1919, 350,
§§ 45, 46.
219 Mass. 95.
Section 54. If a petition, signed and sworn to by a majority in in- 1
terest of the stockholders of a railroad or street railway company organ- 2
ized under general laws or by a majority in number or interest of the 3
members of any other corporation organized under the general laws, 4
except a corporation created for the purpose of business or profit having 5
a capital stock divided into shares or which is under the supervision of 6
the commissioner of insurance, has, with the certificate of incorporation, 7
been filed in the office of the state secretary, stating that such members 8
desire to surrender the certificate of incorporation and to have the cor- 9
poration dissolved and giving their reasons therefor, the state secretary, if 10
he considers such reasons sufficient, shall require the petitioners to publish 1 1
a notice in one or more newspapers in the county where the corporation 12
is located stating that, for reasons which appear to him sufficient, the 13
certificate of incorporation of the corporation therein named is annulled. 14
Upon the filing by the petitioner with the state secretary of a copy of 15
each newspaper in which the notice of dissolution was ordered to be pub- 16
lished, the corporation shall be dissolved, subject to the three preceding 17
sections. 18
Returns to
secretary of
dissolution.
1880, 157.
P. S. 105, § 45.
R. L. 109, § 57.
1903, 437,
§§ 55, 95.
Section 55. If a corporation is dissolved or annulled, the clerk of 1
the court in which the decree therefor is entered shall forthwith make 2
return thereof to the state secretary, giving the name of the corporation 3
and the date upon which such decree was entered. 4
1906, 463, II, §§ 231, 258, III, §§ 143, 158. 1914, 742, §§ 88, 199.
REFERENCES.
Criminal provisions as to fraudulent issue, transfer and record of ownership of
stock, etc.. Chap. 266, §§ 65-68.
Power of directors to issue new stock certificate, Chaps. 156, § 34; 158, § 22.
Ch.^.p. 156.]
BUSINESS CORPORATIONS.
1635
CHAPTER 156
BUSINESS CORPORATIONS.
Sect.
general provisions.
1. Definitions.
2. Application.
3. Adoption by existing corporations.
4. Corporate powers.
5. Holding stock in certain public service
companies regulated.
ORGANIZATION.
6. Organization under general laws.
7. Duration of real estate corporation.
8. First meeting of incorporators. Notice.
9. Organization, election of officers.
10. Completion of organization. Articles of
organization; liability for false state-
ment.
11. Filing of articles of organization, etc.
12. Certificate of incorporation.
13. By-laws.
14. Classes of stock. Stock without par
value.
15. For what stock may be issued.
16. Issue of authorized stock subsequent to
original issue.
17. Validation of invalid issue.
18. Payment of subscriptions.
19. Sale of rights of delinquent subscriber.
20. Sale of stock for unpaid instalments, etc.
OFFICERS.
21. Officers.
22. Choice of officers and agents.
23. Manufacturing corporation may pro-
vide for election of directors by em-
ployees.
24. Certificate of change in officers.
25. Powers of directors.
26. Executive committee.
27. Meetings of directors.
28.
29.
30.
STOCKHOLDERS.
Meetings of stockholders.
Certificate of change of date of annual
meeting.
Special meetings.
Sect.
31. Voting rights of corporations.
32. Voting powers of stockholders. Proxies.
STOCK.
33. Stock certificates.
34. Lost certificates.
LIABILITY OF STOCKHOLDERS, OFFICERS AND
DII»;CTOKS.
35. Liability of stockholders.
36. Liability of president, treasurer and
directors.
37. Liability of directors.
38. Enforcement of liability of stockholders,
officers, etc.
39. Procedure.
40. Apportionment of assessment.
AMENDMENTS AFTER ORGANIZATION.
41. Amendments requiring majority vote.
42. Amendments requiring two thirds or
larger vote.
43. Articles of amendment.
44. Increase of capital stock.
45. Reduction of capital stock.
46. Remedy of minority stockholder.
ANNUAL REPORTS.
47. Form of annual report of condition.
48. Filing of annual report.
49. Verification by auditor.
50. Penalty for failure to file report of con-
dition.
RECEIVERS.
51. Receivers, appointment, etc.
ENFORCEMENT OF PENALTIES.
52. Enforcement of penalties.
ORGANIZATION AND FILING FEES.
53. Fees for organization papers.
54. Fees for increase of capital.
55. Fees for all other certificates, state-
ments and reports.
GENERAL PROVISIONS.
1 Section 1 . In this chapter, unless a contrary intention appears, " cor- Definitions.
2 poration" shall mean a corporation to which, under section two, this §^52,^53.'
3 chapter applies, and " commissioner'
4 corporations and taxation.
shall mean the commissioner of
1 Section 2. Except as expressly made applicable by reference in sub- Application.
2 sequent chapters, this chapter shall not apply to corporations organized §: a eo, | \'.
3 for the purpose of carrying on the business of a bank, savings bank, co- ^j'^sf^/es.
1636
BUSINESS CORPORATIONS.
[Chap. 156.
R. L. no, §2.
1903, 437,
§§ 1, 95.
1910, 385.
1912, 586.
1917,224.
192 Mass. 428.
214 Mass. 79.
Agricultural
and horticul-
tural corpora-
tions for
mutual help.
operative bank, trust company, credit union, surety or indemnity com- 4
pany, or safe deposit company, or for the purpose of carrying on within 5
the commonwealth the business of an insurance company, railroad, elec- 6
trie railroad, street railway or trolleymotor company, telegraph or tele- 7
phone company, gas or electric light, heat or power company, canal, 8
aqueduct or water company, cemetery or crematory company, or to 9
any other corporations which now have or may hereafter have the right 10
to take land within the commonwealth by eminent domain or to exercise 11
franchises in public ways granted by the commonwealth or by any 12
county, city or town. It shall apply to all other domestic corporations 13
having a capital stock and heretofore or hereafter established either by 14
general or special law for the purpose of carrying on business for profit 15
except as provided in chapter one hundred and fifty-seven and except so 16
far as such application may be inconsistent with provisions still in force 17
of any special acts of incorporation, enacted before March eleventh, eight- 18
een hundred and thirty-one, and not subject to amendment, alteration 19
or repeal by the general court, or with provisions of any special acts of 20
incorporation hereafter enacted ; and tliis chapter shall govern the amount 21
of real or personal estate which any corporation subject to it may hold, 22
and the right to increase or decrease its capital stock, notwithstanding 23
the provisions of any special act of incorporation, except in the case 24
of corporations empowered to manufacture, store, transmit, sell or dis- 25
tribute power. _ 26
It shall also apply to agricultural or horticultural organizations, in- 27
stituted for purposes of mutual help, which corporations, if formed for 28
the piupose of doing business at cost for the benefit of their members, 29
shall not be required to have capital stock. 30
Adoption by
existing cor-
porations.
1829, 53, § 13.
R. S. 38,
§§ 26, 27.
G. S. 60,
§§28,29.
1870,224, §65.
1874,349, § 1,
cl. 4.
P. S. 106, §4.
R. L. 110. §3.
1903. 437,
§§2,95.
1910, 353.
Section 3. Corporations which would otherwise be within the appli- 1
cation of this chapter, as defined in section two, but which were created 2
before March eleventh, eighteen hundred and thirty-one, by any special 3
act not subject to amendment, alteration or repeal by the general court, 4
may, at a legal meeting of the stockholders duly called therefor, by vote 5
of two thirds of each class of stock outstanding and entitled to vote, adopt 6
the provisions of this chapter and all provisions of chapter one hundred 7
and fifty-five applicable to corporations subject to this chapter. A copy 8
of such vote, signed and sworn to by the president, treasurer and a 9
majority of the directors, shall be submitted to and examined by the 10
commissioner. If the commissioner finds that it conforms to the require- 1 1
ments of law, he shall endorse his approval thereon, and, upon payment 12
of the fee provided in section fifty-five, it shall be filed in the office of the 13
state secretary, who shall cause the same and the endorsement thereon 14
to be recorded; and thereupon such corporation with its members and 15
officers shall be entitled to all the rights, privileges and immunities and 16
be subject to all the liabilities set forth in this chapter and in chapter one 17
hundred and fifty-five, and no stockliolder in such corporation shall be IS
liable for debts of the corporation contracted after the recording of such 19
vote except for the causes and in the manner provided in tiiis chapter. 20
Corporate
powers.
1851, 133.
1855,478,5 1.
1857, 24.
Section 4. In addition to the powers and privileges given by section 1
six of chapter one hundred and fifty-five, every corporation shall have 2
the following powers and privileges: 3
G. S. 61, § 7._ f. S.ipS, § 7; 1903, 437, §§ 4,
1870, 224, § 31.
1871, 110, §3.
1877,07.
106, §§ 36, 50.
R. L. 109, § 7;
110, §§33,46.
els. (a), (c), (/), to), 95.
131 Mass. 258.
182 Mass. 147.
Chap. 156.] business corporations. 1637
4 (a) To have perpetual succession in its corporate name, unless a period
5 for its duration is limited by any general or special law.
6 (b) Except as provided in section two, to have a capital stock to such
7 an amount as may be fixed, as provided in this chapter, in its agreement
8 of association or articles of organization or of amendment.
9 (c) To hold, purchase, convey, mortgage or lease within or without |Q''*^''|g7
10 this commonwealth such real or personal property as the piu-poses of the i4i Mass. 590.
1 1 corporation may require.
145 Mass. 261. 150 Mass. 317. 157 Mass. 37.
147 Mass. 224. 155 Mass. 554. 168 Mass. S3.
12 (d) To make contracts, incur liabilities and borrow money on its credit }l\ M'^s. sis.
1.3 and for its use. 131 Mass. 258. 150 Mass. 140. 167 Mass. 161.
1 Section 5. No corporation, unless authorized by a special act still in Holding stock
2 force, shall purchase, acquire, take or hold, directly or indirectly, more JJJibUc sen-ice
3 than ten per cent of the total capital stock of any domestic corporation reg^fated^
4 authorized to carry on witliin the commonwealth the business of a rail- ^^^^' ^^^*
5 road, street railway, electric railroad, elevated railway, troUeymotor, gas
6 or electric light, heat or power company.
0RG.USriZ.\TI0N.
1 Section 6. Three or more persons may associate themselves by WTit- Organization
2 ten agreement of association with the intention of forming a corporation laws.
3 under general laws for any lawfiil purpose not excluded by section two. §§ 1-3. '
4 The agreement of association shall state : iss2, 9.
1855, 68, § 1. 1875, 177, § 3. 1903, 437, §§ 7, 8, 95.
G. S. 61, §§ 1, 2. 1878, 86, § 1. 1906, 286.
1860, 128, § 1. 1879, 275, §§ 1, 4. 1912, 595.
1862, 182. P. S. 105, § 16; 106, §| 6-8, 1914, 598, § 24.
1866, 187, § 1; 290, § 2. 10. 13-16, 31; 107, § 1. 1918, 257, § 363.
1867,131. 1888,116, 1919,5.
1870,224, §§ 1,2, 4. 7. 1894,500. 1920, 2; 349, § 1.
1871, 110, §1. 1898, 503, §2. 11 Gray, 139.
1872, 244. 1899, 199, § 1. 12 Allen, 273, 362.
1873, 37, §11. R. L. 109, § 18; 110, 98 Mass. 98.
1874, 165; 295, § 1. 5§ 4-6, 8, 11-15. 101 Mass. 381, 385.
5 (a) That the subscribers thereto associate themselves with the inten-
6 tion of forming a corporation.
7 (&) The corporate name assumed. »« -"^i^s^- *36.
8 (c) The location of the principal office of the corporation in the com-
9 monwealth, and elsewhere in the case of corporations organized to do
10 business wholly outside the commonwealth.
11 (d) The purposes for which the corporation is formed and the nature 9- Mass. 494.
12 of the business to be transacted.
13 (c) If only shares with par value are to be issued, the total amount of the
14 capital stock of the corporation, which shall not be less than one thousand
1.5 dollars, to be authorized, and the number of shares into wliich the capital
16 stock is to be divided, and the par value of the shares, which shall not be
17 less than five dollars, or, in lieu thereof, if any shares without par value
18 are to be issued, the number of shares without par value to be authorized,
19 which shall not be less than ten, and the number of shares liaving par
20 value to be authorized, if any, and the par value thereof, which shall
21 not be less than five dollars.
22 (/) The restrictions, if any, imposed upon the transfer of shares. }*| ^\^^- Hf
179 Mass. 169. 181 Mass. 476. 199 Mass. 371. 210 Mass. 172. 219 Mass. 405.
23 (g) If there are to be two or more classes of stock, a description of the
24 different classes and a statement of the terms on which they are to be
25 created and of the method of voting thereon.
1638
BUSINESS CORPORATIONS.
{Chap. 156.
(h) Any other lawful provisions for the conduct and regulation of the 26
business of the corporation, for its voluntary dissolution, or for limiting, 27
defining or regulating the powers of the corporation, or of its directors or 28
stockholders, or of any class of stockholders. 29
(i) The subscriber or subscribers by whom the first meeting of the 30
incorporators shall be called. 31
(j) The names and residences of tlie incorporators and the amount of 32
stock subscribed for by each. 33
re"Sta'te°^ Section 7. The agreement of association of any corporation formed 1
i9i2°M5°" ^°^ *^^^ purpose of acquiring, holding, managing, improving, leasing, 2
1914! 698' § 24. buying and selling real estate, except a corporation formed for the pur- 3
pose of owning forest land classified under chapter sixty-one, shall state 4
the term of duration of the corporation, which shall not exceed fifty years. 5
First meetinK
of incorpora-
tors. Notice.
1855,478, §2.
G.S.61, §3;
68, § 4.
1866,290, §4.
1870,224, I 9.
P. S. 105, § 10;
106, § 18.
R. L. 109, § 14;
110. §17.
1903, 437,
§§ 9, 95.
1918, 257,
S347.
1919, 5.
1920, 2.
16 Mass. 94.
11 Gush. 369.
98 Mass. 98.
101 M.as3. 385.
129 Mass. 540.
130 Mass. 264.
146 Mass. 482.
2 Op. A. G. 496.
Section 8. The first meeting of the incorporators shall be called by 1
a notice signed by such subscriber to the agreement of association as may 2
be designated therein or by a majority of the subscribers to such agree- 3
ment; and such notice shall state the time, place and purposes of the 4
meeting, which shall be held within the commonwealth. A copy of such 5
notice shall, seven days at least before the day appointed for the meet- 6
ing, be given to each incorporator or left at his residence or usual place 7
of business, or deposited in the post office, postage prepaid, and addressed 8
to him at his residence or usual place of business, and another copy 9
thereof, and an affidavit of one of the signers that the notice has been 10
duly served, shall be recorded with the records of the corporation. If 11
all of the incorporators shall in writing, upon the agreement of associa- 12
tion, waive such notice and fix the time and place of the meeting, no 13
notice shall be required. 14
Organization,
election of
officers.
1851, 133, §4.
G. 8.61. §5.
1870,224, § 10.
P. S. 100, § 20.
R. L. 110, § 19.
1903, 437,
§§ 10, 95.
1918,257,
§348.
1919.5.
1920.2.
15 Gray, 211.
117 Mass. 478.
Section 9. At the first meeting of a corporation organized under 1
general law or created by special act, or at any adjournment thereof, 2
the incorporators shall organize by the choice, by ballot, of a temporary 3
clerk, who shall be sworn, by the adoption of by-laws and by the election 4
by ballot of directors, of a treasurer, of a clerk and of such other offi- 5
cers as the by-laws require to be elected by the stockliolders. The tempo- 6
rary clerk shall make and attest a record of the proceedings, until the 7
clerk has been chosen and sworn, including a record of such choice and 8
qualification. 9
Completion of
organization.
Articles of
organization;
liability for
false state-
ment.
1829, 56, § 6.
R. S. 38, § 15.
1851, 133, §4.
1855.68, § 2.
1857,276. § 1.
G. S. 60, § 16;
61, §8.
1870. 224,
§§11,32
1875, 177,
P. S. 106,
§§21,40,48.
R. L. 110,
§§ 20,43,44.
1903, 437,
§§ 11, 95.
,§2.
Section 10. A majority of the directors elected at such first meeting 1
shall forthwith make, sign and make oath to articles setting forth : 2
(a) A true copy of the agreement of association and the names of the 3
subscribers thereto, or, if the corporation is created by special act, a copy 4
of the act of incorporation. 5
(b) The date of the first meeting and of the successive adjourmnents 6
thereof, if any. 7
(c) Subject to section fourteen, the amount of capital stock then to 8
be issued, the amount thereof to be paid for in full in cash, the amount 9
thereof to be paid for in cash by instalments and the instalment to be 10
paid before the corporation commences business, and the amount thereof 11
to be paid for in property. If such property consists in any part of real 12
Chap. 156.] BusraESS corporations. 1639
13 estate, its location, area and the amount of stock to be issued therefor iioMass. sso.
14 shall be stated; if any part of such property is personal, it shall be de- 152 mS; 423!
15 scribed in such detail as the commissioner may require, and the amount 659.''' ' " '
16 of stock to be issued therefor stated. If any part of the capital stock is
17 issued for sendees or expenses, the nature of such services or expenses
18 and the amount of stock which is issued therefor shall be clearly stated.
19 ((/) The name, residence and post office address of each of the officers
20 of the corporation.
21 The directors who sign such articles and the officers and directors who
22 sign any amendment thereof shall be jointly and severally liable to any
23 stockholder of the corporation for actual damages caused by any state-
24 ment therein which is false and which they know, or on reasonable
25 examination could have known, to be false.
1 Section 11. The articles of organization, the agreement of associa- Filing of arti-
2 tion, and the record of the first meeting of the incorporators, including fEltioD,°etc.°"
3 the by-laws, shall be submitted to the commissioner, who shall examine R^^I.'H.'ffs.
4 them and who may require such amendment thereof or such additional }||^' J2g' | j-
5 information as he deems necessary. If he finds that the provisions of law g. &\ eo, § ig;
6 relative to the organization of the corporation have been complied with, isVo, 224.
7 he shall endorse his approval on the articles. Thereupon, the articles isTo.'iiy. § 2.
8 shall, upon payment of the fee provided by section fifty-three, be filed 46,"48, 59. ~ '
9 in the office of the state secretary, who shall cause them and the endorse- ^^l[ f°o[ ^ '■
' 10 ment thereon to be recorded. 1903,437, §§ 12, 95. §§'26,43,44,57.
191S, 257, § 349. 1919,5. 1920,2. 117 Mass. 476.
1 Section 12. Upon the approval and filing as above provided of the Certificate of
2 articles of organization of a corporation organized under general laws, isro. 224, § 11.
3 the state secretary shall issue a certificate of incorporation in the follow- r l 110, §20
4ingform: ^f,VIJ;
19IS, 257,
C0MM0^^WEALTH OF IVLvSSACHtlSETTS. 5„H^-,
1919, 5.
Be it known that whereas (the names of the subscribers to the agreement of J,7°jfass 476
association) have associated themselves with the intention of forming a corpo- 126 Mass! 300!
ration under the name of (the name of the corporation), for the purpose (the J^gMass'tsI'
purpose declared in the agreement of association), with a capital stock of (the isi Mass. sss'.
amount fixed in the agreement of association, with a statement of the several '^^ Mass. im.
classes into which the stock is divided and their respecti\'e amounts, and of the
method oi paying for such stock, whether by cash in full, cash in instalments,
property, services or expenses, or partly by one method and partly by another
or others), and have comphed with the pro\nsions of the statutes of this com-
monwealth in such case made and provided, as appears from the articles of
organization of said corporation, duly approved by the commissioner of cor-
porations and taxation and recorded in this office: now, therefore, I (the name
of the secretary), secretary of the commonwealth of Massachusetts, do hereby
certify that said (the names of the subscribers to the agreement of association) ,
their associates and successors, are legally organized and estabUshed as, and
are hereby made, an existing corporation under the name of (name of the cor-
poration), with the powers, rights and privileges, and subject to the hmitations,
duties and restrictions, which by law appertain thereto.
Witness my official signature hereunto subscribed, and the great seal of the
commonwealth of Massachusetts hereunto affixed, this day of
in the year (the date of filing of the articles of
organization).
5 If such corporation is organized with capital stock -ndthout par value,
6 the form of said certificate may be modified to conform thereto.
1640 BUSINESS CORPORATIONS. [CH.^^P. 156.
The state secretary shall sign the certificate of incorporation and cause 7
the great seal of the commonwealth to be thereto affixed, and such 8
certificate shall have the force and efi'ect of a special charter. The ex- 9
istence of every corporation organized under general laws shall begin 10
upon the filing of the articles of organization in the office of the state 11
secretary. The state secretary shall also cause a record of the certificate 12
of incorporation to be made, and such certificate, or such record, or a 13
certified copy thereof, shall be conclusive evidence of the existence of 14
such corporation. 15
fjos'el § 1 Section 13. Every corporation may determine by its by-laws the 1
1833' 83' 1 1 ^'^"® ^'^*^ place of holding and the manner of conducting its meetings, 2
R.s.'as,' and, in accordance with sections twenty-one and twenty-two, of electing 3
G. s'.eb, §§ 2, its officers, the powers, duties and tenure of its officers, the number of its 4
is7o,'234.§2o. directors, the number of stockholders and of directors necessary to con- 5
m§'28'. ^ ^' stitute a quorum, the manner of calling regular and special meetings of 6
no^§'26 ' ^ ^' ^'^^ directors, the expediency of providing for an executive committee, 7
«°i\ *95 ' ^^^^ number of members thereof, and the duties which may be delegated 8
s^Met. 301, to it, the method of making demand for payment of subscriptions to 9
218 Mass. 387. its Capital stock, the conditions under which a new certificate of stock 10
may be issued in place of a certificate which is alleged to have been lost 11
or destroyed, the method in general of transacting its business and the 12
manner by which the by-laws may be altered, amended or repealed. 13
S!fck*^°^ Section 14. Every corporation in its agreement of association, or in 1
Stock without the case of a corporation created by special law, in its articles of organiza- 2
1855,290,' tion, or in an amendment to said agreement or articles which may be 3
is7o,224, §25. adopted as hereinafter provided, may create shares of stock with or 4
R. i^. no, § 36. without par value and may create two or more classes of stock with 5
iQoi;*!'; '^"f'h preferences, voting powers, restrictions and qualifications thereof 6
i92o'^',3«' § 3 '^^ ^^^^^ ^^ fixed in said agreement or articles or in such amendment. 7
222 Mass' iis' ^^^}^^^ ^^ ^^7 provisious so fixed, every share without par value shall 8
be equal to every other such share. 9
The provisions of law relating to the issue of shares of capital stock 10
with par value shall apply to the issue of shares without par value, and 1 1
a corporation may issue its authorized shares without par value for such 12
cash, property, tangible or intangible, services or expenses as may be 13
determined from time to time by the board of directors, subject to the 14
provisions of the agreement of association, articles of organization or 15
amendments thereof and, in the case of an increase of capital stock, sub- 16
ject to the vote of stockliolders determining the terms and manner of 17
the disposition of the increased stock pursuant to section forty-one, and IS
when the cash or other consideration for \\hich they are to be issued, as 19
stated in the articles of organization, or certificate of issue, or articles of 20
amendment, made pursuant to section ten, sixteen or forty-four, has 21
been received, said shares shall be fully paid stock and not liable to any 22
further call or assessment thereon, nor shall the subscriber or holder be 23
liable for any further payments, except as provided in section thirty-five. 24
In any case in which the law requires that the par value of the shares 25
of stock of a corporation be stated, it shall be stated, in respect of shares 26
without par value, that such shares are without par value; and wherever 27
the amount of stock, authorized or issued, is required to be stated, if any 28
shares without par value are authorized, the number of shares authorized 29
or issued of the several classes shall be stated, and it shall also be stated 30
Chap. 156.] business corporations. 1641
31 whether such shares are with or without par vakie and what the par value
32 is of such shares as have par value. /
1 Section 15. Capital stock may be issued for cash, at not less than For what stock
2 par, if the shares have par value, and may be issued for property, tangi- Issl'^i'sru'e.
3 ble or intangible, or for services or expenses. Stock issued for cash may Jlgf; Jol'
4 be paid for in full before it is issued or by instalments. If it is paid for 187^,392! fa.
5 by instalments, the stock certificate shall be legibly stamped with the \llflf.^^^2
6 words " per cent paid up, balance payable (stating manner isTg] 275',
7 and time of payment) and shares subject to forfeiture if p. s.' 165, § i7;
8 unpaid", the facts being truly stated; and, as each instalment is de- 49.''
9 manded and paid, the certificate shall be stamped accordingly. m SMiVs^'
1903, 437, §§ 14. 95. 152 Mass. 428. 193 Mass. 138.
1918, 257, I 350. 155 Mass. 184. 194 Mass. 518.
1919, 5. 183 Mass. 355, 224 Mass. 564.
1920, 2. 185 Mass. 265, 231 Mass. 513.
150 Mass. 200. ' 187 Mass. 262. 235 Mass. 162.
1 Section 16. The whole or any part of any unissued balance of the issue of
2 authorized capital stock may be issued, subsequent to the issue of stock Xck "ubse^
3 certified by the articles of organization, by vote of the directors, under n"™' J° °"^''
4 authority of the by-laws or of a general or special vote of the incorporators jf"!,'!.'^'
5 at the first meeting or of the stockholders at a subsequent meeting, if, k a 3a
6 within thirty days after such vote of the directors, a certificate signed ci s^'ea
7 and sworn to by the president, treasurer and a majority of the directors is 1870.224,
8 submitted to the commissioner, setting forth — (a) the total amount of p. s. loe,'
- "46,47,59.
9 capital stock authorized; (6) the amount of stock already issued for cash ilgg.W, §
10 payable by instalments and the amount paid thereon; also the amount §543/44; 57.
11 of full paid stock already issued for cash, property, services or expenses; li°j'i''|J'
12 (c) the amount of additional stock to be issued for cash, property, services '^'l^^s^.
13 or expenses, respectively; (fZ) a description of said property, and a state- i9i9, 5.
14 ment of the nature of said services or expenses, in the manner required 194 Ma's3.'5i8.
15 by section ten. The commissioner shall examine such certificate in the
16 same manner as the original articles of organization. If he finds that it
1 7 conforms to the requirements of law, he shall endorse his approval thereon,
18 and it shall thereupon be filed in the office of the state secretary, who,
19 upon payment of the fee provided in section fifty-five, shall cause it and
20 the endorsement thereon to be recorded. No issue of stock subsequent
21 to that certified by the articles of organization shall be lawful until said
22 certificate is filed with the secretary as aforesaid. No stock shall be at
23 any time issued unless the cash, so far as due, or the property, services
24 or expenses for which it was authorized to be issued, has been actually
25 received or incurred by, or conveyed or rendered to, the corporation, or
26 is in its possession as surplus; nor shall any note or evidence of indebt-
27 edness, secured or unsecured, of any person to whom stock is issued, be
28 deemed to be payment therefor ; and the president, treasurer and directors
29 shall be jointly and severally Hable to any stockholder of the corporation
30 for actual damages caused to him by such issue.
1 Section 17. An issue of stock subsequent to that certified by the yaUdationof
2 articles of organization which is invalid solely for the reason that the 'ms.'as?!"^'
3 certificate is not submitted to the commissioner within thirty days as fg^ig^'s.
4 required by the preceding section may be rendered lawful and valid as of '^"°' ^■
5 the date of its issue if the certificate is afterward submitted to him, and
C is examined and approved by him and filed and recorded in the office of
1642
BUSINESS CORPORATIONS.
[Chap. loG.
the state secretary, upon payment of such fee, not exceeding twenty-five 7
dollars, as the commissioner may fix. 8
Pa>inent of
subscriptions.
1903, 437.
§§ 15, 16.
191S, 257,
§352.
1919, 5.
1920, 2.
Sale of rights
of delinquent
subscriber.
1903, 437, § 15.
5 Grav, 520.
110 Mass. 213.
168 Mass. 345.
188 Mass. 587.
Sale of stock
for unpaid in-
stalments, etc.
1903, 437, § 16.
1910, 171.
1918, 257,
§352.
1919,5.
1920, 2.
Section 18. In the case of capital stock authorized to be issued for
cash, whether or not to be paid in full before issue, the directors may
require payment in such proportions and at such times and places as
they deem proper, by making demand therefor according to the by-laws,
or, in default of such by-law, by notice mailed to each subscriber or
stockholder at least seven days before his subscription or any portion
thereof, or any instalment due upon stock already issued, is payable.
Section 19. If, under the articles of organization, capital stock 1
issued for cash is to be paid for in full before it is issued, and the sub- 2
scriber refuses or neglects to pay the amount demanded for thirty days 3
after the time limited for payment in the demand made under the pre- 4
ceding section, his rights of subscription may be sold by public auction 5
by the treasurer of the corporation who, out of the proceeds of such sale, 6
shall pay to the corporation the amount then due from such subscriber 7
with interest and incidental charges, first gi^'ing notice by mail to such 8
subscriber, not less than ten days prior to such sale, of the time and place 9
appointed therefor and of the amount due and payable by him. Upon the 10
sale of such rights as aforesaid, the directors shall give to the purchaser all
certificate thereof. If the rights of such subscriber do not sell for an 12
amount sufficient to pay the amount due from him with interest and 13
charges of sale, he shall be liable to the corporation in an action at law for 14
the deficiency; if they sell for more, he shall be entitled to the surplus. 15
At the expiration of thirty days after the time limited for payment as 16
aforesaid, the directors may waive their right to offer such rights for sale, 17
and may elect to proceed at law against such delinquent subscriber to 18
recover all amounts due and payable by him with interest. If said rights 19
are not sold at said auction, or if a judgment rendered in an action against 20
a subscriber remains unsatisfied for thirty days, all amounts previously 21
paid by him shall be forfeited to the corporation. 22
Section 20. If, under the articles of organization, capital stock is 1
issued payable by instalments, and a stockholder refuses or neglects to 2
pay an instalment for thirty days after the time limited for payment in 3
the demand under section eighteen, the treasurer of the corporation may 4
sell such stockholder's shares by public auction, and, out of the proceeds 5
of such sale, shall pay to the corporation all instalments then due from 6
such stockholder with interest and incidental charges. A notice stating , 7
the time and place of such sale and the amount of the instalment due and 8
payable and also the number of the certificate and number of shares of 9
stock thus off'ered for sale shall be sent by the treasurer by mail not less 10
than ten days prior to such sale to such stockholder and also the person 11
who originally subscribed to the said delinquent stock. Upon the sale 12
of such stock as aforesaid, the directors shall transfer the shares so sold 13
to the purchaser, who shall be entitled to a certificate therefor, so stamped 14
as to indicate the instalments paid, and shall be liable under this section 15
for all subsequent instalments. Upon the issue of such certificate, the cer- 10
tificate outstanding shall be void except as provided in sections twenty- 17
four to forty-six, inclusive, of chapter one hundred and fifty-five. The 18
balance, if any, of the proceeds of such sale shall be held by the corpora- 19
tion for such stockholder, his representatives or assigns, and be paid to 20
Chap. 156.] business corporations. 1643
21 him or them at any time upon surrender and delivery to the corporation
22 of his certificate. If no person offers an amount sufficient to pay all
23 instalments due upon such stock with interest and incidental charges, it
24 may or may not be sold, and the delinquent stockholder shall be liable to
25 the corporation in an action at law for such instalments, interest and in-
26 cidental charges, if the stock is not sold, or for the deficiency, if it is sold,
27 and if a judgment rendered in such action remains unsatisfied for thirty
28 days, the original subscriber shall be so liable. Instead of offering such
29 stock for sale, the directors, at the expiration of the time limited in the
30 notice for payment of such instalments, may proceed by an action at law
31 against the delinquent stockholder, and, if a judgment rendered against
32 him in such action remains unsatisfied for thirty days, against the original
33 subscriber, for the recovery of such instalments, interest and incidental
34 charges. The delinquent stockholder or the original subscriber, as the
35 case may be, upon the payment of such instalments, interest and inci-
36 dental charges, or of the judgment therefor, shall be entitled to a certificate
37 of the stock, so stamped as to indicate the instalments paid, and, there-
38 upon, the certificate outstanding for such stock shall be void, except as
39 provided in sections twenty-four to forty-six, inclusive, of chapter one
40 hundred and fifty-five. If a judgment rendered in an action against the
41 original subscriber remains unsatisfied for thirty days, said stock shall
42 be forfeited to 'the corporation, an entry of transfer to it shall be made
43 on its books, and, thereupon, the certificate outstanding shall be void as
44 aforesaid. While the stock remains the property of the corporation, no
45 dividends shall be declared nor instalments paid upon it; but it shall
46 remain subject to the control of the corporation according to its by-laws.
OFFICERS.
1 Section 21. The business of every corporation shall be managed and f^J^fj, 5 1
2 conducted by a president, a board of not less than three directors, a clerk, ^''^g'^g' ^ '
3 a treasurer and such other officers and such agents as the corporation by §§ 2-4.
4 its by-laws shall authorize. The treasurer may be required to give a s. 6.'
5 bond for the faithful performance of his duty in such sum and with such isto! 224]
6 sureties as the by-laws may prescribe. The clerk, who shall be a resi- K.s.^io6,''^'
7 dent of the commonwealth, shall be sworn and shall record all votes of ^ f^'^o ""'
8 the corporation in a book to be kept therefor. 5§ 22, 24.
1903, 437, §§ 17, 18. 05. 1920, 237, § 1. 15 Gray. 211. 188 Mass. 254.
1 Section 22. Except as otherwise provided in this and the following choice of
2 section, the directors, treasurer and clerk shall be elected annually by agcn't"*''
3 ballot, by such stockholders as have the right to vote, and the president H^l] Is, | };
4 shall be elected annually by and from the board of directors. All other |^ ^i|*'
5 agents and officers shall be chosen or appointed, and all vacancies filled, ^ '^ ^'"^
6 in the manner prescribed in the by-laws, or, in default of such by-law, by isfi«', 290. § 3.
the board of directors. Every director, unless the by-laws otherwise pro- 1S74; 349! § 1,'
i
8 vide, shall be a stockholder. The directors and other officers shall hold p.s.ioe,
9 office for one year and until their successors are chosen and qualified, r it'ud,
10 except that a corporation may, by its articles of organization or by an l^oi;ii^,
11 amendment to such articles adopted as provided in this chapter, divide flZ/'jIf'
12 its directors into classes and prescribe the tenure of office of the several § sm.
13 classes and the class of stock by wliich each class of directors shall be 1920!
237, § 1.
93.
14 elected; but no class shall be elected for a shorter period than one year scusK
15 or for a longer period than five years, and the term of office of at least ngjj'iis. (,i.
16 one class shall expire in each year. 231 Mass. 513.
1644
BUSINESS CORPORATIONS.
[Ch.\p. 156.
ManufacturinR
corporation
may provide
for election of
directors by
employees.
1919, 70.
Section 23. A manufacturing corporation may provide by by-law 1
for the nomination and election by its employees of one or more of them 2
as members of its board of directors. All such elections shall be held 3
at the works of the corporation on the day of the annual meeting, and 4
the voting shall be by secret ballot. If less than a majority of those 5
entitled to vote participate in the election there shall be no election, 6
and the vacancy 'shall be filled as provided in the preceding section. A 7
director elected by the employees shall have the same rights and powers S
and shall be subject to the same duties and responsibilities as a director 9
elected by the stockholders. 10
Certificate of
change in
officers.
1907, 282.
1908, ISO.
1915, 15.
1918, 257,
§§ 354, 355.
1919, 5.
1920, 2.
Section 24. Whenever any change is made in the officers of a cor-
poration, except at the annual meeting, the corporation shall forthwith
file in the office of the commissioner a certificate of such change, signed
and sworn to by the clerk. Any corporation which omits to make and
file a certificate as aforesaid within thirty days after such change has
been made, Or which fails to keep a clerk of the corporation in this com-
monwealth, shall forfeit not more than five hundred dollars, to be re-
covered in the manner prescribed by section fifty-two.
Powers of
directors.
1903, 437, § 19.
2 Met. 163.
188 Mass. 515.
Section 25. The board of directors may exercise all the powers of 1
the corporation, except such as are conferred by law, or by the by-laws of 2
the corporation, upon the stockholders. 3
190 Mass. 61.
209 Mass. 354.
211 Mass. 453.
Executive
committee.
1903, 437, § 19.
2 Met, 163.
154 Mass. 277.
211 Mass. 453.
Meetings of
directors.
1903, 437, § 25.
Section 26. A corporation may, by its by-laws, provide for an ex- 1
ecutive committee to be elected from and by its board of directors. To 2
such committee may be delegated the management of the current and 3
ordinary business of the corporation, and such other duties as the by-laws 4
may prescribe. 5
Section 27. Meetings of the board of directors may be held within 1
or without the commonwealth. Any meeting of the board shall be a 2
legal meeting without notice if each director, by a writing filed with the 3
records of the meeting, waives such notice. 4
Meetings of
stociiholders.
1829, 53, § 15.
R. S. 38, § 7;
44, § 2.
G. S. 60, § 7;
68, § 7.
1870, 224. § 20.
P. S. 105, § 5;
106, § 28.
R.L. 109, § 5;
110, § 20.
1903, 437,
§§20,95.
1904, 207.
8 Met. 301.
10 Cush. 27.
8 Allen, 217.
stockholders.
Section 28. There shall be an annual meeting of the stockholders, 1
and the time and place of holding it, and the manner of conducting it, 2
shall be fixed by the by-laws; but it shall be held within ninety days 3,
after the end of the fiscal year of the corporation. All meetings of 4
stockholders shall be held in the commonwealth. A written notice, stat- 5
ing the place, day and hour thereof, shall be given by the clerk, at least 6
seven days before the meeting, to each stockholder by leaving such 7
notice with him or at his residence or usual place of business, or by 8
mailing it, postage prepaid, and addressed to each stockholder at his 9
address as it appears upon the books of the corporation. Unless the 10
by-laws otherwise provide, a majority in interest of all stock issued and 11
outstanding and entitled to vote shall constitute a quorum. Notices 12
of all meetings of stockholders shall state the purposes for which the 13
meetings are called. No notice of the time, place or purpose of any 14
regular or special meeting of the stockholders shall be required if every 15
stockholder, or his attorney thereunto authorized, by a writing which is 16
filed with the records of the meeting, waives such notice. 17
Chap. 156.] business corporations. 1645
1 Section 29. Whenever any change is made altering the date fixed chlaielY°^
2 in the by-laws for the annual meeting of a corporation, the corporation nfJe^ti"' *°""'''
3 shall forthwith file in the office of the commissioner a certificate of such i90|. 222.
4 change, signed and sworn to by the clerk of the corporation. Any cor- §§ 356, 357.
5 poration which omits to make and file a certificate as aforesaid within 1920! 2'.
6 thirty days after such a change has been made, shall forfeit not more
7 than one hundred dollars, to be recovered in the manner prescribed by
8 section fifty-two.
1 Section 30. Special meetings of the stockholders may be called by special
2 the president or by a majority of the directors, and shall be called by the "{""s'^^j 2.
3 clerk, or in case of the death, absence, incapacity or refusal of the clerk, p |- fos Vs.
4 by any other officer, upon written application of three or more stock- J^g^L. 109, § 5.
5 holders who are entitled to vote and who hold at least one tenth part in §§ 22, 95.'
6 interest of the capital stock, stating the time, place and purpose of the
7 meeting.
1 Section 31. No corporation shall, directly or indirectly, vote upon voting rights
2 any share of its own stock. 1903, 437, § 23. loi Mass. sos. °^ corporations.
1 Section 32. Stockholders entitled to vote shall, except as provided Voting powers
1 c CI 1 1 1 1 /> c 1 stockholders.
2 m sections two and tour 01 chapter one hundred and fatty-seven, have p^°?'«s.
3 one vote for each share of stock owned by them; provided, that in cor- 44, §2. '
4 porations having two or more classes of stock, the voting powers of es, §7. '
5 the different classes may be fixed in the manner provided by section Ra'Kw.'Isf'
6 fourteen. Capital stock shall not be voted upon if any instalment of ^ "l^to § s-
7 the subscription therefor which has been duly demanded under section J^J^g^/j^^
8 eighteen is overdue and unpaid. Stockliolders may vote either in per- §§24,95.'
9 son or by proxy. No proxy which is dated more than six months before 1920] 349, § 2.
10 the meeting named therein shall be accepted, and no such proxy shall be
1 1 valid after the final adjournment of such meeting.
stock.
1 Section 33. Each stockholder shall be entitled to a certificate, in stock
2 form conformable to section fifteen, which shall be signed by the presi- ilos^es!''! 3.
3 dent or a vice president and either the treasurer or an assistant treasurer R^^I'lf; | f^
4 of the corporation, shall be sealed with its seal and shall certify the num- JIIj'IIq
■ 5 ber of shares owned by him in such corporation. Each certificate of stock g a bo
G which by the agreement of association or amended agreement of asso- i87o,'224',
7 ciation or, in the case of a corporation created by special law, by its 1874,349, § 1.
8 articles of organization or by amendment is limited as to its voting I'slg'^l.
9 rights, or which is preferred as to its dividend or as to its share of the fg'o2'44i' fl''
10 principal upon dissolution, shall have a sufficient statement of such |a*?f;*qr
§§26,95.
19I(>, 105.
16 Mass. 91.
11 limitation or preference plainly written, printed or stamped upon it,
12 and each certificate subsequently issued of any class of stock in the cor- scush. los.
13 poration shall have plainly written, printed or stamped thereon the 222 Mass! 418:
14 clause of such agreement of association or amended agreement of asso-
15 ciation or articles of organization authorizing the issue of stock in any
16 respect preferred or limited.
1 Section 34. The directors of a corporation may, subject to section Lostcertifi-
2 forty-two of chapter one hundred and fifty-five and to the by-laws of i87a'224, § 26.
3 the corporation, determine the conditions upon which a new certificate r.l. no, §28.
4 of stock may be issued in place of any certificate alleged to have been s§°3i,*95.'
1646
BUSINESS CORPORATIONS.
[CIL4.P. 156.
lost or destroyed. They may, in their discretion, require the owner of 5
a lost or destroyed certificate, or his legal representative, to give a bond 6
with sufficient surety to the corporation in a sum not exceeding double 7
the market value of the stock to indemnify the corporation against any 8
loss or claim which may arise by reason of the issue of a certificate in 9
place of such lost or destroyed stock certificate. 10
Liability of
stockholders.
1821, 38.
1826.137, § 2
1829,53, §§ G,
7,10,11.
R.S. 38, §§ 16,
21,32.
1851, 133,
§ IS; 2.52.
1852, 9.
1855, 290.
G. S. 60.
§§12,17,22;
68. § 16.
1862,218,5 2.
1870,224,5 39.
1875, 177, § 1.
1876, 1.
P. S. lOfi, § 61.
R. L. 110, § 59.
1903, 437,
§§ 33, 95.
1920, 349, § 4.
16 Gray, 127.
2 Allen, 498.
6 Allen, 579.
/LI.\BILITY OF STOCKHOLDERS, OFFICERS .AND DIRECTORS.
Section 35. The stockholders of a corporation which reduces its 1
capital stock in A'iolation of section forty-five shall be liable for the 2
payment of the debts and contracts of the corporation existing at 3
the time of such reduction to the extent of the amount withdrawn and 4
paid to them respectively. The stockliolders of a corporation shall 5
also be liable for all money due to operatives for services rendered 6
\\ithin six months before demand made upon the corporation and its 7
neglect or refusal to make such payment. A stockholder who pays on 8
a judgment or otherwise more than his proportion of any debt included 9
in this section shall have a claim 'for contribution against the other 10
stockholders. 1 1
Unless otherwise provided in the agreement of association, articles of 12
organization or amendments thereof, such contribution, in the case of 13
liability based on reduction of capital stock, shall be in proportion to the 14
amounts so withdrawn and paid to them respectively, and in the case 15
of any other liability under this gection shall be in proportion to the 16
amounts of stock held by them respectively at the time when their 17
liability accrued, shares of stock with par value to be computed for 18
this purpose at their par value as fixed at that time, and shares without 19
par value to be computed at the value, at the time of issue, of the cash, 20
property, services or expenses for which they were issued, but not in- 21
eluding paid-in surplus. 22
Liability of
president,
treasurer and
directors.
1821,38.
1829, 53, § 9.
R. S. 38, § 28.
G. S. 60, § 30.
1862,218, § 1.
1870, 224, 5 38.
1875, 177, I 2.
P. S. 106, § GO.
1898, 266.
R.L. 110,5 58.
1903, 437,
§§ 34, 95.
1911,488, § 1.
1918,257,5358.
Section 36. The president, treasurer and directors of every cor- 1
poration shall be jointly and severally liable for all the debts and con- 2
tracts of the corporation contracted or entered into while they are 3
officers thereof if any stock is issued in violation of section fifteen or six- 4
teen, or if any statement or report required by this chapter is made 5
by them which is false in any material representation and which they 6
know, or on reasonable examination could have known, to be false; but 7
directors who vote against such issue, and are recorded as so voting, 8
shall not be so liable, and only the officers signing such statement or 9
report shall be so liable. i9i9, 5. 1920, 2. 10 Gray, 232, eoo. 10
137 Mass. 516.
148 Mass. 226.
150 Mass. 264.
182 Mass. 530.
190 Mass. 35.
193 Mass. 138.
5 8,9.
Liability of
directors.
1821,38.
1829,53, §
R. S. 38,
§§ 2.3-25.
G. S. 60.
5§ 25-27.
1862,218. § 1.
1870, 224, § 38.
1877,230, 5 1.
P. S. 106, 5 GO.
1898, 266.
R.L. 110, § 58.
1903, 437,
§5 35, 95.
Section 37. The directors of every corporation shall be jointly and 1
severally liable for the debts and contracts of the corporation in tlie 2
following cases: 3
First. For declaring or assenting to a dividend if the corporation 4
is, or thereby is rendered, bankrupt or insolvent, to the extent of such 5
dividend. 0
Second. For debts contracted between the time of making or assent- 7
ing to a loan to a stockliolder or director and the time of its repayment, 8
to the extent of such loan. 9
Chap. 156.] business corporations. 1647
10 Directors who vote against declarinsr said dividend or wlio vote against f Alien. 398.
iniTiip •! ISJ JMass. 5o7.
11 making said loan shall not be liable as aioresaid. looMass.ei.
1 Section 38. A stockholder of a corporation shall be held liable for Enforcement of
2 its debts and contracts under section thirty-five, and the president or stockholders,
3 treasurer, or a director of any such corporation, shall be held so liable isos^es^Ai.
4 under section thirty-six or thirty-seven, if the corporation has been duly II26; 1.3?; § 1.
5 adjudicated bankrupt. The president or treasurer, or a director, shall n's.U'.tizd-
6 also be held so liable under .section thirtv-six or thirtv-seven, if before ^i; 44 § 22.
7 a suit to enforce such liability is brought by a creditor of said corporation, H^i^, 3.^
8 a written demand by or on behalf of the creditor upon such corporation g. .s.'eo. §§ 31^
9 for the payment of his claim has been made, and said corporation has 1862,21s.'
10 for ten days thereafter neglected to pay it. Except as above provided, 1864,219.
11 no suit shall be maintained against a stockholder or officer for the debts Jf^Jj; |^5; ^ '°
12 or contracts of the corporation. !>! s°i06,' K 62-
13 After such adjudication of bankruptcy, or after the said demand and ^^'^^-.j '
14 neglect to pay the claim, the clerk, or other officer having charge of the §§ eo-es.'ss.
15 records of such corporation, upon request of a creditor of the corporation §§ 36, 95.'
16 or of his attorney, shall furnish to him a certified list of the names of all JSlsllsf.'Isl'g.
17 persons who were officers or stockholders in such corporation at the Jgio;!
18 time when the liability to be enforced against them personally accrued. Ji gj^y. i39
19 The supreme judicial or superior court shall have jurisdiction in equity J^g^j^f^^'/^^
20 to compel such list to be furnished. After an adjudication of bank- 623.
21 ruptcy or after the said demand and neglect to pay the claim, any creditor 1 1.-; Mass! 286i
22 may file a bill in equity in the supreme judicial or superior court in behalf ffsMass. 269.
23 of himself and of such other creditors of the corporation, entitled to en- ggl.^gl.^ *'^^'
24 force their claims against the same defendants, as may join in the bill as Js^Ma^wo
25 plaintiff's, against it and all persons who are liable to the plaintiff as stock-
26 holders or officers for the recovery of the money due from the corporation
27 to himself and to such other creditors for which the stockholders or officers
28 may be personally liable by reason of any act or omission on the part of
29 the corporation or any of the other defendants, setting forth the bank-
30 ruptcy of the corporation, or the said demand and neglect to pay the
31 claim, and the grounds upon which it is expected to charge the stock-
32 holders or officers personally.
1 Section 39. Such suit shall not be discontinued by the plaintiff f8g2?2is!
2 except by order of the court after notice to other creditors. It shall not ||7q"2-,4
3 abate by reason of the non-joinder of persons liable as defendants, un- §§45,47.'
4 less the plaintiff, after notice by plea or answer of their existence, un- §§67-69!
5 reasonably neglects to make them parties; nor shall it abate by reason ^j'c^o?'
6 of the death of a defendant, but his estate shall be liable in the hands of ^5 37, 95'
7 his executor or administrator, who may voluntarily appear, or who may, '° ^"^°' ^*--
8 be summoned by the plaintiff", to defend the suit.
1 Section 40. Such sums as may be decreed to be paid by the stock- Apportionment
2 holders in such suit shall be assessed upon them in the proportions fixed Lst^lffiT^s'.
3 in section thirty-five with respect to claims for contribution; but a i\s''m'§^6l.'
4 stockliolder shall not be liable to pay a larger amount than the amount {yo3, 43?! ^ "^^
5 of stock held by him at the time when his lialnlity accrued, shares of f^oo^'sM ? s
6 stock with par value to be computed for this purpose at their par value as i'' ^h'/' ^^L
7 fixed at that time and shares without par value to be computed at the 127 Mass.' sse'.
8 value, at the time of issue, of the cash, property, services or expenses for
9 which they were issued, but not including paid-in surplus.
1648
BUSINESS CORPORATIONS.
[Chap. 156.
Amendm
;nta
requiring
majority vote.
1S29
53,
§2.
R. S.
38.
§111
,20
1851
133
§8.
1855, 478
1 5.
1857
24.
G. S.
60,
S§11.
21; 61, §
6.
1865
283
§8.
1866
290
§5.
1870
179
; 224,
§24.
1871
110
§2.
1873
37,
§2.
1875
177
§3.
1877,
67;
230,
§3.
1878.
86,
§2.
PS.
13. §43;
105, §§ 7,
16.
20; 106. §§31,
34, 35, 37
1894,
500
1898.
603
§2.
1899,
199
§2.
R. L.
109.
§§7.
18. 29. 52
110.
§§31
.32.
34.
1902
441
§1.
1903,
437,
§§40
95.
1920.
349.
§6.
211 Mass
424.
220 Mass.
183.
AMENDMENTS AFTER ORG.USflZATION.
Section 41. Every corporation may, at a meeting duly called for 1
the purpose, by the vote of a majority of all its stock, or, if two or more 2
classes of stock have been issued, of a majority of each class outstanding .3
and entitled to vote, authorize an increase or a reduction of its capital 4
stock and determine the terms and manner of the disposition of such 5
increased stock, or authorize such terms and manner of disposition to 6
be determined in whole or in part by the board of directors or officers of 7
the corporation, may authorize a change of the location of its principal 8
office or place of business in this commonwealth or a change of the par 9
value of the shares of its capital stock, or may authorize proceedings for 10
its dissolution under section fifty of chapter one hundred and fifty -five. 11
Such increased stock may in whole or in part be disposed of without 12
being offered to the stockholders. Any corporation having authorized 1.3
shares with par value may, at a meeting duly called for the purpose, by 14
the vote of a majority of all its stock, or, if two or more classes of stock 15
have been issued, of a majority of each class outstanding and entitled 16
to vote, including in any event a majority of the outstanding stock of 17
each class affected, change such shares or any class thereof into an 18
equal or greater number of shares without par value, or provide for the 19
exchange thereof pro rata for an equal or greater number of shares with- 20
out par value; provided, that the preferences, voting powers, restrictions 21
and qualifications of the outstanding shares so changed or exchanged 22
shall not be otherwise impaired or diminished without the consent of 2.3
the holders thereof. • 24
Amendments
requiring two
thirds or
larger vote.
1852, 195.
G. S. 60, §37;
61, § 14.
1870, 224,
§§ 15,25,31.
1875. 177. § 4.
P. S. 106,
§§23.42,51,
53.
1891,360, § 1.
1892, 198.
R. L. 109, 5 9;
110, §§ 36,46,
47, 49.
Section 42. Every corporation may, at a meeting duly called for 1
the purpose, by vote of two thirds of each class of stock outstanding and 2
entitled to vote, or by a larger vote if the agreement of association or 3
act of incorporation so requires, change its corporate name, the nature of 4
its business, the classes of its capital stock subsequently to be issued and 5
their preferences and voting power, or make any other lawful amendment 6
or alteration in its agreement of association or articles of organization, 7
or in the corresponding provisions of its act of incorporation, or au- 8
thorize the sale, lease or exchange of all its property and assets, including 9
its good will, upon such terms and conditions as it deems expedient. 10
1903, 437, §§40, 95. 1920, 349, § 6. 139 Mass. 5. 220 Mass. 183.
Articles of
amendment.
1851, 133, § 8.
1854,478, § 5.
G. S. 61, §9.
1870, 224,
§§ 34, 35, 37.
1875, 177, § 4.
1878, 86, § 2.
P. S. 106. §§31.
51, 56, 57, 59.
1885, 310.
1891,3111, §4.
1894,500.
1898, 503.
R. L. 109,
§§ 10,18; 110,
§§47,54,55,57.
1903. 437,
§§41,95.
1918.257,
§ 360.
1919, 5.
1920, 2.
220 Mass. 1S3.
Section 43. Within thirty days after any meeting at which any 1
amendment or alteration of the agreement of association or articles of 2
organization has been adopted, articles of amendment, signed and sworn 3
to by the president, treasurer and a majority of the directors, setting 4
forth such amendment or alteration and the due adoption thereof, shall 5
be submitted to the commissioner, who shall examine them with the 6
same powers as in the case of the original articles of organization, and, if 7
he finds that they conform to the requirements of law, shall so certify S
and endorse his approval thereon. Thereupon the articles of amend- 9
ment shall, upon payment of the fee pro^•ided in section fifty-four or 10
fifty-five, as the case may be, be filed in the office of the state secretary, 1 1
who shall cause them and the endorsement thereon to be recorded. No 12
such amendment or alteration shall take effect until such articles of 13
amendment shall have been filed as aforesaid. 14
*
Chap. 156.] business corporations. 1649
1 Section 44. If an increase in the total amount of the capital stock increase of
2 of any corporation shall ha\e been authorized by vote of its stockholders issi, 133, § s.
3 in accordance with section forty-one, the articles of amendment shall f87o,224f§^34.
4 also set forth — (a) the total amount of capital stock already authorized; r. l, no, § m1
5 (b) the amount of stock already issued for cash payable by instalments j^^iVgs'
6 and the amount paid thereon; and the amount of full paid stock already
7 issued for cash, property, services or expenses; (c) the amount of addi-
S tional stock authorized; (d) the amount of such stock to be issued for
9 cash, property, services or expenses, respectively; (e) a description of
10 said property and a statement of the nature of said services or expenses,
1 1 in the manner required by section ten.
1 Section 45. If a reduction of the capital stock of any corporation Reduction of
2 shall have been authorized by its stockholders in accordance with section is55,''478°§ 5.
3 forty-one, the articles of amendment shall also set forth- — (a) the total fsTo.lkfs^ss.
4 amount of capital stock already authorized and issued; (b) the amount r t. no.lss.
5 of the reduction and the manner in which it shall be effected; (c) a copy l.^^j^gg'
6 of the vote authorizing the reduction. No reduction of capital stock 1912,586.
7 shall be lawful which renders the corporation bankrupt or insolvent, but
8 the capital stock may be reduced by the surrender by every stockliolder
9 of his shares and the issue to him in lieu thereof of a proportional decreased
10 number of shares, if the assets of such corporation are not reduced thereby,
11 without creating any liability of the stockholders of such corporation in
12 case of the subsequent bankruptcy of such corporation.
1 Section 46. A stockholder in any corporation which shall have duly Remedy of
2 voted to sell, lease or exchange all its property and assets or to change the stockholder.
3 nature of its business in accordance with section forty-two, who, at the 224 Mass'. 20. '
4 meeting of stockholders, has voted against such action may, within ^°*'
5 thirty days after the date of said meeting, make a wTitten demand upon
6 the corporation for payment for his stock. If the corporation and the
7 stockholder cannot agree upon the value of the stock at the date of such
8 sale, lease, exchange or change, such value shall be ascertained by three
9 disinterested persons, one of whom shall be named by the stockholder,
10 another by the corporation and the third by the two thus chosen. The
11 finding of the appraisers shall be final, and if their award is not paid by
12 the corporation within thirty days after it is made, it may be recovered
13 in contract by the stockliolder from the corporation. Upon payment
14 by the corporation to the stockholder of the agreed or awarded price of
15 his stock, the stockholder shall forthwith transfer and assign the stock
16 certificates held by him at, and in accordance with, the request of the
17 corporation.
ANNUAL reports.
1 Section 47. Every corporation shaU annually, within thirty days Form of annual
2 after the date fixed in its by-laws for its annual meeting, or within thirty dltion."' '^°°'
3 days after the final adjournment of said meeting, but not more than three if'l.'ll.'IJi
4 months after the date so fixed for said meeting, prepare and submit to [Hf {33 5 9
5 the commissioner a report of condition which shall be signed and sworn jpM^I-
6 to by its president, treasurer and a majority of its directors stating — c;. s.'eo, 55 23,
7 1. The name of the corporation. 1861,121.
8 2. The location (with street address) of its principal office in this com- iIto! 224]
9 monwealth, and elsewhere in the case of a corporation organized to do fsT^^'no,
10 business wholly outside the commonwealth. ^^ *• ^
id^O
BUSINESS CORPORATIONS.
[Ch.'VP. 156.
1874,349,
P. S. 106,
1S87, 225.
1896, 369.
R. L. no,
1903. 437,
H 45. 46,
1920, 349.
188 Mass.
?23 Mass.
228 Mass.
235 Mass.
§1.
§54.
§51.
95.
§7.
478.
119
202.
79.
3. The date of its last preceding annual meeting. 11
4. The total amount of its authorized capital stock so far as it consists 12
of shares with par value, and the total number of shares without par 13
value authorized to be issued; the amount of stock with par value, and 14
the number of shares -without par value, issued and outstanding and the 15
amount then paid thereon; the class or classes, if any, into which it is 16
divided; the par value, if any, and number of its shares. 17
5. The names and addresses of all the directors and officers of the 18
corporation, and the date at which the term of office of each expires. 19
6. A statement of the assets and liabilities of the corporation as of the 20
date of the end of its last fiscal year, to be made substantially in the 21
following form: 22
Assets.
Real estate,
Machinery,
Merchandise (manufactures, merchandise, material and stock in
process),
Furniture and fixtures,
Cash and debts receivable,
Stocks and securities,
Patent rights,
Trade marks,
Good will,
Profit and loss,
Total,
LlABIUTIES.
Capital stock (include only shares having par value), ....
Accounts payable,
Funded indebtedness,
Floating indebtedness,
Reserve,
Surplus,
Profit and loss,
Total,
Filing of Section 48. The commissioner shall examine such report, and if
annual report. . ^ , , . . . i- i • i i i ii
1870. 224, § 37. he finds that it conforms to the requirements of this chapter, he shall
1887.225. endorse his approval thereon; and upon the pavment of the fee required
1896; 369: by section fifty-five, it shall be filed in the office of the state secretary,
r**l!iio!^^' who shall receive and preserve it in book form convenient for reference
S§ 51, 57. jijjj open to public inspection. i903. 437, §§ 46, 95. 235 Mass. 79.
Verification
by auditor.
1897, 492.
1898,64.
R. L. 110, § i
1903, 437,
§§ 47, 95.
1908, 300, § :
1909, 326.
1920, 349, § ;
Section 49. Such report of a corporation which has a capital stock of 1
one hundred thousand dollars or more, for this purpose counting shares 2
without par value as of a par value of one hundred dollars each, shall be 3
accompanied by a MTitten statement on oath by an auditor that such 4
report represents the true condition of the affairs of said corporation as 5
disclosed by its books at the time of making such audit. Such auditor 6
shall be employed for each ensuing fiscal year by a committee of three 7
stockholders who are not directors which shall be selected at each annual 8
meeting of the stockholders, or, if there are not three stockliolders other 9
than directors able and willing to serve on such committee, he shall 10
be employed by the directors; but no bookkeeper, treasurer or other 11
officer of the corporation shall be appointed as such auditor. The state- 12
Chap. 156.] business corporations. 1651
13 ment of the auditor shall be filed by him with said report in the office of
14 the state secretary and shall be attached to and form part of it. The
15 auditor shall be duly sworn to the faithful performance of his duties, and
16 the officers of the corporation who sign said report of condition shall
17 certify thereon that the auditor was duly elected and quahfied, as herein
18 provided.
1 Section 50. If a corporation fails to file its report of condition within PenaUy for
2 the time required by law, the commissioner shall give notice by mail, repono? ^'^
3 postage prepaid, to such corporation of its default. If it omits to file is7o"224«fio
4 such report within thirty days after such notice of default has been giA-en, p^y'fo^g'' ^ ^•
5 it shall forfeit to the commonwealth not less than five nor more than ten §§ ss. si-
1S87 225
6 dollars for each day for fifteen days after the expiration of the said thirty isgeiseg!
7 days, and not less than ten nor more than two hundred dollars for each §§ 53, g4.'
8 day thereafter during which such default continues, or any other sum, j^^lgfls.'
9 not greater than the maximum penalty or forfeiture, which the court {9°^' jg|' 1 7-
10 may deem just and equitable. If a corporation fails for two successive
11 years to file its annual report of condition, the supreme judicial court,
12 upon application by the commissioner, after notice and hearing, may
13 decree a dissolution of the corporation.
RECEIVERS.
1 Section 51. Underthe circumstances set forth in section fifty-two of ^p"i^'j";„j
2 chapter one hundred and fifty-five, or if a judgment has been recovered ^'^^ ^^^ ^^
3 against a corporation, and it has neglected for thirty days after demand i--2\^56'
4 made on execution to pay the amount due with the officer's fees, or to 232Ma^. 38.'
5 exhibit to the officer real or personal property belonging to it and subject
6 to be taken on execution sufficient to satisfy the same, and the execution
7 has been returned unsatisfied, one or more receivers may be appointed
8 with the powers and duties provided in, and subject to, said section.
ENFORCEMENT OF PENALTIES.
1 Section 52. Penalties or forfeitures incurred by any corporation Enforcement
2 which omits to cause to be duly filed any certificate or report required by i87o™2m',1 co.
3 section twenty-four, twenty-nine or forty-seven, may be recovered in an p* "'foe.
4 action brought in Suffolk county in the name of the commonwealth, flg^y^^ls
5 or they may be recovered by an information in equity in the name of Jf^Lifo §84
6 the attorney general at the relation of the commissioner, brought in the J^o^a''^^!
7 supreme judicial court in Suffolk county. Upon such information, the
8 court may issue an injunction restraining the further prosecution of
9 the business of the corporation until such penalties or forfeitures, with
10 interest and costs, have been paid and until such certificate or report
11 has been filed.
ORGANIZATION AND FILING FEES.
1 Section 53. The fee for filing and recording the articles of organi- ormJ^tion
2 zation required by section ten, including the issuing by the state secretary P|§3'^3i 2
3 of the certificate of incorporation, shall be one twentieth of one per cent ises! 76. '
4 of the total amount of the authorized capital stock with par value, and i87i,'356'
5 five cents a share for all authorized shares without par value, as fixed by 1887, 225.
6 the articles of organization, but not in any case less than fifty dollars. r*^l.' iio,' § 86.
1903, 437. §§ 88. 93. 1907, 396, § 1. 1920, 349, § 8: 598, § 1.
1652
CO-OPERATFV^E CORPORATIONS.
[Chap. 157.
Fees for
increase of
capital.
1863,231, § 2.
1865.76.
1871.356.
P. S. 106, § 84.
1887, 225.
1896, 369;
523, § 2.
Section 54. The fee for filing and recording the certificate required 1
by section forty-three providing for an increase of capital stock shall be 2
one twentieth of one per cent of the amount of stock with par value and 3
five cents a share for all shares without par value, by which the capital is 4
increased, but not in any case less than twenty dollars. 5
R. L. 110,
1903, 437,
iS6.
!§ 89, 95.
1907, 396, § 2.
1920, 349, § 9; S9S,
220 Mass. 1S3.
Op. A. G. (1920) 158,
Fees for all
other certifi-
cates, state-
ments and
reports.
1870, 224, § 59.
1875. 177, § 4.
1879, 202, § 2.
P. S. :06, § 84.
1887, 225.
1895, 169.
Section 55. The fees for filing all other certificates, statements or
reports required by law of corporations shall be ten dollars for each cer-
tificate, statement or report, but no fee shall be paid for filing the cer-
tificate of change of officers or of annual meeting required by section
twenty-four or twenty-nine or the annual tax return required by sec-
tions thirty-five and forty of chapter sixty-three. i896, 369; 523, § 1.
R. L. 110, 1
1903, 437, i
86.
§ 90, 95.
1918, 257, § 361.
1919, 5.
1920. 2; 598, § 3.
232 Mass. 22.
REFERENCES.
All charters subject to alteration or repeal, Chap. 15.5, § 3.
General powers of all corporations, Chap. 155, § 6.
Corporate name, Chap. 155, § 9.
Corporation may furnish free beds in hospitals, Chap. 155, § 12.
Organization of corporations created by special act, Chap. 155, §§ 1.3, 14.
Meetings may be called by a justice of the peace in certain cases, Chap. 155, § 15.
Right of fiduciaries to vote as stockholders, Chap. 155, § 21.
Stock books, corporate records, access to records, Chap. 155, § 22.
Transfer of stock, Chap. 155, §§ 24-46.
Unclaimed dividends. Chap. 155, § 47.
False reports relating to corporations, penalty. Chap. 155, §§ 48, 49.
Dissolution of corporations, Chap. 155, §§ 50-55.
Injunction against unauthorized business. Chap. 155, § 11.
Certain corporations organized under this chapter. Chaps. 157 and ISO.
Provisions as to petitions for legislation to establish, etc., business corporations,
Chap. 3, § 7.
General provisions applicable to all corporation.s, Chap. 155.
CHAPTER 157.
CO-OPERATIVE CORPORATIONS.
Sect,
co-operative business corporations.
1. Organization.
2. Distribution of profits of corporation
organized for co-operative purposes,
etc.
CO-OPERATrVE AGRICULTURAL, DAIRY OR
MERCANTILE ASSOCIATIONS.
3. Incorporation of certain co-operative
associations.
Sect.
4. Capital stock.
5. Investment of reserve fund, etc.
6. Apportionment of earnings.
7. Certificate of organization to be ap-
proved and filed, etc. Fee.
8. Use of word co-operative forbidden to
organizations not subject to this
chapter.
9. Fee for filing articles.
Organization.
1866, 290,
§§ 1,5.
1870. 224, § 3.
1879. 210.
P. S. 106, § 9.
R. L, 110, § 7.
co-operative BUSINESS CORPORATIONS.
Section 1. A corporation may be organized under chapters one 1
hundred and fifty-five and one hundred and fifty-sLx, with shares Iiaving 2
par value, for the piu-pose of co-operation in carrying on any business and 3
of co-operative trade. i903, 437, §§ ns, 95. 1920. 349, § 10. 4
Chap. 157.] co-operative corpor.\tions. 1653
1 Section 2. Such corporation shall distribute its earnings or profits Distribution
2 among its workmen, purchasers and stockholders at such times and in rarporaSon
3 such manner as its by-laws prescribe, but at least once in every twelve co^operative"^
4 months. No distribution shall be made, unless at least ten per cent of ?s66°l9o fi"
5 the net profits have been appropriated for a contingent or sinking fund, p%'''fo"6*'5 7•^
6 until an amount has accumulated equal to thirty per cent of its capital R- l. no. § to.
7 stock issued and outstanding. No person shall hold shares in any such
8 corporation to an amount exceeding one thousand dollars at their par
9 value, nor shall a stockliolder be entitled to more than one vote upon
10 any subject.
co-operative agricultural, dairy or mercantile associations.
1 Section 3. Seven or more persons, residents of the commonwealth, incorporation
2 may associate themselves as a corporation, association, society, company CperatTve '^°'
3 or exchange, to conduct within the commonwealth any agricultural, dairy il7°o,'224°§ s
4 or mercantile business on the co-operative plan. The word " co-operative" ^ |- ^°l^ I J^
5 shall form a part of the name of the corporation, and, for the purposes i?i3. 447,'
6 of this chapter, the words "association", "company", "exchange", "so- 1920, 349, § 10.
7 ciety" and "union", shall have the same signification and shall import
8 a corporation. The corporation shall be formed as provided in chapters
9 one hundred and fifty-five and one hundred and fifty-six, -with shares
10 having par value, and shall be subject to the pro\'isions thereof so far
1 1 as consistent with this chapter.
1 Section 4. The capital stock of a co-operative corporation formed Capital stock.
2 under section three shall not be less than one hundred nor more than one isto! 224! § 52.
3 hundred thousand dollars. No stockholders shall own shares of a greater is??! 230! § 3.
4 par value than one tenth of the total par value of the capital stock, nor fj Is.'tI'.
5 shall any member be entitled to more than one vote on any subject aris- f^ 35/70:
6 ing in the management of the corporation. 1913,447,13. 1915, iis, § 1.
1 Section .5. At any regular meeting, or at any duly called special investment of
2 meeting, at which a majority of its stockholders are present, a corpora- etc.
3 tion formed under section three may authorize the investment of its re- ' ''
4 serve fund or any part thereof, first, in the building where it is doing busi-
5 ness, or, second, in a first mortgage of real estate owned and occupied as
6 a dwelling by any of its stockholders.
1 Section 6. The directors of every corporation formed under section Apportionment
2 three shall apportion its earnings in the following manner: ileum's 12.
3 1. They shall set aside annually not less than ten per cent of its net ^^i'.iot'.irt
4 profits for a reserve fund until there is accumulated in said reserve fund f^^- l^f ^ ^'^■
5 an amount not less than thirty per cent of its paid-up capital stock. 5§ 93, 95 '
6 2. They shall declare and pay dividends on the paid-up capital stock §§ s.'g.
7. f n J. 1915, lis, § 3.
not exceeding five per cent per annum.
8 3. From the balance of its annual net earnings the directors may ap-
9 propriate a sum not exceeding five per cent thereof to be used in teaching
10 co-operation.
11 4. The directors shall distribute the remainder of such earnings or any
12 part thereof by a uniform dividend upon the amount of purchases or sales
13 of shareholders, tlirough the corporation, and, if the directors so vote,
14 upon the amount of wages earned and paid to employees, except that in
15 the case of a purchaser not a shareholder, who desires to become such, a
1654
CO-OPERATH'E CORPORATIONS.
[Chap. 157.
dl\-idend of one half the uniform dividend may be declared upon such non- 16
shareholder's purchases or sales and credited to him on account of the 17
purchase of stock for which he may subscribe. In productive corpora- 18
tions, including creameries, canneries, storages, factories and the like, 19
dividends shall be calculated on raw material delivered to the corpora- 20
tion instead of on goods purchased. If the corporation be both a pur- 21
chasing and a selling, or a productive, concern, the di\'idends may be on 22
both raw material and on goods purchased. The profits or net earnings 2.3
of such corporation shall be distributed to those entitled thereto at such 24
times as the by-laws prescribe, but at least once in every twelve months. 25
Certificate of
organization
to be approved
and filed, etc.
Fee.
1913, 447, § 7.
Section 7. Any co-operative association now organized by law in the 1
commonwealth for any of the purposes mentioned in section three, and 2
qualified so to do, may by a majority vote of the stockholders at a meet- 3
ing called therefor vote to accept sections three to seven, inclusive, and 4
shall thereupon present to the commissioner of corporations and taxation 5
a certificate, signed and sworn to by its clerk or secretary, setting forth a 6
copy of said vote, the date when passed, and such further evidence as the 7
commissioner may require of its legal existence and of its intention to 8
accept said sections. The commissioner shall examine the certificate and 9
evidence of organization, and, if it appears that the law has been com- 10
plied with, shall so certify, and shall approve the certificate by his en- 11
dorsement thereon, and thereupon such corporation shall have the 12
powers and privileges and be subject to the duties and liabilities of cor- 13
porations formed under section three. Upon the payTnent of one dollar, 14
said certificate shall be filed in the office of the state secretary, who 15
shall cause it and the endorsement thereon to be recorded. 16
Use of word
co-operative
forbidden to
organizations
not subject to
this chapter.
1915, 118, § 2.
1918, 257,
§362.
1919, 5.
1920, 2.
Section 8. Any person, partnership, association or corporation, do- 1
mestic or foreign, except co-operati\'e banks, transacting business for 2
profit in the commonwealth under any name or title containing the word 3
"co-operative", unless the net earnings thereof are distributed in a man- 4
ner permitted for a co-operative corporation by this chapter, shall forfeit 5
to the commonwealth not more than ten dollars for every day or part 6
thereof during which such name or title is so used. Such forfeiture may 7
be recovered by an information brought in the supreme judicial or superior 8
court by the attorney general, at the relation of the commissioner of cor- 9
porations and taxation. Upon such information, the court may issue a 10
temporary or permanent injunction restraining such person, partner- 11
ship, association or corporation from doing business in the common- 12
wealth, or from so using such name or title, and may make such other 13
orders and decrees as justice and equity may require. 14
Fee for filing
articles.
1915, 118. § 2.
Section 9. The fee for filing and recording the articles of organ- 1
ization required by section three, including the issuing by the state 2
secretary of the certificate of incorporation, shall be one twentieth of 3
one per cent of the total amount of the authorized capital stock as fixed 4
by the articles of organization, but in no case less than fi\-e dollars. 5
REFERENCE.
General provisions applicable to all corporations, Chap. 155.
Chap. 158.]
CERTAIN MISCELLANEOUS CORPORATIONS.
1655
CHAPTER 158.
CERTAIN MISCELLANEOUS CORPORATIONS.
Sect.
1. Application of chapter, etc.
ORGANIZATION.
2. Formation of corporations.
3. Corporations for furnishing steam and
hot water.
4. Formation of other corporations.
5. Contents of agreement.
6. First meeting, how called and notified.
7. Subscribers to hold franchise; distribu-
tion of shares.
8. Organization; choice of officers; rec-
ords.
9. Certificate of organization to be filed.
POWERS AND DUTIES.
10. Business powers of corporations.
1 1 . Change of corporate business.
12. Certain corporations may open streets,
when.
13. Companies liable to repay damages,
etc.
14. Companies, etc., to be regulated by
selectmen, etc.
15. Corporations for propagation of her-
rings and alewives.
16. Interest upon deposits of customers.
17. Proceedings if rent of safe deposit boxes
not paid.
OFFICERS.
18. Officers.
19. How chosen.
20. Clerk, treasurer, bond.
CAPITAL STOCK.
21. Stockholder to have certificate of stock.
22. Lost certificates.
23. Capital stock of companies specially
chartered, how limited.
24. Increase and reduction of capital stock.
25. Special stock.
26. Employees' stock.
27. Dividends on employees' stock.
28. Transfer of employees' stock.
Sect.
29. Assessments upon shares.
30. Sale of shares to pay assessments.
31. Notice of sale, and transfer of shares
sold.
32. Capital stock, payment of.
33. Capital stock, how paid in.
34. Voting by proxy.
35. Quorum of stockholders.
CONFIRMATION OF PROCEEDINGS.
36. Confirmation of proceedings.
CERTIFICATES AND RETURNS.
37. Annual certificate of condition.
38. Corporations failing to make such cer-
tificate may be dissolved.
39. Certificate of increase of capital stock.
40. Certificate of reduction.
41. Examination and endorsement of cer-
tificates.
42. Penalties for omitting to file certificates.
FEES.
43. Fees for filing, etc., certificates.
LUBILITT OF OFFICERS AND STOCKHOLDERS.
44. Liability of officers for debts and con-
tracts.
45. Liability of stockholders or members.
46. Procedure before enforcing liability.
47. Clerk to furnish creditor with names of
officers and stockholders.
48. Penalty for refusing to give certified
list. False list.
49. Creditor may file bill in equity against
corporation, officers and stockholders.
50. Stockholders to be assessed in propor-
tion to stock.
51. Suit in equity not abated by death of
one defendant.
52. Suit in equity when dismissed.
53. Suit in equity not abated by non-
joinder of persons liable.
54. Actions may be defended by officer or
stockholder.
1 Section 1. The provisions of this chapter, unless expressly limited ^hT'tet'et" °^
2 in their application, and except so far as they are inconsistent with other
3 provisions of law relative to particular corporations or classes of cor-
4 porations, or with the provisions of special laws, shall apply to corpora-
5 tions heretofore or hereafter organized under general or special laws of
6 the commonwealth for the purpose of carrying on the business of a safe
7 deposit company and to corporations heretofore or hereafter orgiinized
8 under general or special laws of the commonwealth for the purpose
1656
CERTAIN MISCELLANEOUS CORPORATIONS.
[Chap. 158.
of carrying on within the commonwealth the business of transmitting 9
intelligence by electricity or of a heat or power, gas, electric, canal, 10
water or aqueduct company, and to any other corporations, except rail- 11
road, street railway, electric railroad or trolleymotor companies, which 12
now have or may hereafter have the right to take land within the com- 13
monwealth by eminent domain, or to exercise franchises in public ways 14
granted by the commonwealth or by any county, city or town. In 15
this chapter, unless the contexi; otherwise requires, the "commissioner" 16
means the commissioner of corporations and taxation. 17
Formation of
corporations.
1851, 133, § 1.
1852, 9.
G. S. CI, § 1.
1870,224, § 1.
P. S. lOii, § 6.
R. L. 110. § 4.
11 Gray, 139.
ORGANIZATION.
Section 2. Any persons, to the number hereinafter provided, who 1
associate themselves by a written agreement hereinafter described with 2
the intention of forming a corporation for any purpose permitted under 3
section one, upon complying with section nine, shall be and remain a 4
corporation. is Gray, 211, 494. 12 Alien, 273, 302. 5
98 Mass. 98. 101 Mass. 381, 385. 1 Op. A. G. 47, 185.
Corpf
for furnishinp:
steam and hot
water.
1855, 146. § 1.
1857.276, § 1.
G.S. 61. § 15.
1870, 224, 5 5.
1879, 202, I 1.
P. S. 106, § II.
1885, 240, § 1.
Section 3. For the purpose of generating and furnishing steam or 1
hot water for heating, cooking and mechanical power, or for the purpose 2
of generating and furnishing hydrostatic or pneumatic pressure for me- 3
chanical power, in any town, or for any two or more of said purposes, 4
ten or more persons may associate themselves, with a capital of not less 5
than one thousand nor more than five hundred thousand dollars. 6
157 Mass. 37.
1891, 189, § 1.
1893, 397.
R, L. no, §9.
1910, 346.
^t°h™ TO?" °^ Section 4. For the purpose of carrying on any other lawful business
porations. for whicli corporatious may be formed under this chapter, three or more
p. s.' 100. § 14. persons may associate themselves, with a capital of not less than one
fraVais! I.5I' thousand dollars. The capital of such companies other than gas and
27°f304.° ^^'^' electric companies shall not exceed one million dollars.
Contents of
agreement.
1851, 133, § 3.
G.S. 61. §2.
1866. 290, § 2.
1870, 224, I 7.
p. 8. 106, § 16.
R. L. no, § 15.
11 Gray, 139.
97 Mass. 494.
Section 5. The agreement of association shall state that the sub- 1
scribers thereto associate themselves with the intention of forming a 2
corporation, the corporate name assumed, the purpose for which it is 3
formed, the town, which shall be in this commonwealth, where it is 4
established or located, the amount of its capital stock and the par value 5
and number of its shares. 6
First mfftinK. Section 6. The first meeting shall be called and record made as 1
how eiilled and i i> i i i i i ne ' o
notified ^ provided in section eight or chapter one hundred and nity-six. 2
' * • ^ - G.S. 61. § 3. P. S. 106. § 18. 1918. 257. 5 372.
1866, 290, § 4. R. L. 110, § 17. 1919, 5; 333, §§ 17, IS.
1S70, 224, I 9. 1914, 742. § 7. 1920. 2.
Subscribers to Section 7. Tlic subscribcrs to the agreement of association shall 1
distribution of hold tlic franchise until the organization has been completed; and, un- 2
i87a^224, § 30. less it is otherwise provided in such agreement, each subscriber who 3
R.L.no.l 18. elects to take such shares at the first meeting may take such proportion 4
uiVatl: 2(xi. of the shares of the capital stock as the number of subscribers to the 5
agreement bears to the whole number of shares, or any part of such 6
proportion, upon paying the assessments thereon as called for by the 7
corporation. All shares not so taken shall be disposed of as the cor- 8
poration determines. 9
ClL\P. 158.] CERTAIN MISCELLANEOUS CORPORATIONS. 1657
1 Section 8. At such first meeting, or at any adjournment thereof, OrganiAtion;
2 the incorporators shall organize as provided in section nine of chapter officers;
3 one hundred and fifty-six. issi, 133, §§4, s. g. s. 6i,§5.
1870, 224, § 10. p. S. 106, §20. R. L. no. §19. 1914, 742, | 9.
1 Section 9. The president, treasurer and a majority of the directors Certificate of
2 shall forthwith make, sign and swear to a certificate setting forth a true To^hTm^°^
3 copy of the agreement of association with the names of the subscribers \lll[ lf%\^'
4 thereto, the date of the first meeting and the successive adjournments Jf^l'l^^tg^'
5 thereof, if any, and shall submit such certificate and also the records of l^''^'?~'*'fi}-
_,, • I •• 11 11 *i X. o. lUo, 8 Jl.
6 the corporation to the commissioner, who shall examme the same, and R l. no. §20.
7 who may require such other evidence as he may judge necessary. If it 161 iiass'. ssi.
8 appears that the requirements of the preceding sections, and of sections 151 Mass! ass!
9 five and six of chapter one hundred and sixty-four in the case of gas and
10 electric companies, preliminary to the establishment of the corporation
11 have been complied with, the commissioner shall so certify and approve
12 the certificate by his endorsement thereon. Such certificate shall there-
13 upon be filed by said officers in the office of the state secretary, who,
14 upon payment of the fee hereinafter provided, shall cause the same with
15 the endorsement thereon to be recorded, and shall thereupon issue a
16 certificate in the following form :
Commonwealth of Massachusetts.
Be it known that whereas (the name of the subscribers to the agreement of
association) have associated themselves with the intention of forming a corpo-
ration under the name of (the name of the corporation), for the purpose (the
purpose declared in the agreement of association), with a capital of (the amount
of capital fixed in the agreement of association), and have complied with the
provisions of the statutes of this commonwealth in such case made and pro-
vided, as appears from the certificate of the president, treasurer and directors
of said corporation, duly approved by the commissioner of corporations and tax-
ation and recorded in this office: Now, therefore, I, (the name of the secretarj'),
secretary of the commonwealth of Massachusetts, do hereby certify that said
(the names of the subscribers to the agreement of association), their associates
and successors, are legally organized and established as, and are hereby made,
an existing corporation under the name of (name of the corporation), with the
powers, rights and pri\'ileges, and subject to the Limitations, duties and restric-
tions, which by law appertain thereto.
Witness my official signature hereunto subscribed, and the great seal of the
commonwealth of Massachusetts hereunto affixed, this day of
in the year (the date of execution of the certificate).
17 The state secretary shall sign the same and cause the great seal of the
18 commonwealth to be thereto affixed, and such certificate shall have the
19 force and effect of a special charter and shall be conclusive evidence of the
20 existence of such corporation. He shall also cause a record of such cer-
21 tificate to be made, and a certified copy of such record may be given in
22 evidence with like effect as the original certificate.
POWERS AND DUTIES.
1 Section 10. A corporation may in its corporate name purchase, hold ''",^.'"^of
2 and convey real and personal property necessary for the purposes of its 1l^i°'ii^1%
3 organization; may carry on its business, or so much thereof as is con- iss5!478[§i!
4 venient, beyond the limits of this commonwealth, and may there pur- g13.'gi.§7
5 chase and hold real or personal property necessary for conducting its Isra 224,'
6 business; but it shall not direct its operations or appropriate its funds p^.^iol.'
7 to any other purpose than that specified in its agreement of association ^ j^'no § 46
1658
CERTAIN MISCELLANEOUS CORPORATIONS.
[Chap. 158.
1914, 742, § 50.
1930, 295.
147 Mass. 224.
157 Mass. 37.
or its charter, as the case may be, except as provided in the following 8
section and in sections twenty-two and twenty-three of chapter one hun- 9
dred and sixty-four. No conveyance or mortgage of its real property, or 10
lease thereof for more than one j'ear, shall be made unless authorized by 11
a vote of the stockholders at a meeting called for the purpose. 12
Change of
corporate
business.
1875,
177,
§4.
P. S.
106,
§51.
1885,
310.
R. L.
110, §47.
1910,
124.
1914,
742,
,§52.
Certain cor-
porations
may
open
streets.
when
1855,
146,
§2.
G.S.
61, § 16.
1870,
224,
§ 56;
353. !
5 2.
1879.
202,
§ 1.
last cl.
P. S.
106,
§7.5.
1885.
240,
§1.
1896.
544,
§1-
1899.
453.
R. L.
110,6 76.
12 Allen. 75.
188 Mass.
242.
220 Mass.
575.
Section 11. A corporation may, by a vote of all its stockholders 1
at a meeting duly called for the purpose, alter, add to or change the 2
business for the transaction of which it was incorporated, but it shall 3
not engage in any business which is not authorized by law. A certifi- 4
cate setting forth such alteration, addition or change, signed and sworn 5
to by the president, treasurer and a majority of the directors, shall be 6
filed in the office of the state secretary. 7
Section 12. Corporations organized for the purpose of transporting 1
the United States mail, merchandise and other articles by means of 2
pneumatic pressure or power, corporations engaged in or organized for 3
the purpose of manufacturing, buying, selling, distributing or dealing 4
in artificial cold and refrigerating and cooling materials and corpora- 5
tions organized for any of the purposes mentioned in section three, may, 6
with the WTitten consent of the aldermen of a city or the selectmen of 7
a town, dig up and open the ground in any of the streets, lanes and 8
highways thereof, so far as is necessary to accomplish the objects of 9
the corporation; but such consent shall not afi'ect the right or remedy to 10
recover damages for an injury caused to persons or property by the acts 1 1
of such corporations. They shall put all such streets, lanes and high- 12
ways into as good repair as they were in when opened; and upon failure 13
so to do witliin a reasonable time shall be guilty of a nuisance. 14
Companies
liable to repay
damages, etc.
1860. 121.
P. S. 106, § 76.
1896. 544. § 2.
R. L. 110. i 77.
Section 13. If a person who is injured in his person or property by 1
a defect in a highway which is caused by the operations of a company 2
or corporation described in the preceding section in laying down or 3
repairing its pipes or otherwise obstructing such way recovers damages 4
therefor of the town wherein such injury is received, such town shall, if 5
such company or corporation is liable for said damages and has reason- 6
able notice to appear and defend the original action, be entitled to recover 7
of such company or corporation the damages so recovered from it with 8
the taxable costs of both parties in such action. 9
Companies,
etc.. to be
regiilated by
selectmen, etc.
1855, 146, § 3.
G. S. 61,§ 17.
1870, 224, § 57.
P. S. 106, § 77.
R. L. 110, § 78.
Section 14. The aldermen of a city or the selectmen of a town in 1
which pipes or conductors of such company or corporation are sunk 2
may regulate, restrict and control all acts and doings of such company 3
or corporation which may in any manner afi'ect the health, safety, con- 4
venience or property of the inhabitants of such city or town. 5
Corporations
for propagation
of herrings and
alewives.
1866. 187. § 1.
1870, 224,
§§ 4. 36. 54.
P. S. 106.
§§ 10, 58, 74.
R. L. 110,
5§8. 56. 71.
1903. 437. § 92.
Section 15. A corporation which is organized for the purpose of 1
opening outlets, canals, sluiceways or ditches for the introduction and 2
propagation of herrings and alewives, before making any purchase of 3
real estate or doing any acts in pursuance of its organization, shall obtain 4
the written authority of the aldermen of the city or the selectmen of the 5
town within which its works are to be located, and, within thirty days 6
aftfer obtaining such authority, shall file a copy thereof, certified by the 7
city or town clerk, in the office of the state secretary. Such corporations 8
Chap. 158.] cert.\in miscellaneous corporations. 1659
9 shall be organized under and governed by chapter one hundred and fifty-
10 six so far as applicable.
1 Section 16. If a corporation which has a franchise in and the use of dep"s1teof°°
2 the public streets of a town for the supply and distribution of gas, water, ^go*"™^ ■
3 electric light or power, or for the maintenance of communication by wire R l' ho,
4 or otherwise, holds for a longer period than six months money which is I9i4, 742, § 63.
5 collected in advance from its customers to guarantee it against loss of
6 charges or tolls, it shall pay annually upon said guaranty fund interest
7 at the rate of four per cent per annum to the depositors thereof, which
8 shall be applied to the payment of charges and tolls by said depositors.
9 The annual return required of such corporations by section thirty-seven
10 shall include a true statement of all money, and of the value of any col-
li lateral, so held as a guaranty for the payment of charges or tolls, specify-
12 ing the amount so deposited by the inhabitants of each town. If such
1.3 corporation fails or neglects to make such return or fails, neglects or
14 refuses to pay such interest it shall be punished by a fine of not less than
15 one hundred nor more than five hundred dollars.
1 Section 17. If the amount due for the rent or use of a box or safe in Proceedings if
2 the vaults of a domestic corporation organized for the purpose of letting depoSt b'ixes
3 vaults, safes and other receptacles shall not have been paid for two years, iggy^gg.'
4 such corporation may cause to be mailed, postpaid, to the person in ^- ^- ^^^' 5 38.
5 whose name such safe or box stands upon the books of such corporation
6 and at his address as stated on said books, a notice stating that if the
7 amount then due for the use or rent of such safe or box shall not be paid
8 within sixty days from the date of such notice such corporation will
9 cause such safe or box to be opened in the presence of its president, treas-
10 urer or superintendent and of a notary public, and the contents thereof,
11 if any, to be sealed up in a package and placed in one of the storage
12 vaults of such corporation. If, upon the expiration of said sixty days
13 from the date of such notice, such person shall have failed to pay the
14 amount due for the use or rent of such safe or box in full to the date of
15 such notice, all right of such person in such safe or box and of access
16 thereto shall cease, and such corporation may in the presence of its pres-
17 ident, treasurer or superintendent and of a notary public not an officer or
18 in the general employ of such corporation, cause such safe or box to be
19 opened, and such notary public shall remove the contents thereof, make
20 a list of the same and shall seal up such contents in a package and shall
21 mark thereon the name of the person in whose name such safe or box
22 stood on the books of such corporation and his address as stated on said
23 books, and such package shall in the presence of said notary public and
24 of said president, treasurer or superintendent be placed in one of the
25 storage vaults of such corporation; and the proceedings of such notary
26 public, including said list of the contents of said safe or box and his
27 estimate of the total value of said contents, shall be set forth by him in
28 his own handwriting and under his official seal in a book to be kept by
29 such corporation for the purpose. The officer of such corporation who
30 sent said written notice shall in the same book state his proceedings rela-
31 tive thereto, setting forth a copy of said notice. Both of said statements
32 shall be sworn to by such notary public and officer, respectively, before
33 a justice of the peace, who shall make certificate thereof in said book; and
34 said written statements shall be prima facie evidence of the facts therein
1660
CERTAIN MISCELLANEOUS CORPORATIONS.
[Chap. 158.
set forth in all proceedings at law and in equity wherein evidence of such 35
facts would be competent. This section shall not impair any right rela- 36
tive to such safes, boxes or their contents which such corporation would 37
otherwise have. 38
Officers.
1S08. 65,
1829. 53.
R. S. 38,
§§ 2, 3.
G. S. 60.
1866, 290; § 3.
1870, 224.
§§ 15, 17.
3,5.
OFFICERS.
Section IS. The business of every corporation shall be managed and 1
conducted by a president, a board of not less than three directors, a clerk, 2
treasurer and such other officers and agents as the corporation author- 3
izes for that purpose. The directors shall choose one of their number 4
as president. 5
1874, 349, § 1, cl. 1. P. S. 106, §§23, 25. R. L. 110, §22.
1808, 65™! L Section 19. The directors, clerk and treasurer shall be chosen annu-
R^s^is! ^' ^lly ^y the stockholders by ballot, and shall hold office for one year and
G i 60 §4 until others are chosen and qualified in their stead. The manner of
1,8™' 224, 1 w. choosing or appointing all other agents and officers, and of filling all
R. L. iid.'s 23. vacancies, shall be prescribed by the by-laws.
8 Gush. 93. 7 Gray, 1. 15 Gray, 211. 179 Mass. 61.
Slr.'^bond.'^ Section 20. The clerk shall be sworn, shall record all votes in a book
1829, 53; 1 1' *° ^^ ^^P* ^°'" th^* purpose and shall perform all other duties assigned
G I' 60 1 6' ^° ^^''^" ^^^ treasurer shall give bond for the faithful performance of
1870, 224, §18. his duty in such sum and with such sureties as shall be required by the
P. S. 106, § 26. 1 1
R. L. 110, § 24. by-laws.
Stockholder to
have certificate
of stock.
1808, 65, § 3.
1829, 53, § 3.
R. S. 38, § 10.
1852, 180.
capital stock.
Section 21. Every stockholder shall be entitled to a certificate of 1
his stock, sealed with the seal of the corporation and signed by its treas- 2
urer or assistant treasurer and such other officer as the by-laws may 3
designate. g. s. eo, § 10. i870, 24, § 23. 4
1874, .349, § 1.
p. S. 106, § 29.
R. L. 110. § 27.
1914, 742, § 22.
16 Mass. 94.
8 Gush. 168.
12 Gray, 213.
8 Allen, 15.
Lost certifi-
cates.
1808, 65, § 4.
1829, 53, I 4.
Section 22. In case of the loss of a certificate, a duplicate certificate 1
may be issued upon such reasonable terms as the directors shall prescribe. 2
R.S. 38, §12. G._S- 6Q..5 13^. P- ?. 106, § 30. 1914, 742, § 22.
1870, 224, § 26.
R. L. 110, § 28.
of^compaiSes Section 23. The amount of the capital stock of every corporation
ter^Xhow'''"" established by special charter shall, at the first meeting of the corpora-
im^s 5 3 tion, unless the charter otherwise provides, be fixed and limited by the
1829! 53,' 1 3. corporation and divided into shares, of which a record shall be made by
G. s. 6o! § 9. the clerk. 1870, 224, § 22.
p. S. 106. § 32. R. L. 110, § 29. 1914, 742, § 28. 6 Gray, 586.
Increase and
reduction of
capital stock.
1S2U, 53,
§§3, 10.
R. S. 38,
§§ 11,20.
1851, 133, § 8.
1855, 478, § 5.
Section 24. Every corporation, unless otherwise expressly provided, 1
at a meeting called for the purpose, may increase or reduce the amount 2
of its capital stock and the number of shares therein, within the amount 3
limited by its charter, if a chartered corporation, and by the provisions 4
of this chapter, if organized under general laws. 5
1857, 24.
G. S. 60, §§ 11,
21; 61, § 6.
1865, 283, § 8.
ISr.R. 290, § 5.
1S70, 224, I 24.
1871, 110, I 2.
1873, 39, § 2.
1875, 177. § 3.
P. S. 13, § 43;
106. § 34.
1899, 199, § 2.
R. L. 110, 5 31.
1914, 742, I 35.
1920, 295.
Ch.\P. 158.] CERTAIN MISCELLANEOUS CORPORATIONS. 1661
1 Section 25. A corporation may, by a vote of three fourths of its Special stock.
2 general stockliolders at a meeting duly called for the purpose, issue special g s.'eo. § 12.
3 stock, the total amount of which outstanding at any time shall not exceed r a'i»t'|42'.
4 two fifths of the actual capital paid in on the general and special stock, nin! 742' 1 31'
5 and shall be subiect to redemption at par after a fixed time which shall Jfp.^y' H*-,
1*1 -r-TTii c • 11 Mass. 204.
6 be expressed ni the certmcates. Holders of special stock shall be en- 139 Mass. s.
7 titled to receive, and the corporation shall be bound to pay thereon, a
8 fixed half yearly smn or dividend, which shall be expressed in the cer-
9 tificates, not exceeding four per cent, and they shall not be liable for the
10 debts of the corporation beyond their stock.
1 Section 26. A corporation may, by a vote of its general stockholders Employees'
2 at a meeting called for the purpose, issue employees' stock to be held isso, 209, § 1.
3 only by the employees of such corporation. The par value of the shares 1914; 742; | 32!
4 of such employees' stock shall be ten dollars, and the purchasers thereof
5 may pay for them in monthly instalments of one dollar upon each share.
6 The total amount of such employees' stock outstanding at any time shall
7 not exceed two fifths of the actual capital paid in on the general and
8 employees' stock.
1 Section 27. If a dividend is paid by a corporation to its stock- Dividends on
2 holders, the holders of employees' stock shall receive upon each share stock"^""^
3 which has been paid for in full in time to be entitled to a dividend, an r'^l! 110! | Is.
4 amount which shall bear such proportion to the amount paid as a di^'i- ^^^*- ^*^' ^ ^•'■
5 dend upon each share of the general stock of such corporation as the par
6 value of the shares of such employees' stock bears to the par value of the
7 shares of such general stock.
1 Section 28. The shares of employees' stock shall not be sold or trans- Transfer of
2 ferred except to an employee of such corporation or to the corporation Xck"^'"''''
3 itself. A corporation which issues employees' stock may prescribe by ^^l\ \%\ 1 19
4 its by-laws the number of shares which may be held by any one em- i^'^' ''^2, § 34.
5 ployee and the method of transfer and redemption of such stock as is
G held by any person after he ceases to be an employee of the corporation.
1 Section 29. Every corporation may, from time to time at a legal Assessments
iiipi 11 n upon shares.
2 meetmg called for the purpose, assess upon each share such amount of isos. es. § s-
3 money as it considers proper, not exceeding in the whole the par value r.''s.'38,'| is.
4 thereof, unless the price is fixed as provided by section eighteen of chapter ist'o, 224, § 2'7.
5 one hundred and sixty-four or section seven of chapter one hundred and r. l.*!*!!), V46-
6 sixty-six, and, in such case, not exceeding said price. Such assessment i^i*. ^42, § 45.
7 shall be paid to the treasurer at such times and by such instalments as
8 the corporation directs.
1 Section 30. If the stockholder neglects to pay an amount duly saie of shares
2 assessed on his shares for thirty days after the time appointed for pay- mentl! ''''"'*^"
3 ment, the treasurer of the corporation may sell by public auction a suffi- {Im! H 1 5.
4 cient number thereof to pay all assessments then due from him with §
5 necessary and incidental charges. isto, 224, 5 28.
R. S. 38, § 14.
15.
P. S. lOB, § 44. 1914, 742, § 46. 14 Pick. 483.
R. L. 110, § 41. 14 Mass. 286. 121 Mass. 272.
1 Section 31. The treasurer shall give notice of the time and place Notice of sale,
2 appointed for such sale, and of the amount due on each share, by adver- shares'soid'i'^°
1662
CERTAIN MISCELL.\NEOUS CORPORATIONS.
[Chap. 158.
1808, 65, § 5.
1829, 53, § 5.
R. S.38. § 15.
G. S. 60, I 16.
1870, 224, § 29.
P. S. 106, § 45.
R. L. 110, § 42.
1914, 742, § 47
tising the same three weeks successively before the sale in a newspaper, 3
published in the county where the corporation is established; and an 4
assignment of the shares so sold, made by the treasurer and acknowledged 5
before a justice of the peace and recorded in the books of the corpora- 6
tion, shall transfer said shares to the purchaser, who shall be entitled to 7
a certificate therefor. 8
Capital stock,
pavraent of.
1829, 53, § 6.
R. S. 38, §§ 16,
17.
1851, 133, § 4.
1857, 276, § 1.
G. S. 60, §§ 17,
18: 61, § 8.
1866, 290, § 8.
1870, 224, § 32.
Section 32. A corporation shall not begin business until the whole 1
amount of its capital stock has been paid in and a certificate of that fact, 2
and of the manner in which the same has been paid in and, at the time of 3
making the certificate, been invested or voted by the corporation to be 4
invested, signed and sworn to by the president, treasurer and a majority 5
of the directors, has been filed in the office of the state secretary. 6
1875, 177, § 2.
P. S. 106. § 46.
R. L. 110, §43.
6 Met. 114.
101 Mass. 381.
117 Mass. 476.
152 Mass. 428.
192 Mass. 223.
193 Mass. 138.
195 Mass. 461.
Capital stock,
how paid in.
1829, 53. § 8.
R. S. 38, § 24.
G. S. 60, I 14.
1870, 224. § 27.
1875, 177, § 2.
P. S. 106,
§§ 47, 48.
R. L. no, §44.
192 Mass. 223.
193 Mass. 138.
Section 33. The capital stock, except as provided in this section, 1
shall be paid in in cash. The conveyance to the corporation of real or 2
personal property at a fair valuation shall be a sufficient paying in of 3
its capital stock to the extent of such value, if a statement, made, signed 4
and sworn to by its president, treasurer and a majority of its directors, 5
giving a description of such property and the value at which it has been 6
taken in payment, in such detail as the commissioner shall require or 7
approve, and endorsed with his certificate that he is satisfied that said 8
valuation is fair and reasonable, is filed with the state secretary. Such 9
statement shall be included in the certificate of payment of capital re- 10
quired by the preceding section. No note or obligation given by a stock- 1 1
holder, whether secured by pledge or otherwise, shall be considered as 12
payment of any part of the capital stock. 13
Voting by
proxy.
R. S. 38. § 7.
G. S. 60, § 7.
1870, 224. § 19.
P. S. 106, § 27.
Section 34. Absent stockholders may vote at all meetings by proxy, 1
authorized in writing, which shall be executed and dated within six months 2
previous to the meeting at which it is used. 3
R. L. 110,§25. 1914, 742, § 16. 1918, 257, § 373. 1919,5. 1920,2.
Quorum of
stockholders.
1829, 53. § 15.
R. S. 38. § 7.
G.S. 60, §7.
1870, 224. § 20.
P. S. 106. § 28.
H. L. 110, § 26.
Section 3.5. Every corporation may determine by its by-laws what 1
number of stockholders shall attend, either in person or by proxy, or 2
what number of shares or amount of interest shall be represented at any 3
meeting, to constitute a quorum. If the quorum is not so determined, 4
a majority in interest of the stockholders shall constitute a quorum. 5
confirmation of proceedings.
Confirmation of SECTION 36. If doubts arisc as to the legality of the organization of
proceedinEs. . • i i , c . • i ■
1874,349, §2. aiiy corporatiou created by special charter tor a purpose mentioned in
R. L. 110, § 83. this chapter, which is in the exercise of its franchise, or as to the regularity
1914, 742, § 72. ^^ sufficiency of the proceedings of any such corporation, whether created
by special charter or formed under general laws, in consequence of failure
subsequent to the organization to comply with the directions or require-
ments of any statute, the stockholders, at a special meeting called for the
purpose in the manner provided in section eight of chapter one hundred
and fifty-six or by a justice of the peace upon the written request therefor
of a majority of the acting directors, may by vote confirm such defective 10
Chap. 158.] certain miscellaneous corporations. 1663
1 1 proceedings and all subsequent proceedings of the corporation dependent
12 thereon. The clerk shall thereupon make a certificate on oath setting
1.3 forth the particular matters especially causing the doubt, and a copy of
14 the call of the meeting and of the vote of the stockholders, and the date
15 of holding the meeting, which he shall present to the commissioner who
16 shall examine the same, and, if he finds that this section has been complied
17 with, shall so certify by endorsement thereon. Upon filing the certificate
18 so endorsed in the office of the state secretary, such proceedings shall be
19 taken to be legal and valid as fully as if the requirements of the statutes
20 had been complied with.
certificates and returns.
1 Section 37. Every corporation shall annually file in the office of the Annual certis-
2 state secretary, within thirty days after the date fixed in its by-laws for tion.
3 its annual meeting, or within thirty days after the final adjournment r^I'II,'! 22.
4 thereof, but not more than three months after the date so fixed for said JH*; {33;
5 meeting, a certificate signed and sworn to by its president, treasurer and ^l^ ^°^^
6 at least a majority of its directors, stating the date of holding such meet- jSty'^fe^ ^'
7 ing, the amount of capital stock as it then stands fixed by the corporation, g. s.'eo, §§ 23,
8 the amount then paid in, the name of each shareholder and the number 1862, 210.
9 of shares standing in his name, and the assets and liabilities of the cor- isto! 224.' 1 33.
10 poration, in such form, with such detail and of such date as the com- §§"'5.'"'
11 missioner shall require or approve. Such certificates shall, by the act of p^^^fcfg^'l^
12 filing, be considered as recorded and shall be preserved by the state secre- jil^' 225.
13 tary in book form convenient for reference. Such certificate of a corpora- isgeiseg.
14 tion having a capital stock of one hundred thousand dollars or more shall ism. 64. '
15 be verified by an auditor as provided in section forty-nine of chapter one f§ 51/52."
16 hundred and fifty-six. i9i4, 742, §§ 65, 66.
188 Mass. 478. 220 Mass. 380. 228 Mass. 202.
1 Section 38. If a corporation fails for two successive years to file such Corporations
2 annual certificate, the supreme judicial court, upon application by the mLkefsuA
3 commissioner, after notice and a hearing, may decree a dissolution of the be'd'issoived"'^
4 corporation. 1877, 230, § 2. p. s. loe. § 55.
1887, 225. 1896, 369. R. L. 110, | 53. 1914, 742, § 67.
1 Section 39. A corporation shall, upon an increase of its capital stock. Certificate of
2 within thirty days after the payment or collection of the last instalment ^^tS'st'ock.
3 thereof, file a certificate of the amount of such increase and the fact of g.^s.'6i,^§9.^
4 such payment, signed and sworn to by its president, treasurer and a p^^'fcjf'lsfi'
5 majority of its directors, in the office of the state secretary and also, if the Rj '' ^JO' 1 1*-
6 corporation is subject to chapter one hundred and sixty-four or one i9i9]35o,'§n7.
7 hundred and sixty-five, in the office of the department of public utilities. p- • ■
1 Section 40. A corporation shall, within thirty days after a reduction certificate of
2 of its capital stock is voted, file in the office of the state secretary and is5'5?478,' § 5.
3 also, if the corporation is subject to chapter one hundred and sixty-four, ]870,224ff35
4 in the office of the department of public utilities, a copv of the vote S ?l*S;l?I
- ... I , ^. . , *^ , , . , ' *, R. L. 110, § 55.
5 autnorizmg such reduction, signed and sworn to by its clerk. loi-*. '^2, § m.
° ' ° '' 1919,350,5117.
1 Section 41. The certificate or copy which is required by section Eiamination
2 eleven, fifteen, thirty-two, thirty-seven, thirty-nine or forty to be filed me'nt "f""*^
3 shall, before filing, be submitted to the commissioner, who shall examine i87oI'224Ti 37.
1664
CERTAIN MISCELL-VNEOUS CORPORATIONS.
[Chap. 158.
the same; and if it appears to him to be a sufficient compliance in form
with the requirements of law, he shall certify his approval thereof by
p. S. lOfi, § 59.
1887, 225.
1896, 369.
R. L.' 110,' 5 57. endorsement upon the same; but he shall endorse only the date and fact
1 Op. A* 0.^03. of submission to his inspection upon the copies of votes of corporations;
^^^- and upon the payment of the fee provided by section forty-three, the
same may be filed in the office of the state secretary, who shall receive
and record the same in books to be kept for the purpose; and, upon 10
such filing, the corporation and its officers shall be conclusively held to 11
have complied with the requirements of law in respect to the filing of such 12
certificate, except that it may be shown in evidence that the statements 13
made in such return were false, and were known to be so by any officer 14
signing or making oath to the same. 15
Penalties for
omitting to file
certificates.
1863, 246.
1866, 290, § 9.
1870, 224, § 60.
1877, 57.
p. S. 106,
§§ 81, 82.
1887, 225.
1896, 369.
R. L. 110, § 84.
1914, 742, 5 89.
Section 42. A corporation which omits to file any certificate or copy 1
which is required by section thirty-seven, thirty-nine or forty shall forfeit 2
two hundred dollars, to be recovered in an action of tort brought in the 3
name of the commonwealth in Suffolk county or in the county where 4
the corporation is established ; and its president, treasurer and directors, 5
for the time being, shall in addition be jointly liable in a like amount for 6
such omission; and all forfeitures by a corporation under any provision 7
of this chapter may also be collected by information in equity, which 8
may be brought in Suffolk county and shall be brought in the supreme 9
judicial court in the name of the attorney general, at the relation of the 10
commissioner; and upon such information the court may issue an in- 11
junction restraining the further prosecution of the business of the cor- 12
poration named therein until such forfeitures, with interest and costs, are 13
paid and until the returns required by this chapter are filed. 14
fees.
Fees for filing,
etc., certifi-
cates.
p. S. 106, 5 84.
1887, 225.
Of organi-
zation.
1863, 231, i 2.
1865, 76.
1870, 224, § 59.
1871, 356.
R. L. no, § SR.
1908, 219; 382.
1914, 742, § 91.
Of increase
of capital.
1863, 231, § 2.
1865, 76.
1871, 356.
Section 43. The fees for filing and recording the following certificates 1
and copies of votes required to be filed with the state secretary shall be 2
as follows: 1896,369. R. L. 110,§86. 3
Other cer-
tificates.
1870, 224. 5 59.
1875, 177, § 4.
1879, 202, § 2.
1895, 169.
1896, 523, § 1.
R. L. 110, §86.
1908, 219; 382.
1914,742, §91.
1915,92; 264.
1920, 598,
§§5.6.
1903, 219; 382.
1914,742, §91.
1915. 92; 264.
For filing and recording the certificates required by section nine, in-
cluding the issuing of the certificate of incorporation by the state secretary,
one twentieth of one per cent of the amount of the capital stock as fixed
by the agreement of association; but not less in any case than five
dollars. lais. 92; 254.
For filing and recording the certificate required by section thirty-
nine, one twentieth of one per cent of the amount by which the capital 10
is increased. 1896,523, §2. r. l. no, §86. 11
1908, 219; 382. 1914, 742, § 91. 1915, 92; 264.
For filing and recording the copies of the votes or certificates required 12
by sections eleven, thirty-six or forty of this chapter, section sixteen of 13
chapter one hundred and fifty-five or section twenty or twenty-three of 14
chapter one hundred and sixty-four, ten dollars for each copy or certificate ; 1.^
for filing and recording the certificate required by section thu-ty-seven, 16
ten dollars; for filing and recording any other certificate required by law, 17
one dollar. 18
Chap. 158.] certain miscell.'Vneous corporations. 1665
LIABILITY OF OFFICERS AND STOCKHOLDERS.
1 Section 44. The officers of a corporation shall be jointly and sev- Liabiiit>- of
2 erally liable for its debts and contracts in the following cases, and not deb"Ld"^
3 otherwise: 1S21, SS. 1S29, 53. §§ S, 9. contracts.
R. S. 3S, §§ 23-25, 28. P. S. 106, § 60. 106 Mass. 131.
G. S. 60. |§ 17-25, 30. 1898. 266. 108 Mass. 523.
1862, 218, §1. R. L. 110, §58. 118 Mass. 295.
1870, 224. § 38. 10 Grav, 232. 600. 137 Mass. 516.
^ 1875, 177, I 2. 12 Grav. 203. 148 Mass. 226.
1877. 230. 1 1. 6 Allen, 579. 195 Mass. 461.
4 The president and directors shall be so liable —
5 First, For making or consenting to a dividend if the corporation is iso Mass. see.
6 or thereby is rendered insolvent, to the extent of such di^•idend. "^^^
7 Second, For debts contracted between the time of making or assent- is3 Mass. 557.
8 ing to a loan to a stockliolder and the time of its repayment, to the
9 extent of such loan.
10 Third, If the debts of a corporation exceed its capital, to the extent of fa* M^f^fus
11 such excess existing at the time of the commencement of the suit against J|^ l\f^- 1|0-
12 the corporation in which the judgment was recovered upon which the i9SMass!76r'
13 suit in equity to enforce such liability is brought as provided in section
14 forty-nine.
15 The president, directors and treasurer shall be so liable —
16 Fourth, For signing any statement filed under section thirty-three, if '^° ^^'^^- ^^■
17 the property mentioned in such statement is not conveyed and taken
18 at a fair valuation; but only the officers who sign the statement shall
19 be so liable.
20 The president, directors and other officers shall be so liable —
21 Fifth, For signing any certificate which is required by law knowing i48 Mass. 226.
22 it to be false; but only the officers who have knowledge thereof shall be is2 MaS 530'
23 Hable. 193 Mass. 138.
24 Sixth, For debts contracted before the original capital has been fully i95 Mass. 46i.
25 paid in and the certificate of such payment has been filed in accordance
26 with section thirty-two.
1 Section 45. The members or stockholders in any corporation shall ^toc'khoTders
2 be jointly and severally liable for its debts or contracts in the following Jga'iTs'"^"'
3 cases, and not otherwise : 1826,137, §2. 1829,53, §§6, 7. 10, 11.
R. S. 38, §§ 16. 21, 1870, 224, § 39. 6 Met. 114.
32, 33. 1875. 177, § 1. 8 Cush. 168.
1851. 133, I 15; 252. 1876, 1. § 1. 15 Gray, 216.
1852,9. P. S. 106. §61. 2 Allen, 498.
1855.290. R. L. 110, §59. Ill Mass. 200.
G. S. 60, §§12, 17, 22; 1914,742,174. 101 Mass. 385.
68, § 16. 13 Pick. 484. 127 Mass. 586.
1862, 218, § 2. 21 Pick. 417. 195 Mass. 461.
4 First, For such as may be contracted before the original capital is o Met. lu.
5 fully paid in; but only those stockholders who have not paid in full the licush.^ss.
6 par value of their shares, and those who have purchased such shares J34 m^s. 590.
7 with knowledge of the fact, shall be liable for such debts.
8 Second, For the payment of all debts existing at the time when the 127 Mass. 595.
9 capita! is reduced, to the extent of the amounts withdrawn and paid to
10 stockholders.
11 Third, If special stock is created under section twenty-five, the general
12 stockholders shall be liable for all debts and contracts until the special
13 stock shall have been fully redeemed.
1666
CERTAIN MISCELLANEOUS CORPORATIONS.
[Chap. 158.
127 Mass. 586.
9 Gush. 192.
16 Gray, 127.
2 Allen, 498.
6 Allen, S79.
118 Mass. 295.
Fourth, For all money due to operatives for services rendered within 14
six months before demand made upon the corporation, and its neglect 15
or refusal to make payment. 16
Any such member or stockliolder who pays, on a judgment or other- 17
wise, more than his proportion of any such debt shall have a claim for 18
contribution against the other members or stockholders. 19
127 Mass. 586.
Procedure be-
fore enforcing
liability.
1851. 315, § 3.
1852, 24.
G. S. 00. § .34.
1862, 218, § 3.
1866, 290, § 10.
1870, 224, § 40.
P. .S. 106, I 62.
R. L. 110, §60.
1914, 742, I 75.
8 Allen, 86.
Section 46. A stockliolder or officer in a corporation shall not be 1
held liable for its debts or contracts unless a judgment has been recovered 2
against it and it has neglected for thirty days after demand made on 3
execution to pay the amount due, with the officer's fees, or to exhibit 4
to him real or personal property of the corporation subject to be taken 5
on execution, sufficient to satisfy the same, and the execution has been 6
returned unsatisfied. io3 Mass. leo. 7
108 Mass. 523.
115 Mass. 380.
127 Mass. 563.
174 Mass. 434.
180 Mass. 513.
198 Mass. 76.
203 Mass. 551.
207 Mass. 441.
Clerk to
furnish creditor
with names of
officers and
stockholders.
1864,219, § 1.
1870.224. §41.
P. S. 106, § 63.
R. L. no, § 01.
1914, 742, § 76.
Section 47. The clerk or other officer who has charge of the records 1
of a corporation against which judgment has been so recovered and 2
execution so issued and returned unsatisfied, upon reasonable request of 3
the judgment creditor or of his attorney, shall furnish to him a certified 4
list of the names of all persons who M'ere officers and stockliolders in 5
such corporation at the time of the commencement of the suit in which 6
judgment was recovered. 7
retaiStp%ive Section 48. If an officer unreasonably refuses to give the certified
Fak'eiiit'.'^'' I'st mentioned in the preceding section or wilfully gives a false list, he
iIto' 224' I (io ^'^^^^ ^^ liable to the judgment creditor for double the amount of all
p. s.'io6,'§ 83. damages occasioned by such refusal or false list.
R. L. no, §85. 1914, 742, § 90.
Creditor may
file bill in
equity against
corporation,
officers and
stockholders.
1808, 65, § 6.
1817. 183.
1826, 137, § 1.
1829,53, § 11.
R. S. 38,
§§29-31: 44,
§22.
1851,315,
Ml. 3.
1852, 24.
G. S. 60,
§§31.32,34;
68, § 17.
1862, 218, § 4.
1866, 290, § 10.
1S70, 224, § 42.
Section 49. After the execution has been returned unsatisfied, any 1
creditor may file a bill in equity, in behalf of himself and all other 2
creditors of the corporation, against it and all persons who were stock- 3
holders therein at the time of the commencement of the suit in which 4
such judgment was recovered, or against all the officers who are liable 5
for its debts and contracts, for the recovery of the money due from 6
tlie corporation to himself and the other creditors for which the stock- 7
holders or officers may be personally liable by reason of any act or 8
omission on the part of the corporation or that of its officers or any 9
of them, setting forth tlie judgment and proceedings thereon, and the 10
grounds upon which it is expected to charge the stockholders or offi- 11
cers personally.
12
p. S. 106, § 64.
R. L. no, § 62.
1914, 742, § 77.
8 Gush. 93.
10 Gray, 232.
11 Gray, 139.
14 Gray, 193.
3 Allen, 485.
5 Allen, 398.
9 Allen, 471.
101 Mass. 385.
106 Mass. 131.
108 Mass. 404, 523.
109 Mass. 473.
115 Mass. 2S6, 380.
118 Mass. 269, 295.
127 Mass. 563,
586, 592, 595.
144 Mass. 399.
156 Mass. 490.
173 Mass. 242.
194 Mass. 590.
203 Mass. 551.
Stockholders
to be assessed
in proportion
to stock.
1862, 218, § 5.
1870, 224, § 43.
P. S. 106, § 65.
R. L. no, § 63.
1914, 742, § 78.
16 Gray, 127.
Ill Mass. 200.
Section 50. Such sums as may be decreed to be paid by the stock-
holders in such suit in equity shall be assessed upon them in proportion
to the amounts of stock held by them respectively at the time when the
suit in which said judgment was recovered was begun; but no stock-
holder shall be liable to pay a larger sum than the amount of stock held
by him at that time at its par value. 127 Mass. ss6.
Chap. 159.] common carriers. 1667
1 Section 51. If a defendant dies during the pendency of such a suit noJVbat^d'*^
2 in equity, it shall not abate thereby; but his estate in the hands of his by death
3 executor or administrator shall be liable to the same extent as he would defendant.
4 be if living. Such executor or administrator may voluntarily appear and isto.' sLl § 45.
5 become a party to the suit or may be summoned by the plaintiff. r.l.^u6,\''65.
1914, 742, § so. 173 Mass. 242.
1 Section 52. Such suit in equity shall not be dismissed by the plain- Suit in equity
2 tiff without an order of court and such notice to other creditors as the 1862" i'lTTs-
3 court may find reasonable under the circumstances.
1870, 224, § 46. P. S. 106, § 68. R. L. 106, § 69. 1914, 742, § 81.
1 Section 53. No such suit in equity shall be abated by reason of the Suit in equity
2 non-joinder of persons liable as defendants unless the plaintiff, after SCn-loi^dero^
3 being notified by plea or answer of the existence of such persons, un- i862°"2\s,''§ g]
4 reasonably neglects to make them parties. i87o. 224, § 47.
p. S. 106, § 69. R. L. 110, § 67. 1914, 742, § 82. 10 AUen, 352.
1 Section 54. If, in an action against a corporation, it appears to the Actions may
2 court that one of the objects of the action is to obtain a judgment offi^/o"'''^ ^^
3 against the corporation in order to enforce an alleged liability of a per- fsw^ aa^"'
4 son who has been or is a stockholder or officer thereof, any such person ffjo 004
5 may be permitted, on petition, to defend such action, and in such case |>^^^;i?
6 the court may require of him or of a person in his behalf, a bond with suf- K ^o, 71!
7 ficient surety or sureties, conditioned to pay to the plaintiff all costs 1914; 742,' § ss.
8 which may accrue and be taxed to him after the filing of said petition. ^^ ^'™' *^°'
REFERENCE.
General provisions applicable to all corporations, Chap. 155.
CHAPTER 159,
COMMON CARRIERS.
Sect.
common carriers in general.
1. Discrimination by carriers forbidden.
2. Penalty.
3. Limitation of liability.
4. Railroads, etc., not to require indem-
nity from employees.
5. General agent for foreign expresses.
6. Agent to give bond.
7. Penalty on agent of delinquent com-
pany.
8. Protection of business of carriers.
9. Provisions applicable.
SUPERVISION AND REGULATION.
Sect.
12. Carriers subject to jurisdiction.
13. Inquiry into rates, etc.
14. Regulation of rates, etc.
15. Free service, tickets, etc., prohibited,
except, etc.
16. Hearings upon service, etc. Use of
electric power.
17. Charges for ser\-ice regulated.
IS. Fixing of rates, charges, etc., subject
to approval of department.
19. Schedules of rates to be filed, etc.
20. Hearing upon changes in schedules
and action thereon.
21. Establishment of through routes, joint
10. Duties of department of public utili- rates, etc., for passengers and
ties. freight.
11. Records. I 22. Department may require signals
1668
COMMON CARRIERS.
[Chap. 159.
Sect.
23. Repairs, fares, etc.
24. Hearings and examinations as to cer-
tain common carriers on complaint
of mayor, etc.
25. Public hearings. Notice to members
of general court.
26. Valuation of properties.
27. Inspection and investigation.
28. Notice of accidents.
29. Investigation of accidents.
30. Complaint of defect.
31. Forms of accounts, returns, etc.
32. Returns, form and time for filing.
33. Returns of persons doing an express
business.
34. Examination of books, etc.
35. Examination of condition of company
on request of director, etc.
36. Annual audit.
37. Service of orders of department.
38. Effect of request or advice of depart-
ment.
39. Enforcement of law through attorney
general.
40. Enforcement of orders by court.
41. Representation of department at hear-
ings.
42. Summoning witnesses. Fees.
43. Annual report.
44. Penalty for improperly divulging in-
formation obtained by examination
or audit.
COMMON CARRIERS OF PASSENGERS BY
MOTOR VEHICLE.
45. Certain motor carriers must be li-
censed, etc.
46. Local rules and regulations for certain
motor carriers. Bond.
47. Rules and regulations as to motor car-
riers by department.
48. Section 40 to apply.
49. Penalty.
ISSUE OP STOCK OR BONDS OF RAILROADS
AND STREET R.4ILWATS.
50. Price at which railroad, etc., corpora-
tions shall offer new stock to their
stockholders, etc.
51. Stock may be sold at auction in certain
cases.
52. Determination by department as to
amount of stock.
53. Computing amount of capital stock as
basis for issue of bonds.
TRANSFER OF FRANCHISE OR PROPERTY OF
RAILROADS AND STREET RAILWAYS.
54. Transfers to be approved.
55. Conditional sale of rolling stock.
56. Recording.
Sect.
CRCSSINGS AT GRADE BETWEEN RAILROADS
AND STREET RAILWAYS.
57. Grade crossings regulated.
58. Supervision by department of cross-
ings.
ALTER.iTION OF CROSSINGS.
59. Alteration of crossings.
60. Land may be taken and damages as-
sessed.
61. Award to be made by a commission.
62. Commission, appointment of.
63. Revision by jury.
64. Recovery after alteration of propor-
tion of expense.
65.
66.
67.
68.
69.
70.
71.
72.
73.
76.
78.
79.
SO.
81.
82.
ABOLITION OF GRADE CROSSINGS.
Commission to abolish grade crossings.
Costs.
Expense of plans.
Payment.
Petition may embrace several cross-
ings.
Commission to prescribe the altera-
tions.
Duties of engineer.
State highways.
Assessment or contribution deemed
part of the value of the property.
Report of commission.
Damages.
Settlement of claim barred by limita-
tion.
Maintenance of crossing and ap-
proaches.
Auditor, duties, compensation.
Enforcenient of law.
Proceedings upon agreement as to
alterations.
Department to approve plan, etc., be-
fore final decree.
Certain provisions not to apply.
RAILROAD AND STREET RAILWAY BRIDGES.
83. Examination of railroad and street
railway bridges.
84. Maintenance and repair.
85. Enforcement.
RAILROAD, STREET RAILWAY AND STEAM-
BOAT RELIEF CORPORATIONS.
86. Railroad, etc., relief corporations.
87. By-laws, returns.
88. Railroad, etc., company may associate
with employees.
RAILROAD, STREET RAILWAY AND STEAM-
BOAT POLICE.
89. Railroad, etc., police.
90. Copy of appointment to be filed.
91. Term of office.
92. Badges.
93. Powers of police.
Chap. 159.]
COMMON CARRIERS.
1669
Sect.
94. Arrest. Duties of police.
95. Compensation. Liability.
ACTIONS AGAINST pAILROADS AND STREET
R.1ILWATS FOR LABOR AND MATERI.ILS.
96. Action against owner of railroad or
railway for labor and materials.
97. Contractor not to have such action.
98. Notice of intention to be filed.
99. Statement of amount of debt to be
filed.
100. Limitation of actions.
Sect.
offe.vces relating to railroads and
street railways.
101. Evasion of pajinent of fare.
102. Torpedo to be marked.
103. Injury to signals.
104. Throwing missiles, etc.
GENERAL JURISDICTION AND POWERS OF
THE DEPARTMENT.
105. General jurisdiction, powers, etc., of
the department not to be limited,
etc.
COMMON CARRIERS IN GENERAL.
1 Section 1. Every common carrier of merchandise or other property Discrimination
2 shall receive, transport and forward all property offered for such pur- fo^rWdden"
3 poses by other such carriers as promptly, faithfully and impartially, at r's.'t^s^^i i.^'
4 as low rates of charge, and in a manner and on terms and conditions as ^- ^- ""' ^ ^■
5 favorable to the carrier offering such property, as he on the same day and
6 at the same place receives, forwards and transports, in the ordinary
7 course of business, property of a like description offered by persons other
8 than such carriers. Such carrier shall not discriminate against any par-
9 ticular person or subject him to any undue or unreasonable prejudice
10 or disadvantage. The supreme judicial or superior court shall have
11 jurisdiction in equity to enforce this section.
1 Section 2. Every such carrier who wilfully neglects or refuses to Penalty.
2 comply with the preceding section shall forfeit not less than fifty nor k*s.'7^3!^§ I.^'
3 more than five hundred dollars, to the person offering the property for ^' ^' ^°' ^ ^"
4 transportation.
1 Section 3. No common carrier of passengers shall, by rule, regula- Limitation
2 tion, sign or otherwise, require passengers whom it suffers to enter, or leave igil* 120^'
3 by, a door of its car or train, to do so at their own risk; and no such
4 passenger shall be prevented from recovering compensation in damages
5 for any injury by reason of any such rule, regulation, sign or requirement.
1 Section 4. A corporation engaged in carrying passengers or in Railroads, etc.,
2 transporting freight for hire shall not require or receive from a person rn°dVmm>Trom
3 who is employed or about to be employed by it a bond or other security, isno^m'''
4 either with or without surety, to indemnify such corporation against fgoy; 5^^; | H
5 loss or damage to other persons or to property resulting from the act or
6 neglect of such person, except a bond to account for money or other
7 property of such corporation. A corporation or a person in its behalf
8 who violates the provisions of tliis section shall be punished by a fine
9 of not more than fifty dollars for the first offence and of not more than
10 one hundred dollars for a subsequent offence.
1 Section 5. Every association of persons who are not inhabitants of f^r°fo'r''eig''n^°*
2 this commonwealth which does an express business therein shall in writ- jg^J'^fyj- s 1
3 ing appoint a person, who is a citizen and a resident thereof, to be a gen- p s.'ts, § 3.
4 eral agent, upon whom all lawful processes against such persons may be R. l! 70. § 3.
5 served with like effect as if served on said persons; and said writing or
1670
COMMON CARRIERS.
[Chap. 159.
power of attorney shall contain an agreement on the part of the persons 6
making it that the service of any lawful process against it or them on 7
said general agent shall be of the same legal force and validity as such 8
service on said persons or any of them. The power of attorney shall be 9
filed in the office of the state secretary, and copies certified by him shall be 10
taken as sufficient evidence and proof thereof. Such agency shall be con- 11
tinued so long as such express business is done in this commonwealth, and 12
the power of attorney shall not be revoked until a similar power is given 13
to another person and filed as aforesaid. 14
Agent to
give bond.
1871, 371. § 2.
P. S. 7.3, § 4.
R. L. 70, § 4.
Section 6. Such general agent shall give bond to the state treasurer, 1
with one or more sureties to be approved by him, in the sum of two thou- 2
sand dollars, conditioned that he will accept service of all lawful process 3
against his principal. 4
Penalty on
agent of
delinquent
company.
1871,371, §3.
P. S. 73. § 5.
R. L. 70, § 5.
Section 7. No person shall act for more than thirty days as such 1
general agent unless the two preceding sections have been complied 2
with; and whoever so acts without such compliance shall forfeit not 3
more than five hundred dollars. 4
Protection of
business of
carriers.
1895, 481.
R. L. 70, § 7.
Section 8. Whoever, with intent to defraud or injure in his business 1
a person licensed by any town as a carrier of goods for hire, takes from 2
the order box of such carrier or effaces or destroys any order to or direc- 3
tion for such carrier to call for and receive goods to be transported by 4
such carrier, or appropriates any such order or direction or makes use of 5
the information derived therefrom for the purpose of executing the same, 6
or for the purpose of transporting any goods or receiving the hire therefor, 7
shall be punished by a fine of not more than twenty-five dollars. 8
Provisions
applicable.
1894, 469, § 4.
R. L. 70, § 8.
201 Mass. 564.
Section 9. Sections one hundred and ninety-tliree, two hundred and 1
six and two hundred and tliirty-three of chapter one hundred and sixty 2
shall apply to steamboat lines witliin the commonwealth and to persons 3
who are engaged or who desire to engage in the express business thereon. 4
Duties of
department of
public utilities.
SUPERVISION AND REGUL.\TION.
Section 10. The department of public utilities, in this chapter called 1
the department, shall enforce tliis chapter. i9i9, 350, § 117. 2
Records.
1869, 408, § 7,
^^s'ni'ii' ™^^t relative to common carriers shall be entered of record
R. L. Ill, §8. 1906, 463. 1, §§ 1,68, 1913, 784, § 7.
1902, 432, § 1. Ill, § 158. 205 Mass. 94.
Section 11. Every vote, recommendation and order of the depart- 1
2
Carriers
subject to
jurisdiction.
1869, 408,
K2, 5.
1874, 372, § 7.
P. S. 112, § 14.
R. L. Ill, §12.
1903, 173.
1904, 265.
1906, 266: 433,
§ 1; 463, I,
§§ 6, 7, 68, III,
§158.
Section 12. The department shall, so far as may be necessary for the 1
purpose of carrying out the provisions of law relative thereto, have gen- 2
crai supervision and regulation of, and jurisdiction and control over, the 3
following services, when furnished or rendered for public use within 4
the commonwealth, and all persons, firms, corporations, associations and 5
joint stock associations or companies furnishing or rendering any such 6
service or services, in sections ten to forty-four, inclusive, collectively 7
called common carriers and severally called a common carrier: 8
Chap. 159.] common carriers. 1671
9 (a) The transportation or carriage of persons or property, or both, wis, 7S4,
10 between points within the commonwealth by railroads, street railways, i9i6, aee. § c.
11 in this chapter called railways, electric railroads, trackless trolleys and 226f§^.'
12 steamships, including express service and car service carried on upon or j^ifyfly'i,
13 rendered in connection with such railroads, railways, electric railroads, tl,^;?'^- „.
' »- ' ' 201 Mass. 564.
14 trackless trolleys or steamships. 224 .Mass. 365.
15 (b) The carriage of passengers for hu-e upon motor vehicles as provided '
16 in sections forty-five to forty-nine, iiiclusi\e, of this chapter and section
17 forty-four of chapter one hundred and sixty-one, but only to the extent
18 provided in said sections.
19 (c) The operation of all conveniences, appliances, facilities or equip-
20 ment utilized in connection with, or appertaining to, such transportation
21 or carriage of persons or property or such express service or car service,
22 by whomsoever owned or provided, whether the service be common
2.3 carriage or merely in facilitation of common carriage.
24 (d) The transmission of intelligence within the commonwealth by
25 electricity, by means of telephone lines or telegraph lines or any other
26 method or system of communication, including the operation of all
27 conveniences, appliances, instrumentalities, or equipment appertaining
28 thereto, or iitilized in connection therewith.
1 Section 13. The department may inquire into the rates, charges, inquiry into
2 regulations, practices, equipment and services of common carriers in is69,'408',
3 this commonwealth, and elsewhere, rendering any service of a kind sub- 1S74', 372, § 7.
4 ject to its jurisdiction. p. s. 112, §14. r. l. 111, §12. 1903,173.
1904, 265. 1911, 7SS, §§ 1, 2. 224 Mass. 365.
1906, 463, I, §§ 6, 7. 68. 1913, 784, § 10. 247 U. S. 105.
1 Section 14. Whenever the department shall be of opinion, after a Regulation
2 hearing had upon its own motion or upon complaint, that any of the rates, r. 's\ 39', § sk
3 fares or charges of any common carrier for any services to be performed 1870,325! ji^'
4 within the commonwealth, or the regulations or practices of such common j^'/^j ^^^'
5 carrier affecting such rates, are unjust, unreasonable, unjustly discrim- ^ s. m, § iso.
6 inatory, unduly preferential, in any wise in violation of any provision Jj^^^'^^IJi''
7 of law, or insufficient to yield reasonable compensation for the service inos, 599, § 4.
8 rendered, the department shall determine the just and reasonable rates, lois! 7S4', 1 22.
9 fares and charges to be charged for the ser\'ice to be performed, and 210 Mai's. 159.
10 shall fix the same by order to be served upon every common carrier by 557 jjUg^; \lf
1 1 whom such rates, fares and charges or any of them are thereafter to be |^^ u T 10?'
12 observed. Every such common carrier shall obey every requirement of 95v,nS„
13 every such order ser\'ed upon it, and do everything necessary or proper
14 in order to secure absolute compliance with every such order by all its
15 officers, agents and employees. If, upon investigation, the department
16 finds that in any case it is consistent with the public interests to author-
17 ize a common carrier to make its charge for transportation less for a
18 longer than for a shorter distance, the department may grant such author-
19 ity and may from time to time modify or revoke the same.
20 If comj^laint is made to the department concerning any rate, fare or
21 charge demanded and collected by any railroad corporation for any serv-
22 ice performed and the department finds after hearing and in\estigation
23 that an unjustly discriminatory rate, fare or charge has been collected
24 for any service, the department may order the railroad corporation
25 which has collected the same to make due reparation to the person Mho
26 has paid the same, with interest from the date of the pajTuent of such
1672
COMMON CARRIERS.
[Chap. 159.
unjustly discriminatory amount; but such order of reparation shall cover 27
only pajTQents made within tw o years before the date of filing the petition 28
seeking to have reparation ordered. Such order may be made without
formal hearing whenever the railroad corporation ai?ected shall assent
in waiting thereto, or file or join in a petition therefor, but in no case
shall any such order be made until the department shall be satisfied by
such investigation as may be necessary that the rate, fare or charge
collected was in fact unjustly discriminatory.
29
30
31
32
33
34
Free service,
tickets, etc.,
prohibited,
except, etc.
1908, 599, § 4.
1913, 784, § IS.
1914, 679.
34 U. S. Sts.
at L. 584.
227 Mass. 493.
Section 15. Except as provided by section two hundred of chapter 1
one hundred and sixty, no common carrier shall, directly or indirectly, 2
issue or give any free service, free tickets, free pass or free transportation 3
for passengers or property between points within the commonwealth; 4
but this section shall not proliibit any railroad corporation or railway 5
company from giving free or reduced rate service to policemen, letter 6
carriers and firemen while in uniform or engaged in the discharge of their 7
duties, or prohibit any common carrier from giving free or reduced rate 8
ser\'ice to its employees, or in cases of public emergency, or for such 9
charitable purposes as may be approved by the department, nor proliibit 10
any telephone or telegraph company, unless the department shall other- 11
wise order, from giving service at reduced rates to the commonwealth 12
or to any city or town; nor shall this section prohibit the commissioners 13
of tlie department, its experts, inspectors and counsel from being trans- 14
ported over the railroads and the railways of the commonwealth free of 15
charge while engaged in the performance of their duties; nor shall this 16
section prohibit the giving by any such common carrier of free or reduced 17
rate service to the classes defined and provided for in the act of congress 18
entitled "An act to regulate commerce" and acts amendatory thereof. 19
Hearings upon
service, etc.
Use of electric
power.
18G9, 40S,
§§2,5.
1874, 372, § 7.
P. S. 112. § 14,
R. L. 111,§ 12.
1906, 267;
463, I, § 68.
1911, 755, § 2.
1913, 784, I 23.
1916, 244.
Section 16. If the department is of opinion, after a hearing had 1
upon its own motion or upon complaint, that the regulations, practices, 2
equipment, appliances or service of any common carrier are unjust, un- 3
reasonable, unsafe, improper or inadequate, the department shall deter- 4
mine the just, reasonable, safe, adequate and proper regulations and 5
practices thereafter to be in force and to be observed, and the equip- 6
ment, appliances and service thereafter to be used, and shall fix and 7
prescribe the same by order to be served upon every common carrier 8
to be bound thereby. The department may after such a hearing, order 9
any railway company to build and operate any just and reasonable 10
extensions of its lines for which it may have been or may be granted 11
locations and order from time to time that a railroad company shall 12
operate its lines, of standard gauge, or such parts thereof as the depart- 13
ment shall prescribe, by electric power instead of steam power, and in its 14
order shall prescribe the time within which the work of electrification 15
shall be done. Before making such order, the department shall con- 16
sider the relative importance and necessity of the changes in any spe- 17
cific regulations, practices, ecjuipment and appliances proposed to be IS
included therein and of other changes which may be brought to its 19
attention in the course of the hearing, the financial ability of the carrier 20
to comply with the requirements of the order, and the effect of the car- 21
rier's compliance therewith, upon its financial ability to make such other 22
changes, if any, as may be deemed by the department of equal or greater 23
importance and necessity in the performance of the service which the 24
Chap. 159.] common c.\rriers. 1673
25 carrier has professed to render to the public. Every such common carrier
26 shall obey every requirement of every such order so served upon it, and
27 do ever\'thing necessary or proper in order to secure absolute compliance
28 with every such order by all its officers, agents and employees.
1 Section 17. All charges made, demanded or received by any com- Charges for
2 mon carrier for any service rendered or performed, or to be rendered reeuiated.
3 or performed by it or in connection therewith in the conduct of its 22l\ia*53'. lea.'
4 common carrier business, or made, demanded or received by any two
5 or more common carriers joining in rendering or performing any service
6 shall be just and reasonable, and every such common carrier and any
7 two or more such common carriers joining in rendering or performing
8 any service shall be entitled to make, demand and receive just and
9 reasonable charges for any such serA'ice, and every unjust or unreason-
10 able charge is hereby prohibited and declared unlawful; but charges
11 heretofore established and set out in any schedule filed as provided in
12 section nineteen shall be deemed prima facie lawful until changed or
13 modified by the department under the powers conferred upon it by
14 this chapter, but this provision shall not give to such rates any greater
15 weight as evidence of the reasonableness of other rates than they would
16 otherwise have.
«
1 Section IS. Subject to the powers of the department to regulate Fixing of
2 and prescribe rates and charges, a common carrier may make com- etc , subject '
3 modity, transit or other classes of rates. The fiu-nishing by any common o? department.
4 carrier of any service at the rates and upon the terms and conditions 224 Vatt'. IrI.'
5 pro\ided for in any existing contract executed prior to July first, nine- 232 Mass. 309.
6 teen hundred and thirteen, shall not constitute a discrimination unless
7 the department so determines. The department shall not be prevented
8 from taking such action as it deems proper by any commitment or
9 agreement of a common carrier entered into by reason of any require-
10 ment or recommendation of any board or public officers acting under
11 delegated authority from the general court prior to July first, nineteen
12 hundred and thirteen. Unless the department determines otherwise,
13 common carriers shall be permitted, whether required to do so by law
14 or not, to issue mileage, workingmen's, excursion, school or commuta-
15 tion passenger tickets, or reduced rate tickets for the transportation of
18 children under twelve years of age or of pupils attending school, or
17 joint interchangeable mileage tickets, with special privileges as to the
18 amount of free baggage which may be carried under mileage tickets of
19 five hundred miles or' more. All season tickets, before issuance, shall
20 be subject to the approval of the department as to the form thereof
21 and the conditions named therein.
1 Section 19. Every common carrier shall file with the department Schedules of
2 and shall plainly print and keep open to public inspection schedules fi'iod.'etc.
3 showing all rates, joint rates, fares, telephone rentals, tolls, classifica- 227 liiass'. 493.'
4 tions and charges for any service, of every kind rendered or furnished, op. A.'cf.'
5 or to be rendered or furnished, by it within the commonwealth, and all '^^^®' "•
6 conditions and limitations, rules and regulations and forms of con-
7 tracts or agreements in any manner affecting the same, in such places,
8 within such time, and in such form and with such detail as the depart-
9 ment may order. In the case of common carriers subject to the inter-
1674
COMMON CARRIERS.
[CILA.P. 159.
state commerce commission the forms prescribed for such schedules 10
and the requirements relative to the filing and publication thereof shall 11
conform, as nearly as may be, to the forms prescribed by and the similar 12
requirements of the said commission. No common carrier shall, except 1.3
as otherwise provided in this chapter, charge, demand, exact, receive or 14
collect a different rate, joint rate, fare, telephone rental, toll or charge 15
for any service rendered or fiu-nished by it, or to be rendered or fur- 16
nished, from that applicable to such service as specified in its schedule 17
filed with the department and in effect at the time. Nor shall any 18
common carrier refmid, or remit directly or indirectly, any rate, joint 19
rate, fare, telephone rental, toll or charge so specified, or any part 20
thereof, nor extend to any person or corporation any rule, regidation, 21
privilege or facility except such as are specified in the said schedule and 22
regularly and uniformly extended to all persons and corporations under 2.3
like circumstances for the like, or substantially similar, service. Unless 24
the department otherwise orders, no change shall be made in any rate, 25
joint rate, fare, telephone rental, toll, classification or charge, or in any 26
rule or regulation or form of contract or agreement in any manner af- 27
fecting the same as shown upon the schedules filed in accordance with 28
this chapter, except after thirty days from the date of filing a statement 29
with the department setting forth the changes proposed to be made in 30
the schedule then in force and the time when sucla changes shall take 31
effect, and such notice to the public as the department orders, to be 32
given prior to the time fixed in such statement to the department for 33
the changes to take effect. The department for good cause shown may 34
allow changes before the expiration of said thirty days, under such 35
conditions as it may prescribe, and may suspend the taking effect of 36
changes under the circumstances and in the manner provided in the 37
following section. At the time when any changes take effect they shall 38
be plainly indicated upon existing schedules, or new schedules shall be 39
printed and filed as the department may order. This section shall not 40
prevent any telegraph or telephone corporation from continuing to 41
furnish the use of its lines, equipment or ser\'ice under any contracts in 42
force on July first, nineteen hundred and thirteen, or upon the taking 43
effect of any schedules of rates filed with the department as provided 44
in this chapter, at the rates fixed in such contract; provided, that when 45
any such contracts are or become terminable by notice, the department 46
may direct by order that such contracts shall be terminated by the 47
telegraph or telephone corporation which is a party thereto, and there- 48
upon such contracts shall be terminated by such telegraph or telephone 49
corporation as and when directed by such order. 50
Hearing upon
changes in
schedules and
action thereon.
1913,784, §21.
1916, 24.
224 Mass. 463.
228 Mass. 575.
232 Mass. 309.
Section 20. WTienever the department receives notice of any changes 1
proposed to be made in any schedule filed under this chapter, it may, 2
either upon complaint or upon its own motion, and after notice, hold a 3
public hearing and make investigation as to the propriety of such pro- 4
posed changes. Pending any such in\estigation and the decision thereon, 5
the department may, by order served upon the common carrier affected, 6
suspend the taking effect of such changes, but not for a longer period 7
than ten months beyond the time when the same would otherwise take 8
effect. After such hearing and in^•estigation, the department may make, 9
in reference to any new rate, joint rate, fare, telephone rental, toll, classi- 10
fication, charge, rule, regulation or form of contract or agreement pro- 1 1
posed, such order as would be proper in a proceeding under section four- 12
Chap. 159.] common carriers. 1675
1.3 teen. At any such hearing in\olving any proposed increase in any rate,
14 joint rate, fare, telephone rental, toll or charge, the burden of proof to
15 show that such increase is necessary to obtain a reasonable compensation
16 for the service rendered shall be upon the common carrier. If, at a hear-
17 ing involving any proposed decrease in any rate, joint rate, fare, telephone
18 rental, toll or charge demanded by any common carrier, it shall appear
19 to the department that the said rate, joint rate, fare, telephone rental,
20 toll or charge is insufficient to yield reasonable compensation for the
21 service rendered, the department may determine what will be a just and
22 reasonable minimum to be charged, and make an order that the common^
23 carrier shall not thereafter demand or collect less than the minimum so
24 prescribed without first obtaining the consent of the department, after
25 a public hearing.
1 Section 21. Wherever there is no satisfactory through route for the Establishment
2 transportation of passengers or freight at a reasonable rate, the depart- ?outes?"joint
3 ment may order, after notice and a public hearing had upon complaint, palsengMs '°'
4 any two or more railroad or railway companies whose lines, owned, op- i^s^Yw""'"
5 crated, leased, or controlled by stock ownersliip, or otherwise, form a fLy^oQi
6 continuous or connecting line of transportation, or could be made to do 5§ i-3.
7 so by the construction and maintenance of switch connection or inter- g. s.'es,'
8 change track at connecting points, or by transfer of property or passengers i869, 40s, § 5.
9 at connecting points, to establish through routes and joint rates, fares igo"§§'3,\.'^'
10 and charges for the transportation of passengers and property, and for §|^*e|."f67
11 the operation of the cars and other equipment for such transportation, ^~^'^f?-
12 within the commonwealth, as the department may by order designate; §§216-218.
13 and, if the board of aldermen or selectmen act adversely upon, or fail to §§272-274.
14 act within sixty days from the date of, the filing of a petition, brought §§ 265-207, '
15 by a railway company under section seventy of chapter one hundred 1913, 754, § 25.
16 and sixty-one for a location of tracks in their city or town upon which g^cus^seg.
17 the petitioning company may construct the switch connection or inter- H^^'^^' ^^°'
18 change track necessary to the establishment of such through routes or 1* c^ay, 253,
19 transportation, or to the operation of such cars or other equipment, 14 Alien, 462.
20 the petitioner or any interested party may, within sixty days thereafter,
21 file such petition with the department which may, if after notice and a
22 public hearing it is of the opinion that public convenience and necessity
23 so require, grant locations upon which the grantee company may con-
24 struct the switch connection or interchange track necessary to the es-
25 tablishment of such through routes or transportation, or to the operation
26 of such cars or other equipment; and, if such railroad or railway com-
27 panics cannot agree as to the division of rates or the conditions under
28 which such through routes or transportation shall be established or such
29 cars or other equipment operated, the department may, after due hcar-
30 ing, determine and prescribe the proportionate parts of such through
31 rates payable to each of such companies, and the conditions under which
32 such through routes or transportation shall be established or such cars or
33 other equipment operated; pro\ided, that a railroad or railway company
34 shall have control of and responsibility for the management and opera-
35 tion of all trains or cars while upon its railroad or railway as fully as
36 if it owned them; and provided, further, that in case of a petition for
37 the establishment of such through routes and transportation by railway
38 companies, or for locations for the construction of the switch connection
39 or interchange track necessary to the establishment of such througli
40 routes and transportation by railway companies, the department shall
1676
COMMON CARRIERS.
[Chap. 159.
give fourteen days' notice of any public hearing held by it under the 41
foregoing provisions of this section, to the petitioners, to the companies 42
aifected and to the board of aldermen of the city or the selectmen of the 43
town where the lines of said companies connect or within which a con- 44
nection between the lines of said companies is proposed to be made. The 45
department may, upon reasonable terms and conditions, require and 46
order any railroad or railway company which carries freight in carload 47
lots to establish and maintain for the purpose of recei\ing or dehvering 48
freight in carload lots, a switch connection with any priA'ate side track 49
.constructed on land adjoining the location of any such railroad or rail- 50
way, if the department is of opinion that such connection is reasonable 51
and practicable, can be put in and used with safety, and will furnish 52
sufficient business to justify its construction and maintenance, and the 53
department may grant to any railway company the necessary locationsin 54
public ways and places for any switch connection ordered by the depart- 55
ment to be constructed by such railway company. 56
Department
may require
signals.
1906,
267, § 1;
463,1
M6.
lOp.
A. G. 638.
Repairs,
fares,
etc.
1869,
408, § 3.
1874,
372, § 9.
P. S.
112, § 16.
R. L.
Ill, I 15.
1904,
357, 1 1.
1906,
463. I,
§§9,
68.
1909,
343.
Section 22. The department may from time to time require rail- 1
road and railway corporations to install and maintain at such places 2
upon the railroad or railway premises as it shall designate such block or 3
other signals or devices as it shall approve for the purpose of safeguard- 4
ing public travel. 5
Section 23. If the department is of opinion that repairs are nee- 1
essary upon any railroad or railway, or that an addition to its rolling 2
stock, or an addition to or change or relocation of its stations or station 3
houses or waiting rooms, or a change in its rates of fares for transporting 4
freight or passengers, or in the mode of operating the railroad or railway 5
and conducting its business, is reasonable and expedient to promote the 6
security, convenience and accommodation of the public, it shall in WTit- 7
ing inform the corporation or company of the improvement and changes 8
which it recommends. 9
Hearings and
examinations
as to certain
common car-
riers on com-
plaint of
mayor, etc.
1869, 408, § 4.
1874, 372, § 10.
P. S. 112, § 17.
R. L. 111,5 10.
1904, 357, I 2.
1906, 433, § 5;
463, I, §§ 10,
68.
Section 24. Upon -svTitten complaint, relative to the service or 1
charges for service in, to or from any city or to\^ii as rendered or made 2
by any company engaged therein in the transmission of intelligence by 3
electricity, by the mayor or selectmen, or by twenty customers of the 4
company, the department shall grant a public hearing, first gi\'ing to the 5
complainants and the company reasonable ^T-itten notice of the time 6
and place thereof. On written complaint of the mayor, selectmen or 7
twenty legal voters of a city or town within which any railroad or rail- 8
way is located, alleging grounds of complaint, the department shall 9
examine the condition and operation of such railroad or railway, first 10
giving to the complainants and the corporation or companj' reasonable 11
^\Titten notice of the time and place thereof. 12
Noticeto*""^''' Section 25. The department shall give seasonable notice by mail 1
"en"''a1'^o°Jrt '^'^ ^'V member of the general court of any hearing before the depart- 2
1919, 149. ment concerning common carriers upon a matter aftecting the interests 3
of the district represented by him. 4
pr^'opertfe"."' SECTION 26. The department may investigate and determine the 1
1913, 784, § 14. f^jj, value for any purpose of all the property of any common carrier 2
Chap. 159.] common c.vrriers. 1677
3 rendering a public service subject to the supervision of the department,
4 actually used or useful for the convenience of the public, whenever it
5 deems the ascertainment of such value necessary to carry into effect any
6 provision of this chapter, and may at any time make a revaluation
7 of such property. In making any valuation under this section, the
8 department shall have access to and may use any books, documents or
9 records in the possession of anj^ department or board of the common-
10 wealth or any political subdivision thereof.
1 Section 27. The department may, either through its members or inspection and
2 responsible agents, engineers, inspectors or examiners duly authorized iseg, 4os, § 7.
3 by it, enter upon any premises occupied by any common carrier for any p's.'n2.'§ lo.'
4 purpose consistent with this chapter. It may inspect the property, jfl;^.^^'
5 equipment, buildings, plants, factories, power houses, ducts, conduits r^l'^I*''^^'
G and offices of any common carrier. It may, in connection with such ^|q^,'|23^-
7 inspection, have performed for it such service of the kind rendered by I906i463', i,
a J.1 ■ -J. 11 • • I r ' §5 2,56.68.
8 the common carrier as it may reasonably require, including passage igos, 599, § 3.
9 upon any locomotive, car or steamship while in service, and upon rea- xgis] 754; § 13.
10 sonable notice, the use of an inspection locomotive or car whenever
1 1 that is necessary, in the opinion of the department, for a physical inspec-
12 tion of all or any of the lines and stations of any railroad or railway
13 under its supervision.
1 Section 28. Every railroad corporation and railway company shall f^°J^'g^„,°f
2 give immediate notice of an accident on its railroad or railwav, resulting i^^^'ip. § 2^
• 1 /»»•/» 1.1 • !•! T ..U.S. oS, 8 lUO.
3 in a loss of life, to the medical examiner of the countv who resides iseg, 408, § u.
4 nearest to the place of accident, and shall also, within twenty-four is74,'372,
5 hours, give notice to the department of any such accident or of any i878,'7.
6 accident of the description of accidents of which it may require notice r f; ni'.llef:
7 to be given. For each omission to give such notice, the corporation or J^o|' ~fl^- j
8 company shall forfeit not more than one hundred dollars. §§62,68.
1 Section 29. An inspector shall, under the direction of the depart- investigation
2 ment, investigate as promptly as may be any accident upon a railroad isjo, 40,8, § 14.
3 or railway, or resulting from the operation thereof, which causes the is74,'372,§ ii.
4 death or imperils the life of any person, and shall report thereon to fgli.sa's.Vs*'
5 the department, which shall investigate the cause of any such accident ^*^j^' f[f s 2.
G resulting in loss of life, and may investigate any other accident. The flj^^^ll* j
7 inspector shall attend the inquest held in case of any such death by §§ii, 57,'6s.
8 accident and may cause any person who has knowledge of the facts or
9 circumstances connected with such death to be summoned as a witness
10 to testify at the inquest.
1 Section 30. An employee may make written complaint to the de- Complaint
2 partment of a defect in the ways, works, machinery or appliances of a 1894,535. §6.
3 railroad or railway, and the name of the complainant shall not be divulged, r.'l! lii'i § is.
1906, 463, I, §§ 12, 68.
1 Section 31. Tlie department may, from time to time, prescribe Forma of
2 forms of accounts, records and memoranda for the common carriers rct'uras, et
3 under its supervision, or for such classes of common carriers as it shall g*".'63.''§
4 establish. The forms shall conform as nearly as may be to those estab- Jlrollo?',
5 lished by the interstate commerce commission. The accounts of such §§3,4.
1678
COMMON CARRIERS.
[Chap. 159.
common carriers shall be kept in accordance with the forms prescribed.
It shall have access to the list of stockholders of any railroad corpora-
tion or railway company and may cause the said list or any part thereof
to be copied for its information or for the information of said stock-
holders. Any railroad corporation or railway company which refuses to
1871,381.5 54.
1874, 372. § 15.
1876, 173;
185, §§ 5, 6,
P.S.I 12,
§§23,24, 2lj;
113, §59.
1889,328, § 2.
R.L. Ill,
§§23,24,20;
1 12, § 94.
1906.433,5 11: ably neglects to keep its accounts in the method prescribed by the de- 12
2a68!ni,§i52! partment shall forfeit not more than five thousand dollars. 13
1913, 784. § 12. 1917, 122, §§ 3, 4.
9
10
submit its books to the examination of the department or unreason- 11
Returns, form
and time for
filing.
1857, 240, § 4.
G. S. 63, § 145.
1864, 229, § 42.
1870, 307,
§§3,4.
1871, 381, § 54,
1874,372, §15.
1876, 173.
P. S. 112, § 26;
113, § 59.
1889, 328, 5 2.
R. L. Ill, § 26;
112, § 94.
1906, 463, I.
§ 20, II, § 258,
in, §§ 152,
158.
1909, 602, § 1.
1910, 558, I 1.
1917, 122,
§§ 1,4,5.
Section 32. The department shall prescribe the forms for the annual 1
returns to be made to it by the several kinds of common carriers, may 2
from time to time make changes and additions in such form, and shall 3
give to such carriers one year's notice of any changes or additions requir- 4
ing an alteration in the method or form of keeping their accounts. The 5
annual returns required by law to be made to the department shall be 6
returns for the year ending on December thirty-first, and shall be trans- 7
mitted thereto, upon blank forms to be furnished by the department, on 8
or before IMarcli thirty-first following, or such subsequent date as in any 9
case, for good cause shown, the department may fix. If a return is de- 10
fective or appears erroneous, the department shall forthwith order the 11
common carrier to amend it within fifteen days. The original of each 12
return or amended return, subscribed and sworn to as recjuired by law, 13
shall be preserved in the office of the department. 14
Returns of
persons doing
an express
business.
1908, 599,
§§1.2.
1917, 122, § 1.
201 Mass. 564,
Section 33. E\-ery person doing an express business upon either a 1
railroad or railway in the commonwealth shall annually transmit to the 2
department a return on oath of his doings setting forth copies of all 3
contracts made during the year with other persons doing a transporta- 4
tion or express business upon any railroad or railway in the common- 5
wealth, and shall gi\'e complete information in reply to the questions 6
presented in the form for such return which shall be prescribed by the 7
department. A person neglecting to make such return or, if defective 8
or erroneous, to amend it witliin fifteen days after a request so to do 9
shall forfeit twenty-five dollars for each day during wliich such neglect 10
continues. 11
Examination
of books, etc.
1869, 408, § 6.
1874, 372, I 12.
1876, 185, § 2.
P. S. 112,
§§19,21.
R.L. Ill,
§§19,21.
1906, 433, § 10;
463, I, §§ 13,
15, 68.
1913, 784, I 11.
Section 34. The department, tlirough its commissioners or by em-
ployees duly authorized, may examine all books, contracts, records,
documents, papers and memoranda of any common carrier, and by
subpcena duces tecum compel the production thereof, or of duly verified
copies of the same or any of them, and compel the attendance of such
witnesses as the department may require to give evidence at any such
examination.
Examination of
condition of
company on
request of
director, etc.
1876, 185, § 4.
P. S. 112, §22.
R.L. Ill, § 22.
1906, 463, I,
§§ 16, 68.
Section 35. Upon the written application of a director, or of any
person owning one fiftieth part of the paid-in capital stock of a cor-
poration or company operating a railroad or railway, or who owns the
bonds or other evidences of indebtedness of such corporation or company
equal in amount to one fiftieth part of its paid-in capital stock, the
department shall examine the books and the financial condition of said
corporation or company, and shall cause the result of such examination
to be published in one or more daily newspapers in Boston, and in some
newspaper published in the county where such applicant resides.
Chap. 159.] common carriers. 1679
1 Section 36. The department may provide for an annual audit by Annual audit.
2 employees duly authorized by it of all accounts of any common carrier
3 or class of common carriers.
1 Section 37. Every order of the department shall be served upon Service of
2 every person or corporation to be affected thereby, either by personal department.
3 delivery of a certified copy thereof, or by mailing a certified copy thereof, ' • » •
4 in a sealed package, postage prepaid, to the person to be affected thereby
5 or, in the case of a corporation, to any officer or agent thereof upon
6 whom a summons may be served under the laws of the commonwealth.
7 Every person and corporation shall notify the department forthwith, in
S writing, of the receipt of the certified copy of every order so served, and
9 in the case of a corporation such notification shall be signed and acknowl-
10 edged by a person or officer duly authorized by the corporation to admit
1 1 such service. Within a time specified in the order, every person and cor-
12 poration upon whom it is served shall, if so required in the order, notify
13 the department in like manner whether the terms of the order are accepted
14 and will be obeyed. Every such order shall take effect at a time therein
15 specified and shall continue in force either for a period designated therein
IG or until changed or abrogated by the department.
1 Section 38. No request or advice of the department shall in any Effect of
2 manner impair the legal duties and obligations of a railroad corporation advice of
3 or railway company or its legal liability for the consequences of its acts i809,'^408."| 12.
4 or of the neglect or mismanagement of any of its agents or servants. p*a'n2% 2a'
R. L. Ill, § 20. 190G, 4G3, I, §§ 14, 68. 192 Mass. 308.
1 Section 39. If in the judgment of the department any common Enforcement
2 carrier violates or neglects in any respect to comply with the provisions attorney
3 of any law, and after written notice by the department continues such 1869^408, § 3.
4 violation or neglect, or neglects to make returns as required by law, or 383°'§T.~' ^ *'
5 to amend the same when lawfully required so to do, the department ^^s'ui'iii-
6 shall forthwith present the facts to the attorney general for action. ii3. § 62.
E. L. Ill, § 14; 112, §99. 1906, 433, § 6; 463, I, §§ 8, OS, III, § 156. 197 Mass. 194.
1 Section 40. Whenever the department is of opinion that a common Enforcement
2 carrier subject to its supervision is failing or omitting or about to fail or court.""
3 omit to do anything required of it by law or by order of the department, igis, 2S0', § 15.
4 or is doing anything or about to do anything or permitting anything or ^i? lll^'. 197;
5 about to permit anything to be done, contrary to or in violation of the f^^ ^ass. 309,
6 law or of any order of the department, it shall direct its coun.sel to begin, 247 u. s. 105.
7 subject to the supervision of the attorney general, an action or proceeding
8 in the supreme judicial court in the name of the department for the
9 purpose of having such violations or threatened violations stopped and
10 prevented either by mandamus or injunction.
1 Section 41. The department may be represented at any public Representation
2 hearing before any legislative committee or public board in the com- at iieSdng"™
3 monwealth, or of any other state or of the United States, with respect ^^^^' '**' ^ '°'
4 to any proposed legislation or action by public authorities within or
5 without the commonwealth affecting any public service within the com-
6 monwealth subject to its supervision, whenever it deems such represen-
7 tation desirable in the interests of the commonwealth. It may apply
8 by petition to the interstate commerce commission for relief, and may
1680
COMMON C.UIRIERS.
[Ckav. 159.
present evidence and arguments to the said commission, in any case in 9
which it is of opinion that a common carrier subject to its supervision is 10
violating any provision of the interstate commerce law or any valid order 11
or regulation made under authority thereof. The department may also 12
confer with or appear before boards of other states having powers over 13
any common carrier when in its judgment the interests of the common- 14
wealth will be promoted thereby. 15
Summoning
witnesses.
Fees.
1877, 194, § 1.
P. S. 112. § 25.
1901, 2S6.
R. L. Ill, I 2.5.
1906, 433, § 13;
463, I, §§ 19,
68.
Section 42. In all investigations and inquiries authorized by law 1
to be made by the department under the provisions of this chapter 2
and in all proceedings before it under the provisions of this chapter, 3
any commissioner of the department may summon witnesses, administer 4
oaths and take testimony. The fees of such witnesses for attendance 5
and travel shall be the same as for witnesses before the superior court 6
and shall be paid by the commonwealth upon the certificate of the 7
department, filed with the state auditor. 8
fsS'^ws^''"'^'' Section 43. The department shall make an annual report including
1870 307 « •' ^"^^ statements, facts and explanations as will describe the actual
1874! 372,' working of the system of carriers under its supervision in its bearing
PS.' 112. ' upon the business and prosperity of the commonwealth, Tvith such
ii. L.'iii',1 11. tables and abstracts of all the returns required and such suggestions
lesfiftfs^, *' fis to its general policy or any part thereof, or the condition, affairs or
1918, 189 § 1 conduct of the activities under its supervision as may seem appropriate,
together ■v\-ith a report of any proceeding had under authority of section
twenty-three and the result thereof.
tap?i*^eri" Section 44. Any employee or agent of the department who divulges 1
^omation'"' ^^y f^ct or information coming to his knowledge during the course of any 2
obtained by examination or audit under this chapter, except in so far as he may be 3
esammation iiii i x-' ^r i-'ii 4
or audit. directed by the department, or by a court or judge, or be authorized by 4
law, shall be punished by a fine of not more than one thousand dollars. 5
Certain motor
carriers must
be licensed,
1916. 293, § 1.
1918, 226, § 2.
1919,371.
§§ 1.7.
233 Mass. S3S.
235 Mass. 95.
4 0p. A. G. 7,
183, 422.
Op. A. G.
(1917) 45. 101.
Op. A. G.
(1919) 66.
COMMON CARRIERS OF PASSENGERS BY MOTOR VEHICLE.
Section 45. No person shall, in any city or town, operate any motor
vehicle upon any public way, for the carriage of passengers for hire, in
such a manner as to aff'ord a means of transportation similar to that
afforded by a railway company, by indiscriminately receiving and dis-
charging passengers along the route on which the vehicle is operated
or may be running, or for transporting passengers for hire as a business
between fixed and regular termini, without first obtaining a license there-
for from the city council of such city or the selectmen of such town, in 8
this and the two following sections called the licensing authority. Any 9
such license issued in a city shall be subject to the approval of the mayor 10
and shall not be valid unless such approval has been endorsed thereon in 11
writing. Any person, receiving a license under this section and operating 12
thereunder, is hereby declared to be a common carrier and shall, in respect 13
to the operation of such a vehicle, be subject to such orders, rules or regu- 14
lations as shall be adopted by the licensing authority under the following 15
section. 16
J'egul'atioiw fo'?'* Section 46. No liceusc shall be granted under the preceding section 1
carriers ""'""^ Until ordcrs, Tulcs or regulations shall have been adopted by the Hcensing 2
ClIAP. 159.] COMMON CARRIERS. ' 1681
3 authority in the town where the vehicle is to be operated, and any such Bond.
4 authority may make such orders, rules or regulations. No such motor 1919] 371!
5 vehicle shall be operated as aforesaid until the licensee of the vehicle, in 2.to Mass. iso.
6 addition to complying with all rules, orders and regulations of the licensing ^^^ ^^^^^- ^*®-
7 authority, shall have deposited with the treasurer of the town security
8 by bond or otherwise, running to the town treasurer and approved by
9 him and by the licensing authority, in such sum as the licensing authority
10 may reasonably require, conditioned to pay any final judgment obtained
11 against the principal named in the bond for any injury to person or
12 property or damage for causing the death of any person by reason of any
13 negligent or unlawful act on the part of the principal named in said bond,
14 his or its agents, employees or drivers, in the use or operation of any
15 such vehicle. Any person so injured or damaged, or his executor or ad-
16 ministrator, or the executor or administrator of any person whose death
17 was so caused, may enforce payment of such judgment by suit on said
IS bond in the name of the town treasurer. Such a bond shall be furnished
19 in each town where said motor vehicle is licensed to operate, and shall,
20 in each instance, be in accordance with the rules, orders and regulations
21 of the licensing authority in such town.
1 Section 47. Within thirty days from the adoption of any such order, Rules and
2 rule or regulation, any person, operating such a motor veliicle, or a rail- to^oto?"^"^
3 way company operating a railway in such town, or any twenty residents department.
4 of such town, may petition the department for the alteration, amend- Jg}|' pj- ^ ^•
5 ment or revocation of such an order, rule or regulation, and for the §§ 3, 7.
6 establishment of orders, rules or regulations to be thereafter observed
7 by persons and corporations operating such a motor vehicle upon any
8 streets or ways in such town. Said department, upon such petition,
9 after notice to the licensing authority and a hearing, may alter, amend
10 or revoke such an order, rule or regulation and establish in place thereof
11 orders, rules and regulations thereafter to be observed in such town, and
12 fix the amount, class and kind of the secm-ity, by bond or otherwise, which
13 licensees are required to give under the preceding section. Thereafter
14 the department, upon its own initiative or upon petition of any person
15 operating any such motor vehicle in such town, or of a railway com-
16 pany operating a railway in such town, or any twenty residents thereof,
17 after notice to the licensing authority of such town, may alter or amend
18 any order, rule or regulation established by the department, or may adopt
19 orders, rules and regulations in substitution thereof. Orders, rules and
20 regulations prescribed by the department under this section shall not be
21 subject to amendment or repeal by a town or by the licensing author-
22 ity thereof.
1 Section 48. Section forty shall apply to any order, rule or regu- Section 4o
2 lation established by the department under the preceding section, and i9r8!'226, § 2.
3 any such order, rule or regulation may be enforced as provided in If'l,'!.'^''
4 section five of chapter twenty-five.
1 Section 49. Whoever violates any order, rule or regulation adopted f|"g'|\i, § 5
2 or established under sections forty-five to forty-eight, inclusive, or vio-
3 lates any provision of any of said sections, shall be punished by a fine
4 of not more than one hundred dollars or by imprisonment in the house
5 of correction for not more than two months, or both.
1682
COMMON CAKEIERS.
[ClIAP. 159.
ISSUE OF STOCK OR BONDS OF RAILRO.UJS AND STREET RAILWAYS.
Price at which
railroad, etc.,
corporations
shall offer new
stock to their
stockholders,
etc.
1S70, 179.
1871,392, § 1.
1873,39, § 1;
305.
1878,84, § 1.
1879, 90, § 1-
P. S. 106, § 39;
112, §58;
113, § 16.
1893, 31.5,
1894, 472,
R. L. 109,
1900,41)3,11,
« 69, 258,
III, §§111.158.
1908, 636, § 1.
1909, 309.
1915, 298, § 1.
1919,333,
§§23,24.
1920, 2.
216 Mass- 432.
3 Op. A. G. 329.
1.
1.
30.
Section 50. Any corporation which owns or operates a railroad,
railway, electric railroad or ele\'ated railway shall, upon any increase of
its capital stock, except as provided in the following section, offer the new
shares proportionately to its stockholders at such price, not less than the
par value thereof, as may be determined by its stockholders. The direc-
tors upon the approA-al of such increase, as pro\'ided in section forty-
eight of chapter one hundred and sixty and section twenty-eiglit of chap-
ter one hundred and sixty-one, shall give written notice of the increase 8
to each stockholder of record upon the books of the company at a date 9
designated by vote of the directors passed after the approval by the 10
department of such issue, stating the amount of the increase, the number 11
of shares to which, according to the proportionate number of his siiares 12
at said date designated by the vote of the directors, he is entitled, the 13
price at which he is entitled to take them, and fixing a time not less than 14
fifteen days after said date designated by vote of the directors witliin 15
which he may subscribe for such additional stock. Each stockholder 16
may, within the time limited, subscribe for his portion of such stock, to be 17
paid for in cash before the issue of a certificate therefor. No fractions of 18
shares shall be issued, but stockholders may combine them by purchase 19
or sale of rights to subscribe. ' 20
Stock nia.v lie
sold at auction
in certain
cases.
1870, 179.
1871, 392, § 2.
1873,39, § 1;
305; 333.
1874, 372, § 46.
1878, 84. § 2.
1879, 90.
P. S. 106, § 40;
112, § 59: 113,
§ 16.
1893, 315. § 2.
1894, 472,
§§ 1,2.
R. L. 109, § 31.
1906,463, II,
§§ 70, 2.5S.
HI, § 112.
1908. 636, § 2.
Section 51. If such increase does not exceed four per cent of the 1
existing capital stock of the company, the directors, without first offer- 2
ing the same to the stockholders, may sell the shares by auction to the 3
highest bidder, at not less than the par value thereof, to be actually paid 4
in cash. They may also so sell at public auction any shares, which, after 5
the expiration of the time limited in the notice required by the preceding 6
section, remain unsubscribed for by the stockholders entitled to take 7
them. Such shares shall be offered for sale in Boston, or in such other 8
town as may be prescribed by the department; and notice of the time 9
and place of such sale shall be published at least five times during the ten 10
days immediately preceding the sale in each of at least three of such 11
daily newspapers as may be prescribed by the department. 12
1919. 33.3, § 24.
113 Mass. 79.
216 Mass. 432.
Determination
by department
as to amount
of stock.
1908, 636, § 3.
216 Mass. 432.
Section 52. The determination by the department, under the pro- 1
%dsions of section forty-eight of chapter one hundred and sixty and section 2
twenty-eight of chapter one hundred and sixty-one, as to the amount of 3
stock wliich is reasonably necessary for the purpose for wliich such stock 4
has been authorized shall, in the case of the corporations described in 5
section fifty, be based upon the price at which such stock is to be 6
issued as fixed by the stockholders ; but the department shall refuse to 7
approve any particular issue of stock if, in its opinion, the price fixed by 8
the stockholders is so low as to be inconsistent with the public interest. 9
Computing
amount of
capital stock
as basis for
issue of bonds.
1908, 620.
Section 53. In computing the amount of capital stock of a railroad 1
corporation, electric railroad, railway or elevated railway company in 2
order to determine the maximum amount of bonds, coupon notes or 3
other evidences of indebtedness, payable at periods of more than twelve 4
months after the date thereof, under sections forty-seven, forty-eight 5
and sixty-four of chapter one hundred and sixty or section twenty-nine 6
Chap. 159.] common carriers. 1683
7 of chapter one hundred and sixty-one, and under any similar provisions
8 of any special acts limiting the amount of such securities, which a rail-
9 road corporation, electric railroad, railway or elevated railway company
10 may issue, there shall be added to the par value of the capital stock all
1 1 cash premiums paid into the corporation on all shares issued by such
12 corporation or company subsequent to July ninth, eighteen hundred and
13 ninety-four, under chapter four hundred and sixty-two of the acts of
14 eighteen hundred and ninety-four or any similar provisions of law.
TR.'U^SFER OF FRANCHISE OR PROPERTY OF RAILROADS AND STREET
RAILWAYS.
1 Section 54. A lease or purchase and sale of the franchise and property Transfers to
2 of a railroad corporation, or railway company, and a consolidation of isw^K.t i.
3 two or more railroad corporations, or railway companies, or a contract f278."^'
4 that either corporation or company shall perform all the transportation §§°6'7,''68.' ^'
5 upon and over the road of the other, whether authorized by general laws Ji^/'j^g^^'
6 or a special act, shall not be valid or binding imtil the terms thereof 202 Kiass 277^
7 shall, after public notice and a hearing, have been approved by the Op. a. 6. '
8 department, and a certificate signed by it, setting forth the vote of
9 approval, shall have been filed in the office of the state secretary. The
10 department shall annoimce its decision within thirty days after the final
11 hearing upon the application of any railroad corporation or railway
12 company for permission to lease or sell to, consolidate with or piu-cliase
13 the franchise and other property of, any other railroad corporation or
14 railway company, or to contract with any other railroad corporation
15 or railway company that either corporation or company shall perform
l(j all the transportation upon and over the road of the other.
17 This section may be enforced as pro\ided in section two hundred
IS and fifty-two of chapter one hundred and sixty.
1 Section 55. A contract for the sale of railroad or railway rolHng Conditional
2 stock may stipulate that the title to the property sold or contracted stock!
3 to be sold shall not vest in the purchaser until the purchase price is lft'.4^^'
4 fully paid, or that the vendor shall haxe and retain a lien thereon for fooH; Us] i7^'
5 the unpaid purchase money although possession thereof may be deliv- f|/^'j®gg jqq
6 ered immediately or at any subsequent time, and a contract for the
7 leasing or hiring of such property may stipulate for a conditional sale
8 thereof at the termination of such contract, and that the rentals or
9 amounts to be received thereunder, may, as paid, be applied and treated
10 as purchase money, and that the title to the property shall not ^'est in
11 the lessee or bailee until the purchase price is paid in full and until the
12 terms of the contract are performed, notwithstanding deli\ery to and
13 possession by such lessee or bailee. No such contract shall be valid, as
14 against any subsequent attaching creditor or any subsequent bona fide
15 purchaser for value and without notice, unless it is in ^witing executed by
16 the parties and acknowledged by the vendee, lessee or bailee in the same
17 manner as deeds are acknowledged, and recorded in the office of the
18 state secretary; nor unless each locomotive, engine or car so sold, leased
19 or hired, or contracted to be sold, leased or hired as aforesaid, shall have
20 the name .of the vendor, lessor or bailor plainly marked on each side
21 thereof, followed by the word "owner", "lessor", or "bailor", as the
22 case may be. Chapter two hundred and fifty-five shall not apply to
23 «uch contract.
1684
COMMON CARRIERS.
[Ch.\p. 1.59.
Recording.
1894. .326, §
R L. Ill, §
1906, 463, I
K 60, 68,
II, § 258.
Section 56. A contract authorized by the preceding section shall 1
be recorded by the state secretary in a book kept therefor; and upon 2
payment in full of the purchase money and the performance of the terms 3
and conditions stipulated in such contract, a written declaration thereof 4
may be made by the vendor, lessor or bailor, or his assignee on the margin 5
of the record of the contract, attested, or it may be made by a separate 6
instrument, acknowledged by the vendor, lessor or bailor, or his assignee, 7
and recorded as aforesaid. Five dollars shall be paid to the state secre- 8
tary for recording such contract or declaration, and one dollar for noting 9
such declaration on the margin of the record. 10
crossings at gr.\de between railroads and street RAILW"AYS.
Tegukted"^^'"^^ Section 57. A railway shall not be constructed across the tracks of 1
1871,' 381,' 1 4^! a railroad nor shall a railroad be constructed across the tracks of a rail- 2
^S95 "^6 Yi' ^^'^y ^* ^^^ same level therewith without the consent of the department. 3
R. L. 112, §63. 1906, 463, I, §§ 21, 68. 187 Mass. 445.
Supervision by
department of
crossings.
1S92, 228.
R. L. Ill, §27.
1906, 463.
I, §§22, 68.
Section 58. In any case in which the consent or approval of the de-
partment required by law for any crossing at grade is gi\'en, it may,
after notice to the parties interested and a hearing, impose conditions,
limitations, restrictions and regulations relative to such crossing, its
construction and use, and may change and modify them.
Alteration
crossings.
1842, 22.
G. S. 63,
§§ 53, 54.
1872, 262,
§§1,2.
1874, 305,
§§ 1,3;
372, § 96.
P. S. 112,
1885, 194,
R. L. Ill,
§ 134.
1902, 533,
1906, 463,
§§2,3,68.
1908, 642,
1909, 47, §
113 Mass.
116 Mass.
84.
141 Mass.
153 Mass.
154 Mass.
164 Mass.
171 M.ass.
173 Mass.
174 Mass.
175 Mass.
177 Mass.
198 Mass.
203 Mass.
220 Mass.
232 Mass.
236 Mass.
§129.
§2.
5 1.
§1.
1.
100.
73,
208.
218.
410.
551.
135.
13.
379.
430.
511.
584.
304.
569.
171.
260.
ALTERATION OF CROSSINGS.
Section 59. If a public way and a railroad cross each other, and the 1
board of aldermen of the city or the selectmen of the town where the 2
crossing is situated, or the directors of the railroad corporation, or the 3
directors of a railway company having tracks on said way, deem it neces- 4
sary for the security or convenience of the public that an alteration not 5
involving the abolition of a crossing at grade should be made, in the 6
crossing, the approaches thereto, the location of the railroad or way, or 7
in a bridge at the crossing, they shall apply to the county commissioners, 8
or, if the crossing is situated, in whole or in part, in Boston, to the de- 9
partment, who shall, after public notice, hear all parties interested, and, 10
if they decide that such alteration is necessary, shall prescribe the manner 11
and limits within which it shall be made, and shall forthwith certify their 12
decision to the parties and to said department. This proceeding may 13
include any case where there is need of the rebuilding of a highway 14
bridge or any structural change or renewal in order to strengthen or 15
improve it. If any railway company is authorized to lay and use tracks 16
upon the said way, the said company shall bear such part of the exjiense 17
of building, rebuilding, changing, renewing, repairing or improving a IS
bridge forming a part of said way, or of altering or improving the ap- 19
proaches thereto, as the commission provided for in sections sixty-one 20
and si.xty-two deem just. 21
telfnand*" SECTION 60. If it is decided that the location of tlie railroad or of
assTsS t'le way shall be changed, land or other property may be taken therefor
372*'§^97' ^ ^' ^y eminent domain on behalf of the railroad corporation or the town, as
p. .s. 112,' §130. the case may be, under chapter seventy-nine, and damages may be re-
§§ 2,'3. ' covered therefor under said chapter. R. l. hi. § 135.
1906, 463, I, §§ 24, 68.
171 Mass. 135.
1S4 Mass. 491.
ClL\P. 159.] COMMON CARRIERS. 1685
1 Sectiox 61. A commission of three disinterested persons, appointed ^^Ye%^°&^
2 as p^o^'ided in the follo^-ing section, shall determine which party shall 9°2),™il^i°^-2
3 carry such decision into effect and which party shall pay the charges and istJ,' 372,' § 98.
4 expenses of making such alteration and the futm-e charges for keeping p. s.'n2,'§i3i.
5 such bridge or crossing and the approaches thereto in repair, as well Jflf; 295! ^ *'
6 as the costs of the application to the county commissioners, or the ^ise/^''
7 department, and of the hearing before said commission; and it may j^oo' f^J' f "•
8 apportion all such charges, expenses and costs between the railroad cor- |L?,^v^|- Z,
9 poration, the railway company haying tracks on said way, and the is4 Mass'. 491.
10 counties, cities or towns where said crossing is situated and other cities 203 Mass! 304!
11 and towns which may be specially benefited. If a railway company Isi mS 260.
12 is authorized to lay and use tracks upon any bridge in a highway built,
1.3 repaired or altered as aboye pro\'ided for, or the approaches to which
14 are altered or improyed as aboA'e proyided for, the said commission
15 shall determine what part of the charges and expenses of making such
16 changes or improyements, or of keeping such bridge or crossing and
17 approaches in good condition, shall be paid by said railway company.
1 Section 62. Upon application of the county commissioners, the Commission,
2 department, the board of aldermen, the selectmen or the directors of is72,'262r°
3 the railroad corporation or of the railway company for the appointment is74"372', § 99.
4 of such commission, the superior court shall cause notice thereof to Hlf-^ |f|; ^ ^•
5 be giyen to the other parties interested fourteen days at least before ^'i'lii'iih
6 the time fixed for the hearing; and thereupon, after hearing, shall ap- ^^I'lfi'^A^
7 point such commission, one member of which shall be a member of 1902; 533', § 3. '
8 and designated by the department. The commission shall meet as soon §§ 2r,, as. '
9 as may be after its appointment, and, after notice to and a hearing of 203Mas3!304!
10 the parties, shall make a WTitten award and return it to said court. HI l\lf^- 1|^;
1 Section 63. A party aggrieyed by said award may, within fourteen Revision
2 days after the retiu-n thereof, apply to the court for a jury to revise and is75!23i,
3 determine any matter of fact found therein; and thereupon the court, is78'.i75. § 2.
4 after notice to all parties interested, shall order a trial by jury in the R.iiVn.^'^^
5 same manner as civil cases are tried by jury. The decree of the court ft/Jf ^^g j
6 upon said award or upon the verdict of a jury shall be final and binding, ||o^Iv|;*- 4-4
7 and said court may in equity enforce compliance therewith, and also lw Mass. 217.
8 issue and enforce such interlocutory decrees and orders as justice may 236 Mass. 260'.
9 require.
1 Section 64. The party designated for that duty, having carried into Recovery after
2 effect the decision made under section fifty-nine, may recover in con- proportion of
3 tract from any other party the proportion awarded to be paid by such is7™202. § 5.
4 other party, with interest; and if the party so designated unreasonably j^/of.^""'
5 fails to carry the decision into effect, any other party affected by such ^ ^ ^^^^ 5 134.
6 failure may proceed to do it, and may ^eco^•e^ in contract from each or fg^Q^f^gg j
7 all of the others the proportion awarded to be paid by them, and from §§28, es.'
8 the party so failing all charges, expenses and costs occasioned thereby.
abolition of grade crossings.
1 Section 65. The board of aldermen of a city or the selectmen of a Commission to
2 town where a public or private way and a railroad cross each other at CTossings.
3 grade, the directors of the railroad corporation, or the directors of a Hlo. Its', ^ ^'
4 railway company having a location in the part of such public way where ^^ ^' ^^-
1686
COMMON CARRIERS.
[Chap. 159.
1891, 262.
1894. 216.
1897, 264.
R. L. Ill,
§149.
1902. 440, § 1.
1906, 463, 1,
§§ 29. 68.
158 Mass. 299.
101 Mass. 259.
175 IMass. 430.
183 Mass. 533.
185 Mass. 100,
219.
186 Mass. 128.
189 Mass. 439.
194 Mass. 80.
202 Mass. 585.
206 Mass. 208.
207 Mass. 58.
209 Mass. 298.
213 Mass. 507.
219 Mass. 85.
223 Mass. 408.
229 Mass. 399.
236 Mass. 98.
the crossing exists, or, upon instructions from the governor and council 5
given after notice to parties interested and a hearing, the attorney gen- 6
eral, may file a petition in the superior court, stating that the petitioners 7
deem it necessary for the security and convenience of the public that an 8
alteration should be so made in such crossing, in the approaches thereto, 9
in the location of the railroad or public or private way, or in the grades 10
thereof, as to avoid a crossing at grade, or that such crossing shoidd be 11
discontinued with or without building a new way in substitution therefor. 12
Said court may in equity, after notice by the petitioners to the depart- 13
ment of the entry of such petition, and after such notice by advertisement li
or othemise as said court shall order and a hearing, appoint a com- 15
mission of three disinterested persons. Such commission shall, if the 16
parties so agree, consist of commissioners of the department, and they 17
shall serve without compensation other than their official salaries; and 18
no consent under section se^"enty-four shall be required of them actmg 19
as the department to their decisions as such commission. Upon all 20
petitions for the abolition, discontinuance or alteration of grade cross- 21
ings, any railway company ha^'ing a location in the part of the public 22
way where the crossing exists, shall be made a party and entitled to be 23
heard as such. 24
Costs.
1902, 298, § 1.
1900. 463, I,
l§ 30, 68.
183 Mass. 147.
Sectiox 66. A party bringing a petition under the preceding section 1
may have taxed as costs as in other ci\'il cases the fees for ser\-ice and 2
cost of publication of such petition, the entry fees in the superior court, 3
together with all costs of hearing before the superior or supreme judicial 4
coiut, or before any auditor or master appointed thereby. 5
Expense of
plans.
1902, 298, § 2.
1906, 463, 1,
S§31, 68.
183 Mass. 147.
Section 67. A party incurring expense for making plans required 1
by said commission, or for use in court concerning any grade crossing, 2
the abolition, discontinuance or alteration of which is petitioned for, 3
may in the discretion of the court have the cost of such plans allowed. 4
Payment.
1905, 408, 5 1.
1900, 403, I,
§§ 32, 68.
Section 68. The fees and expenses of said commission, after having 1
been approved by a justice of the superior court, shall be paid, in the first 2
instance, by the railroad corporation, but the fees and expenses so paid, 3
including the costs and expenses specified in the two preceding sections, 4
shall thereafter be apportioned to and paid by the respective parties as 5
provided by section se\enty. 6
Petition may
embrace
several
crossings.
1890, 428,
§§ 2, 8.
1891,33, § 1.
R. L. Ill,
§150.
1906, 463, I,
§§ 33, 68.
Section 69. A petition under section sixty-five may include several 1
crossings, or several railroads crossing at or near the same point, or by 2
order of the court two or more petitions may be consolidated and heard 3
as one. Service of such petition and of all notices or processes thereunder 4
may be made upon the commonwealth by serving upon the attorney 5
general personally, or by lea\'ing m his office, an attested copy thereof. 6
Commission to
prescribe the
alterations.
1890, 428, I 3.
1891.33, §2.
1894, 216.
1897, 264.
R. L. Ill,
§151.
1902, 440, I 2.
1906, 463, I,
§§ 34, 08.
1914, 722, § 1.
Section 70. A commission appointed under section sixty-five shall 1
meet at once, and if, after notice and a hearing, it decides that the se- 2
curity and convenience of the pubhc require the alterations to be made, 3
it shall prescribe the manner and limits thereof, and shall determine 4
which of the parties shall do the \\ork, or shall apportion the work to be 5
done between each of the railroad corporations and the city or town. 6
The railroad corporations shall pay sixi:y-five per cent of the total actual , 7
CH-^P. 159.] COMMON CAKRIERS. 1687
8 cost of the alterations as aforesaid, including therein, in addition to the lei Mass. 32.
9 cost of construction, the actual cost to the railway company of chang- 172 Mass.' 5,
10 ing its railway and location to conform to the decree of the court, the 179'Mass. 520.
11 cost of the hearing, the compensation of the commissioners and audi- Jit Mass! loa
12 tors and all damages, except as otherwise provided. Said commission |0| ^^^s. 1,
13 may, subject to a right of appeal to the superior coin-t by the railway 203 Mass. 3m.
14 company or by the commonwealth for a revision by a jury of the amount 213 Mass! se?!
15 of such assessment, if a claim therefor is filed in the clerk's office of "■"
16 said court within thirty days after the making of such assessment, assess"
17 upon any railway company made a party to the proceedings such per-
18 centage of said total cost, not exceeding fifteen per cent thereof, as may,
19 in the judgment of said commission, be just and equitable; and such
20 assessment, as confirmed by the court, shall be in lieu of any assess-
21 ment or contribution required by any special act or grant of location.
22 The remainder of said total cost shall be apportioned by said commission
23 between the commonwealth and the city or town where the crossings are
24 situated, and in making said apportionment said commission shall take
25 into account the benefits to the city or town and its financial ability, and
26 shall assess upon the city or town such percentage of said total cost, not
27 exceeding ten per cent thereof, as may in the judgment of said commission
28 be just, and if less than ten per cent of such total cost is assessed upon
29 the city or town, the difference between the amount so assessed and
30 said ten per cent shall be assessed upon said railroad corporations in
31 addition to said sixty-five per cent, or upon the commonwealth, or
32 shall be apportioned between said railroad corporations and the com-
33 monwealth, as in the judgment of said commission shall be just. Said
34 commission shall equitably apportion the sixty-five per cent and such
35 additional sum, if any, as may be assessed as aforesaid, to be paid by the
36 railroad corporations between the several railroads which are parties to
37 the proceedings. If the crossing was established after .June twenty-first,
38 eighteen hundred and ninety, no part of said cost shall be charged to the
39 commonwealth; and such part thereof as becomes thereby unapportion-
40 able shall be borne by the railroad corporation, the railway company, if
41 any, and the city or town, in addition to the other amounts payable
42 by them, in such proportions as the commission shall determine. If
43 the crossing is of a railroad and a private way, and no crossing of a public
44 way is abolished in connection therewith, the entire cost as aforesaid
45 shall be paid by the railroad corporation. ^\nienever in any case where
46 a railway company has been required to contribute to the expense of
47 abolisliing a grade crossing, any of its locations shall be so changed or
48 revoked by any board of aldermen or selectmen without its consent as to
49 render impossible, or in the opinion of the department unprofitable, the
50 further exercise of the pri\ilege of operating its railway in the part of the
51 public way where such grade crossing has been abolished, the amount
52 contributed by such company to the expense of abolishing such grade
53 crossing shall be ascertained by the department, and certified to the state
54 treasurer, who shall pay the same to the company; and any amount so
55 recei\ed by the company shall be expended only for such construction or
56 equipment purposes as the department approves.
1 Section 71. The engineer of the department or some person under Duties of
2 his direction shall examine the plans submitted to said commission, the i9o™372, § 1.
3 actual work of construction, and the accounts of expenditures submitted §§"'2.^^'
1688
COMMON CARRIERS.
[Chap. 159.
to auditors therein, and shall perform such other duties in connection 4
with proceedings for the abolition of grade crossings as may be assigned 5
to him. 6
state highways.
1910, 498.
1917, 344. I,
§ 20, VIII, § 1.
1919, 350,
§§ 111. 113.
Section 72. Whenever a grade crossing is abolished upon a state 1
highway, county way, or way which has been petitioned for as a state 2
highway, the said highway or way shall be so constructed that there 3
shall be a clear view in each direction for at least one hundred and fifty 4
feet from the centre of the said highway or other way where the same 5
passes over or under the railroad or railway, unless the proposed plan for 6
the abolition of the grade crossing is approved by the division of highways 7
of the department of public works. 8
OT conSfbution SECTION 73. The amount of any assessment upon or contribution by 1
th™I?u''''of' °^ ^ railway company toward the cost of abolishing a grade crossing shall 2
the property^ bc dccmcd aiid taken in all proceedings thereafter as a part of the value 3
of its property for railway purposes; and such company may issue 4
stocks or bonds to such amount as the department shall, subject to the 5
laws relating to the issue of stocks and bonds by railwa^y companies, 6
approve as reasonably necessary to pro\ade for the payment of such 7
assessment or contribution. 8
1902, 440,
1906, 463, i
§§ 35, 6S.
13.
Report of
commiasion.
1890, 428, § 4.
1892, 312.
1894, 216.
1897, 264.
R. L. Ill,
§ 152.
1902, 440,
1905, 408,
1906, 463, I,
§§ 36, 68.
191S, 257,
§ 204; 285.
1919, 5.
1920, 2.
163 Mass. 356.
169 Mass. 495.
171 Mass. 228.
200 Mass. 227.
202 Mass. 1,
585.
20(1 Mass. 208.
236 Mass. 379.
4 Op. A. G. 199.
Section 74. Said commission shall specify what part, if any, of an 1
existing public or private way shall be discontinued, the grade for the rail- 2
road and the way, the changes to be made in the location and grades of 3
the railway in such public way, the general method of construction and 4
what land or other property it considers necessary to be taken, includ- 5
ing, in its discretion, an easement in land adjoining the location of a public 6
or private way, or of a railroad, consisting of a right to have the land of 7
the location protected by having the surface of such adjoining land slope 8
from the boundary of the location in a manner specified by said commis- 9
sion; but if such decision involves a change in the grade of the railroad, 10
the consent of the department to such change shall first be obtained. 11
■The commission shall forthwith return its decision to the superior court, 12
the decree of which, confirming such decision, shall be final and binding. 13
If said commission decides that the location of the railway shall be 14
changed, the decree of the court confirming such decision shall estab- 15
lish the location as thus changed. If said commission decides that the 16
location of the railroad or of the public or private way shall be changed, 17
the decree of the court confirming such decision shall establish the loca- 18
tion as thus changed, and if it is necessary to take land to provide such 19
new location, said commission shall take the same by eminent domain 20
under chapter seventy-nine. Said taking shall be on behalf of the city 21
or town if the land or easement is to be used for or in connection with a 22
public way, or on behalf of the railroad corporation if the land or ease- 23
ment is to be used for or in connection with a private way or by the 24
railroad corporation. 25
Duinages.
1890, 428, § 5.
1S91. 123.
1894, 216.
1897, 264.
1S98, 200.
1900, 463.
R. L. HI,
§ 153.
Section 75. Ail damages sustained by any person in his property 1
by the taking of land for or by the alterations of the grade of a public way, 2
or by an abutter thereon by the discontinuance of such public way, to 3
the same extent as damages are recoverable by abutters on ways dis- 4
continued by towns, or by the taking of an easement in land adjoining a 5
Chap. 159.] common c.vrriees. 1689
6 public way, shall primarily be paid by the city or town ; and all damages i903, 478.
7 caused by the taking of land for the railroad or by the change or dis- igoeUeaii.
8 continuance of a private way, or by the taking of an easement in land ilol^'sgo, § i.
9 adjoining a private way or a railroad location in connection with the aboli- \f^ Hm- g™-
10 tion of a grade crossing, shall primarily be paid by the railroad corpora- JJ' ^ass. 494.
11 tion; and all damages sustained by any person by the abolition of private i73 Mass. 432.
12 ways, except as hereinbefore provided, shall be entirely paid by the rail- its Mass! loil
13 road corporation. Any amount paid by way of damages by either the city ssr..^ '"^'*'
14 or town or the railroad corporation primarily liable therefor shall be sub- {so Mass! 71"'
15 ject to investigation by the auditor named in section seventy-eight, JlfMasI'lsf'
16 unless sucli settlements are assented to in writing bv all parties in the ?55-,,
.. TP 1 ■ • 1 r> . .11 189 Mass. 439.
I i proceedmg. Ir the parties interested cannot agree upon said damages, wo Mass. 293.
10 4- Ij-UJ J.I -Illj. J. 200 Mass. 400.
1ft any party may have the damages determined under chapter seventy- 202 Mass. 1,
19 nine. All expense resulting from the necessary relocating or changing 203' Mass. 4,
20 of streams and watercourses forming the natural drainage channels of 209 Mass. 298,
21 the territory where alterations of grades are authorized and of sewers, |}i' Mass, 626.
22 drains and pipes therein owned and operated by a city or town shall |}| Hm- 1^[-
23 be primarily paid by said city or town, and shall be a part of the actual 221 Mass. im.
24 cost of the alterations specified in section seventy. The court may
25 allow, as part of the costs, reasonable expenses for surveys and plans.
1 Section 76. In any case arising under the preceding section, where settlement of
2 any person sustaining damage to his property in the manner therein by'iTmHSot.
3 specified fails to bring a petition within the time Umited by chapter ^^^^' **'^' ^ ^•
4 seventy-nine, the attorney general may join with the other parties inter-
5 ested in a settlement of the claim of such person; and the proportion
6 of the amount agreed upon in settlement thereof which would be charge-
7 able to the commonwealth under section seventy shall be paid by the
8 commonwealth as if it were a part of the actual cost of the work re-
9 quired to be done under said section.
1 Section 77. After the completion of the work, the expense of main- Maintenance
2 tenance and repair shall be paid as follows: if the public way crosses the approSfs.^"
3 railroad by an overhead bridge, the framework and flooring of the bridge JI9?; 33*1 2^'
4 and its abutments shall be maintained and kept in repair by the railroad f\^^ ^^^'
5 corporation, but the approaches of the bridge and, if said flooring has a J?°3^''5|'^'
6 wearing surface, consisting of an upper planking, paving or other surface 1912, 'iso.
7 material, such wearing surface of the bridge shall be maintained and kept
8 in repair by the city or town where situated; if the public way passes
9 under the railroad, the bridge and its abutments shall be maintained and
10 kept in repair by the railroad corporation, and the public way and its
II approaches shall be maintained and kept in repair by the city or town
12 where situated; if several railroads cross a public way at or near a given
13 point, said commission shall apportion and award in what manner and
14 proportion each of said railroad corporations shall maintain and keep in
15 repair the framework of the bridge and its abutments if the public way
16 crosses the railroad by an overhead bridge, and the bridge and its abut-
17 ments if the public way passes under said railroads.
1 Section 78. The court shall appoint an auditor, who shall be a dis- Auditor, duties,
2 interested person, not an inhabitant of the city or town where the cross- isoa Tls.'s"?!
3 ing is situated, whose compensation shall be determined by the court iIm^mI;
4 and to whom shall from time to time be submitted all accounts of expense ifL'm'iiss
1690 COMMON C.AJIRIERS, [ChAP. 159.
1906' 463' I ^' incurred by the railroad corporations, railway companies, if any, city, 5
II 39. 68.' _ town, commission or auditor, and who shall audit the same and make 6
i9i4!i8. ' _"■ report thereon to the coiut. The auditor shall upon request of any of 7
172 Mass! 11?: the parties to the proceeding investigate the amoimts presented for 8
213 Mass.' 567.' allowaoce by any city or town or any railroad corporation as expended 9
fljp^A.lj.^yg. ill tiis pajTiient of damages for land taken or affected by reason of the 10
proposed alteration, which have been paid by the party primarily liable 11
therefor, as provided in section seventy-five, unless it appears that all 12
of the parties to the proceeding for the abolition of the grade crossing 13
have assented in writing to the payment or settlement so made by the 14
party primarily liable; and if the auditor determines that the amoimt 15
so paid is in excess of what in his opinion should have been properly paid 16
therefor, he shall allow only such portion of the amount so paid as he 17
may deem to be just and reasonable. Such auditing, when accepted by IS
the court, shall be final. A certified copy of such report and the decree 19
of the court thereon shall be filed with the state auditor. The court shall, 20
from time to time, issue its decrees for payments on the part of the rail- 21
road corporation and on the part of any railway company, not exceed- 22
ing the amounts apportioned to them respectively by said auditor in 23
his report, and for the paj-ment by the commonwealth of a siun not ex- 24
ceeding the amounts apportioned to it and to the city or town; and such 25
city or town shall repay to the commonwealth the amount apportioned 26
to it, with interest thereon, payable annually at the rate of interest 27
determined by the state auditor as approximately that paid by the com- 28
monwealth on the last money borrowed for the abolition of grade cross- 29
ings, from the date of the acceptance of the report of the auditor. Such 30
repayment of the principal shall be made annually in such amounts as 31
the state auditor designates; and the amount of payment designated 32
for the year, with the interest due on the outstanding principal, shall be 33
included by the state treasurer in the amount charged to such city or 34
town, and shall be assessed upon it in the apportionment and assessment 35
of its annual state tax. The state treasiuer shall in each year notify 36
such city or town of the amount of such assessment, which shall be paid 37
by it to the commonwealth as a part of, and at the time required for, the 38
payment of its state tax. 39
onaw"!™^"' Section 79. The superior coiu-t shall have jurisdiction in equity to 1
1895 ins' ^ ^ enforce compliance with sections sixty-five to eighty-two, inclusive, and 2
R. l!iii, with the decrees, agreements and decisions made thereunder; and may 3
1906,463, 1, issue and enforce such interlocutorv decrees and orders as justice may re- 4
162 Mass. 564. cjuirc, and any order, appointment or decree under said sections may be 5
made in any county. 6
upra^agrefment Section 80. If the board of aldermen of a city or the selectmen of a 1
ations'^"" town where a public way and a railroad cross each other and the directors 2
1890. 428, § 9. of the railroad corporation deem it necessary for the security and con- 3
§ 157. ' venience of the public that alterations should be made in such crossing, 4
§§ 41, 68.' ' in the approaches thereto, in the location of the railroad or public way 5
i9is!257'. or in the grades thereof, or in a bridge at such crossing, or that such 6
m9!'5^*^' crossing should be discontinued with or without building a new way in 7
i53°Mass 161 Substitution therefor, and they agree as to the alterations to be made, 8
a written instrument signed, in behalf of a city, by the mayor, authorized 9
by the board of aldermen, or in behalf of a town, by the chairman of the 10
selectmen, authorized by the selectmen, and by the president of the rail- 1 1
Chap. 159.] common c.iRRiERs. 1691
12 road corporation, authorized by its directors, specifying the manner and
13 limits within which the alterations shall be made, and by which party
14 the work shall be done, or how it shall be apportioned between the city
15 or town and the railroad corporation, the general method of construc-
16 tion, the grades for the railroad and the public ways, and also what land
17 or other property it is necessary to take, and what portion, if any, of an
18 existing public way is to be discontinued, and how the cost thereof shall
19 be apportioned between the city or town and the railroad corporation,
20 shall be valid and binding on the city or town and the railroad corpora-
21 tion, respectively, and have the same force and effect as a decree of the
22 court under section seventy-four, if the department, after notice to all
2.3 parties interested by adA'ertisement and a public hearing, approves of the
24 alterations set forth in the agreement as necessary for the convenience
25 and security of the public. Said approval by the department shall estab-
26 lish the locations as thus altered, and if it is necessary to take land to pro-
27 vide such new locations, the department shall take the same by eminent
28 domain on behalf of the city or town and of the railroad corporation,
29 respectively, under chapter seventy-nine. So much of section seventy-
30 four as relates to the taking of land, and so much of section seventj-five
31 as relates to the right of any person to recover damages sustained in con-
32 sequence of such taking or of the alterations made in pursuance of said
33 decree shall apply to the taking of land and to damages sustained under
34 an agreement made pursuant to this section. The crossing and ap-
35 proaclies shall be maintained and kept in repair as provided in section
36 seventy-seven. If the agreement provides for the abolition of a public
37 grade crossing, the department shall keep itself informed of the progress
38 and character of the work and of the amounts reasonably expended for
39 work done or for damages, so far as rendered necessary for the abolition
40 of the grade crossing; and for that purpose it may employ any necessary
41 agents, and, from time to time as it may consider proper, shall issue
42 certified statements of the amount legally and properly expended for
43 such abolition of a grade crossing; and the commonwealth shall pay
44 twenty per cent of such expenditure to the parties entitled thereto under
45 the agreement.
1 Section 81. A final decree shall not be entered by the superior court Department
2 upon any report of a commission setting forth a plan for the abolition, dis- etc'fbef™e'' '^°'
3 continuance or alteration of a grade crossing, adopting or confirming such isoo.^'^s!'!' ii.
4 plan or authorizing any expense to be charged against the commonwealth, f)^g ^^^•
5 until the department, after a hearing, shall have certified in writing that Jgoo' Im' | "'
6 in its opinion the adoption of such plan, the expenditure to be incurred §§ 43. es.'
7 thereunder and the apportionment of the expense between the several i9i4',722; § 2.
8 parties to the proceedings are consistent with the public interests, and
9 are reasonably requisite to secure a fair distribution between the different
10 cities, towns and railroads of the commonwealth, of the public money
11 authorized to be expended for the abolition of grade crossings, and that
12 such expenditure will not, in the judgment of the department, exceed
13 the amounts provided therefor to be paid by the commonwealth. If the
14 members of the department are commissioners under section sixty-fi^'e,
15 the certificate herein provided for may be issued by said department with-
16 out a hearing.
1 Section 82. Sections fifty-nine to sixty-four, inclusive, of this chap- certain pr<>-
2 ter and sections one hundred and eight, one hundred and eleven, one ™kp"piy.'"
1692
COMMON CARRIERS.
[Ch.\p. 159.
1S90, 428. § 12.
R. L. Ill,
§ 160.
1906, 463, I,
§§ 45, 68.
hundred and twelve, one hundred and thirteen and two hundred and 3
fifty-two of chapter one hundred and sixty, ,so far as they relate to pro- 4
ceedings for the abolition of grade crossings, shall not apply to cases 5
within the provisions of the preceding seventeen sections. 6
Examination
of railroad and
street railway
bridges.
1887, 334,
l§ 1-3.
1899, 286.
R. L. Ill,
§169.
1906, 463, 1,
§§ 58, 68.
EAILRO.U) AND STREET RAILWAY BRIDGES. ■
Section 83. E-\'ery railroad corporation and railway company shall, 1
upon request of the department, and at least once in two years, cause 2
an examination of its bridges and of the approaches thereto to be made 3
by a competent engineer, who shall report the result of his examination, 4
his conclusions and recommendations to the corporation or company, 5
and it shall forthwith transmit a copy of the report to the department. 6
Before a railway company builds a bridge, it shall first submit the plans 7
thereof to the department for appro^•al. Upon the completion of a new 8
bridge, the railroad corporation or railway company shall forthwith cause 9
such examination and report to be made and transmitted to the depart- 10
ment. The report shall furnish such information, in such detail and ^ith 11
such drawings or prints, as may be requested in MTiting by the depart- 12
ment. The department may make further examination of the bridge 13
structure if necessary or ex]3edient. This section shall not exempt a 14
corporation from making other and more frequent examination of its 15
bridges and the approaches thereto. 16
Maintenance
and repair.
1908. 552, 5 1.
236 Mass. 260.
Section 84. If the county commissioners of a county, the board of 1
aldermen of a city or the selectmen of a town where a bridge at the cross- 2
ing of a public way and a railroad, or a bridge upon which a railway 3
company is authorized to lay and use tracks, is located in whole or in 4
part, or the directors of a corporation owning or operating such railroad, 5
or the directors of a company owning or operating such railway, are 6
of the opinion that such bridge is in need of maintenance or repair, they 7
may apply to the department, which shall, after public notice, hear all 8
persons interested, and, if it decides that the work of maintenance or 9
repair is necessary, shall prescribe the manner in and the limits within 10
which it shall be done, and shall forthwith certify its decision to the 11
parties. 12
woass",™! Section 85. If railroad corporations, railway companies, counties,
210 Mass. 229. cities, towTis, or any of them, jointly or se^'erally, are charged with
the duty of maintaining or repairing any such bridge under any provision
of law, agreement, or decree of court, and if the parties so charged with
■ such duty refuse or neglect to carry into effect such decision within a
reasonable time, any other such party may apply to the superior court,
which may in equity enforce such decision.
RAILRO.AD, STREET R.ULW.\T .IND STE.\MBO.\T RELIEF CORPOR.\TIONS.
Section 86. Seven or more persons, a majority of whom are residents 1
of the commonwealth, being employees of any railroad, railway or 2
steamboat corporation, organized under the laws of the commonwealth, 3
may form a corporation under cha])ter one hundred and eighty for the 4
168*11383.213. purpose of receiving, managing and applying such property and funds 5
as it may receive by contribution, assessment or otherwise for the im- 6
Railroad, etc.,
relief corpora-
tions.
1882, 244, § 1.
1890, ISl, § 1.
R. L. 125, I 17,
1906. 46.3, I,
' ] 46, 68,
Chap. 159.] common carriers. 1693
7 provement and benefit of its members, and for their relief and the relief
8 of their families in case of sickness, injury, inability to labor, or other
9 cases of need.
1 Section 87. The by-laws of such corporation shall be approved by By-iaws,
2 the department, and shall prescribe the manner in which, and the officers i882,"244,
3 and agents by whom, the purpose of its incorporation may be carried out, fj^ h.%5, § is.
4 and also the manner in which its property may be invested. Such cor- §|°47*||' ^'
5 poration shall annually, and as often as may be required by the depart-
6 ment, render to it such statements of its membership and financial trans-
7 actions and such other information relative thereto as the department
8 may consider necessary for a proper exliibit of its business and standing.
9 The department may verify such statement by an examination of the
10 books and papers of the corporation; and whoever, having charge or
11 custody of such books and papers, neglects to comply with this section
12 shall be punished by a fine of not more than five hundred dollars.
1 Section 88. A railroad corporation operating a railroad or portion Railroad, etc,
2 thereof in the commonwealth, or a railway company, may, by vote of associate with
3 its directors, associate itself with seven or more of its employees in iggis.Tir'
4 forming a corporation under section eighty-six, or may, upon the invi- ^^l' J^g' | ^g
5 tation of any such corporation, become a member thereof, and may from J?°4^*g|'''
6 time to time aid such corporation by contributions to its funds or other-
7 wise. The by-laws of such corporation shall provide for the manner in
8 which the railroad corporation or railway company shall vote and be
9 represented in said corporation. The funds of such corporation shall
10 not be liable to attachment by trustee process, or be liable to be taken
11 on execution or on any other process, legal or equitable, to satisfy any
12 debt or liability of the railroad corporation or railway company or of
13 any member of the corporation.
RAILROAD, street RAILWAY AND STEAMBOAT POLICE.
1 Section 89. The mayor of a city, or the selectmen of a town, upon the Railroad, etc.,
2 petition of a railroad corporation having a passenger station therein, or istTssi,
3 of a railway company operating a railway therein, or of a common carrier 1874, 372,
4 of passengers by water for hire having a usual place of receiving or fssa'ss, § 1.
5 discharging passengers therein, may appoint as many of the persons, ^^^^ ^^^^ ^ *^-
6 designated in said petition, as police officers as they may deem proper i^Miog'
7 for the purposes and with the powers hereinafter set forth. §§ 13. 21.'
1906, 403, I, §§ 49, 68. 196 Mass. 353.
1 Section 90. An attested copy of the record of all such appointments Copy of ap-
2 shall be filed by the petitioner with the clerk of every city or town, other Ee'm'eT"
3 than the city or town of appointment, where the railroad corporation or llil', 372] ^ ^'
4 railway company operates its cars, or such carrier is accustomed to re- fgVs^go,
5 ceive or discharge passengers, and where it is intended that such police p^^y'i^o-j^'i^
6 officers shall act; and the filing of such attested copy shall constitute }{^"f'joif }i
7 the persons named therein railroad, railway or steamboat police, re- looii, 4ti3; i,
8 spectively, within such city or town, and upon the boats or vessels of "" ' '
9 such carriers by water, wliile within the boundaries of tlie commonwealth,
10 and shall be conclusive evidence of the regularity of their appointment.
1694
COMMON CARRIERS.
[Chap. 159.
Term of office.
1871,331,
§§ 1,9.
1874, 372.
§ 143.
ISSO, 85, 5 2.
P. S. 103, § 15.
18S3, 65.
R. L. 108, § 15.
1906, 463, I,
§§ 51, 68.
1918, 257,
§364.
1919, S.
1920, 2.
Section 91. Such police officers shall be sworn before a justice of 1
the peace, notary public or special commissioner, and shall hold their 2
offices until their appointment is revoked by the mayor of the city or the 3
selectmen of the town where they are appointed ; but such petitioner, 4
upon ceasing to require the services of any of such officers, shall file a 5
notice to that effect with the clerk of the city or town where he is ap- 6
pointed, and with the clerks of the several cities and towns where notice 7
of such appointment has been filed, and thereupon the power of such S
officer shall cease. 9
Badges.
1871,331, § 3.
1874, 372,
§ 144.
1880, 85, § 3.
P. S. 103, § 16.
1895, 318, § 2.
1896, 225, § 2.
R. L. 108,
§§ 16, 22.
1906, 463, 1,
§§ 52, 68.
Section 92. Such police officers shall, when on duty except as detec- 1
tWes, wear in plain sight a metallic badge, inscribed with the words, 2
"Railroad Police", "Street Railway Police", or "Steamboat Police", .3
as the case may be, and the name or initials of the corporation or com- 4
pany for which they are appointed ; and the presence of any such officer 5
on the cars, steamboats or premises of the corporation or company upon 6
whose petition he was appointed, wearing such badge, shall be prima 7
facie evidence that he is lawfully upon duty. g
Powers of
police.
1871,331,
§§ 4, 5, 7.
1874, 372,
§§ 145, 146.
1880, 85, § 4.
P. S. 103,
§§ 17, 18.
1895, 318, § 3
R. L. 108,
§§17-19,23.
1906, 463, I,
§§ 53, 68.
143 Mass. 228.
148 Mass. 119
193 Mass. 2S0.
210 Mass. 1.59,
216 Mass. 178,
219 Mass. 341
Section 93. Railroad, railway or steamboat police officers may pre- 1
serve order on the premises, cars, vessels and boats of the corporation 2
or company upon whose petition they are appointed and at the wharves 3
and landing places owned or used by such carrier by water; may, with- 4
out a warrant, arrest an idle, noisy, intoxicated or disorderly person 5
upon such premises, cars, vessels or boats; or a passenger upon such 6
cars, vessels or boats who refuses to pay his fare, and remove him to 7
the baggage or other suitable car or place; may, without a warrant, 8
arrest any person committing any of the offences specified in section one 9
hundred and four; and railway police officers may, without a warrant, 10
arrest any person committing any of the offences specified in section 11
ninety-four of chapter one hundred and sixty-one. 12
Arrest.
Duties of
police.
1895, 318, § 3
§54
1914, 423.
193 Mass. 280,
Section 94. The person so arrested by railroad or railway police 1
officers shall be taken to the police station or other place of lawful deten- 2
1906 463' f ^^' ^^^^ ^ *'^® ^^^y °'" to^'ii where the arrest is made, or in the city or town 3
where the car, boat or vessel next stops, or in any city or town of the 4
same or adjoining county through which the car passes after the arrest; 5
he may be placed in charge of a police officer or coiistable in either of 6
such cities or towns, to be taken to a lawful place of detention within 7
twenty-four hours after the time of such arrest, Sunday excepted. Com- 8
plaint shall be made against the person arrested by the officer taking him 9
to the place of detention, for the offence for which he Avas arrested, to a 10
district court, or trial justice having jurisdiction of such offences com- 11
mitted in the city or town where such person is detained, and such court 12
or justice shall have jurisdiction of the case. 13
Compensation.
Liability.
1874, 372,
§147.
P. S. 103, § 20.
R. L. 108, § 20.
1906, 463, 1,
§§ 55, 68.
210 Mass. 159.
Section 95. Railroad, railway and steamboat police officers shall
be paid by the corporation or company upon whose petition they are
appointed. Such corporation or company shall be liable for any official
misconduct of such officers to the same extent as for torts of agents or
servants in their employ.
Chap. 159.] common carriers. 1695
ACTION.S AGAINST RAILROADS AND STREET RAILWAYS FOR LABOR AND
M.\TERIALS.
1 Section 96. A person to whom a debt is due for labor performed or Action ag.ainst
2 for materials furnished and actually used in constructing a railroad or ?oad"°[aii-
3 railway under a contract with a person other than the railroad cor- andmateJiais.
4 poration or railway company, who has authority from or is rightfully p'^i'u^'^iis
5 acting for such corporation or company in furnishing such labor or ma- Pj;h^^''
6 terials, shall have a right of action against such corporation or company i904,'373.
7 to recover such debt with costs, except as provided in the four following §§ 218. 238, '
8 sections. 115 Mass. SSO. 121 Mass. 510. 158.^^"^'
174 Mass. 45. 204 Mass. 494. 226 Mass. 148.
1 Section 97. A person who has contracted to construct the whole Contractor not
2 or a specified part of such railroad or railway shall not have such right of Icti'on.'' ^"'^''
3 action. is73, ssa, § 2. p. s. 112, § 144. r. l. 111, § 105.
1904, 373. 1906, 463, II, 5§ 219, 258, III, |§ 118, 158. 226 Mass. 148.
1 Section 98. A person shall not have such right of action for materials Notice of in-
2 furnished, unless, before beginning to furnish them, he files in the ofBce fikd!°° '° ^^
3 of the clerk of the city or town where any of the materials are to be p^s^'na^'^*"
4 furnished a ■s\Titten notice of his intention to claim such right, in the |{'l''iii
5 manner provided for filing the statement named in the following section. 5 is^.
'^ ^ ° 1904, 373.
1906, 463, II, §§ 221, 25S, III, §§ 120, 158.
1 Section 99. A person shall not have such right of action for labor statement of
2 performed, unless, within thirty days after ceasing to perform it, he files t™befiied. ''*'
3 in the office of the clerk of a city or town where any of said labor was ^'i'ui'iiis.
4 performed a written statement, on oath, of the amount of the debt so due f^^^ y„^' ^ ^'^^■
5 him and of the name of the persons for whom and by whose employment }?°'',-i''^J^'
6 the labor was performed. Such right of action shall not be lost by a iii,§§'n9,'
7 mistake in stating the amount due; but the claimant shall not recover 127' Mass. 101.
8 as damages a larger amount than is named in said statement as due to
9 him, with interest thereon.
\
1 Section 100. Such action shall not be maintained unless begun within Limitation
2 sixty days after the plaintiff ceased to perform such labor or to furnish iots.'sss,' § 5.
3 such materials. p. s. 112, § 147.
R. L. Ill, § 168. 1904,373. 1906, 463, II, §§ 222, 258, III, §§ 121, 158.
OFFENCES RELATING TO RAILRO.U)S AND STREET RAILW.WS.
1 Section 101. Whoever fraudulently evades or attempts to evade the Evasion of
2 payment of a toll or fare lawfully established by a railroad corporation nfre"^"' °'
3 or railway company, either by giving a false answer to the collector of J^s?! 240,' 1 1;
4 the toll or fare, or by traveling beyond the point to which he has paid ^< ii|^J4i
5 the same, or by leaving the train or car without having paid the toll or jl^j' p9, § 33.
6 fare established for the distance traveled, or otherwise, shall forfeit not 1874! 372',
7 less than five nor more than twenty dollars. Whoever does not upon p. .s. 112, § 197.
8 demand first pay such toll or fare shall not be entitled to be transported f 251.^^''
9 for any distance, and may be ejected from a railway car; but no person |§°64.*6^|.' ^'
10 shall be removed from a car of a railroad corporation except as provided |i| ^^^^- ®*'
11 in section ninetv-three, nor from a train except at a regular passenger ^li JJ**^- J?!-
. v^ 1 ox-oi,g Mass. 04.
12 station. 1S5 Mass. 279. 216 Mass. 178. 222 .Mass. 121.
1696
RAILRO.UJS.
[Chap. 160.
b°mMked° SECTION 102. No railroad corporation or railway company or any
1908,495. ofBcer or employee thereof shall use or deposit a torpedo or other ex-
plosive upon or near the tracks of any railroad or railway for the pur-
pose of signalling or otherwise, unless there is plainly and conspicuously
stamped or otherwise permanently marked thereon in a manner ap-
proved by the department a word or words indicating that such torpedo
or other explosive is dangerous.
Section 103. Wlioever unlawfully and intentionally injures, molests
Injury to
signals.
p^s^'m §207 or destroys any signal of a railroad corporation or railway company,
1884,5.
1899, 252.
R. L. 111.
§262.
1906, 463, I,
§§ 65, 68.
or any line, wire, post or other structure or mechanism used in connec-
tion with such signal, or prevents or in any way interferes with the
proper working of such signal, shall be punished by a fine of not more
than five hundred dollars or by imprisonment for not more than two
years, or both.
Throwing mis-
siles, etc
R. L. Ill
§260.
1906, 463, I,
§§ 66, 63.
145 Mass. 403,
575.
Section 104. Whoever wilfully throws or shoots a missile at a locomo- 1
Kl\'n2°§206. tiv6 engine, or railroad or railway car or train, or at a person on such 2
engine, car or train, or in any way assaults or interferes with a con- 3
ductor, engineer, brakeman, or motorman, while in the performance of 4
his duty on or near such engine, car or train, shall be punished by a 5
fine of not more than one hundred dollars or by imprisonment for not 6
more than one year, or both. A person so offending may be arrested 7
without a warrant by an officer authorized to serve criminal process, 8
and kept in custody in jail or other convenient place not more than 9
twenty-four hours, Sundays and legal holidays excepted, at or before the 10
expiration of which time he shall be taken before a proper court or mag- 1 1
istrate, and proceeded against according to law. 12
General juris-
diction, powers,
etc., of tlie de-
partment not
to be limited,
1913, 784, § 29.
224 Mass. 463.
Op. A. G.
(1920).
general jurisdiction and POWER.S OF THE DEPARTMENT.
Section 105. The jurisdiction, powers, authority and discretion dele- 1
gated to the department by sections ten to twenty-six, inclusive, of this 2
chapter and section one hundred and eighty-five of chapter one hundred 3
and sixty shall not be limited by other provisions of law contained in 4
chapters one hundred and fifty-nine to one hundred and sixty-three, 5
inclusive, or in chapter one hundred and sixty-six, nor shall such pro- 6
visions prevent the department from exercising to the fullest extent such 7
jurisdiction, powers, authority and discretion. 8
CHAPTER 160,
RAILROADS.
Sect.
1. Definitions.
2. Application to certain matters arising
in Boston.
CORPORATIONS SUBJECT TO THE PROVISIONS
OF THIS CHAPTER.
3. Corporations subject to this chapter.
4. Corporation chartered by concurrent
legislation.
Sect.
5. Corporation or trustees operating rail-
roads of other corporations.
RIGHTS RESERVED BY THE COMMONIVEALTH.
6. Rights reserved by commonwealth.
7. Commonwealth may take railroad.
SPECIAL CH.\RTERS.
S. Petition for charter to be accompanied
by report of engineer, map, etc.
Chap. 160.]
RAILROADS.
1697
Sect.
9. Plans, etc., to be deposited in state
library.
10. Petition not to be acted upon until
notice, etc.
11. Railroad to be "within limits specified.
12. Chartered railroads to be located, etc..
under this chapter.
INCORPORATION UNDER GENER.\I, LAWS.
13. Incorporation of railroad corporations.
14. Agreement of association, corporate
name, etc.
15. Associates' authority.
16. Publication of agreement of associa-
tion.
17. Certificate of public convenience and
necessity.
18. Map of route, report of engineer and
estimates.
19. Submission of map, etc., to board of
aldermen, etc.
20. Route may be agreed upon.
21. Proceedings on failure to agree.
22. Spurs and branches.
23. Certificate, map and report to be de-
posited with department.
24. Certificate of compliance. Filing.
Certificate of incorporation. Form
of certificate. Certificate to be re-
corded.
25. Increase and reduction of capital
stock. Change of gauge regulated.
26. Proceedings void.
27. Limit of time for construction of rail-
road.
28. Capital stock of narrow gauge rail-
roads.
ORGANIZATION.
^9. First meeting of incorporators.
30. Organization.
OFFICERS.
31. Officers.
32. Election of officers.
MEETINGS.
33. Meetings of stockholders; notice,
quorum, etc.
34. Special meetings.
35. Voting rights of corporation upon its
own stock.
36. Voting rights of stockholders.
37. Meetings of directors.
CAPITAL STOCK.
38. Stock certificates.
39. Assessments upon shares.
40. Collection of assessment.
41. Purposes for which capital stock may
be increased.
42. Forfeiture for unauthorized increase of
capital stock.
43. Preferred stock, issue of.
Sect.
44. Designation of preferred stock, etc.
45. Preferred stock; voting power, limi-
tation on amount.
46. Preferred stock to be offered to stock-
holders, etc.
ISSUE OF STOCK, BONDS, ETC.
47. Issue of capital stock, bonds, coupon
notes, and other evidences of in-
debtedness.
48. Approval of issue of bonds, coupon
notes and other evidences of in-
debtedness. Penalty.
BONDS AND MORTGAGES.
49. Registered bonds.
50. Securities collectible.
51. Trustees entitled to possession may
contract with corporation to oper-
ate railroad.
52. Trustees in possession to call annual
meetings.
53. Election and confirmation of trustees.
54. Equity jurisdiction of supreme judi-
cial court.
55. Rights of purchaser under foreclosure.
STOCK AND SCRIP DIVIDENDS.
56. Stock or scrip dividends forbidden,
when.
57. Liability of directors.
CONNECTING RAILROADS.
58. Connecting railroad companies may
use each other's roads.
59. Compensation for drawing cars.
60. Determination of rates for drawing
cars, etc.
61. Connecting roads chartered by other
roads.
62. Connecting companies may contract
that one shall perform all transpor-
tation for the other.
63. Term of lease not to exceed ninety-
nine years.
TAKING SECURITIES OP OTHER CORPORA-
TIONS.
64. Taking securities of other corpora-
tions.
65. Stock in a telegraph company.
66. Guaranty of bonds of steamship com-
panies.
67. Railroad corporation may become
associate in grain elevator corpora-
tion.
68. Connecting roads may guarantee each
other's bonds.
69. Railroad corporations may aid in con-
struction of branches, etc.
70. Railroad companies may invest in se-
curities of terminal companies; may
operate steamship companies, docks,
etc.
1698
EAILKOADS.
[Chap. 160.
Sect,
consolidation of railroad companies
restrained.
71. Corporations owning, etc., railroad not
to acquire stock in domestic rail-
road.
72. Department to pass on consolidation
and report to general court.
73. Rates not to be increased or facilities
diminished by consolidation.
74. Penalties.
LOCATION AND CONSTRUCTION OP RAILROAD.
Conditions Precedent.
75. Establishing method for crossing liigh-
ways.
76. Prerequisites to use of land for rail-
road.
77. Location not to be within three miles
of state house.
Purchase of Land.
78. What may be purchased.
79. Location of purchased land.
Taking by Eminent Domain.
SO. Filing of location.
81. Change of location to avoid grievous
damage.
82. Taking of land for location of tracks.
83. Taking of property for other purposes.
84. Taking land of other railroads, etc.
Change of Location.
85. Improvement of alignment.
86. Direction of road may be varied.
Miscellaneous.
87. Land outside limit taxable.
88. No prescriptive right in land of cor-
poration.
89. Rules as to form, etc., of records, etc.
Embankfnents, Fences, etc.
90. Fencing.
91. Construction, etc., of embankments
may be ordered.
92. Enforcement of order.
93. Fences.
94. Cost of fencing, how recovered from
person liable.
Crossings.
95. Separation of grade crossings by agree-
ment.
96. Crossings of one railroad with another,
or over navigable waters.
97. Railroad crossing a highway not to ob-
stnict the same.
98. Space under bridge regulated.
99. Agreements with cities and towns as
to wearing surfaces of bridges and
approaches.
Sect
100.
101.
102.
103.
104.
105.
106.
107.
108.
109.
110.
111.
112.
113.
114.
Highway may be raised or lowered
under direction of county commis-
sioners.
Course of highway may be altered.
Crossing public way at a level.
Rails to be protected at highway
crossing.
When highway may be laid out across
a railroad.
Alterations of canals.
Obstructions and repairs at crossings.
Repairs of bridges, etc.
County commissioners to have juris-
diction of obstructions.
Severance of private land by crossing.
Access to land cut off by railroad.
Appeal from county commissioners.
Appeal from proceedings thereon.
Hearing of appeal; powers of depart-
ment.
Right of crossing not acquired by pre-
scription.
BRANCHES AND EXTENSIONS.
115. Branches and ext«nsions.
116. Switch connections.
117. Switch connection, control by depart-
ment.
OPENING RAILROAD FOR USE.
lis. Road not to be opened for public use
until, etc.
119. When road is opened for public use,
map, etc., to be filed.
EQUIPMENT AND OPERATION.
Drawbridges.
120. Draw tender.
121. Drawbridges to be kept closed, except.
122. Passage of vessels, how regulated.
123. Drawbridge signals.
124. Drawbridge gates.
125. Engineer to see that drawbridge is
closed.
126. Penalty on corporations, etc., for
neglect.
127. Penalty for obstructing draw tender,
etc.
Stations.
128. Abandonment of passenger stations
regulated.
129. Relocation of stations and freight
depots.
130. Way stations to be indicated by signs.
131. Compensation for joint occupation,
Sivitches, Bridge Guards, etc.
132. Safety switches.
133. Blocked switches.
134. Bridge guards.
Chap. IGO.
RAILROADS.
1699
Signals, etc., at Crossings.
135. Stopping of trains at grade crossings.
136. Department may prescribe rules for
crossings.
137. Interlocking signals.
138. Bell to be rung or whistle sounded.
1.39. Sounding of whistles regulated.
140. Signboards at crossings of ways.
141. Signboards at crossings of traveled
places.
142. Warning signs to be erected by coun-
ties, etc.
143. Warning signs furnished by railroads.
144. When signs impracticable.
145. Penalties.
146. Penalty for removing, etc., sign.
147. Gates, etc., at crossings.
148. Penalty. .
149. Signals at overhead cros-sings.
150. Removal of standing wood at cross-
ings.
151. Pen.ilty on corporation for obstruct-
ing highways, etc.
152. Occupation of ways by cars regulated.
EQUIPMENT OF ENGINES AND CARS.
153. Electricity a motive power.
154. Brakes and brakemen.
155. Safety appliances for freight trains.
156. Safety couplers on freight cars.
157. Automatic couplers for freight cars.
158. Grab irons.
159. Standard height of draw bars for
freight cars.
160. Penalty.
161. Limitation of preceding sections.
162. Extension of time for equipment.
163. Tools to be carried with trains.
164. Safeguards against fire.
165. Heating of cars regulated.
166. Passenger cars not to be lighted by
explosive oils.
167. Platform gates.
168. Testing of locomotive boilers.
169. Mufflers with vacuum brakes.
170. Mufflers for safety valves.
171. Penalties.
172. Reasonable accommodations.
173. Women, etc., in smoking cars.
174. Drinking water.
175. Penalty.
176. Further appliances.
EMPLOYEES.
177. Uniform caps and badges for em-
ployees.
178. Color blindness, examination for.
179. Experience required of locomotive en-
gineer.
ISO. Experience required of conductor.
181. Promoting, etc., violation of two pre-
ceding sections forbidden.
182. Exceptions.
Sect.
183. Penalty.
184. Rest days required for certain em-
ployees.
185. Department to regulate train crews.
fares, tolls, charges, etc.
186. Rates of fare, how established and
revised.
TR.INSPORTATION OF PASSENGERS.
187. Conveyance of passengers at reduced
rates.
188. Extra fares regulated.
189. Mileage tickets, coupons to be de-
tached.
190. Commutation tickets between Boston
and stations within fifteen miles.
191. Deposit of season tickets.
192. Reimbursing season ticket holder for
fare paid.
193. Season tickets for express messengers.
194. Baggage checks.
195. Storage of baggage from Friday to
Monday.
196. Bicycles as baggage.
197. Cheap morning and evening trains.
198. Workingmen's trains.
199. Free passes to state officers forbidden.
200. Passes to former employees.
TRANSPORT.ITION OF MAILS.
201. Mails to be transported on request.
202. Compensation for carrying mails.
203. Revision of rates.
TRANSPORTATION OF MERCHANDISE.
204. Receipts to shippers of merchandise.
205. Equal facilities for transportation.
206. Equal facilities to local expressmen.
207. Merchandise to be forwarded
promptly.
208. Charges for transportation of freight.
209. Penalties on corporations.
210. Freight differential against Boston for-
bidden.
211. Discrimination in freight rates for-
bidden.
TRANSPORTATION OF MILK.
212. Transportation of milk.
213. Tariff for milk.
214. Penalties.
CH.^NGE OF NAME.
215. Change of name.
216. Certificate of vote to l>e filed with sec-
retary.
217. Rights and liabilities under new name.
OFFENCES AND PENALTIES.
218. Walking on track.
219. Loitering in station.
220. Unlawful riding upon locomotive.
1700
RAILEO.AJDS.
[CiLiP. 160.
Sect.
221. Fees of officers.
222. Riding or driving beasts on railroad.
223. Negligence in permitting beast on
railroad.
224. Neglect to close gates at private
crossing.
225. Malicious injury to railroad, etc.
226. Obstructing engine or car, etc.
227. Wilfully stopping train.
228. Tampering with tools.
ACCIDENTS.
229. Liability to town for personal injury.
230. Penalty on engineer, etc., for negli-
gence.
231. Penalty for gross negligence in man-
agement of trains.
232. Liability for damages in case of colli-
sion at grade crossings, etc.
233. Xon-liability for acts of e.\pressmen.
234. Loss by fire caused by engine.
235. Spark arresters.
236. Clearing land adjoining track
237. Engineer, etc., to give notice of fire.
Sect.
238. Employees to extinguish fires.
239. Employees to be instructed and pro-
vided with means to fight fires.
240. Railroad not to enter public park.
241. Liability to city or town for fire.
BOOKS AND EETORNS.
242. Books, accounts and annual returns.
243. Quarterly returns.
244. Lessee of road to make returns re-
quired of lessor.
RAILROADS FOR PRIVATE USE.
245. Railroads for private use.
246. Regulation of crossings.
CORPORATIONS TO CONSTRUCT RAILROADS
IN FOREIGN CODi}tRIES.
247. Corporations to construct railroads in
foreign countries.
248. Agreement of association.
249. Certificate of compliance with require-
ments.
250. Increase or reduction of capital stock.
251. Statutes governing such corporation.
252. Enforcement.
Definitions.
1874, 372, § 2.
P. S. 112. § 1.
1892, 110.
1898, 578, § 1.
1901, 503.
R. L. Ill, § 1.
1906, 463, II,
§U,258.
1913, 784, § 1.
1919, 350,
§117.
190 Mass. 123.
196 Mass. 329.
200 Mass. 551.
Section 1. The following words as used in this chapter, unless the 1
context otherwise requires, shall have the following meanings: 2
"Board of aldermen" or "selectmen" includes the board or other 3
authority exercising the powers of a board of aldermen or of selectmen ; 4
but nothing herein shall be construed as affecting the veto power of a 5
mayor of any city. 6
"Department", the department of public utilities. 7
"Public way", any way laid out by public authority. 8
"Railroad", a railroad or railway of the class usually operated by 9
steam power. 10
"Railroad corporation", the corporation which lays out, constructs, 11
maintains or operates a railroad of the class usually operated by steam 12
power. 13
"Railroads and railways", all railroads and railways except tramways 14
in mines and marine railways. 15
Application to
certain matters
arising in
Boston.
1874, 372, § 5.
1881,91, § 1.
P. S. 112, § 2.
1885, 194, § 2.
R. L. Ill, § 2.
1906, 463,
II, §§2.258.
1909, 4S6, J 1.
Section 2. The duties impo.sed by this chapter upon county com-
missioners as a tribunal of original jurisdiction relative to the fixing of
routes or to the location, construction, maintenance and operation of
railroads shall, in Boston, unless it is otherwise expressly provided, de-
volve upon the city council of said city. The duties imposed upon the
county commissioners by reference or appeal from the board of aldermen
shall, in cases arising in Boston, devolve upon the department.
Corporations
subject to this
chapter.
R. S. 39, 5 45.
G. S. 63, I 1.
1874, 372, § 4.
P. S. 112, § 3.
CORPORATIONS SUBJECT TO THE PROVISIONS OF THIS CH-IPTER,
Section 3. Railroad corporations established in the commonwealth
shall be subject to this chapter and chapter one hundred and iifty-nine
which, so far as inconsistent with charters granted since March eleventh,
eighteen hundred and thirty-one, shall be an alteration and amendment
Chap. 160.] railro.^ds. 1701
5 thereof; but this section shall not impair the validity of any special ftige les'^^'
6 power heretofore conferred by charter or other special act upon a particu- 'J.,^).^' ^^™
7 lar railroad corporation which had exercised such power before February
8 first, eighteen hundred and seventy-five, or prevent the continued exer-
9 cise thereof conformably, so far as may be, to this chapter and chapter
10 one hundred and fifty-nine.
1 Section 4. A railroad corporation chartered by the concurrent legis- Corporation
2 lation of this and other states shall, as regards any portion of its rail- conclfrr^t'*
3 road lying within this commonwealth, be entitled to all the benefits 'i^|74.^372°'
4 and be subject to all the liabilities of the railroad corporations of this |.^|'iio ^4
5 commonwealth. r. l. 111, §4. 1900, 463, 11, §§ 4, 258.
1 Section 5. If a railroad which has been laid out and constructed Corporation or
2 by one corporation is lawfully maintained and operated by another cor- atmg railroads
3 poration, the latter corporation shall be subject to the provisions of this Nation" ''°^°'
4 chapter and chapter one hundred and fifty-nine respecting or arising ks'uI.'I^
5 from the maintenance and operation of such railroad, as if such railroad fgosjes; ^ ^'
6 had been laid out and constructed by it. If a railroad is lawfully main- U'.^i*' ^?,-n
,,,,.,. *^. 1/4 Mass. .5 J 9.
7 tamed and operated by trustees, they shall in like manner be subject
8 to the provisions of law respecting or arising from the maintenance and
9 operation of such railroad which apply to the corporation for whose
10 stockholders or creditors they are trustees.
EIGHTS RESERVED BY THE COMMONWEALTH.
1 Section 6. This chapter and chapter one hundred and fiftv-nine shall Rights reserved
-. ..,., rt, ,1 ,^ ,.by common-
2 not impair the rights or the commonwealth as asserted or reserved in wealth.
3 previous statutes, and the commonwealth may, at any time during the g: si ea, § iss.
4 continuance of the charter of a railroad corporation after the expiration JstI,' 372,^ ^*'
5 of twenty years from the opening of its railroad for use, purchase of the p^i'iilf"'
6 corporation its railroad and all its franchise, property, rights and priv- |j5 ^ ^j.
7 ileges by paying therefor such amount as will reimburse to it the amount }?°|i*g4
8 of capital paid in, with a net profit thereon of ten per cent a year from
9 the time of the payment thereof by the stockholders to the time of the
10 purchase.
1 Section 7. The commonwealth may, at any time after one year's common-
2 written notice to a railroad corporation, take its railroad, franchise and ta1fe'rai"oad.
3 other property by eminent domain under chapter seventy-nine. ^*'^°' ^^^- ^ ^•
1874, 372, § 181. R. L. ill, 5 7.
P. S. 112, I 8. 1906, 463, II, §§ 7, 258.
SPECIAL charters.
1 Section 8. A petition to the general court for a charter for a railroad ^ha^t'e"r°ti°be
2 corporation shall not be acted upon, unless accompanied by such a map accompanied
3 of the route aiirl by such a report of a competent engineer, as is specified engineer, map,
4 in section eighteen. is33, i76. r. s. 39, §46.
1848,327,5 1. G. S. 63. §13. R. L. 111. § 30.
1849, 131, § 2. P. S. 112. 5 29. 1906, 463, II, §§ 8, 258.
R. L. Ill, § 6.
"' 1,
258.
Section 9. Plans and profiles presented to a committee of the general tl^J'' osfted"
1
2 court in the hearing of a petition for such a charter shall be deposited by ilfH^o*'^'"^'
3 it in the state library. g. s. 63, § i4.
p. S. 112, §30. R. L. Ill, § 31. 1906, 463, II, §§ 9, 258.
1702
EAILROADS.
[Chap. 160.
Petition not
to be acted
upon until
notice, etc.
1S33, 176.
R. S. 39, § 47.
G. S. 63. § 15.
P. S. 112, §31.
R. L. Ill, §32.
Section 10. Such petition shall not be acted upon, until notice
thereof has been published according to law, designating the route with
such certainty as to give reasonable notice to all persons interested therein
that their rights may be affected by the granting of the petition, and
that they may have an opportunity to appear and object thereto.
1906,463,11, §§ 10, 258.
Railroad to be
within limits
specified.
R. S. 39, § 48.
G. S. 63, § IB.
P. S. 112, § 32.
R. L. Ill, § 33.
1906, 463, II,
§§11,258.
Section 11. Every charter shall confine the railroad within the 1
limits indicated by the notice required in the preceding section, shall 2
specify the several cities and towns through which the railroad may 3
pass, and shall otherwise designate the route thereof with as much cer- 4
tainty as the nature of the case will admit. 5
Chartered
railroads to be
located, etc.,
under this
chapter.
1874, 372, § 33.
P. S. 112. § 33.
1882, 265, § 3.
R. L. Ill, §34.
1906, 463. II,
§§12, 2S8.
Section 12. The route of the railroad of a corporation established 1
by special charter, and of its branches and extensions, shall be fixed ac- 2
cording to sections twenty and twenty-one except so far as they may 3
have been fixed by special statute; and such railroad, branches and ex- 4
tensions shall be located and constructed according to the provisions of 5
tliis chapter regulating the location and construction of railroads by cor- G
porations incorporated under general laws, except that section seventeen 7
shall not apply, if authority so to locate and construct has been granted 8
by special act of the general court. 9
Incorporation
of railroad
corporations.
1872, 53, § 1.
1874, 372, § 19.
P. S. 112, § 34.
INCORPORATION TNDER GENERAL LAWS.
Section 13. Fifteen or more persons may associate themselves by a 1
written agreement of association with the intention of forming a railroad 2
corporation. R. l. in, §35. 1906, 463, ii, §§ 13,258. 3
Agreement of
association,
corporate
name, etc.
1872, 53,
§§2-4.
1874, 298;
372, §§20,21.
1878,2.36, § 1.
P. S. 112,
§§ 35, 36.
1891, 257, § 1.
R. L. 109, § 8;
111, §§36,37.
1906,463. II,
§§ 14, 258.
Section 14. The agreement of association shall state: 1
(a) That the subscribers thereto associate themselves with the inten- 2
tion of forming a railroad corporation. 3
(b) The corporate name assumed, which shall be one not in use by any 4
other railroad corporation in the commonwealth, or, in the judgment of 5
the department, so similar thereto as to be likely to be mistaken for it, 6
and which shall contain the words, "railroad corporation", at the end 7
thereof. 8
(c) The termini of the railroad. 9
(d) The length of the railroad, as nearly as may be. 10
(e) The name of each county, city and town where the railroad is to be 11
located. 12
(/) The gauge of the railroad, which shall be either four feet eight and 13
one half inches, or three feet. 14
{g) The total amount of the capital stock of the corporation, which 15
shall be not less than ten thousand dollars for each mile, if the gauge is 16
four feet eight and one half inches, and not less than five thousand dollars 17
for each mile, if the gauge is tlu-ee feet. 18
(/() The par value of the shares, which shall be one hundred dollars. 19
(i) The names and residences of at least five persons, who shall be sub- 20
scribers to the agreement of association, to act as directors until others 21
are chosen and qualified in their stead. 22
Each associate shall subscribe to the agreement of association his name, 23
residence, post office address, and the number of shares of stock which 24
Chap. 160.] e.\ilroads. 1703
25 he agrees to take; but no subscriber shall be bound to pay more than
26 ten per cent of the amount of his subscription unless a corporation is
27 incorporated.
1 Section 15. The associates may from time to time, at a meeting called ^^^^°^'^1*«,^'
2 therefor, reduce the amount of the capital stock, but not below the limit i|72, m § 4.
3 prescribed in the preceding section; and they may, in like manner, change §2i.'
4 the gauge of their railroad to the other gauge allowed by said section, r. l. iii,§37.
5 The directors shall appoint a clerk and a treasiu-er, who shall hold their §§"15*258."'
6 respective offices until a clerk and a treasurer of the corporation are chosen
7 and qualified in their stead. The directors shall fill any vacancy in their
8 board, or in the office of clerk or treasurer, before the organization of the
9 corporation.
1 Section 16. The directors, before fixing the route of the railroad as Publication of
2 hereinafter provided, shall publish a copy of the agreement of association tfJocSTion"
3 in a newspaper, if any, published in each of the cities and towns where iItI] 372,^^22.
4 the railroad is to be located, and if, in any county, a newspaper is pub- ^- ^ \n' \%
5 lished in none of said cities and towns therein, in such newspaper pub- ll^^oJi'^'
6 lished in said county as shall be designated by the department, at least
7 once in each of three successive weeks; and, three weeks before fixing
8 said route, shall also post a copy of said agreement in two or more public
9 places in each of said cities and towns where said railroad is to be located;
10 and the sworn certificate of the clerk shall be conclusive evidence of such
11 publication and posting.
1 Section 17. After compliance with the provisions of sections thir- Certificate of
2 teen to sixteen, inclusive, and within thirty days after the first publica- ?emence and
3 tion of notice of the agreement of association therein required, the ?88f^205, § 1.
4 directors therein named shall apply to the department for a certificate fgoo; 40.3, iit°
5 that public convenience and necessity require the construction of a 5§ is. 253.
6 railroad as proposed in such agreement. If the department refuses to
7 issue such certificate, no further proceedings shall be had, but the appli-
8 cation may be renewed after one year from the date of such refusal.
1 Section 18. The directors shall prepare a map of the route on an Map of route,
2 appropriate scale, with a profile thereof on a vertical scale of ten to one gmeer and"
3 as compared with the horizontal scale, and shall procure the report of is72','53f§ 6;
4 a competent engineer, based on actual examination and siu-vey, showing IsvifsT^, §23.
5 the kind and amount of excavation, fiUing, bridging and masonry re- RLVnUg-
6 quired, the grades, the number of public ways and of other railroads, ll^JVIfc"'
7 and of navigable streams and tide waters, to be crossed, and the man-
8 ner of crossing the same, the general profile of the surface of the country
9 through which the railroad is to pass, the feasibility of the route, the
10 manner of constructing the railroad, and a detailed estimate of the cost
11 of construction.
1 Section 19. The directors shall submit said map and report to the Submission of
2 board of aldermen of every city and to the selectmen of every town boar(i*^of '
3 named in the agreement of association, who shall thereupon appoint a i873™2i', I'a'.
4 time and place for a hearing, of which notice shall be given by publica- r a'ul.'lla.'
5 tion in a newspaper published in said city or town, or if none is pub- fgoe'lwi'i/''
6 Ushed therein, in such newspaper published in the county where said 5§ i^' ^ss.
1704
RAILEO.U)S.
[ClL\P. 160.
city or town is situated as shall be designated by the department, at 7
least once in each of two successive weeks, the last publication to be at 8
least two days before the hearing; and by posting copies of said notice 9
in two or more public places in said city or toi^-n at least two weeks 10
before such hearing. 11
Route may be
agreed upon.
1872, 53, § 7;
180, § 3.
1874, 372, § 25.
P. S. 112, §40.
R. L. 111,5 42.
190fi. 463, II,
§§ 20, 258.
Section 20. If the board of aldermen of a city or the selectmen of a 1
town named in the agreement of association, after such notice, exhibition 2
of the map and the hearing, agree with the directors a? to the said route 3
or as to any route of the railroad in said city or town, they shall in such 4
agreement fix the route, and sign and give to the directors a certificate 5
setting it forth. 6
Proceedings on
failure to
agree.
1872, 53, § S;
180, § 3.
1874, 372, § 2B.
P. S. 112, § 41.
R. L. Ill, § 43,
1906. 463, II,
§§ 21, 258.
Section 21. If they fail so to agree, the directors may petition the 1
department to fi.x the route in said city or town; and the department, 2
after notice to said board of aldermen or selectmen, shall hear the 3
parties, and fix the route in such city or town, and make a certificate 4
setting forth the route as fixed by it, which shall be certified by its 5
clerk to the directors. The costs of the petition shall be paid by the 6
directors. All variations from the route first proposed shall be made 7
upon the map. 8
Spurs and
branches.
1873, 121, § 3.
1874, 372, § 27.
P. S. 112, §42.
R. L. Ill, §44.
1906, 463, II,
§§ 22, 258.
Section 22. The route fixed under the two preceding sections may 1
include such spurs, branches and connecting and terminal tracks in any 2
city or town as may be necessary to enable the corporation conveniently 3
to collect and deliver passengers and freight therein; but no such 4
branches, spurs or connecting or terminal tracks shall be laid longi- 5
tudinally within the limits of a public way without the consent of the 6
board of aldermen or the selectmen, who, in gi^'ing such consent, may 7
impose such conditions as to the location, construction and use thereof 8
as may be agreed upon between themselves and the directors. A cor- 9
poration which owns or operates any such tracks so laid longitudinally in 10
a public way shall, in respect to the same, be liable to the city or town 11
for all loss or damage caused to it by the construction and use of such 12
tracks and by the negligence or default of the agents or workmen of 13
such corporation on such way. 14
Certificate,
map and re-
port to be
deposited with
department.
1872, S3, § 9.
1874, 372, § 2S.
P. S. 112, §43.
R. L. Ill, §45.
1906, 403, II,
§§ 23, 258.
Section 23. When the amount of capital stock named in the agree- 1
ment of association has been subscribed in good faith by responsible 2
persons, and ten per cent of the par value of each share has been actu- 3
ally paid in cash to the treasurer, tlie directors, clerk and treasurer shall 4
annex to the agreement of association their certificate setting forth these 5
facts, and that it is intended in good faith to locate, construct, maintain 6
and operate the railroad upon the route fixed, shall also annex to said 7
agreement the certificate of publication specified in section sixteen, and 8
the several certificates fixing the route, shall present the same for inspec- 9
tion to the department, and shall at the same time deposit in the office 10
of the department the report of the engineer and the map. 11
Certificate of
compliance.
Filing.
Certificate of
incorporation.
Section 24. WTien it is shown to the satisfaction of the department 1
that the requirements of this chapter preliminary to the incorporation 2
of a railroad corporation have been complied with, the clerk of the de- 3
Chap. 160.] railroads. 1705
4 partment, upon its order, shall annex to the agreement of association a is72, 53, § 10.
5 certificate stating that such requirements have been complied with, issi! lei!
6 The directors shall thereupon file the agreement of association, with all r. i;.Vn.V4i3.
7 the certificates annexed thereto, in the office of the state secretary, who, n°§§'24^'25s.
8 upon the paj-ment to him of a fee of fifty dollars, shall receive and pre- ^^ ^'''*''- ■^^°-
9 ser\e the same in form convenient for reference and open to public in-
10 spection, and shall thereupon issue a certificate of incorporation sub-
1 1 stantially in the following form :
COMMONTVEALTH OF MASSACHUSETTS.
Be it known that whereas (names of the subscribers to the agreement of Form of
association) have associated themselves with the intention of forming a corpo-
ration under the name of the (name of the corporation), for the purpose of
locating, constructing, maintaining and operating a railroad (description of the
railroad as in tlie agreement of association), and have complied with the
statutes of this commonwealth in such cases made and provided: Now, there-
fore, I, , secretary of the commonwealth of Massachusetts, do
hereby certify that the persons aforesaid, their associates and successors, are
legally established as a corporation under the name of the (name of the cor-
poration), with all the powers and privileges, and subject to all the duties, lia-
bilities and restrictions, set forth in all general laws which now are or hereafter
may be in force relating to railroad corporations.
In witness whereof, I have hereunto subscribed my official signature, and
affixed the great seal of said commonwealth, this day of ,
in the year
12 The state secretary shall sign the certificate of incorporation, and blKcorded"
13 cause the great seal of the commonwealth to be thereto affixed, and
14 such certificate shall ha\'e the force and effect of a special charter. The
15 state secretary shall also cause a record of the certificate of incorpora-
16 tion to be made, and such certificate, or such record, or a certified copy
17 thereof, shall be conclusive evidence of the existence of such corporation.
1 Section 25. If the capital stock fixed in the agreement of associa- increase and
2 tion is found to be insufficient for the construction and equipment of capit'ai°s'to°k.
3 the railroad, the corporation at a meeting called therefor may, subject of gaSge
4 to section forty-seven, increase the same, from time to time, to the 5s72',''53f § 1.5.
5 amount necessary for those purposes. It may, at a meeting called J|^i|' JS.V | ^^
6 therefor, reduce the amount of the capital stock, but not below the limit p*q''Ao''s ^r
7 prescribed in section fourteen. It may, also, in like manner, change the R. l. 111', §48.
8 gauge to the other authorized gauge; but a corporation organized to 11, §'§20,' 258.
9 construct its railroad on a gauge of three feet shall not change such
10 gauge to four feet eight and one half inches without complying with all
11 provisions of law relative to the capital stock of railroads of the broad
12 gauge; and the fact that such provisions have been complied with shall
13 be shown to the satisfaction of the department, and endorsed by its
14 clerk upon the certificate of such change of gauge before it is filed in the
15 office of the state secretary. A certificate of the increase or reduction
16 of capital or change of gauge shall, within thirty days thereafter, be
17 filed in the office of the state secretary.
1 Section 26. The agreement of association, and all proceedings there- Proceedings
2 imder, including the fixing of the route, shall be \oid, unless the certifi- \si>, 205, § 2.
3 cate of incorporation is issued within one year after the time the route Hio';!463;^ '''
4 is fixed as provided in section twenty or twenty-one. ^^' ^^ ^^' ^^*-
1706
RAILROADS.
ICh.\p. 160.
forcon'stru"tLn SECTION 27. If a Corporation does not begin the construction of its
°sy2%Ti'i6 railroad and expend thereon at least ten per cent of the amount of its
1874; 372 § 30. Original capital stock within two years after the date of its certificate of
r'. l. 111'. §4s. incorporation, and does not complete and open its railroad for use within
li, |'§27,'25S. four years after said date, its corporate powers and existence shall cease.
of^nlrrowgauge SECTION 28. A Corporation which has a railroad bf the gauge of 1
railroads. three fcct shall not begin running its trains, until its paid-up capital stock 2
1874,
§30.
298; 372,
is equal to one half of its cost, including equipment.
p. S. 112, §45. R. L. Ill, §48. 1906,463,11,1
t 28, 238.
First meeting
of incorpo-
rators.
1872,53. § II.
1874,372, §.30.
P. S. 112, §4.5.
R. L. Ill, §48.
1906. 463,
II, §§ 29, 258.
ORGANIZATION.
Section 29. Upon the issue of such certificate of incorporation, the 1
first meeting of the incorporators shall be called by a notice signed by a 2
majority of the directors; and such notice shall state the time, place 3
and purposes of the meeting. A copy of such notice shall, seven days at 4
least before the day appointed for the meeting, be given to each incor- 5
porator or left at his residence or usual place of business, or deposited in 6
the post office, postage prepaid, and addressed to him at his residence or 7
usual place of business, and another copy thereof, and an affida^•it of the 8
clerk that the notice has been duly se^^'ed, shall be recorded with the 9
records of the corporation. If all of the incorporators shall in writing 10
waive such notice, and fix the time and place of the meeting, no notice 11
shall be required. 12
Orffanization.
1851, 133,
§§4,5.
G. S. 61. § 5.
1870, 224, § 10.
P. S. 106, § 20.
R. L. 110, § 19.
1908, 463, II,
§§ 30, 25S.
Section 30. At such first meeting, or at any adjournment thereof,
the incorporators shall organize by the adoption of by-laws, and by the
election, by ballot, of not less than five directors. The clerk appointed by
the directors under section fifteen shall make and attest a record of the
proceedings until the clerk has been chosen and sworn, including a record
of such choice and qualification.
Officers.
1831,
73.
R.S.
39, § 49.
G.S.
63, § 2.
1869,
50.
1874, 372, § 43.
P. S.
112, § 5,5.
Election of
officers.
1831,
72.
R.S.
39, § 49.
G.S.
63, § 2.
1869,
50
1873,
220.
§§ 1-3.
1874.
372, § 43.
P. S.
112,
5§27
■, 28, 55.
R.L.
Ill,
§§ 28, 29, 58.
1906,
463,
II, §1 32, 258.
1918,
257,
§365
1919,
'5.
1920,
2.
OFFICERS.
Section 31. The business of every corporation shall be managed
and conducted by a president, a board of not less than fi^'e directors, a
clerk, a treasurer and such other officers and such agents as the corpora-
tion'by its by-laws shall authorize. R. L- m, § ss.
1906, 463, II, §§ 31, 238. 16 Gr.iy. 407. 117 Mass. 226.
1
Section 32. The directors shall be elected annually by the stock-
holders by ballot, and the president shall be elected annually by and 2
from the board of directors, and the treasurer and the clerk annually 3
by said board. Every director, unless the by-laws otherwise provide, 4
shall be a stockholder. The treasurer may be required to give a bond 5
for the faithful performance of his duty in such sum and with such sureties 6
as the by-laws may prescribe. The clerk, who shall be a resident of the 7
commonwealth, shall be sworn, and shall record all votes of the corpora- 8
tion in a book to be kept for that purpose. The officers of a corporation 9
shall hold oflSce for one year and until their successors are qualified. All 10
other agents and officers shall be chosen or appointed, and all vacancies 11
filled, in the manner prescribed by the by-laws, or, in default of such 12
by-law, by the board of directors. 13
Chap. 160.] railroads. 1707
MEETINGS.
1 Section 3.3. There sliall be an annual meeting of the stockholders, Meetings of
2 and the time and place of holding it, and the manner of conducting it, noUce.quorum.
3 shall be fixed by the by-laws. All meetings of stockliolders shall, unless ff'^g 39 ^ 5;
4 the by-laws otherwise provide, be held in the commonwealth; and shall fsel'g'i'J^
.5 be called, and notice thereof given, in the manner provided in the by-laws ises! loe.
. . 1874 323' 372
6 of the corporation; or, if the by-laws make no provision therefor, shall §40.'
7 be called by the president, and a written notice, stating the place, day r.l. in.Vss.
8 and hour thereof, given by the clerk, at least seven days before such ii,*'§j'33%5s.
9 meeting, to each stockholder by leaving such notice with him or at his ^^°^- ^^*' ^ '•
10 residence or usual place of business, or by mailing it, postage prepaid, and
1 1 addressed to each stockholder at his address as it appears upon the books
12 of the corporation. Unless the by-laws otherwise provide, a majority in
13 interest of all stock issued and outstanding and entitled to vote shall
14 constitute a quorum, but if at any annual meeting or at any other meet-
15 ing held for the purpose of electing officers less than a majority of the
16 stock ils represented, no election of officers shall take place.
17 Notices of all meetings of stockholders shall state the purposes for
18 which the meetings are called. No notice of the time, place or purpose
19 of any regular or special meeting of the stockholders shall be required, if
20 every stockliolder, or his attorney thereunto authorized, by a writing
21 filed with the records of the meeting, waives such notice.
1 Section 34. A special meeting of the stockholders shall be called, ^Pf/^^^gg
2 and a written notice thereof, stating the time, place and purpose of the j?^|'fr''5 5'>
3 meeting, given by the clerk, upon written application of three or more r.l. 111, §56.
4 stockholders entitled to vote, and holding at least one tenth of the capital li, §'§ 35,' 258.
5 stock.
1 Section 35. A railroad corporation shall not, directly or indirectlv. Voting rights
.T , I r 'j J. 1 " oi corporation
2 vote upon any share ot its own stock. upon its own
1843,68,5 2. 1874. 372, §41. R. L. Ill, § 57. ^^°''^'
G.S. 63, §5, P. S. 112, §53. 1906, 463, II, §§ 36, 258.
1 Section 36. Stockliolders entitled to vote shall have one vote for voting rights of
2 each share of stock owned by them. Stockliolders may vote either in R°a sg."^! so.
3 person or by proxy. No proxy dated more than six months before the list; yf: ^ '"
4 meeting named therein shall be accepted, and no such proxy shall be §§5' 6^'
5 valid after the final adjournment of such meeting. 1874, 372, §§ 41,42.
p. S. 112, §§ 53, 54. R.L. Ill, §57. 1906, 463, IT, §§ 37, 258.
1 Section 37. Meetings of the board of directors may be held within Meetinas ot
2 or without the commonwealth. Any meeting of the board of directors laoo.'^s,
3 shall be a legal meeting without notice, if each director, who is absent, "' ^^ ^^' ^^*'
4 by a wTiting filed with the records of the meeting, waives such notice.
capital stock.
1 Section 38. Each stockholder shall be entitled to a certificate, which stock
2 shall be signed by the president and by the treasurer of the corporation, HoBUfs!"'
3 or by such other officers authorized by the by-laws, shall be sealed with "' ^ *"■
4 its seal, and shall certify the number of shares owned by him in such
5 corporation.
1708
RAILRO.'UJS.
[Ch.\p. 160.
Assessments
upon shares-
R. S. 39. § 53.
1852, 303.
G. S. 63,
5§ 8-10.
1874. 372, § 45.
P. S. 112. § 57.
R. L. 111. § 60.
1906, 463,
II, §§ 45, 258.
9 Cush. 5.
1 Gray, 544.
2 Gray, 277.
4 Gray. 61.
5 Gray, 520.
8 Gray, 596.
107 Mass. 507.
110 Mass. 213.
113 Mass. 79.
Collection of
assessment.
1906, 463,
II, § 45.
Purposes for
which capital
stock may be
increased.
1374,351, § 2;
372, 5 48;
384, I 1.
P. S. 112, §60.
1894, 502.
R. L. Ill, §61.
1906. 463,
II, §§ 46, 258.
Forfeiture for
unauthorized
increase of
capital stock.
1871,389.
1874, 372,
§177.
P. S. 112, § 61.
R. L. Ill, §62.
1006. 463,
II, §§ 47, 258.
109 Mass. 99.
142 Mass. 146.
Section 39. The directors may from time to time assess upon each 1
share such amounts, not exceeding in all one hundred dollars on a 2
share, or the price fixed under section fifty of chapter one hundred and 3
fifty-nine, as they think proper, and may direct the same to be paid to 4
the treasurer, who shall give notice thereof to the subscribers. If a sub- 5
scriber has made no pajTaent upon his shares, the directors, thirty days 6
after an assessment has become due, may declare them forfeited, and 7
may transfer them to any responsible person who subscribes for them 8
and pays the assessments then due. If a subscriber neglects, for thirty 9
days after notice from the treasurer, to pay an assessment upon his 10
shares, the directors may order the treasurer, after giving notice of the 11
sale, to sell such shares by public auction to the highest bidder, and, 12
upon the pajment by him to the corporation of the unpaid assessments, 13
of interest to the date of sale and of the charges of sale, the shares shall 14
be transferred to him. If within thirty days after the sale the purchaser 15
does not make said pa\Taent to the corporation, the sale shall be can- 16
celled, and the subscriber shall be liable to the corporation for the un- 17
paid assessments, interest thereon and charges of sale. If the amount 18
so paid by the purchaser to the corporation is more than the amount for 19
which the shares were sold, the subscriber shall be liable to the purchaser 20
for the deficiency; if it is less, the purchaser shall be liable to the sub- 21
scriber for the surplus. 22
Section 40. If a subscriber neglects to pay his assessment for thirty 1
days as provided in the preceding section, the directors may elect to 2
proceed at law against said delinquent subscriber to recover all amounts 3
due and payable by him with interest. If a judgment rendered in an 4
action against a subscriber remains unsatisfied for thirty days, all amounts 5
previously paid by him shall be forfeited to the company and the direc- 6
tors may oft'er such shares for sale as provided in said section. 7
Section 41. A railroad corporation, for the purpose of building a 1
branch or extension, or of aiding in the construction of another railroad, 2
or of taking stock in a grain elevator corporation in the organization of 3
which it is an associate, or of erecting and operating grain elevators within 4
the commonwealth, or of building depots, or of abolishing grade crossings, 5
or of making permanent investments or improvements, or of funding its 6
floating debt, or of refunding its funded debt, or for the payment of 7
money borrowed for any lawful purpose, or for other necessary and lawful 8
purposes, may, from time to time, in accordance with sections forty-seven 9
and forty-eight, increase its capital stock or bonds beyond the amounts 10
fixed and limited by its agreement of association or its charter, or by 11
any special law. 12
Section 42. If a railroad corporation owning a railroad in this com- 1
monwealth and consolidated with a corporation owning a railroad in 2
another state increases its capital stock, or the capital stock of such 3
consolidated corporation, except as authorized by this chapter or chapter 4
one hundred and fifty-nine, without authority of the general court, or 5
without such authority extends its line of railroad, or consolidates with 6
any other corporation, or makes a stock dividend, the charter and fran- 7
chise of such corporation shall be subject to forfeiture. 8
ftOTkl^'ilsue of. Section 43. A railroad corporation organized under the laws of this 1
1902, 441. § 1. commonwealth, or organized under the laws of this commonwealth and 2
CH.A.P. 160.] RAILRO.\DS. 1709
3 of any other state or states may, by vote of two thirds in interest of its 1915,299,
4 common stockholders, at a meeting duly called therefor, with the ap-
5 proval of the department, issue and from time to time increase preferred
6 stock of one or more classes for any lawful purposes for which railroad
7 corporations are authorized to issue or increase their capital stock. Each
8 class of preferred stock shall be entitled to the preferences and rights and
9 shall be subject to the restrictions and limitations fixed by such vote, as
10 approved by the department. Such stock shall be issued subject to all
11 the provisions of the laws of this commonwealth governing the issue of
12 capital stock by railroad corporations.
1 Section 44. Each class of preferred stock issued under authority of °efifr"ed sto?k
2 the preceding section shall be designated by a name approved by the ^'g^^, ^^^ ,
3 department to distinguish it from all other classes of stock of the cor- 1915,' 299,'
4 poration. A certified copy of the vote creating, and of the order of the 1919, 350,
5 department approving the creation of, any class of preferred stock shall
6 be filed in the office of the department and in the office of the commis-
7 sioner of corporations and taxation. Every certificate of stock issued
8 by a railroad corporation after the approval by the department of the
9 creation by it of preferred stock shall contain a reference to all votes cre-
10 ating preferred stock and a brief description of the respective preferences,
11 rights and restrictions of each class of said stock.
1 Section 45. Any preferred stock issued under authority of section Preferred
2 forty-three shall have the same voting power as the common stock, except power. Um'Sf-
3 that, in any case, there may be such limitations of the voting power of the i'9i5°299?™3°*'
4 preferred stock as the department approves and finds to be consistent
5 with the adequate protection of the public interest. The aggregate
6 amount at par of preferred stock of all classes issued by a railroad cor-
7 poration shall at no time exceed twice the amount at par value of its
8 outstanding common stock, and no class of preferred stock shall be
9 created which is not, in a manner approved by the department, made
10 subordinate in respect to dividends or to participation in the proceeds of
11 liquidation to the preferences of every previously created class of pre-
12 ferred stock.
1 Section 46. Upon any issiie of preferred stock the new shares shall, fo'^^b"off'ered°to
2 unless the common stockholders shall, with the approval of the depart- stockholders,
3 ment, otherwise provide, first be offered to the common stockholders in wis, 299, § 3.
4 the manner prescribed in sections fifty and fifty-one of chapter one hun-
5 dred and fifty-nine, including the holders of such of its evidences of
6 indebtedness outstanding as on their face entitle the holders thereof
7 to participate in the right to subscribe to such shares; and any shares
8 of the preferred stock which shall not have been duly subscribed and
9 paid for by the common stockliolders or their assigns and by holders of
10 such evidences of indebtedness, and all of the preferred shares, if the
11 common stockholders so determine and the department approves, may
12 be sold in the manner and subject to section fifty-one of chapter one
13 hundred and fifty-nine, or in any other manner, at not less than par,
14 which the department may approve. In case of any increase in the
15 common stock of the corporation, holders of preferred stock shall be en-
16 titled to have offered to them shares of the new stock in the maimer pro-
17 vided in sections fifty and fifty-one of chapter one hundred and fifty-
1710
RAILBO.VDS.
[ClL^.P. 160.
nine, \vhene\er the vote creating such preferred stock as approved by 18
the department shall so provide. 19
Issue of capital
stock, bonds,
coupon notes,
and other
e\ndences of
indebtedness.
1S54, 286,
§§ 1,3.4.
G. S. 63.
§§ 120, 121,
123.
1869, 131, § 1.
1874, 372,
§§49, SI.
1875, 58.
1876, 170.
P. S. 112,
§§ 62, 64.
1887, 191.
18S9, 316, § 2.
1897, 337.
R. L. 109. § 25:
111, §§ 63, 65.
1906, 463,
II. §§ 48.
50, 66, 25S.
1912, 725.
II, §§ 4, 5.
1913. 784,
§§ 15, 16.
1915, 303.
10 Allen, 448.
157 Mass. 37.
216 Mass. 432.
ISSUE OF STOCK, BONDS, ETC.
Section 47. A railroad corporation may issue shares of capital stock,
bonds, notes or other evidences of indebtedness, for the purpose of funding
its floating debt or for any other lawful purpose, and may mortgage or
pledge as security for the payment of such indebtedness a part or all of
its railroad, equipment and franchise and a part or all of its real and per-
sonal property, including property to be afterward acquired. Any mort-
gage executed by a railroad company shall secure, on equal terms with
any other indebtedness secured by such mortgage, all bonds, notes and
other evidences of indebtedness previously issued and then outstanding
of which such corporation is the maker or which it has assumed tlirough
merger or consolidation with the original and principal obligor, except
outstanding bonds, notes or other evidences of indebtedness while and
so long as the same are, in accordance with any promise contained therein,
secured by another direct mortgage; but the term "mortgage" as used
herein shall not include or apply to the pledge of securities deposited with
a trustee as collateral to secure the repayment of a loan. Its bonds, notes
or other evidences of indebtedness, payable at periods of more than one
year from the date thereof, may be issued by any such corporation to
an amount which, when added to the amount of all its then outstanding
bonds, notes or other e\-idences of indebtedness, payable at periods of
more than one year from the date thereof, of which it is the maker or
which it has assumed, shall not cause the aggregate amount of all such
bonds, notes and other evidences of indebtedness to exceed the amoimt
of the capital stock of the corporation actually paid in at the time, as
determined under section fifty-three of chapter one hundred and fifty-
nine, unless any excess above such amount shall have been previously
approved by the department as consi.stent with the public interest, taking
into consideration the fixed charges of such corporation, the amount and
character of its contingent liabilities and other pertinent conditions; but
in no event shall the aggregate amount of all bonds, notes or other evi-
dences of indebtedness of which it is the maker or which it has assumed
exceed twice the amount of said capital stock as determined as aforesaid;
but such of the bonds issued or to be issued under a mortgage as are de-
posited to retire, at or before maturity, bonds or other evidences of in-
debtedness previously issued and outstanding at the date of such mort-
gage, while so deposited, shall not be taken into account in applying
these limitations. No bonds, coupon notes or other evidences of indebt-
edness payable at periods of more than"'one year from the date thereof
shall be issued unless authorized by a ^ote of the stockholders at a meet-
ing called for the purpose, and no such bonds, coupon notes or other evi-
dences of indebtedness shall be issued unless countersigned and authenti-
cated by a person or trust company appointed by the corporation for
that purpose.
1
2
3
4
5
6
I
8
9
10
11
12
13
14
15
16
17
IS
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
Approval of
issue of bonds,
coupon notes
and other
evidences of
indebtedness.
Penalty.
1894, 462,
§§ 1. 2.
Section 48. Before any railroad corporation shall issue any shares
of capital stock or any bonds, notes or other evidences of indebtedness
payable at periods of more than one year after the date thereof, it shall
apply to the department for its approval of the proposed issue to such
amount as the department shall determine to be reasonable and proper
Chap. 160.] railro.vds. 1711
6 for the purpose of funding its floating debt properly incurred for lawful ^^l- ^- 5 1-
7 purposes, or reasonable and proper for any other lawful piu-pose set li3'?jJ
S forth in the application for such approval. The department shall render ii. §§ es.'es,
9 a wTitten decision assigning its reasons therefor upon such an applica- 1912, 725,
10 tion within thirty days after the final hearing thereon. Any order of the i9i3.*7S4, § le.
1 1 department approving any such issue of stock, bonds, notes or other 214 MaS: 529;
12 evidences of indebtedness may provide for the application of the pro- 2^2 Mass 35^'
1.3 ceeds thereof to such particular uses as the department shall by that
14 order or by some subsecjuent order specify, and the corporation shall not
1.5 apply such proceeds otherwise than as thus specified in such orders.
16 The decision of the department as to the amount of stock reasonably
17 necessary for the purpose for which such stock is proposed to be issued
15 shall be based upon the price at which such stock is to be issued, and the
19 department shall refuse to approve any particular issue of stock, if, in
20 its opinion, the price at which it is proposed to be issued is so low as to
21 be inconsistent with the public interest. This section shall not require
22 a railroad corporation incorporated under the laws of one or more other
23 states or foreign countries, as well as under the laws of this common-
24 wealth, to apply to the department for approval of the issue of shares of
25 capital stock or of bonds, notes or other evidences of indebtedness for the
26 sole ultimate purpose of providing funds for additions to or improvements
27 of property of such corporation or of any corporation controlled by it
28 through lease or stock ownership, if such property has a situs in another
29 state or country by the laws of which such railroad corporation is author-
30 ized to operate a railroad therein and to make such additions to or im-
31 provements of such property, nor to apply to the department for approval
32 of the issue of shares of capital stock, bonds, notes or other evidences of
33 indebtedness for paying, funding or refunding indebtedness incurred for
34 such ultimate purpose; but all such proposed issues and the authority
35 therefor shall, before the issue of such securities, be reported to the
36 department. Except for such ultimate purpose, such a railroad corpora-
37 tion shall not, without the approval of the department, issue any shares
38 of capital stock, or any bonds, notes or other evidences of indebtedness
39 payable at periods of more than one year after the date thereof, in ex-
40 change for or to pay for shares of capital stock, notes, bonds or other
41 evidences of indebtedness of any other corporation which are acquired
42 or contracted for; but if the acquisition or holding of such securities by
43 such railroad corporation shall be authorized by the laws of any state
44 or country where it has been incorporated, and shall also be permitted
45 by the laws of the state or country where such other corporation has
46 been incorporated, the department may authorize the acquisition of such
47 securities by such railroad corporation, and may approve the issue of
48 shares of capital stock, bonds, notes or other evidences of indebtedness
49 by such railroad corporation in exchange for or to pay for such securities,
50 provided that the department shall find that such acquisition and the
51 terms thereof are consistent with the public interest. A director, treas-
52 urer or other officer or agent of a railroad corporation, who knowingly
53 votes to authorize the issue of, or knowingly signs, certifies or issues
54 stock or bonds contrary to this or the preceding section, or who know-
55 ingly votes to authorize the application, or knowingly applies the pro-
56 ceeds of such stock or bonds contrary to any provision of said sections,
57 or who knowingly votes to assume or incur, or knowingly assumes or
58 incurs in the name or behalf of such corporation, any debt or liability
59 except for the legitimate purposes of the corporation, shall be punished
1712
RAILROADS.
[Chap. 160.
by a fine of not more than one thousand dollars or by imprisonment for 60
not more than one year, or both. 61
Registered
bonds.
1869, 131,
§§ 2-4.
1874, 372, § 50.
P. S. 112, § 63.
R. L. Ill, § 64.
1906, 463,
II, §§ 49, 258.
BONDS AND MORTGAGES.
Section 49. At the request of the owner or holder of any coupon 1
bonds lawfully issued, the railroad corporation issuing them may issue 2
registered bonds in exchange therefor, upon such terms and under such 3
regulations as its directors may prescribe, and with the consent and ap- 4
proval of the trustees, if any, to whom a mortgage or pledge has been 5
executed; and such registered bonds shall, with the exception of the 6
coupons, correspond in all respects with the coupon bonds for which they 7
are exchanged, and shall be in conformity with all laws authorizing the 8
issue of said coupon bonds. Such exchange shall not affect a mortgage or 9
pledge given as security for the payment of such coupon bonds, and such 10
mortgage or pledge shall remain in full force as security for such registered 1 1
bonds; and the coupon bonds shall be cancelled and destroyed at the 12
same time that the registered bonds are issued in exchange therefor. 13
TOUecttbil Section 50. All bonds or notes issued by a railroad corporation shall 1
^^^'ll'^vy.i be valid and binding, although negotiated and sold by it or its agents at 2
1874, 372, § 52! less than par. p. s. 112. §05. r. l. 111, §66. 1906. 463, 11, §§ 51, 25s. 3
Trustees
entitled to
possession may
contract witli
corporation
to operate
railroad.
1857, 178, § 1.
G. S. 63, § 124.
P. S. 112, § 66.
R. L, 111, §67.
1906. 463,
II, §§ 52, 258.
Section 51. If a railroad corporation, having executed a mortgage 1
of its property, rights and privileges, or of a part thereof, to trustees for 2
the benefit of its general creditors, or of a particular class of creditors, 3
makes default in the performance of the condition of the mortgage, so 4
that the trustees or their successors are entitled to the actual possession 5
and usufruct of the property, rights and privileges therein couA^eyed, in 6
trust for the purposes specified in the mortgage, the trustees, after entry, 7
instead of retaining actual possession of the mortgaged premises and 8
operating the railroad, may contract with the corporation or other compe- 9
tent party to take or retain for them the possession of the mortgaged 10
premises, and to use and operate the same on its own responsibility, 11
accounting with the trustees for the earnings and income, and paying 12
over the profits and net income periodically, when and as far as neces- 13
sary for the performance of the conditions of the mortgage, if a majority 14
in interest of the bondholders or creditors under the mortgage shall so 15
vote, in person or by proxy, at a meeting called therefor, notice of which 16
shall be published ten days before said meeting in two or more daily news- 17
papers published in Boston, and in at least one newspaper published in 18
each county where the railroad is located. All liabilities incurred by the 19
corporation or other party in operating the railroad under such contract 20
shall be held as claims against and be paid out of the income, in the same 21
manner and to the same extent as if the property had remained in the 22
actual possession of the trustees and been operated by them. 23
Trustees in
possession to
call annual
meetings.
1857, 178,
§§2.3.
G. S. 63.
§§ 125. 126.
P. S. 112,
§§ 67. 68.
R. L. Ill, §68.
Section 52. Trustees in possession of a railroad under a mortgage
shall annually call a meeting of the bondholders or creditors for whose
security they hold the railroad in trust, to be held in December, of which
notice shall be given by publication, at least ten days before such meeting,
in two or more daily newspapers in Boston, and in at least one news-
paper in each county where the railroad is located ; and at such meeting
1
2
3
4
5
6
Chap. 160.] railroads. 1713
7 they shall submit a report for the year, similar to the annual report of ii''f5*s'3'258
8 railroad directors to stockholders. If they fail to call such a meeting,
9 five or more bondholders or creditors, whose claims secured by the
10 mortgage amount to not less than ten thousand dollars, may in the same
11 manner call such meeting, to be held in the January following said
12 December.
1 Section 53. At the annual meeting held under the preceding section, Election and
2 the bondholders or creditors, by a majority in interest vote, may, in of'tmstee""
3 person or by proxy, elect three trustees under the mortgage for the ensu- g.^|' 63.^5^27.
4 ing year, and until others are chosen and qualified. And the trustees or ^ ^ y^-j' l||-
5 any of them or a bondholder or creditor may submit the proceedings of ji°<5''ilf'2-o
6 the meeting for confirmation to a justice of the supreme judicial court,
7 in court or at chambers, first giving notice of their intention so to do to
8 the former trustees under the mortgage, to the trustees of all other exist-
9 ing mortgages upon the railroad, and to the corporation, seven days at
10 least before the hearing thereon; which notice may be served by an of-
1 1 ficer or disinterested person. The justice may hear the parties, ratify
12 the election, and enter such decree as he may find necessary to transfer
13 the property to the new trustees; which decree shall be filed in the office
14 of such clerk of the court as the justice may direct.
1 Section 54. The supreme judicial court shall have jurisdiction in Equity juris-
2 equity of all cases arising under the two preceding sections, and of all supreme°judi-
3 questions arising out of railroad mortgages, and may summarily remove i'l57ri78,' § 5.
4 a trustee under a railroad mortgage, whether he is in possession of the p.'|.ii2,V7o.'
5 railroad or not, and appoint a new trustee in his stead. ^- ^- m- § ''°-
1906. 463, II, §§ 55. 25S. 127 Mass. 43. 171 Mass. 239. 21S Mass. 367.
1 Section 55. A purchaser of a railroad at a sale under a valid fore- Rights of
2 closure of a legal mortgage thereof, and his successors in title, shall, rela- SlSer^'fore-
3 tive to the construction, maintenance and operation of said railroad, be 5ssTi42, § i.
4 subject to all the duties, liabilities and restrictions, and have all the fgoe' 463' ^ ^*'
5 powers and rights, which the mortgagor was subject to and had at the ii' §5 S6, 208.
6 time of said sale.
STOCK AND SCRIP DIVIDENDS.
1 Section 56. A railroad corporation shall not declare any stock or stock or scrip
2 scrip di\'idend or divide the proceeds of the sale of stock or scrip among bidden! when"
3 its stockholders; nor shall any such corporation issue any share of stock iln^ssg! ^ ^'
4 to any person unless the par value of the shares so issued is first paid in §*i'7*7^"^'
5 cash to its treasurer; nor shall it without authority of the general coiu-t ^^^^ igl-^ i'^^-
6 increase its capital stock beyond the maximum amount fixed by its R. l' 109,' § 26.
7 act of incorporation, or fixed under sections forty-one, forty-seven and li. §'§ 63,' 258.
8 forty-eight. 214 Mass. 529.
1 Section 57. A certificate of stock or scrip issued in violation of the LiabiUty of
2 preceding section shall be void; and each director of the corporation is6s,'3H), 1 2.
3 issuing it shall be liable to a penalty of one thousand dollars, to be re- ^89^4,350,^2^'
4 covered by indictment in the county where he resides, or, if he resides |^„„^- }9S' 5 ^i-
_ . . , 1 I • 1 rt. 1906, 463,
5 in no county, in the county where he is commorant, or the offence was ii' §§64,258.
6 committed; but if any such director proves, that, before such issue, he §366.
7 filed his written dissent thereto with the clerk, and at no time voted 1920! 2!
8 therefor, he shall not be so liable.
1714
RAILRO.VDS.
[Chap. 160.
Connecting:
railroad com-
panies may use
each other's
roads.
1845, 191.
Ml. 2.
1857, 291,
§§1,3.
G. S. 6.3.
I§ lis, 119.
1872, 5.3, § 12;
180. § 3
1874, 372,
§165.
1876, 182.
P. S. 112, §216.
R. L. 111.
§272.
1906, 46.3,
II, §§ 205, 258.
12 Gray, 393.
CONNECTING RAILROADS.
Section 58. If a railroad constructed after April eighth, eighteen 1
hundred and se^■enty-t^\•o, meets another railroad which terminates in 2
the same city or town, or lawfully crosses another railroad at the same 3
level therewith, the corporation by which either of said railroads is 4
owned may enter its railroad upon, unite the same with and use the 5
railroad of the other; if a railroad constructed after said date meets 6
another railroad which passes through the same city or town, the corpora- 7
tion by which either of said railroads is owned may, with the -RTitten S
consent of the department and upon such terms as the department upon 9
hearing prescribes, enter its railroad upon, unite the same with and use 10
the railroad of the other; and if a railroad corporation whose railroad 11
was constructed prior to said date is specially authorized to enter its 12
railroad upon, unite the same with and use the railroad of another cor- 1.3
poration, each of such corporations may enter upon, unite its railroad 14
with and use the railroad of the other; but no locomotive engine or other 15
motive power not owned and controlled by the corporation owning or 16
lawfully operating the railroad shall be allowed to run upon a railroad 17
except with the consent of such corporation. 18
Compensation
for drawing
cars.
1845, 191, § 2.
1857,291,
§§1.3.
G. S. 63, § 117.
1874, 372,
§166.
P. S. 112, §217.
R. L. Ill,
§273.
1906, 463,
II, §§ 206, 258.
14 Allen, 462.
Section 59. If two corporations are authorized as in the preceding 1
section each to enter its railroad upon, unite the same with and use the 2
railroad of the other, each of them shall at reasonable times and for a 3
reasonable compensation draw over its railroad the passengers, merchan- 4
disc and cars of the other, and each of them shall for a reasonable 5
compensation provide upon its railroad convenient and suitable station 6
accommodations for the passengers and merchandise of the other cor- 7
poration passing to and o\'er it, and shall recei\'e and deli\er the same 8
in the manner in which it receives and delivers its own passengers and 9
freight. 10
Determination
of rates for
drawing cars.
etc.
1845, 191,
§§2-4.
1857,291, § 2.
1858, 10,
G. S. 63.
§§117, lis.
1869, 40S, § 5.
1872, ISO, § 4.
1874, 372,
§167.
P. S. 112, § 21S.
R. L. Ill,
§274.
1906. 463,
II. §§ 207. 258.
9 Cush. 369.
14 Gray, 253,
266.
Section 60. If the corporations cannot agree upon the stated periods 1
at which the cars of one shall be drawn o^er the railroad of the otlier, 2
and upon the compensation to be paid therefor, or upon the terms and 3
conditions upon which accommodations shall be furnished for the pas- 4
sengers and merchandise of the other, or if two corporations operating 5
railroads of different gauges cannot agree as to the requisite terminal 0
accommodations, or as to the manner in which freight and passengers 7
shall be transferred from one railroad to the other and forwarded, the 8
department, upon the petition of either party and after notice to the 9
other, shall hear the parties, and determine, ha\ing reference to the con- 10
venience and interest of the corporations and of the public to be accom- 11
modated thereby, the stated periods for drawing cars, the compensa- 12
tion therefor, the terms and conditions for passengers and merchandise, 13
or the requisite terminal accommodations and manner of transferring 14
passengers and freight as aforesaid; and, upon the application of either 15
party, shall determine all questions between the parties relative to the 16
transportation of freight and passengers and other business upon and 17
connected with said railroads in which they are jointly interested and IS
the manner in which the business shall be done, and shall apportion to 19
the corporations their respective shares of the expenses, receipts and in- 20
come of the same; and the award of the department shall be binding 21
Chap. 160.] railro.ujs. 1715
22 upon the respective corporations for one year and thereafter until the
23 department revises the same; and the compensation of the department
24 for services and expenses under this section shall be paid by the respec-
25 ti\e corporations in such proportions as the department shall determine
26 and set forth in its award. Upon the written request of a party affected
27 thereby, filed with the department within thirty days after the render-
28 ing thereof, the award shall be filed in the supreme judicial court which
29 shall ha\'e jurisdiction to revise it as if it had been made by a commission
30, appointed by said court.
1 Section 61. A railroad corporation created by the laws of another Connecting
2 state shall have all the rights and privileges relative to connecting rail- Sy other''roads.
3 roads, under the three preceding sections, of a corporation created by {^^"[s?!;
4 the laws of this commonwealth. ^ ^®^-
p. S. 112, §219. R. L. Ill, §275. 190G, 463, II, §§ 208, 25S.
1 Section 62. Two railroad corporations, incorporated under the laws Connecting
2 of the commonwealth, and whose railroads enter upon or connect with cOTt?a?t"har^
3 each other, may contract that either corporation shall perform all the "oTnTafi't^an's-
4 transportation upon and over the railroad of the other; and any such fhe^othe".'""^
5 corporation may lease its railroad to any other such corporation; but the 5?^j*:3^^-
6 facilities for travel and business on either of the railroads of said cor- g s. b's,
7 porations shall not thereby be diminished. Such leases shall be upon i872, iso, § i.
8 such terms as the directors agree, and as a majority in interest of the 1874! 372]
9 stockliolders of both corporations at meetings called therefor approve, fssacos, § 1.
10 subject to section fifty-four of chapter one hundred and fifty-nine. 5*§f2o,'2'2i.
11 The income arising from such contracts or leases shall be subject to the J^^l ui' ^ ''
12 provisions of law relative to the right of the commonwealth to purchase § 276. '
13 the railroads of the railroad corporations or to reduce their tolls, in the li, §'§ 209, 238.
14 same manner as that arising from the use of the railroads. Copies of looray, ios.'
15 such contracts or leases shall be deposited with the department, and fuiTa'st^ii;?.
16 full statements of the facts shall be set forth in the next annual return i^op'^AXJ*ii8.
17 of such corporations. This section shall not authorize a lease or con-
18 tract between two railroad corporations, each of which has a terminus
19 in Boston. The railroads of two railroad corporations shall be con-
20 sidered to enter upon or connect with each other, within the meaning of
21 this section, if one of such railroads enters upon, connects with, or inter-
22 sects a railroad leased to the other or operated by it under a contract
23 as herein authorized.
1 Section 63. A railroad corporation shall not lease or contract for Term of lease
2 the operation of its railroad for a period of more than ninety-m'ne years n°nety-ninr
3 without the consent of the general court; but this section shall not ilsa^os, §2.
4 render invalid a lease approved by the stockholders of a corporation r.l.Vh,^^^^'
5 before July first, eighteen hundred and eighty. 1906, 463, 11, §§ 210, 25s. § 277.
taking securities of other corporations.
1 Section 64. A railroad corporation, unless authorized by the gen- Taking securi-
2 eral court or by the six following sections, shall not directly or indirectly c'o,?pora°io".
3 subscribe for, take or hold the stock or bonds of or guarantee the bonds Jot'S; 53^5 17;
4 or dividends of any other corporation; and the amount of the bonds of }|?4,^3|2. § i-,3.
5 one or more other corporations subscribed for and held by a railroad ^ l'VuI??'
171G
Il.ULRO-U)S.
[Ch.\p. 160.
1906. 463,
II, §§ 57, 258.
197 Mass. 194.
198 Mass. 413.
201 Mass. 370.
208 Mass. 644.
233 Mass. 502.
corporation, or guaranteed by it conformably to special authority of 6
the general court or the authority given in said sections, with the 7
amount of its own bonds issued in conformity with sections forty-seven 8
and forty-nine, shall not exceed at any time the amount authorized by 9
said section forty-seven, computed as provided in section fifty-three of 10
chapter one hundred and fifty-nine. 11
stock in a
telegraph
company.
1849, 93, § S.
G. S. 63. § 12.
1874, 372, I 54.
P. S. 112, § 75.
Section 65. A railroad corporation may hold stock in a telegraph 1
company, whose telegraph connects two or more places on the railroad,- 2
to an amount not exceeding two hundred dollars for each mile of rail- 3
road so connected. r. l. iii, § 78. woe, 463, ii, §§ ss, 258. 4
Section 66. A railroad corporation may guarantee, to an amount
not exceeding five per cent of its capital stock, the bonds of any corpora-
Guaranty
of bonds of
steamship
companies.
Jo-?' ?:JZ' I Ii tion incorporated in the commonwealth for the purpose of carrving
18/4,372, § 55. » . , ^ i -i i p i • " j ?
P. s. 112. §76 treight, passengers and mails between any port or this commonwealth
1906.463,' ' and Europe; or, upon adequate security therefor, may issue its own
" bonds to the same amount, conformably to the provisions of sections
forty-seven and fortv-eight.
Railroad
corporation
may become
associate in
grain elevator
corporation.
1874, 384,
§§ 1.2.
P. S. 112,
H 77, 78.
R. L. Ill, §80.
1906. 463,
II, §§ 60, 258.
Section 67. A railroad corporation may become an associate under 1
chapter one hundred and fifty-sLx in the formation of a corporation for 2
the purpose of erecting and operating a grain elevator within the com- 3
monwealth, and may take stoc-k in any elevator corporation so organ- 4
ized, and, at all meetings, and in all transactions of such elevator cor- 5
poration, the president of the railroad corporation, or in liis absence any 6
officer appointed by its board of directors, may represent, act and vote 7
in the name of such railroad corporation. 8
Connecting
roads may
guarantee
each other's
bonds.
1870," 325, § 4.
1871, 384.
1874, 372, § .56.
P. S. 112, §79.
Section 68. If two corporations own and operate connecting raO-
roads, which are wholly constructed, either corporation may guarantee
the bonds of the other, upon such terms and to such an extent as may
be authorized at a meeting called therefor, if the bonds so guaranteed
are issued in conformitv with law. r. l. m. § si. i9oe, 463, ii, §§ 6i, 258.
Railroad
corporations
may aid in
construction
of branches,
1874,351, §4;
372, § 57.
P. S. 112. § 80.
R. L. Ill, §82.
1906, 463,
II, §§ 62, 258.
171 Mass. 239.
Section 69. A railroad corporation may aid in the construction of 1
any branch or connecting railroad witliin the limits of the common- 2
wealth, whether connecting by a railroad or steamboat line, by sub- 3
scribing for shares of stock in such corporation, or by taking its notes or 4
bonds secured by mortgage or otherwise, and may vote on all shares of 5
stock so subscribed for and held; but a corporation shall not so subscribe 6
to an amount in excess of two per cent of its paid-up capital stock, or 7
mortgage its property to secure the loans or sub.scriptions made by any 8
other corporation under this section, except by a vote of a majority in 9
interest of the stockholders at a meeting called therefor. 10
paniermay'ki'- SECTION 70. A railroad Corporation may acquire, hold, vote, sell,
ties SIIt^bI ^nd negotiate the stock and securities of terminal companies organized
m^'^operate undcr the laws of the commonwealth, and may guarantee the bonds of
compan^S such Companies. A railroad corporation may also acquire, hold, main-
docks, etc' tain and operate steamsliip companies, ferries, ferry boats and docks.
1912, 725, II, § 6.
ChaI'. IGO.] RAILROADS. 1717
CONSOLIDATION OF RAILRO.VD COMP.^J»JIES RESTRAINED.
1 Section 71. No corporation owning, leasing or operating a railroad o^m""',!"™
2 wholly or partly in the commonwealth, nor any person or corporation railroad not
3 acting in its interest shall, directly or indirectly, acquire, or attempt to »tock in
4 acquire by purchase, exchange of shares, or in any other way, any shares rSoad"
5 of the capital stock of any domestic railroad company not lawfully §§°i%*.*^'
6 leased, owned or operated by it prior to ISlay first, nineteen hundred
7 and seven, except under specific authority provided by law. No such
8 domestic railroad company, or any officer, director, servant or agent
9 thereof, shall permit or suffer the said corporation or any of its officers
10 or agents to exercise any control whatsoever over the corporate acts of
11 such domestic company, except as hereinafter provided.
1 Section 72. The presidents, or a majority of the boards of directors. Department
2 or the holders of not less than one third in interest of the capital stock of conSfdation
3 two or more railroad corporations, may apply to the department for its eenerXcmirt.
4 determination as to whether the consolidation of the railroads of such i907, sss, §3.
5 corporations is consistent with the public interest. If the department,
6 after public notice and hearing, shall find that such consolidation is con-
7 sistent with the public interest, it shall report its findings to the general
8 court, together with drafts of a law or laws to authorize such consolida-
9 tion upon the agreement of the corporations to be consolidated, and after
10 ratification by a vote of not less than two thirds in interest of the stock-
11 holders in each, and under terms and conditions which will effectually
12 prevent any decrease in the facilities for transportation on the railroad
13 of either of such corporations or any increase in the rates for passengers
14 or freight by the said consolidation, and which will, in the opinion of
15 the department, secure to the commonwealth adequate control over the
16 organization, conduct, and management of the said corporations and
17 railroads, and upon such other terms and conditions as may seem to the
18 department desirable and proper.
1 Section 73. In case of any lease, purchase and sale or consolidation Rates not to
2 as authorized by the preceding section, no rate, fare or charge for trans- „ i2cihtie^
3 portation of passengers or property shall be increased, and no facilities cMsoiidSiom
4 for transportation shall be diminished thereby, nor in connection there- i907, sss, §4.
5 with or as a result thereof shall there be any increase in the aggregate
6 outstanding capital stock or indebtedness of the contracting companies.
1 Section 74. A railroad corporation, which violates any provision of fgof'sis § 0
2 section seventy-one or seventy-two, shall be punished by a fine of ten
3 thousand dollars; and any officer or agent of such railroad corporation
4 who procures, aids or abets such corporation in any violation of said sec-
5 tions, and any partnership, trustee or other person who procures, aids or
6 abets in any violation thereof, shall be punished by a fine of one thou-
7 sand dollars or by imprisonment for not less than six months nor more
8 than one year, or both.
location and construction of railro.^d.
Conditions Precedent.
1 Section 75. No railroad corporation shall purchase or take bv emi- Establishing
_j, PI* 1 method for
2 nent domam or enter upon or use, excei)t tor making surveys, any land crossing high-
3 or other property for the construction of its railroad or of any branch or iSitui, § 1.
1718
RAILROADS.
[Chap. 160.
p. S. 112. 5 94.
R. L. Ill, §98.
1906. 463,
II. §§ 82, 258.
7 Cush. 506.
extension thereof until the county commissioners of the county where 4
such land or other property is situated, after hearing the parties, have 5
determined the manner in which the railroad shall cross the highways 6
and other ways within such county, nor until it has obtained from the 7
department the consent required by sections ninety-seven and one hun- 8
dred and two in all cases in which the county commissioners adjudge 9
that public necessity requires the crossing at the same level; and notice 10
of such hearing shall be given by publication for three successive weeks 11
in one or more newspapers published in such county, the last publication 12
to be at least se^■eIl days before the hearing. 1.3
Prerequisites
to use of land
for railroad.
1852, 303, § 1,
G. S. 63, § 7.
1871, 333.
1878, 215,
§§ 1, 2.
1881, 111, I 2.
P. S. 112,
§§ 85, 86.
R. L. 111,5 88.
1906, 463,
11, §5 71. 258.
Section 76. No railroad corporation shall take by eminent do-
main or enter upon or use, except for making surveys, land or other
property for the construction of its railroad or any branch or exten-
sion thereof until a sworn estimate of the total cost of constructing the
same, prepared by its chief engineer, has been submitted to the depart-
ment and approved by it; nor until the department is satisfied that an
amount of the capital stock of the corporation equal to at least fifty per
cent of such estimated cost has been actually subscribed by responsible
parties without any condition which invalidates the subscription, and
that twenty per cent of the par value of each share has been actually
paid in, and that the authority and consent required by the preceding 11
section have been obtained; nor until the clerk of the department, upon 12
its order, has filed a certificate with the state secretary that this section 13
has been complied with; nor until the corporation has paid to the state
secretary a fee of fifty dollars for filing such certificate. The certificate
of a master in chancery or a justice of a court of record for the county
where a subscriber resides that he owns property in his own name equal 17
in value, above all encumbrances, to the amount of his subscription shall 18
be conclusive evidence of his responsibility. If the department refuses
its approval to an estimate or a subscription list so submitted, it shall
in writing state its reasons therefor in detail at the time and shall include
them in its next annual report.
1
2
3
4
5
6
7
8
9
10
14
15
16
19
20
21
00
Location not
to be within
three miles of
state house.
1882,265. §4.
R. L. Ill, 5 89.
1906, 463. II,
§§ 72, 258.
j54.
, §1.
, §58.
What may be
purchased.
R. S. 39, § ■
1853, 351,
G.S. 63,
§§ 17,19.
1874, 372,
P. S. 112, §88.
R. L. 111,5 90.
1906, 463, II,
§5 73, 258.
1912, 725,
n, § 2.
1915. 157. 5 1.
9 Met. 553.
4 Gray, 301.
113 Mass. 277.
Section 77. No railroad or part thereof which is operated by steam 1
power shall be located or constructed within three miles of the state 2
house without the previous written consent of the department, and of 3
the board of aldermen of am' city or of the selectmen of any town where 4
the location is sought. .5
Purchase of Land.
Section 78. A railroad corporation may purchase land for the loca- 1
tion of its railroad \\ithin the limits of the route fixed under section 2
twenty or twenty-one, and may also purchase so much more land as may 3
be reasonably necessary for the proper construction and security of the 4
railroad and the convenient operation thereof, for one or more new tracks .5
adjacent to other land occupied by it by a track or tracks already in use, 6
and for the purpose of cuttings, embankments, and for procuring stone 7
and gravel, and for stations, car houses, roundhouses, freight houses, 8
yards, docks, wharves, elevators and other structures. 9
lis Mass. 391. 161 Mass. 387. 213 Mass. 40. 214 Mass. 8.
pu?cha°8^°iand. Section 79. The Corporation may, within one year after it has
r^l'iii§92 purchased land for railroad purposes, file with the commissioners of
CUAP. 160.] RAILRO.UJS. 1719
3 each county where such hind is situated a description thereof, defining idos. 463. ii.
4 the courses, distances and boundaries of such land and certified by the iss^wfi^ise.
5 clerk of the department in such form and with such other particulars
6 as the rules of the department may require.
Taking by Eminent Domain.
1 Section 80. If a railroad corporation is not able to obtain by agree- Riing of
2 ment with the owner any land necessary for the location of its rail- i9T2,'725,
3 road, it may file with the department a description of such location, "'^^
4 which shall not be more than five rods wide unless authorized by the
5 department under section eighty -three. Such description shall define the
6 courses, distances and boundaries and shall be in such form and shall
7 contain such plans and particulars as may be required by the rules of the
8 department. Within ten days after the filing of such description with
9 the department, the corporation shall submit to the board of aldermen of
10 every city, and to the selectmen of every town through which the route
11 of the proposed railroad passes, a copy, duly certified by the clerk of the
12 department, of so much of the said location as applies to that part of the
13 said railroad which lies within the limits of such city or town. The board
14 of aldermen or the selectmen shall thereupon appoint a time and place
15 for a hearing in the manner provided by section nineteen.
16 If the board of aldermen or the selectmen, after notice and hearing
17 as aforesaid, shall agree with the directors as to said location, or as to any
18 location of the said railroad in their city or town, they shall in such
19 agreement fix the location, and sign and give to the directors a certificate
20 setting it forth, and shall make report of their action to the department
21 within sixty days after the said copy has been submitted to them as
22 hereinbefore provided. If they fail so to agree within sixty days after
23 said corporation has submitted the location to the board of aldermen
24 or to the selectmen, the directors shall, within sixty days, petition the
25 department to fix the location in that city or town, and the department,
26 after notice to the board of aldermen or to the selectmen, shall forthwith
27 hear the parties and, within ninety days, fix the location in that city or
28 town, and shall make a certificate setting forth the location so fixed, which
29 shall be certified by its clerk to the board of directors. The costs of
30 the petition shall be paid by the corporation. The department shall by
31 order finally fix the location of the said railroad in accordance with the
32 original location as varied in the said certificate, subject to the provi-
33 sions of the following section.
1 Section 81. If a railroad corporation is not able to obtain by agree- Change of
2 ment with the owner any land necessary for the location of its railroad, iTokl'gH'evous
3 it shall furnish a plan of the land to the owner. An owner of land ag- r'TIo, §co.
4 grieved by the location of a railroad crossing his land in such manner lf*^'f,^^i\i'
5 as to be of grievous damage, which could be avoided without serious i872 53', lis,
6 injury to others, may, within thirty days after receiving the plan of his isri. 372,
7 land, as provided herein, petition the department, who shall give notice p. s. ii2,'
8 and hear the parties. If it appears that such location will greatly and u, 1° n\°^'
9 unnecessarily damage the petitioner, and that it can be so changed as i9o'i°463°n,
10 entirely or partly to avoid such damage without material detriment to f,f,o°'72l '^^'
11 the line of the railroad and without great injury to other parties, the "'A?-
12 department shall change such location accordingly. It shall give to each H6 Massl 194;
13 party a certificate of its determination within sixty days after receiving
1720
RAILRO.^DS.
[Chap. IGO.
the petition. The necessary expenses of the department and the costs 1-1
of the petition shall be paid by the corporation; but if the department 15
decides that the petition was frivolous, such expenses and costs shall 16
be paid by the petitioner. 17
Taking of land
for location of
tracks.
:833, 187, § 1.
1835, 148, § 3.
R. S. 39, §§ 55,
56, 76.
Section 82. After the location of the railroad has been finally 1
determined under tlie two preceding sections, the corporation may 2
take any land witliin such location by eminent domain under chapter 3
seventy-nine. i849, 153. 4
G.S. 63. §§ 19, 21,39. p. S. 112, §95, 1906, 403, II. §§ 83, 258.
1S74, 372, § 63. R. L. Ill, §99. 1912, 725, II, § 3.
Taking of
property for
other purposes.
1835, 148, § 3.
R. S. 39, § 55.
1853,351, § 1.
G. S. 63, § 19.
1874, 355, § 1 ;
372, § 60.
P. S. 112, §91.
1884, 134.
R. L. Ill, §95.
1906, 463, II,
l§ 78, 2.58.
1915, 157, § 2.
Section 8.3. If a railroad corporation requires land for any cf the 1
purposes specified in section seventy-eight other than for the location of 2
its railroad not more than five rods wide as provided in the three pre- 3
ceding sections, and is unable to obtain it by agreement with the owner, 4
it may apply to the department, which, after notice to the owner and a 5
hearing, may prescribe the limits within which it may be taken without 6
liis permission ; and the corporation may, M'ithin one year after the decree, 7
take such property by eminent domain under chapter seventy-nine. 8
119:>JIass. 516.
141 Mass. 481.
185 Mass. 186.
213 Mass. 17.
Taking land of
other railroad,
etc.
1912, 725,
II, 5 1.
Improvement
of alignment.
1887, 430.
R. L. Ill, §94.
1906,463, II,
§§ 77, 258.
Section 84. A railroad corporation may purchase, or take in the 1
manner pro\aded in the preceding section, from time to time, any lands 2
or rights belonging to any other railroad or other public service cor- 3
poration not necessary for the business of such corporation at such 4
time or in the reasonably near future, proxided that tliis section shall 5
not authorize it to acquire by eminent domain any part of the location 6
or right of way of any otlier railroad or street railway company except 7
such lands or rights as the department adjudges necessary for the support, 8
construction and repair of bridges or other methods of crossing such rail- 9
road or street railway. 10
Change of Location.
Section 85. A railroad corporation, ^dth the wTitten approval of 1
the department, obtained upon petition, and after notice to all persons 2
interested, and a hearing, may, for the purpose of impro\'ing the align- 3
ment of its railroad, change its location, subject to the pro\-isions of this 4
chapter relati^'e to the fixing of the route of railroads, and may take land 5
for such new location by eminent domain under chapter seventy-nine. 6
Direction of
road rnay be
varied.
1833, 187, § 7.
R. S.39, § 73.
G. S. 63, § 3S.
1874, 372, § 59.
P. S. 112, §90.
R. L. Ill, §93.
1906, 463, II.
I§ 76, 25S.
1912, 725.
II. 5 3.
1 Gray, 340.
109 Mass, 527.
Section 86. A railroad corporation, ha\dng taken land for its rail- 1
road, may vary the direction of said railroad in the city or town where 2
such land is situated ; but it shall not locate any part thereof outside the 3
limits of the route fixed under section twenty or twenty-one, without the 4
\\Titten consent of the board of aldermen or selectmen, if it was fixed 5
under section twenty, or of the department, if it was fixed under section 6
twenty-one. If the board of aldermen or the selectmen, whose consent 7
is required to such change of direction, shall neglect or refuse to give 8
such consent witliin six-ty days after the railroad company has in wTit- 9
ing requested the same, the directors may petition the department for 10
leave to make such change of direction. 11
The corporation may take land for such new location by eminent 12
domain under chapter se^•enty-nine, and in so far as said new location 13
Chap. 160.] eailkoads. 1721
14 as finally fixed shall differ from the location originally taken, the original
15 location shall be held to be abandoned, and the rights of all persons
16 interested in so much of the original location as is included within the
17 abandoned part shall ^e^^ve as if no taking had been made. Any person
18 who has suffered loss or been put to expense by having his lands, build-
19 ings, rights or other property included in the original taking, but not
20 included in the final taking, shall be entitled to have liis damages there-
21 for assessed under chapter seventy-nine, but the value to him of the
22 use of the land between the time of said taking and the abandonment
23 thereof shall be taken into consideration in determining the sum to
24 which he is entitled.
Miscellaneous.
1 Section 87. Land, outside the location of the railroad five rods in Land outside
2 width, taken or purchased for railroad, depot or station purposes shall I'Sa. 35?. §"3.
3 not be exempt from taxation. g. s. 63. § 20. is74, 372. § 02.
p. S. 112, § 92. 1906, 463. II, §§ 79,258. 151 Mass. 69.
1895,356. 4 Met. 564. 1.85 Mass. 114.
R. L. Ill, § 96. SCush. 237. 186 Mass. 128.
1 Section 88. No length of possession or occupancy of land, which xo prescriptive
2 belongs to a raiboad corporation, by an owner or occupier of adjoining ofcorlToratiin.
3 land shall create in him or in a person claiming under him a right to is?!; 372;
4 such land of the corporation. ^ '°^-
p. S. 112, §215. 145 Mass. 433. 211 Mass. 174.
R. L. Ill, I 271. 140 Mass. 268. 212 Mass. 421.
1906. 463, II. §§ 80, 25S 147 Mass. 118. 226 Mass. 286.
135 Mass. 107. 161 Mass. 283. 235 Mass. 402.
1 Section 89. The department shall, from time to time, prescribe Rules as to
2 rules relative to the form in which all descriptions of locations of rail- recordlet"
3 roads shall be made, the particulars to be contained therein and the ^^i'ui.'Hi.
4 manner in which such descriptions shall be uniformly kept for preserva- fg^- l^l' ^ ^''■
5 tion and convenient reference in the offices of the clerks of the commis- ^^- §5 si, 258.
6 sioners of the several counties. No such description shall be filed imtil
7 the clerk of the department certifies thereon that it has been prepared
8 in conformity with the rules of tlie department.
Embankments, Fences, etc.
1 Section 90. After a railroad corporation has taken land in the man- Fencing.
2 ner hereinbefore authorized, it shall, before constructing the railroad, g._s.'63, §45.'
3 and, upon request of the ovraer or occupant, fence it. p*s.'n2,'§io2.
K. L. Ill, § 106. 1906, 403, II, §§ 90, 258.
1 Section 91. At the time of awarding damages to land owners under Construction,
2 chapter seventy-nine, the county commissioners shall in addition thereto bankmentsmay
3 order the corporation to construct and maintain such embankments, cul- 1S4X i2lf'
4 verts, walls, fences or other structures as they judge reasonable for the g. s'.es, §40.
5 security and benefit of such o\\Tiers, and shall prescribe the time and p^s^'f/l'^^ns
6 manner of making or repairing them, and it shall not be competent for P-.J^o^"'
7 a jury to reverse such order.
1906, 463, II, §§ 101, 258. 141 .Mass. 407. 154 Mass. 314.
1 Section 92. If the corporation neglects to comply with such order. Enforcement
2 the supreme judicial court, upon application of the land owner interested 184T, ip. § 2.
3 in its execution, or his assigns, shall have jurisdiction in equity to enforce 1874, 37'2:§^s2.
4 the specific performance thereof. Or if the corporation, for more than r.l.iii',|ii9;
1722
RAILROADS.
[Ch.\p. 160.
1906, 463.
II, H 102, 258.
6Cush.420.
1 Gray. 614.
forty-eight hours after wTitten notice of such neglect, given to the presi- 5
dent or superintendent, fails to begin the work required to be done, or 6
thereafter unreasonably delays to complete it, the person so interested 7
may recover in tort double the damages sustained by him by reason of 8
the neglect. 9
Fences.
1846, 271,
§§ 3. 4.
G. S. 63,
S§ 43. 44.
1874. 372. § St.
1879.205. § 1
P. S. 112. §115.
1882, 162.
R. L. Ill,
§ 120.
1906. 463.
II. §§ 103, 258
12Cu8h. 605.
1 Allen. 16.
98 Mass. 560,
107 Mass. 411.
115 Mass. 4.5.S,
564
121 Mass. llx.
132 Mass. 28.
134 Mass. 4.
157 Mass. 297.
181 Mass. 322.
194 Mass. 35.
207 Mass. 12.
210 Mass. 170.
Cost of fencing.
how recovered
from person
liable.
1879. 205. § 2.
P. S. 112, § 116.
R. L. Ill,
§121.
1906. 463,
II. 5§ lOt. 258.
132 Mass. 24.
228 Mass. 274.
Separation of
grade crossings
by agreement.
1881. 120.
P. S. 112, §117.
R. L. Ill,
§ 122,
1906, 463,
II, §§ 105, 258.
Section 93. Every railroad corporation shall erect and maintain
suitable fences, with convenient bars, gates or openings therein, upon
both sides of the entire length of its railroad, except at the crossings of a
public way or in places where the convenient use of the railroad would
be thereby obstructed, and except at places where, and so long as, it is
specially exempted from so doing by the department. Such an exemp-
tion granted prior to August first, eighteen hundred and eighty-two 7
shall not be revoked except upon new proceedings had under this section, S
notice of which shall be given to the corporation, and published once 9
in each of three successi\'e weeks in a newspaper published in each county 10
where the land lies. The corporation shall also construct and maintain 11
sufficient barriers, where necessary and practicable so to do, to prevent the 12
entrance of cattle upon the railroad. A corporation which unreason- 13
ably neglects to comply with this and the following section shall, for 14
every such neglect, forfeit not more than two hundred dollars for every 15
month during which the neglect continues, and upon such neglect the 16
supreme judicial court may restrain and prohibit it from crossing a pub- 17
lie way, or from using any land until said sections are complied with. 18
Section 94. If a person other than a railroad corporation is required 1
by law or contract to erect or maintain fences along a part of the line of 2
the railroad, the corporation shall erect such fences or keep them in 3
repair as provided in the preceding section, and may recover in contract 4
the reasonable cost thereof from such person. If he is an owner of land 5
adjoining such line, the corporation shall also have a lien upon said land 6
for labor performed and furnished and all materials furnished and used 7
by it in erecting and repairing such fences upon such land, and for the 8
costs which may arise in enforcing it; and it shall be enforced in the 9
manner provided for enforcing liens for labor in chapter two hundred 10
and fifty-four. 1 1
Crossings.
Section 95. If two or more railroad corporations whose tracks cross 1
each other at the same level agree to separate the grades, they may apply 2
to the department which shall thereupon determine when, in what man- 3
ner and by which corporation said work and each portion thereof shall 4
be done, and shall apportion all charges and expenses caused by making 5
such alterations and all future charges for keeping the necessary struc- 6
tures connected therewith in repair, among said corporations. For said 7
purposes, the corporations may, under the direction of the department, S
make all necessary changes in the location, grade and construction of 9
said railroads, and, so far as necessary, may take additional land therefor 10
by eminent domain under chapter seventy-nine and may raise, lower or 11
otherwise change any and all pubhc ways; and in the exercise of said 12
powers said corporations, and any person who sustains damage thereby, 13
shall have all the rights, privileges and remedies, and be subject to all 14
the duties, habihties and restrictions p^o^^ded by law in the case of land 15
taken by railroad corporations. 16
Chap. 160.] railroads. 1723
1 Section 96. A railroad shall not be constructed across another rail- Crossings of
. . . . p 1 1 one railroad
2 road at the same le\'el without the written consent of the department, "i"" another,
3 nor across navigable or tide waters without the written consent of the EaWe waters.
4 department of public works, and in such manner as said departments, isa'i 3^.' '^'
5 respectively, shall prescribe, nor across any portion of the deep channel 1I74; 37 2] | ss.
6 of Boston harbor below the bridges existing on March thirtieth, eighteen p*s''iYI § as
7 hundred and eighty-one, without special legislative authority. Any lit- Fiii^'^'
8 toral proprietor whose access to the sea is obstructed or interrupted by }?06, 403.
9 the location and construction, after said date, of any railroad across lo'ie, 288."
10 tide water, otherwise than by a bridge with a suitable draw, may recover igii'. 350,
11 of the corporation whose railroad is so located all damages, caused by ^ ^"
12 such location and construction, under chapter seventy-nine, but tliis pro-
13 vision as to damages shall not apply to any railroad constructed under
14 chapter two hundred and fifty-two of the acts of eighteen hundred and
1.5 eighty. Associates for the purpose of constructing a railroad under sec-
16 tion thirteen, or a corporation which proceeds to construct its railroad or
17 branch or extension thereof, shall not take proceedings which involve a
18 nevf crossing of one railroad by another at the same level, unless such
19 crossing is first approved in wTiting by the department; and every pre-
20 liminary approval of a plan for such crossing shall be subject to revision
21 by the department.
1 Section 97. A railroad laid out across a public way shall be so con- Railroad
2 structed as not to obstruct the same; and, unless the county commis- wgWy not
3 sioners and the department authorize a crossing at the same level as Jhe°same'^'
4 provided in section one hundred and two, it shall be constructed so as to f^^: In^u'
5 pass either over or under the way, as prescribed in the following section, g s^ss
6 and conformably to any decree which may be made by the county com- is74,'372. § se.
7 missioners under section one hundred. i87o, 73.
p. S. 112. §119, 14 Gray, 379. 195 Mass. 299.
R. L. 111. § 124. 14 Allen, 444. 202 Mass. 394.
1906, 463, II, 5§ 107. 258. 114 Mass. 350. 220 Mass. 569.
1 Section 98. If the railroad is constructed to pass over the way, a space under
2 sufficient space shall be left under the railroad conveniently to accom- {^"el" '''^^""
3 modate the travel on the way. If the railroad is constructed to pass g*|'63.V47'
4 under the way, the railroad corporation shall build such bridges, with p*g*'n^?'| *20
5 their abutments and suitable approaches thereto, as will accommodate R. l. iii,
6 the travel upon the way; but no bridge for any purpose shall be con- 1906,463.
7 structed over a railroad at a height less than eighteen feet abo\'e the track 130 Mass.'36i.'
8 of such railroad, except with the written consent of the department. '''" "^''""* '■*^'
1 Section 99. Cities and towns may make agreements with railroad Agreements
2 corporations in regard to the kind of material, form of construction and towns as to
3 payment of the cost of the wearing surface of bridges and approaches race" o^ bJIdges
4 over or under a public way, wherever the railroad company is required i9i4'^^2oa"'''"'
5 by law to maintain such surface.
1 Section 100. A railroad corporation may raise or lower a public way Highway may
2 to permit its railroad to pass over or under the same; but before pro- foweTeiflincier
3 ceeding to cross or to alter or excavate for the purpose of crossing the eiunty°com-
4 way, it shall obtain from the county commissioners a decree prescribing Jg'lj^lj^j 5
5 what alterations may be made in the way, and what structures erected R.s,'39.§67.
6 at the crossing, and the manner and time of making or erecting the « i.'s.
7 same; and before entering upon, excavating or altering the way, it shall §'§4S,'56.
1724
EAILROADS.
[Ch.\p. lUO.
1S74, 372.
§§ S8. 103.
P. 8.112.
§§ 121, 136.
R. L. Ill,
§§ 126, 141.
1906. 463. ir
§§ 109, US,
258.
QCush. 1.
give to the city or town where the crossing is situated security, .sat- 8
isfactory to the commissioners, that it will faithfully comply with the 9
requirements of the decree to their acceptance, and will indemnify the 10
city or town against all damages and charges by reason of a failure 11
so to do. 12
If, upon the petition of the board of aldermen or selectmen, it appears 13
that such corporation has excavated or altered a pubhc way without 14
obtaining the decree and gi\ang the security required by tliis section, or 15
has neglected for fifteen days to give secm-ity as required by section one IG
hundred and six, the supreme judicial court may enjoin it from entering 17
upon, altering, exca\ating or crossing the way until such decree has been 18
obtained or such security given. 19
Course of
highway may
be altered.
1833. 187. § 6.
R. S. 39, § 70.
1849, 169.
G. S. 63, § 55.
1874, 372, ^ 89.
P. S. 112, § 122.
R. L. Ill,
§ 127.
1906, 463,
II, §§ 110, 23S.
1918, 257,
J 206; 285.
1919, 5.
1920, 2.
Section 101. A railroad corporation may alter the course of a public 1
way to facilitate the crossing thereof by its railroad or to permit its rail- 2
road to pass at the side thereof without crossing, if, after notice to the 3
city or town where the way is situated, and a hearing, the county com- 4
missioners decide that such alteration will not essentially injure the way, 5
and make a decree prescribing the time and manner of such alteration. 6
If it is necessary to take land for such alteration, the county commis- 7
sioners shall take the same by eminent domain under chapter seventy- 8
nine on behalf of the county, city or town having jurisdiction over the 9
alteration of such way, and before entering upon, excavating or altering 10
such way the corporation shall give to such county, city or town security 11
satisfactory to the commissioners that it will indemnify such county, city 12
or town for all damages and charges which it is obliged to pay by reason 13
of such taking. 14
Crossing public
way at a level.
1864, 152,
§§ 2, 5, 6.
1865,239, § 1.
1874, 372, I 90.
1876, 73.
P. S. 112. § 123.
R. L. HI,
S 128.
1906. 463.
II, §§ HI. 258.
Section 102. If a railroad is laid out across a public way, the county
commissioners, upon the application of the railroad corporation, or of
the board of aldermen of the city or selectmen of the town where the
crossing is situated, after notice to all persons interested and a hearing,
may adjudge that public necessity requires the crossing at the same
level, and may, if the department also consents in writing to such cros,s-
ing at the same le\'el, make a decree specially to authorize and require
the corporation so to construct its railroad, in such manner as shall be
prescribed in the decree, and the commissioners may modify such decree
or may revoke it at any time before the construction of the railroad at
such crossing.
9
10
11
Rails to be
protected at
highway
crossing,
1857, 287, 5 6.
G. S. 63. § 60.
1874,372, §91.
P. S. 112, §124.
R. L. Ill,
§ 129.
1906. 463,
II. §§ 112, 233.
140 Mass. 84.
147 Mass. 455,
505.
Section 103. A railroad corporation whose railroad is crossed by a 1
public way at the same level shall, at its own expense, so guard or pro- 2
tect its rails by plank, timber or otherwise as to secure a safe and easy 3
passage across its railroad; and if, in the opinion of the county com- 4
missioners, any subsequent alteration of the highway or other way or 5
additional safeguards are required at the crossing, they may make a G
decree ordering the corporation to establish the same as provided in 7
section one hundred. 8
164 Mass. 393. 211 Mass. 573. 217 Mass. 312. 229 Mass. 532.
When highway
may be laid
out across a
railroad.
R. S. 39, § 69.
1857, 287,
§§ 1-5.
Section 104. A public way may be laid out across a railroad pre-
viously constructed, if the county commissioners adjudge that public
necessity and convenience so require; and in such case, after notice to
the railroad corporation and a hearing of all parties interested, they may
93.
6.
Chap. 160.] r.ulroads. 1725
5 thus lay out or authorize a city or town, upon petition of the board of Psfy-lg
6 aldermen or selectmen thereof, to lay out a way across a railroad, in is74, 372, § 92.
7 such manner as not to injure or obstruct the railroad, and otherwise in p. s.'iii. §125.
8 conformity with sections ninety-seven and ninety-eight, but they shall § iso. '
9 not permit it to cross at a level with the railroad unless public necessity ii.°§'§'n3, 2S8.
10 so requires, and the department consents thereto in writing, in which } Vj^en^soli^'
1 1 case the county commissioners may give special authority for such cross- i4'^jfass^i7
12 ing as pro\ided in section one hundred and two.
159 Maas. 283. 173 Mass. 12.
1 Section 105. A railroad corporation may, with the consent of a Alterations
2 canal corporation, alter the course of a canal or of a feeder to a canal, i83?,"226,
3 which interferes with the convenient location of its railroad. If it is S^ s! 6.3, § 56.
4 necessary to take land for such alteration, the railroad corporation may ^^s'iy?'^i
5 take the same under chapter seventy-nine and shall immediately convey i^.l. iii.§i3i
^ , , , . */ ^ 190(1, 463,
6 the property so taken to the canal corporation. ii. §§ m. 258.
1918, 2.17. I 207; 285. 1919, 5. 1920, 2.
1 Section 106. If, upon application to the county commissioners by obstructions
2 the board of aldermen or selectmen, and after notice to the corporation at'cro'a^rngs.
3 wliich owns or operates a railroad, and a hearing, it appears that the g^I'63°§49"
4 railroad so crosses a public way as to obstruct it, contrary to section ^^^-^lo'^i^j
5 ninety-seven, or to a decree made under section one hundred, or that R. l. ni,
6 the corporation refuses or neglects to keep a bridge or other structure i966"463,
7 required or necessary at such crossing in proper repair, the county com- i9'5Ma68.'299.'
8 missioners may make a decree prescribing what repairs shall be made by 220 ulll'. sag!
9 the corporation at the crossing, and the time within which they shall be
10 made, and shall make a decree ordering the corporation to pay the costs
11 of the application. They may further order the corporation to give se-
12 curity, as provided in section one hundred, for the faithful performance
13 of the requirements of the decree and for the indemnity of the city or
14 town upon a failure in such performance.
1 Section 107. Everv railroad corporation shall, except as provided P^g'''''^ °f
/»^*i •!• i»i 111 tJ^^"'?*^^. etc.
2 in sections sixtj'-nve to eighty-two, inclusive, of chapter one hundred R •■"'.■ 39, §72.
3 and fifty-nine, at its own expense, construct, maintain and keep in repair is.^iiss. '
4 all bridges, with their approaches and abutments, which it is authorized g.'s.'bs. '
5 or recjuired to construct o\'er or under a canal or public way; and a city i872!'262,t%.
6 or town may recover of the railroad corporation W'hose railroad crosses a ^^^'ui'iiis
7 public way therein all damages, charges and expenses incurred by such Pjjj^^^'
8 city or town by reason of the neglect or refusal of the corporation to erect jj^'lH'',^,''^ ,,„
9 or keep in repair all structures required or necessary at such crossing; but 1907,315.'"
10 if, after the laying out and building of a railroad, the county commissioners 12 AUen, 254.
11 authorize a public way to be laid out across the raUroad, all expenses of i38MiaB3*454.
12 and incident to constructing and maintaining the way at such crossing i39 Mass. 525.
13 shall be borne by the county, city, town or other owner of the same,
14 unless otherwise determined by an award of a commission, under pro-
15 ceedings in accordance with sections fifty -nine to sixty-four, inclusive, of
16 chapter one hundred and fifty-nine.
1 Section 108. County commissioners shall have original jurisdiction County com-
2 of questions relative to obstructions to public ways caused by the con- "aTe^uns-''"
3 struction or operation of railroads. iS49, 222, § 4. g. s. 63, § 62. obstmcUons.
1874, 372. § 102. 1906, 463, 11, §§ 117, 258. 141 Mass. 17.
P. S. 112, § 135. 4Cush. 03. 1.55 Mass. 16.
R. L. Ill, § 140. 2 Gray, 54. 195 Mass. 299.
1726
RAILROADS.
[Chap. 160.
Severance of
grivate land
y crossing.
1857, 213,
l§l-4.
G. S, 63.
§§ 64-66.
1874, 372,
5105.
P. S. 112, § 138.
1897, 264.
R. L. Ill,
§143.
1906, 463,
II, §§ 120,
103 Mass. 1.
135 Mass. 107.
, 258.
Access to land
cut off by
railroad.
1892, 171.
R. L. Ill,
1144.
1906, 463,
II, §§ 121, 258.
162 Mass. 81.
165 Mass. 514.
Appeal from
county com-
missioners.
1882, 135.
§§ 1-3.
R. L. Ill,
§145.
1906, 463.
II, §§ 122, 2.58.
141 Mass. 20S.
Section 109. If a railroad lawfully laid out through land without the 1
consent of the owner thereof separates a portion of such land from an- 2
other or from a public way, and the owner, having a right to cross the 3
railroad, cannot agree with the corporation as to the place or manner in 4
which he shall cross, or if a crossing is inconvenient, either party, in a 5
case which does not involve the abolition of a crossing at grade, may apply 6
to the county commissioners, who, after taking a recognizance from the 7
applicant to the county, with sureties to their satisfaction, for the pay- 8
ment of costs and expenses according to their order, and after notice to 9
the other party and a hearing, may make an order relative to such cross- 10
ing and to the costs of the application; but they shall not order the cor- 11
poration to construct or maintain a crossing without its consent, unless 12
it is liable by law or by agreement to construct a crossing for the owner 13
of the land, or is the applicant. 14
Section 110. If by the laying out of a railroad, or the widening 1
thereof, a person is cut off from access to land owned by him, and has 2
neither received compensation nor made an agreement Mith the corpora- 3
tion relative thereto, the department, after notice to the parties and a 4
hearing, may order a crossing to be made and maintained at the expense 5
of the railroad corporation, specifying definitely the character thereof 6
and when it may be used. If the railroad corporation neglects for ninety 7
days after the date of such order to comply therewith, it shall forfeit 8
five dollars for every day thereafter during which such neglect continues, 9
which shall be recovered by the person aggrieved. The amount recovered 10
shall be equally divided between the plaintiff and the county where the 11
crossing was ordered to be maintained. 12
Section 111. A party aggrieved by a decision or order of the county 1
commissioners in any matter or proceeding arising under section one 2
hundred and nine, or section fifty-nine of chapter one hundred and fifty- 3
nine, or by their unreasonable refusal or neglect to announce a decision 4
in any such matter or proceeding for sixty days after the first day fixed 5
for a hearing thereon, may appeal to the department by filing a notice 6
of appeal with the county commissioners within ten days after the de- 7
cision or order appealed from, or in case of a refusal or neglect to announce 8
a decision, within ten days after the expiration of sixty days from the first 9
day fixed for a hearing thereon. The proceedings before the county 10
commissioners in which the appeal is taken shall thereupon be stayed. 11
Appeal from
proceedings
thereon.
1882, 135,
§§ 4, 5.
R. L. Ill,
§ 146.
1906, 463,
II, §1 123, 2.5:
Section 112. The appellant, to perfect the appeal, shall, within 1
twenty days after filing the notice thereof, file with the clerk of the 2
department a petition stating the reasons for the appeal, and shall, 3
within ten days after filing the petition, cause a certified copy thereof 4
to be served upon the county commissioners. An appeal may be 5
waived at any time before a hearing thereon by wxitten agreement of the 6
parties, filed with the county commissioners and the department. If 7
the appellant fails to perfect the appeal, or if the appeal is waived, the 8
matter may proceed before the county commissioners as if no appeal 9
had been taken. 10
Hearing of Section 113. The department shall hear the appeal in the county 1
appeal ; powers ,, ^ .. .. . ^^ . ^-^
of department, where it IS takcu, unless the parties m writing otherwise agree. Upon 2
§§6,7. ' such appeal, the department shall have the same powers and perform 3
1875. 110.
187S, 215, § 4,
Chap. 160.] railro.^ds. 1727
4 the same duties as county commissioners in, like matters and proceed- filj'^''
5 ings, and shall be governed by the provisions of law relative to hearings jj°55Y24 '-s
6 and determinations by, and decisions and orders of, the county com-
7 missioners in such matters and proceedings.
1 Section 1 14. No right of way across any railroad track or location RiEht of
2 which is in use for railroad purposes shall be acquired by prescription. acqui'r«i b°v
3 This section shall not apply to rights of way which existed on June fifth, YsWST"'
4 eighteen hundred and ninety-two. r. l. iii, § i4s. i9oo, 463, ii, §§ 125, 258.
163 Mass. 330. 176 Mass. 359. 210 Mass. 243. 213 Mass. 91.
BRANCHES AND EXTENSIONS.
1 Section 115. A railroad corporation, after having finished the con- Branches and
2 struction of its railroad and put it in operation, may build a branch or isv^ssif
3 extension thereof in accordance with this chapter, if an amount of ad- || si^sa; ^'''
4 ditional capital stock, applicable solely to the construction of such
5 branch or extension, has been subscribed, and a certificate of the de- f;f,J,'^
6 partment that public necessity and convenience require the construction is82, 265,
7 of the branch or extension has been obtained, and a certificate of the r. l. iii,
8 clerk of the department has been filed according to section seventy-six; ifl06,'463,
9 and it may build such branch or extension without additional capital uMlliis^'si^s*.'
10 stock, if its indebtedness is not thereby increased; but this section shall
11 not invalidate a lease or contract between railroad corporations made
12 pursuant to law. Upon the filing of such certificate, fifty dollars shall be
13 paid to the state secretary. If the construction of such branch or exten-
14 sion is not begun, and ten per cent of the additional capital stock is not
lr> expended thereon within two years after the date of the certificate re-
16 quired by section seventy-six and the branch or extension completed
17 and put in operation within four years after said date, the power of the
15 railroad corporation to construct the same shall cease.
1 Section 116. A railroad corporation, upon the application of any Switch
2 shipper tendering freight for transportation, shall construct, maintain igo^^sss"! s.
3 and operate upon reasonable terms switch connections with a lateral
4 line of railroad or pri^■ate side track owned, operated or controlled by
5 such shipper and shall, upon the application of any shipper, provide
6 upon its own property a side track and switch connection with its line
7 of railroad, whenever such side track and switch connection are reason-
8 ably practicable, can be put in with safety, and the business therefor is
9 sufficient to justify the same.
1 Section 117. If any railroad corporation fails to install or oper- Switch connec-
2 ate any such switch connection with a lateral line of railroad or any such by"de'partment.
3 side track and switch connection as aforesaid, after written application ^^^' ^®^' ^ **
4 therefor has been made to it, any person interested may present the
5 facts to the department by written petition, and the department shall
6 investigate the matters stated in such petition, and give such hearing
7 thereon as it may deem necessary or proper. If the department deems
8 it safe and practicable to have a connection, substantially as prayed for,
9 established or maintained, and that the business to be done thereon jus-
10 tifies the construction and maintenance thereof, it shall make an order
11 directing the construction and establishment thereof, specifying the rea-
12 sonable compensation to be paid for the construction, establishment and
1728
RAILR0.U3S.
[CH-^P. 160.
maintenance thereof, and may in like manner upon the application of the 13
railroad corporation order the discontinuance of such switch connection. 14
OPENING RAILR0.U3 FOR USE.
be°tpen'^*°or SECTION US. A railroad or branch or extension thereof shall not be
unui'^etc^ opened for public use until the department, after an examination, certi-
isM,'223; fies that all laws relative to its construction have been complied with,
p. s. 112, § 141. and that it appears to be in a safe condition for operation.
R. L. 111. I 162. 1906, 463, II, 5§ 127. 25S.
When road is
opened for
public use,
map, etc., to
be filed.
1872, 53, § 14;
180, § 3.
1874, 372, § 34.
P. S. 112. § 142.
R. L. Ill,
5 163.
Section 119. When a railroad or a branch or extension thereof is 1
finished and opened for public use, the corporation by which it was con- 2
structed shall, within one j^ear, file in the office of the state secretary 3
a map and profile thereof, with tables of grade and curvature and a 4
statement of the other characteristics of the railroad, certified by its 5
president and engineer in such form as the department may prescribe. 6
1906. 463. II. §§ 128, 258,
EQUIPMENT AND OPERATION.
Draicbridges.
Section 120. Every railroad corporation shall provide for each 1
drawbridge upon the line of its railroad an experienced draw tender, who 2
shall have full control of the passing of vessels through the draw; and 3
the corporation shall make and enforce regulations for each drawbridge 4
R. L. uT, § i7o! conformable to the seven following sections. woe, 463. ii, §§ 129, 25s. 5
Draw tender.
1855, 434,
§§1,2.
G. S. 63, 5 73.
1863, 131. § 1
1874. 372,
§ 108.
Drawbridges
to be kept
closed, except.
1855, 434,
5§ 2, 3.
G.S. 63, §74.
1863, 131, § 2.
1874, 372,
§109.
P. S. 112, § 149.
R.L. 111,§171.
1906, 463.
II, §§ 130, 258.
Section 121. Every such drawbridge shall be kept closed at all times, 1
except while open for the actual passage of vessels. The draw tender 2
shall at all hours of the day and night be ready to open the draw ; shall 3
decide, having regard to the convenient and secure passage of engines 4
and trains and the state of the tide, when and in what order vessels may 5
pass, allowing no unnecessary detention; and shall give all the necessary 6
advice and furnish proper facilities for such passing. 7
Passage of
vessels, how
regulated.
1855, 434,
§§3,4.
G. S. 63,
§§ 75, 76.
1874, 372,
§ 110.
P. S. 112, § 150.
R. L. Ill,
§172.
1906, 463.
II. §§ 131, 258.
127 Mass. 7.
146 Mass. 621.
Section 122. The master of a vessel applying to pass such draw shall 1
give to the draw tender a true report of his vessel's draught, and of any- 2
thing projecting below such vessel's draught, and shall be governed by 3
him as to priority of right if two or more vessels apply at the same time 4
to pass. In passing, he shall, unless otherwise directed by the draw 5
tender, go to the right according to the tide, if practicable, and shall so 6
place his warping-lines, anchors, cables and other rigging anil equip- 7
ment as neither to interfere with other vessels nor obstruct or injure the S
bridge; and he shall be allowed a reasonable time for his vessel to pass. 9
A railroad train shall be allowed fifteen minutes to cross a draw before 10
and after it is due by its time table, and any approaching train shall be 11
allowed a further reasonable time to pass. 12
Drawbridge
signals.
1863, 131, I 3.
1874, 372,
§ 111.
P. S. 112, § 151.
R.L. Ill, §173.
Section 123. Every drawbridge shall be equipped with conspicuous
day and night signals, which shall be displayed at all times in such man-
ner as clearly to indicate to the engineer of an approaching train whether
the draw is open or closed. woe, 463, 11, §§ 132, 258.
Chap. IGO.] railroads. 1729
1 Section 124. The railroad corporation may erect, at a distance of ^^j^^''"'^^''
2 five hundred feet from every drawbridge, or at such other distance as is'^. i3i, § 4.
3 may on its application be prescribed by the department, and on each side § 112.
4 thereof, a substantial barrier, so constructed and connected with the r.l. in, "'
5 draw by suitable mechanism, that the draw, when in position for the f90B^4n3.
6 passage of trains, cannot be opened or moved until the barriers have ''■ ^^ ^^^- ^^*-
7 been closed across the track in such manner as to be a warning to any
8 train which approaches in either direction.
1 Section 125. If a drawbridge is not furnished with such barriers, and ^"^i;;''"/''
• A I PIT T • 1 1 . .1 ®^® that draw-
2 m all cases if by reason of darkness or otherwise the barriers or signals l"lgf'' jg/'^f^-
3 connected with a drawbridge are not visible from the engine of an ap- i874!372i
4 proaching passenger train, the engineer of such train shall bring it to a p. s. 112, § 153.
5 full stop at a distance of not less than three hundred nor more than eight fiTs/^''
6 hundred feet from the drawbridge, and, before proceeding, shall positively lifjlYw. 25s.
7 ascertain that the draw is properly closed for the passage of trains;
8 except that if the drawbridge is between two railroad crossings at grade,
9 within six hundred feet of each other, one stop only shall be required for
10 such crossings and drawbridge.
1 Section 126. A railroad corporation which neglects to comply with Penalty on cor-
2 sections one hundred and twenty-three and one hundred and twenty- FoTn'egfect" ° '
3 five shall forfeit one hundred dollars for each day such neglect is con- isrl,' 372,' ^ ^'
4 tinned; and an engineer or draw tender who violates any provision of p.\s!'ii2, § 154.
5 said sections or any regulation established in conformity therewith for ^i^^''^'
6 such drawbridge by the corporation by which he is employed shall forfeit J^°9i*'''3'
7 one hundred dollars for each oft'ence, which shall be recovered in the
8 county where the offence is committed, to the use of the informer.
1 Section 127. Whoever violates any provisions of the seven preced- Pf-na'ty for
n • • III 1 I - 1 • •iii»i'' 11 Obstructing
2 mg sections, shall, unless otherwise therein provided, torreit not less than draw tender,
3 three nor more than fifty dollars. Whoever wilfully injures or defaces isss, 434,
4 any such drawbridge or wharf or pier appurtenant thereto, or any rail- g a e's,
5 road bridge, wharf or pier, shall forfeit not less than three nor more than i874%?2,
6 fifty dollars. Whoever, without the consent of the draw tender, opens |.^|*n2 § iss
7 or wilfully obstructs the draw, or wilfully makes fast or moors any scow, R- '- iii'
8 raft or other vessel in such manner as to obstruct passage to or through joo'"'. ■'m, ^
9 said draw, or wilfully hinders a draw tender in the performance of his 127 Mass.' 7"
10 duties, shall forfeit not less than fifty nor more than one hundred dollars.
Stations.
1 Section 128. A railroad corporation which has established and Abandonment
• II p f* ^"^^of passenger
2 mamtained a passenger station throughout the year for five consecutive stations
3 years at any point upon its railroad shall not abandon such station, 1865,173!
4 unless it is relocated under the following section, nor substantially dimin- § I'le. '"'
5 ish the accommodation furnished by the stopping of trains thereat as r. l.Vh,^ ^''*''
6 compared with that furnished at other stations on the same railroad, fgoe^^os.
7 The supreme judicial court, upon an information filed by the attorney }}• ^| 'q"' ^^*-
8 general at the relation of ten legal voters of the city or town where such 'i^-"' 229.
9 station is located, shall have jurisdiction in equity to restrain the viola-
10 tion of this section.
1730
RAILROADS.
[Chap. 160,
S^ltat'ons Section 129. A railroad corporation may relocate passenger sta-
depot™**" tions and freight depots, with the written approval of the department
}o-'fJS •.,,, and of the board of aldermen of the city or the selectmen of the town
10/4. .i7J, § 117. I - 1 ■ 1 • *^ 1
P. s. 112, § 137. where such stations or depots are situated. R. l. hi, § 179.
1906. 46.3, II, §§ 138, 258. 158 Mass. 104.
137 Mass. 45. Op. A. G, (1920) 229.
to^be Indicated SECTION 130. Every railroad corporation shall indicate to its passen- 1
i's79^i'o6 S^rs the name of each way station by placing at or near the station a 2
R i' Vn ^ ''*■ P™P^^ ^^^ conspicuous sign or signs, and shall forfeit fifty dollars for 3
§ ISO. ' each violation of this section. i906, 463, ii, §§ 139, 258. 4
Compensation
for joint
occupation.
1893, 142.
R. L. Ill,
§181.
1906. 463.
II, §§ 140, 2,58.
232 Mass. 3oS.
Section 131. If one railroad corporation occupies or uses, or has a 1
right to occupy, enter upon and use, a station, railroad or grounds of 2
another, or any portion thereof, the department, upon petition of either 3
party, and after notice to the other, and a hearing, shall determine the 4
compensation to be paid for such occupancy and use. Its award shall 5
be binding upon the parties thereto for five years, and thereafter until 6
it is revised or altered by the department, and upon the written request 7
of a party affected thereby, filed within thirty days after the rendering 8
thereof, the award shall be filed in the supreme judicial court which shall 9
have jurisdiction to revise the same as if the award had been made by a 10
commission appointed by said court. 11
Switches, Bridge Guards, etc.
switches. Section 132. Every switch laid in a railroad track used by passen- 1
1874' 372 S^^ o'" mixed trains shall be a safety switch of a type approved in writing 2
|,i^^- ,g by the department. For each switch laid in violation of this section, 3
r' l 111', § 1S2: the railroad corporation shall forfeit two hundred dollars, and the further 4
II, §§ 141, 258. sum of five dollars for each day such switch is maintained. 5
Blocked
switches.
1886, 120.
1894,41.
R. L. Ill,
§ 183.
1906,463,
II, §§ 142, 258.
158 Mass. 261.
Section 133. The frogs, switches and guard rails, except guard rails
on bridges, which are in or connected with the railroad tracks operated
or used by any railroad corporation shall be kept so blocked by some
method approved by the department as to prevent employees from being
caught therein. A railroad corporation which violates this section shall
be punished by a fine of not less than ten nor more than one hundred
dollars.
Bridge guards.
1^869, 308,
§§2,3.
1870, 276.
1874, 226;
372, § 119.
1881, 68.
P. S. 112. § 160,
R. I>. Ill,
§ 184.
1906, 463,
Section 134. Every railroad corporation, at every bridge or other 1
structure, any portion of which crosses the railroad above the track, 2
shall erect and maintain, in a manner prescribed by the department, 3
suitable bridge guards, of a type approved by the department, except at 4
places where, and so long as, it is specially exempted from so doing by 5
the department. A corporation which neglects to comply with this 6
i'iISm^'^^^' section shall forfeit fifty dollars for each month's neglect. Whoever 7
wilfully destroys or breaks any such bridge guard shall be punished by 8
a fine of not more than one hundred dollars or by imprisonment for not 9
more than one month. 10
175 Mass. 150.
Stopping of
trains at grade
crossings.
1.S65, 452,§ 1.
1859, 39;
126, § 1.
Signals, etc., at Crossings.
Section 135. If two railroads cross each other at the same level, 1
the engineer of every freight train and, if both railroads are used for 2
passenger traffic, of every passenger train, upon approaching such cross- 3
Cn-iP. 160.] RAILROADS. 1731
4 ing, shall stop his engine within five hundred feet therefrom, and shall ?.f3*'g4
5 not resume his course until signalled so to do, when he shall pass slowly isp.'sis.
6 over the crossing; but one stop shall be sufficient for all such crossings § 121.
7 within six hundred feet of each other upon the same railroad. Every r. l. in,
8 engineer who fails so to stop his engine shall forfeit one hundred dollars; i906^'463,
9 and the corporation on whose railroad the offence is committed shall ''■ ^^ ^**' ^^*'
10 forfeit the further amount of three hundred dollars.
1 Section 136. The department shall make general regulations for all Department
n , . • 1 1 • (» 1 • 1 . . ™^y prescribe
2 such crossmgs or special regulations for such particular crossing as it rules for
3 may designate, and in such detail as it may consider expedient; and the 1874,372,
4 supreme judicial court may issue any processes necessary to secure the i8si"i43.
5 enforcement of such regulations, or, upon the petition of the department, r. i. lu,^ ^^^'
6 may enjoin the running of trains on a railroad upon which any regulation f906^'4R3,
7 relative to such crossing is not exactly observed. The approval of the ^^' ^^ ^*^' ^^^■
8 department shall be required for a system of signals to be established and
9 maintained in concert by corporations operating railroads which cross
10 each other; but no such regulation or system of signals shall exempt a
11 railroad upon or across which passenger trains are run from the require-
12 ments of the preceding section, unless a system of interlocking or auto-
13 matic signals, approved in WT-iting by the department, is adopted by
14 both corporations.
1 Section 137. The department may, on the application of a railroad interlocking
2 corporation whose railroad crosses another railroad at the same level, isss. s's.
3 after notice to the parties and a hearing, authorize the applicant at its § is7.
4 own ex-pense, to establish and maintain a system of interlocking or auto- li, §§ ud, 258.
5 matic signals at any crossing of said railroad, and to erect and maintain
6 the necessary wires, rods, signal posts and signals, in such manner as the
7 department shall prescribe. Such corporation, after the system has been
8 established and approved in ^\Titing by the department, shall be exempt
9 as to such crossing from the requirements of section one hundred and
10 thirty-fi^'c so long as the department continues its approval. Upon pay-
11 ment to such corporation by the corporation owning or operating the
12 other railroad at such crossing of so much of the cost of establishing such
13 system of signals as, upon petition of the latter corporation and a hearing,
14 is awarded by the department, both railroad corporations shall, as to that
15 crossing, be exempted from the requirements of said section. Until such
16 pajonent the latter corporation shall semi-annually contribute toward
17 the expense of operating said signals an amount equal to the cost to it
18 of operating the signals used by it at said crossing before the establish-
19 ment of the signals herein provided for. After the pajTnent of such
20 award, the expense of maintaining and operating such system of signals
21 shall be borne by the two railroad corporations according to the propor-
22 tions fixed by the award for paying the original cost of the signals. So
23 much of the award as relates to the cost of maintaining and operating
24 said signals may, at the request of either party, be revised at the expira-
25 tion of five years from the original award or from any revision thereof.
1 Section 138. Every railroad corporation shall cause a bell of at Beiitobemng
2 least thirty-five pounds in weight, and a steam whistle, to be placed on sounded.
3 each locomotive engine passing upon its railroad; and such bell shall be r s.'an. § 78.'
4 rung or at least three separate and distinct blasts of such whistle sounded cf' s.' 03,^5 sf.'
1732
RAILR0.U5S.
[Chap. 160.
1862, SI, § I.
1874, 372, § 123.
P. S. 112,
§ 163.
1S90, 173.
R. L. Ill,
§ 188.
1906, 463,
II, §§ 147, 258.
2 Cush. 539.
10Cush.5f;2.
113 Mass. 360.
at the distance of at least eighty rods from the place where the railroad 5
crosses upon the same level any public way or traveled place over which a 6
signboard is required to be maintained as provided in sections one hun- 7
dred and forty and one hundred and forty-one; and such bell shall be 8
rung or such whistle sounded continuously or alternately until the engine 9
has crossed such way or traveled place. This section shall not affect 10
the authority conferred upon the department by the following section. 11
1.53 Mass. 57.
157 Mass. 336.
162 Mass. 132.
183 Mass. 393.
186 Mass. 474.
187 Mass. 217.
196 Mass. 192, 554.
200 Mass. 441.
208 Mass. 137, 451.
210 Mass. 179, 305.
234 Mass. 95, 415.
235 Mass. 510.
Sounding of
whistles
regulated.
1885, 334.
1891, 204.
R. L. Ill,
§ 189.
1906. 463,
II, §§ 148, 258.
Signboards at
crossings of
wavs.
1835, 148, § 4.
R. S. 39. § 79.
1849, 222, § 2.
1859, 125, § 1.
G. S. 63, § 84.
1862, 81, § 2.
1872, 191.
1874, 372,
§ 124.
1875, 219.
1878, 68.
P. S. 112, §164.
R. L. Ill,
§ 190.
Section 139. The department, upon petition, and after notice to 1,
the railroad corporation and a public hearing, ma}% for good cause shown, 2
recommend to such railroad corporation such changes as it considers 3
proper in the manner of making up and shifting freight trains or freight 4
cars, and of sounding of whistles on locomotives, and it may by written 5
order forbid or regulate the sounding of whistles on the locomotives of 6
such corporation at any specified grade crossings of the tracks of such 7
corporation with any public way. The corporation which is subject to 8
such order shall, until the order has been modified or annulled by the 9
department, conform in all respects to the terms thereof. 10
Section 140. Every railroad corporation shall cause boards, sup- 1
ported by posts or otherwise at such height as to be easily seen by trav- 2
elers, and not obstructing travel, containing on each side in capital 3
letters at least nine inches long the following inscription, — Railroad 4
Crossing — Look out for the Engine, — to be placed and constantly 5
maintained across each public way where it is crossed by the railroad 6
at the same level; or the corporation may substitute therefor warning 7
boards on each side of the crossing, of such form, size and description as 8
the department approves. i906, 463, n, §§ 149, 258. 9
153 Mass. 51. 162 Mass. 132. 170 Mass. 430. 196 Mass. 192.
Signboards
at crossings
of traveled
places.
1859, 125, § 2.
G. S. 63, § 85.
1874, 372, § 125.
P. S. 112, § 165.
R. L. Ill,
§ 191.
1906, 463,
II, §§ 150, 258.
7 Gray, 98.
140 Mass. 238.
159 Mass. 32.
170 Mass. 430.
Warning signs
to be erected
by counties,
1917, 246, § 1;
344. I. § 1.
1919,350,
§ 111.
Section 141. The board of aldermen of a city or the selectmen of a 1
town where a traveled place is crossed by a railroad at the same level, 2
if of opinion that it is necessary for the better security of the public that 3
boards such as are described in the preceding section should be main- 4
tained at such traveled place, may in writing request the railroad cor- 5
poration to erect and maintain them. If it refuses or neglects so to do, 6
they may apply to the department. If the department, after public 7
notice and a hearing, decides that such erection is necessary for the better 8
security of the public, the corporation shall comply with such decision. 9
Section 142. Every county, city and town shall, except as herein- 1
after provided, and the department of public works shall, unless in any 2
case it deems it unnecessary or impracticable so to do, place and maintain 3
warning signs on every public way subject to its jurisdiction, where the 4
way crosses the tracks of a railroad at grade. The signs shall consist of 5
a metal disc twenty-four inches in diameter, the field thereof to be enam- 6
elled white, with an enamelled black border line one inch wide, and with 7
an enamelled black perpendicular and horizontal crossline two and one half 8
inches wide; the reverse side of the disc to be colored black. In each of 9
the upper quarterings shall appear, in black enamel, the letter "R", five 10
inches high, three and three quarter inches wide, the lines to be of one 11
inch stroke. The said signs shall be placed in conspicuous situations 12
CUAF. 160.] RAILROADS. 1733
13 beside the public way, on each side of the crossing, and at a distance of
14 not less than three hundred feet from the nearest rail of the crossing.
1 Section 143. Every railroad corporation shall, within four months warning signs
2 after receiving a written request therefor, furnish to any county, city or raUroals. ^^
3 town in the commonwealth, or to the department of public works, as the s^fi'^*"!.^ ^'
4 case may be, a sufficient number of such warning signs to enable such j^/f;^^"'
5 county, city or town, or the said department, from time to time to comply
6 with the preceding section. The said signs shall be furnished, as afore-
7 said, without charge, unless they are to be used for replacement purposes,
8 in which case the railroad corporation may require the payment of the
9 net cost thereof.
1 Section 144. When it appears that the placing of the signs prescribed ,^p™c?i?abie
2 by section one hundred and forty-two is impracticable or unnecessary, loi^, 246, § 4.
3 the department of public utilities, on petition, may release the county,
4 city or town, as the case may be, from compliance with said section.
1 Section 145. If any county, city or town shall neglect, for sixty days. Penalties.
2 to comply with the requirements of section one hundred and forty-two, ^^^ ■ * ■ ^
3 unless released therefrom by order of the department of public utilities,
4 or unless prevented by the failure of any railroad corporation to comply
5 with the requirements of section one hundred and forty-three, or if any
6 railroad corporation shall neglect, for sixty days after the expiration of the
7 four months prescribed in section one hundred and forty-three, to comply
8 with the requirements thereof, it shall forfeit one dollar for each day
9 during which such neglect continues, to be recovered in an action of tort
10 brought in the name and for the use of the commonwealth by the at-
1 1 torney general or by the district attorney of the district where the viola-
12 tion occurred.
1 Section 146. Any person who unlawfully removes, throws dowTi, Penalty for
2 injures or defaces any such sign shall be punished by a fine of not more sfsT""^' " °"
3 than ten dollars, to the use of the county, city or town placing and main- 34]|''i^|V^ ^'
4 taining the sign, or of the commonwealth, if the sign is placed and main- j^'if';^^"'
5 tained by the department of public works.
1 Section 147. The department, after notice to a railroad corporation Gates, etc., at
2 whose railroad crosses a public way or traveled place at the same level, isss.'lll',
3 and a hearing, may direct in writing that gates shall be erected at said fj^ |' fg j §0.
4 crossing across said way or place and that an agent be stationed thereat ^^■'{':|""'
5 to open and close such gates when an engine or train passes, or that a i|5i. 3i7.
6 flagman be stationed at the crossing, who shall display a flag when an :s5ii!245.
7 engine or train passes, or that such crossing shall be provided with such §ss6-s9, 92.
8 an electric signal as the department determines the better security of i.ses! 239', § 2.
9 human life or the convenience of public travel requires, and the corpo- 1^(26^'^'
10 ration shall comply with such order. v. s. 112, 1 lee.
1SS3, 117.
1906, 463, II, §§ 151, 25S.
188 Mass. 416
ISSS, 240.
129 Mass. 364.
208 Mass. 137
li.L. 111,5192.
186 Mass. 249.
230 Mass. 431.
1 Section 148. A railroad corporation which unreasonably neglects to Penalty.
2 comply with an order or decision made under section one hundred and r. s.'so, §8i.'
3 forty-one or one hundred and forty-seven shall forfeit not more than one ^seS'Twf m'.
4 thousand dollars. i874, 372, § 12s.
P. S. 112, § IBS. R. L. Ill, §193. 1006, 463, II, §§ 152, 258.
1734
EAILROADS.
[Chap. 160.
Signals at
overhead
crossings.
1891, 129.
R. L. Ill,
§ 194,
1906, 463,
II, §§ 153, 258.
Section 149. The department may require a railroad corporation 1
whose railroad crosses a highway by a crossing above the level of the 2
highway to give such signal as the department may designate of the 3
approach of trains to such crossing. The department may in each case 4
determine the nature of the signal to be given, and, in its discretion, 5
may require an automatic signal. 6
Removal of
standing wood
at crossings.
18S9, 371.
R. L. HI,
5195.
1906. 463,
II, §§ 154, 258.
Section 150. If the view of a railroad crossing or highway at grade 1
is obstructed by standing wood in woodlands, the railroad corporation 2
or ten citizens of a town may petition the county commissioners for the 3
county where such crossing is situated for the removal of such standing 4
wood; and the commissioners, after notice and a hearing, shall make such 5
orders as to such removal as the public safety demands. They shall also 6
prescribe the limits within which such standing wood shall be taken, and 7
shall determine the damage sustained. Such damage and the expense 8
incident thereto may be recovered from the railroad corporation under 9
chapter seventy-nine. 10
Penalty on
corporation for
obstructing
highways, etc.
1854, 378.
G. S. 63, § 68.
1871,83:316.
1874, 372,
5 129.
P. S. 112. I 169.
1895, 173.
R. L. 111.
§ 196.
1906, 463,
II. §§ 155, 258.
112 Mass, 412,
135 Mass. 650.
156 Mass, 159,
202 Mass, 394,
206 Mass, 417,
219 Mass, 410,
230 Mass, 431.
Section 151. A railroad corporation, or receiver or assignee thereof, 1
or its or his servant or agent, shall not wilfully or negligently obstruct or 2
unnecessarily or unreasonably use or occupy a public way, or in any case 3
obstruct, use or occupy it with cars or engines for more than five minutes 4
at one time; and if a public way has been thus used or occupied with 5
cars or engines, the railroad corporation, or receiver or assignee thereof, 6
shall not again use or occupy it with the cars or engines of a freight train, 7
until a sufficient time, not less than three minutes, has been allowed for 8
the passage across the railroad of such travelers as were ready and wait- 9
ing to cross when the former occupation ceased. A railroad corporation, 10
receiver or assignee thereof, who violates this section, shall forfeit one 11
hundred dollars. 12
Occupation of
ways by cars
regulated.
1SS5, 110, § 1.
R, L, 111,
§ 197,
1906, 463,
II, §§ 156, 258.
Section 152. Upon an application to the department, according to 1
section twenty-four of chapter one hundred and fifty-nine, stating that a 2
crossing of a railroad with a public way at the same level is improperly 3
used by a railroad corporation with its freight engines, freight cars or 4
freight trains to the unreasonable inconvenience or danger of the public, 5
the department, after notice, shall hear the parties; and, if public con- 6
venience or safety so requires, it may direct that after a date to be fixed by 7
it such railroad corporation shall not use such crossing or any part thereof 8
for making up, connecting or disconnecting freight trains, or the engines 9
or cars of such trains, or for the purpose of distributing freight or freight 10
cars; and to prevent the same may prescribe such changes to be made in 11
the construction of side tracks, branches and connections, in proximity 12
to such crossings, and such regulations limiting the use of such crossings, 13
as may be necessary. The department may at any time modify its order 14
after a hearing and for cause shown. 15
Electricity a
motive power.
1892, 110.
R. L. Ill,
§198.
EQUIPMENT OF ENGINES AND CARS.
Section 153. A railroad corporation may operate its railroad by
electricity, or by such other power as may duly be approved by the
department. i906, 463, ii, s§ 157, 258. 1910, sss.
Chap. 160.] railroads. 1735
1 Section 154. Every railroad corporation shall cause a sufficient ^™^«8 ^"<^
2 brake to be attached to every car used upon its railroad for the transpor- i837, 226.' § s.
3 tation of passengers, and to every car used for the transportation of c.s.'es. '
4 freight, except four-wheel cars used only for freight; and shall cause at 1869^426.
5 least one brakeman for every two cars in a passenger train to be stationed 5^/30^"'
6 thereon, and one brakeman for the last car of every freight train to be ?■ s Yi^f ^ ^^°'
7 stationed thereon. A corporation which violates this section shall forfeit § 200.
8 not more than one hundred dollars.
1906, 463, 11, §§ 15S, 258. 194 Mass. 489. 206 Mass. 557. '
1 Section 155. A railroad corporation, in moving traffic between points safety appii-
2 in the commonwealth, shall not use any locomotive not equipped with a frdghtTrains.
3 power driving wheel brake and appliances for operating the train brake r^^l.' Yn] *'
4 system; nor run any train in such traffic unless a sufficient number of fg^^^Bs,
5 cars in it are so equipped with power or train brakes that its speed can ^^' ^^ ^^^- ^^^■
6 be controlled by the engineer of the locomotive which is drawing such
7 train, without the use of the common hand brakes by the brakeman.
8 When such corporation has equipped a sufficient number of its cars with
9 such power or train brakes, it may lawfully refuse to receive from con-
10 necting lines of railroad any cars used in such traffic which are not suf-
11 ficiently equipped with such power or train brakes as will work and
12 readily interchange with the brakes in use on its own cars.
1 Section 156. A railroad corporation shall cause to be placed upon Safety couplers
2 both ends of every freight car owned by it and which it may lawfully i8847m2, §T
3 use such automatic or other safety coupler as the department, after an ^202.^"'
4 examination and test, may prescribe, and the department may annul n°§§''i''e^d, 253.
5 any such requirement made by it.
1 Section 157. A railroad corporation, in moving traffic between Automatic
2 points in the commonwealth, shall not haul or use, or permit to be hauled frelghTcare!
3 or used, on its lines any car which is not equipped with couplers coupling ^^l' Hf^ ^ ^■
4 automatically by impact, and which do not require men to go between fgog^gg
5 the cars to uncouple them. 11. §§ i«i. 258.
182 Mass. 348. 188 Mass. 390. 19G Mass. 471.
1 Section 158. A railroad corporation, in moving traffic between points Grab irons.
2 in the commonwealth, until otherwise ordered by the department, shall r. l' m,'
3 not use any car, except flat cars equipped with automatic couplers, wdiich i906!'4fi3,
4 is not provided with secure grab irons or hand holds on the ends and sides "■ ^^ ^^^' ^^^'
5 for greater security to men in coupling and uncoupling cars.
1 Section 159. The standard height of draw bars for freight cars, standard
2 measured perpendicularly from the level of the top of the rails to the draw bars for
3 centres of the draw bars, shall be thirty-four and one half inches for i^gl^'sol.l^.
4 standard gauge railroads and twenty-six inches for narrow gauge railroads, Pgos ^"'
5 with a maximum variation from such standard height, in either case, of !?°?i''j%
6 three inches between the draw bars of empty and loaded cars; and no '
7 freight car with draw bars which do not comply with the above stand-
8 ard, whether loaded or unloaded, shall be used in moving traffic between
9 points in the commonwealth.
I
1 Section 160. A railroad corporation which violates any provision of f™?'^'',;^ § .5
2 sections one hundred and fifty-five, one hundred and fifty-seven, one hun- R- l. 111, § 206.
1736
RAILROADS.
[Ch,\p. IGO.
1906'463, dred and fiftj'-eight and one hundred and fifty-nine, shall forfeit one 3
hundred dollars, to be recovered in an action of tort brought in the 4
name and for the use of the commonwealth by the attorney general or 5
the district attorney for the district where the offence was committed. 6
Limitation of
preceding
sections.
1895, 362, § 5.
R. L. Ill,
§207.
1906, 463.
II, §§ 165, 258.
Extension of
time for equip-
ment.
1895, 362, § 6.
R. L. Ill,
§208.
1906, 463,
II, §§ 166, 258.
Section 161. Sections one hundred and fifty-five and one hundred 1
and fifty-seven to one hundred and sixty, inclusive, shall not apply to 2
trains composed of four-wheel cars, or to locomotives used in hauling 3
such trains. 4
Section 162. The department may from time to time, after hearing 1
and for good cause, exempt, until a date fixed by it, any railroad corpo- 2
ration from the requirements of sections one hundred and fifty-five, one 3
hundred and fifty-seven, one hundred and fifty-eight and one hundred 4
and fifty-nine. 5
Tools to be
carried with
trains.
1870, 372.
1871, 7.
1874, 372,
§ Wl.
P. S. 112, § 171.
18S2. 54. § 1.
R. L. Ill,
§210.
1906, 463,
II. §§ 168, 258.
1917,41.
Section 163. Every railroad corporation shall equip each of its 1
trains, for use in case of accident, with two car replacers, two jack screws, 2
two crow bars, one pinch bar, one claw bar, one spike hammer, two sharp 3
axes, and ropes or chains suitable for hauling cars; and shall also equip 4
each car of every passenger train owned or regularly used by it, including 5
mail and baggage cars, with two sets of tools, consisting of an axe, a sledge 6
hammer, a crow bar, handsaw and pail, to be maintained in good con- 7
dition, and one set of which shall be kept upon the inside and the other 8
upon the outside of every such car, in a convenient place and in a manner 9
approved by the department; but one set shall be sufficient if so placed 10
as to be accessible both from the inside and outside of such car; provided, 11
that the department may require trains or cars to be equipped with other 12
tools in substitution for, or in addition to, those above prescribed. A 13
corporation which violates this section shall forfeit five hundred dollars. 14
Safeguards
against fire.
1882, M. § 3.
R L. Ill,
§211.
1906, 283: 463,
II, §§ 169, 258.
Section 164. Every passenger, baggage, mail and express car, owned 1
or regularly used on any railroad in the commonwealth, shall be pro- 2
vided with such safeguards against fire as the department in writing 3
shall order. A corporation which violates this section shall forfeit three 4
hundred dollars. 5
Heating of
cars regulated.
1887, 302.
1891, 249.
R. L. Ill,
§212.
1906, 463.
II, §§ 170, 258.
Section 165. A passenger, mail or baggage car shall not be heated 1
by a stove or furnace kept in the car or suspended therefrom unless it is 2
temporarily necessary by reason of an accident or other emergency, and 3
no method of heating such cars nor heater shall be used until it shall have 4
been approved in writing by the department; but the department may 5
from time to time grant such exemptions from the requirements of this 6
section as may seem to it necessary or reasonable, and may grant per- 7
mission to any railroad corporation to make such experiments in heating 8
its passenger cars as the department determines is proper. A corpora- 9
tion which violates this section shall forfeit not more than five hundred 10
dollars. 11
Passenger cars
not to be
lighted by ex-
plosive oils.
1868, 286.
1872, 276.
1874, 372,
§132.
P. S. 112, § 172.
Section 166. A passenger car on a railroad shall not be lighted by
naphtha, nor by an illuminating oil or fluid made in part of naphtha or
which ^^•ill ignite at a temperature of less than three hundred degrees
Fahrenheit. A corporation which violates this section shall forfeit not
more than five hundred dollars. R. l. iii, § 213. 1906,403, n, §§ 171, 258.
CUAF. 160.] ■ EAILRO.tDS. 1737
1 Section 167. Every passenger, baggage, mail and express car. Platform gates.
2 o^Tied or regularly used on any railroad in the commonwealth shall be r. l! mi
i3 provided at each end thereof with platform gates of a pattern approved i90fi*'463,
4 by the department. A railroad corporation which hauls or uses, or per- {g'e^liass'Kf'
5 mits to be hauled or used, on its railroad any car in violation of this sec-
6 tion shall forfeit one hundred dollars to the use of the commonwealth,
7 and the attorney general or the district attorney for the district where
8 such violation occiured shall bring an action therefor.
1 Section 168. The department may make and revise regulations for Testing of
2 testing boilers of locomotives used by railroad corporations, by other b°o'i?™s'. "^
3 corporations, and by persons, firms or associations upon any railroad or a*L!iii,
4 railway within the commonwealth, and every person, firm, association fgoe^es,
5 and corporation other than a raihoad corporation, so using a locomotive, iJ/qI^jYI' ^°^'
6 shall inform the department in WTiting on or before June thirtieth of
7 each year of the number of locomotives so used by him or it, together
8 with the length of track of such railroad or railway, its location and
9 uses, and such other information as the department may require. Tliis
10 section shall apply to railroads for private use authorized by section two
11 hundred and forty-five of tliis chapter. Tests under regulations made
12 as aforesaid shall, if possible, be made by the master mechanic of the
13 corporation, association, person or firm which constructs, repairs or uses
14 the boiler of the locomotive, and the report of such tests shall be in form
15 satisfactory to the department. A corporation, association, firm or
16 person using a locomotive in the commonwealth the boiler of which has
17 not been tested in accordance with this section shall be punished by a
18 fine of twenty dollars for every day after notice by the department dur-
19 ing which such use continues.
1 Section 169. A railroad corporation using any vacuum brake shall ^icSSf ^*
2 pro^'ide and use on every locomotiA'e equipped therewith a muffler jg^g'^gg*
3 or other appliance, approved in wxiting by the department, for deadening §§^,'3 '
4 the noise incident to the operation of such brake; but any other appli- shVs. m.
5 ance may be used upon any locomotive for the purpose of experiment § 215. '
6 only, for not more than thirty days, but not upon more than two loco- ii,°§§ m', 25s.
7 moti^•es of the same corporation at any one time. Every application
8 to the department for approval of such appliances shall be in WTiting;
9 and such approval may be revoked by the department by written notice
10 to the corporation.
1 Section 170. A railroad corporation using upon its locomotives a MufHers for
2 pop or other safety valve shall provide and use therewith a suitable and 1879^284,^2.
3 sufficient appliance for deadening the sound made by steam escaping r i.Vu, ^
4 therefrom, and, if it materially retards the escape of steam or increases fgor^^es,
5 the pressiu-e upon the boiler, the corporation shall use an additional ^^' ^5 175, 258.
6 safety valve without such appliance, set at a liigher point than the other
7 but below the point at which explosion is likely to occur.
1 Section 171. A corporation which violates any provision of the two Penalties.
2 preceding sections shall forfeit not less than one hundred nor more than p. s.'n"2,'§ i76.
3 three hundred dollars for every locomotive used by it in violation thereof, f 2h.^^^'
4 and a further sum of five dollars for each day upon wliich such locomo- ii°§§ ne, 25s.
5 tive shall be run in violation thereof.
1738
RAILRO.U)S.
[Chap. 160.
Reasonable
accommo-
dationa.
1S49, 191, § 2.
G. S. 63, § 110.
1874, 372,
§133.
Section 172. Every railroad corporation shall furnish reasonable 1
accommodations for the convenience and safety of passengers; and for 2
every wilful neglect to provide the same shall forfeit not less than five nor 3
more than twenty dollars. p. s. 112, § 177. 4
R. L. Ill, § 219. 1906, 463, II, §§ 177, 258. 210 Mass. 164.
raTokS cars '° Section 173. A railroad corporation shall not require women or chil- 1
18SS, 176. di-en to ride in smoking cars. For a violation of this section the corpora- 2
§ 235. ' tion, or any officer or employee thereof, shall be punished by a fine of 3
II, §§ 191, 258. not less than ten nor more than fifty dollars. 4
water.'°^ SECTION 174. Every railroad car, except private cars, sleeping cars, 1
1912' 5si' ^ '■ dining cars, parlor cars, and the smoking, buffet and observation cars 2
JSJi' «?■ t L used in connection with the same, while in use for the transporta- 3
1919,350,8 96. . „ .... ., 1 II 1 ^
tion 01 passengers, upon a tram runmng thirty miles or more, shall be 4
provided with a sufficient quantity of pure drinking water in such place 5
in the car as will be convenient for the passengers, and with individual 6
drinking cups accessible to the passengers. Said cups shall be in a 7
proper receptacle near the water tank, and said receptacle shall be so 8
placed as to be easily seen and shall be plainly marked as follows: 9
DRINKING CUPS
FOR USE
ONLY IN THIS CAR
FREE
such words to occupy a space not less than two inches wide by three 10
inches long, and to be in clear black letters on a white background. No 11
charge shall be made for the M'ater or for the drinking cups. The water 12
jyid cups supplied shall be subject to the supervision and approval of 13
the department of public health, which shall enforce this and the follow- 14
ing section. 15
Penalty.
1911,491, § 2.
Section 175. Violations of the preceding section shall be punished 1
by a fine of not less than twenty-five dollars for each trip made by a car 2
used for transporting passengers and not provided with water and uten- 3
sils for its distribution in accordance with the preceding section. 4
'^Uances ""' Section176. The department may require a railroad corporation to 1
1882,64 §4. equip its cars with such other appliances as, in the judgment of the de- 2
§ i222. ' partment, are necessary for the further protection of life in all passenger 3
II, §'§ ISO, 258. trains used in the commonwealth. 4
EMPLOYEES.
Sd'bldges?or Section 177. Every railroad corporation shall provide a uniform 1
i874°292*' hat or cap and distinguishing badge, which shall be worn by all its em- 2
372j,'y^34. ployees whose duties relate immediately to the transportation of passen- 3
p. s.'iii, § 178. gers or their baggage. A corporation neglecting to provide such uniform 4
§ 226. ' hat or cap and badge shall forfeit one hundred dollars for each week of 5
ii,°§§*n8, 258. such neglect; and if such an employee neglects to wear the same when 6
on duty, the corporation which employs him shall for each case of such 7
neglect forfeit twenty-five dollars; and no employee, unless wearing his 8
uniform hat or cap and badge, shall be permitted to exercise any au- 9
thority or to perform any of the duties of his office. 10
Ch.\P. IGO.] RAILEO.UJS. 1739
1 Section 178. A railroad corporation shall not employ any person CoWbiind-
2 or keep him in its employ in a position requiring the employee to distin- tion'for!""'"''"
3 guish form or color signals, unless he has been examined for color blind- r s'.'/f2*,§ 179.
4 ness or other defective sight by a competent person employed by the ^l[ }if;
5 corporation and has received a certificate that he is not disqualified for fg^'^gj
6 such position by color blindness or other defective sight. A railroad cor- h. 5§ i-'g, 258.
7 poration which violates this section shall forfeit one hundred dollars.
1 Section 179. No person shall act as a locomotive engineer unless he ExperiBnce
2 has been employed two years as a locomotive fireman or as an engineer's foSmotive
3 helper, or was employed as a locomotive engineer before June tenth, igfil^sg, § 1.
4 nineteen hundred and eleven.
1 Section 180. No person shall act as a conductor on a railroad train Experience
2 unless he has been employed as a brakeman for two years, or was em- conductor.
3 ployed as a conductor on a railroad train before June tenth, nineteen ^^^^' ^^^' ^ ^'
4 hundred and eleven.
1 Section 181. No person shall knowingly engage, promote, require. Promoting,
2 1 •! j.j_**i.*f**ji etc., violation
persuade, prevail upon, or cause any person to act m violation 01 either of two preced-
3 of the two preceding sections. 1911, S39, § 3.
ing sections
forbidden.
1 Section 182. The three preceding sections shall not apply to the Exceptions.
2 operating of locomotive engines by engine hostlers in or around engine §"§ 4,'6. '
3 houses, or to any railroad other than a standard gauge railroad. In the
4 event of the disability of an engineer or conductor on the road, railroad
5 companies may employ persons without the qualifications prescribed by
6 sections one hundred and seventy-nine and one hundred and eighty,
7 but only for the purpose of reaching a terminal station.
1 Section 183. Any violation of any provision of the four preceding Penalty.
2 sections shall be punished by a fine of not more than five hundred dollars
3 or imprisonment for not more than one year, or both, and each day's
4 violation shall constitute a separate off'ence.
1 Section 184. Every person employed as signalman, towerman, lever- Rest days re-
2 man, agent, train despatcher, telegrapher or telephone operator in a rail- ?ri'n'empfoyees.
3 road signal tower or railroad station, and every other person employed ^*^*' ^^^'
4 by a railroad in the operating of trains by the use of the telegraph, tele-
5 phone or signal and interlocking switching machines shall be allowed two
6 days of twenty-four hours each in every month for rest with regular
7 compensation, except in a case of extraordinary emergency caused by
8 accident, fire, flood, or danger to life or property, when the said period
9 of rest shall be allowed after the emergency is past. Any violation of
10 this section shall be punished by a fine of not less than one hundred
11 dollars.
1 Section 185. Whenever the department is of opinion, after a hear- Department to
2 ing had upon its own motion or upon complaint, that the number of crews'!'^ '"'"
3 men forming a train crew of any train is not sufficient to operate said ^^^^' ^•^-^■
4 train for the safety of the public and the employees of the railroad, it
5 shall thereupon order such changes as it deems necessary.
1740 R.ULRO-\DS. [Chap. 160.
FARES, TOLLS, CHARGES, ETC.
w^tabfished SECTION 1S6. A railroad corporation may establish for its sole bene- 1
R 'sTo'^rss ^* fares, tolls and charges upon all passengers and property conveyed or 2
Pd-?,- o^v-^c^^,^- transported on its railroad, at such rates as mav be determined bv its 3
18/0, 32o. §1. . ' . ..." '
1S74.372, §179. clirectoFS, and mav irom time to tune bv its directors regulate the use 4
P S 112 5 180 • - '' .
R.L. iiT.§225! of Its railroad; but such fares, tolls and charges, and such regulations, 5
II, §§ 181, 25S. shall be subject to revision and alteration by the general court, or by 6
2io^Mass^i5'9, such ofEccrs or persons as it may appoint for the purpose, am-thing in 7
the charter of the railroad corporation to the contrary notwithstanding. 8
553.
TR.\NSPORTATION OF PASSENGERS.
SSIngere at°^ Section 187. A railroad corporation may make contracts for the 1
is7"i?M3.''"^' conveyance of passengers upon designated trains for a specific distance 2
1^135^^^' ^* fixed times, at such reduced rates of fare as the parties may agree 3
p. s^ 112, § isi. upon. Tickets may be issued for such passengers, upon which shall be 4
§ 228. ' plainly printed the terms upon which they may be used. Such tickets 5
II. §§ 184. 258. shall not be transferable without the consent of the corporation, nor shall G
192 Mass.' 159.' they entitle the holder to ride upon a train not therein designated. 7
r^Stoi.^ Section 188. A railroad corporation shall not demand or receive for 1
i9oo! 154. ^'''y single ticket bought or fare paid on a train or elsewhere than at its 2
fi'e^^^' ticket offices more than ten cents in excess of the tariff rates charged at 3
JJ^fi^i^o^i ^-o ^ts ticket offices. When such excess is received, the conductor or other 4
person recemng it shall gn-e to the passenger a printed certincate M-hich 5
shall entitle him to receive the excess so paid at any station of the cor- 6
poration in exchange for such certificate. A railroad corporation violat- 7
ing any p^o^^sion hereof shall be punished by a fine of not less than ten 8
nor more than fifty dollars. 9
cou^Slto'be^' Section 189. Every railroad corporation issuing mileage tickets 1
i9os"^ W9' § 1 shall, upon presentation of such a ticket by a passenger, detach there- 2
from one coupon and no more for each mile and fraction thereof actually 3
traveled; provided, that for distances less than three miles three coupons 4
may so be detached. Distances to or from the station known as Back 5
Bay on the New York, New Ha\'en and Hartford railroad, and the 6
stations kno\\'n as Trinity Place and Huntington Avenue on the Boston 7
and Albany railroad, shall be computed as if to or from the Boston ter- 8
minal station. 9
SkJ""tetwS:n Section 190. Every railroad corporation having a terminus in Bos- 1
ftations''^fthin *°"' ^-^ccpt the Boston, Revere Beach and LjTin Railroad Company, 2
i9oo°395'^'^' ^^^^' ^^^' ^ commutation ticket good for not more than twelve rides 3
R. l! m; between Boston and each station on its lines ■^•ithin fifteen miles of its 4
1906, 463, _ terminal station in Boston. The said tickets, before issuance, shall be 5
1908. &49,' ° ■ subject to approval by the department both as to the rate of fare and 6
1913.784, §29. the conditions named therein. So far as is practicable, the rates of fare 7
224 Mass. 463. qq ^jj joads for like distances from their terminal stations shall be equal. 8
Sison tickets. Section 191. All railroads issuing season tickets between points 1
1911, 508, § 1. within the commonwealth shall, at the request and on the presentation 2
of a season ticket by the holder thereof, place the same on deposit for 3
not less than one week and reissue the ticket at the request of the owner, 4
CeAP. 160.] HAILRO.U)S. 1741
5 extending the period for which the ticket was issued by a number of days
0 equal to the number during which it remained on deposit; provided, that
7 no ticket shall be deposited more frequently than at the rate of once
8 in three months; and a holder shall have such further privileges as the
9 department approves.
1 Section 192. All railroads issuing season tickets between points Reimbursing
2 within the commonwealth shall, at the reciuest of a holder of a season holder for "
3 ticket, reimburse said holder for the cost of the fares paid by said holder igTifsos, § 2.
4 between the stations named on the ticket whenever said holder fails to
5 present the season ticket for fare. The holder of a season ticket in order
6 to be entitled to reimbursement must, within one week, present to the
7 proper officer of the railroad company the certificate given at the time of
8 paying the fare together with the coupon from the season ticket.
1 Section 193. Every railroad corporation shall sell to an express Season ticicets
2 messenger or to a person conducting a local express business, as provided messengers.
3 in section two hundred and six, in its trains or cars within the common- r^^l.'iii,' ^ ^'
4 wealth, a season ticket for his personal transportation, at a price not ex- fgoe^^es
5 ceeding that at which similar tickets are sold to passengers, upon receiv- loi^ii^^^llf'
6 ing from him a release of all right, to whomsoever accruing, to damages
7 or compensation for death or for any personal injury received by him
8 while riding on such ticket.
1 Section 194. Every railroad corporation shall, upon request, give Baggage
2 checks to passengers for their baggage when delivered for transportation, ism, 23.
3 and shall re-deliver the baggage to the passengers upon the surrender isTl'.lref ^^^'
4 of such checks. A corporation violating this section shall forfeit ten |..'|®ii2, § is2.
5 dollars. R. l. 111, § 230. 1906, 463, 11, §§ ise, 2S8.
15 Gray, 447. 183 Mass. 175. 209 Mass. 598.
7 Allen. 329. 199 Mass. SS6. 215 Mass. 440.
1 Section 195. No charge shall be made by railroad corporations for storage of
2 the care or storage of baggage left at or arriving in railroad stations upon Frfday to™™
3 Friday, for the period of time between Friday and twelve o'clock noon i907,''287.
4 of the following Monday. i9os, soi.
1 Section 196. A railroad corporation which owns or operates a rail- blgga'le ^^
2 road of standard gauge shall check and transport between stations within j^oo, sis.
3 the limits of the commonwealth, as baggage, and subject to the same § 229. '
4 charges, terms and liabilities as other baggage, one bicycle for each li, §§ iss, 258.
5 passenger who pays by a mileage book, by a ticket other than a season
6 ticket, or in cash, the established fare, if it is not less than ten cents,
7 exclusive of rebate. The weight of the bicycle shall be included in deter-
8 mining the total weight of the baggage to be transported for such pas-
9 senger. Such corporation shall not require such bicycle to be crated,
10 covered or otherwise protected.
1 Section 197. Every railroad corporation having a terminus in Boston cheap moming
2 shall, upon the application of two hundred or more persons therefor, tllms!^^"^^
3 furnish on each week day a morning train in and an evening train out p*a'nl? § iss.
4 for distances not exceeding fifteen miles, or suitable cars attached to other f^si ^^^'
5 trains, and reaching and leaving Boston at about six o'clock in the fore- {i^ftYs^j ojs
6 noon and afternoon, or at such hours as may be fixed by the department;
1742
EAILRO-\DS.
[Chap. 160.
and for such trains, shall furnish season tickets good once a day each way 7
for six days in the week, at a rate not exceeding, for yearly tickets, three 8
dollars a mile and for quarterly tickets, one dollar a mile. 9
Workingmen's
trains.
1900, 298.
E. L. Ill,
§232.
1906, 463.
II, §§ 188, 258.
Section 198. Every railroad corporation having a terminus in 1
Boston shall furnish such number of workingmen's trains, not less than 2
two each way, as the department, upon a petition for such trains filed 3
with it, shall in each case order. Such trains shall arrive at Boston 4
between six and half past seven o'clock in the morning and leave Boston 5
between the same hours in the evening and special cars may be provided 6
therefor. Season tickets, good once a day each way for six days in the 7
week, shall be furnished for such trains at a rate not exceeding, for yearly 8
tickets, three dollars a mile, and for quarterly tickets, one dollar a mile. 9
Free passes to
state officers
forbidden.
1892, 59,
§§ 1-3.
R. L. Ill,
§234.
1906, 463,
II, §§ 190, 258.
Section 199. Any person who, being governor, lieutenant governor, 1
member of the council, member or member-elect of the general court, 2
justice of the supreme judicial court, justice of the superior court, judge 3
of probate, justice of a district court or a county commissioner, who 4
requests, for himself or another, accepts or uses any free pass upon a 5
railroad, or any ticket entitling him to transportation upon a railroad, 6
for which he has paid a less price than is demanded of the public gen- 7
erally, and an officer, agent or employee of a railroad corporation who 8
issues, delivers or ofl^ers to any person hereinbefore mentioned or to or 9
for any other person at the request, solicitation or procurement of any 10
such person, except as otherwise provided by the foOowing section or 11
section fifteen of chapter one hundred and fifty-nine, a free pass or any 12
ticket entitling him to transportation at a less rate of fare than is de- 13
manded of the public generally, shall be punished by a fine of not less 14
than one hundred nor more than one thousand dollars. 15
Passes to
former em-
ployees.
1912. 488.
227 Mass. 493.
Section 200. Railroad corporations may issue passes for free trans- 1
portation to former employees who have been injured in the service of 2
the corporation issuing the pass. The pass shall state the nature of the 3
injury, shall not be transferable, and shall be forfeited if used, or at- 4
tempted to be used, in violation of the conditions of the pass, or if it was 5
obtained by misrepresentation. 6
transportation of mails.
Section 201. Every railroad corporation shall, upon request of the 1
postmaster general or of an authorized agent of the post office depart- 2
R L Vn ^ ^^*' ™ent, carry the mails at such times and upon such trains as may be 3
§ 236. ■ desired by him upon the terms provided in the two following sections. 4
1906, 463, II, §§ 192, 2SS.
Mails to be
transported
on request.
1867, 351, § 1.
P, ■ "
S^ar^ilig"" Section 202. A corporation which cannot agree with the postmaster
i867!'35i, § 2. general or other proper officer of the United States as to the compensa-
R L m' ^ ^^^' *'°'^ *° ^^ P^'*^ ^°^ ^^^^ transportation may notify the postmaster general
§237. ' of its unwillingness to carry the mails upon the terms proposed; and after
the expiration of three months from the depositing of such notice in a
post office in the commonwealth, addressed to the postmaster general,
such corporation shall be absolved from the duty imposed in the pre-
ceding section, unless he or some officer or agent of the post office depart-
ment within that time has filed a petition in the supreme judicial court
1906, 463,
II, §§ 193,
258.
Chap. 160.] eailroads. 1743
10 in any county, praying for the appointment of three commissioners to
1 1 fix the price to be paid to the corporation for such service; and the court,
12 after notice to the corporation, shall appoint three commissioners to
1-3 hear the parties and determine sueli compensation, the award of a
14 majority of whom, being made to and confirmed by said court, shall
15 be final as to all past service and for a period of two years after such
16 confirmation.
1 Section 203. Upon application to said court by either party to such Revision of
2 proceedings at any time after the expiration of two years from the con- isef.ssi, §3.
3 firmation of such award, the matter may be reopened, and the same or R.L.Vn,^'*^"
4 other commissioners shall rehear the parties, and the award of said com- fgog^gg u
5 missioners or of a majority of them, when made to and confirmed by 5§ i9*. ^ss. '
6 said court, shall be binding on the parties for two years after such con-
7 firmation, when like proceedings may again be had on petition of either
8 party.
TRANSPORTATION OF MERCHANDISE.
1 . Section 204. A railroad corporation shall, upon request, without Receipts to
2 additional charge, give a receipt describing articles, packages or com- merchandise.
3 modities not extra hazardous delivered to it for transportation. A cor- 1374! 372,'
4 poration which refuses to give such receipt shall forfeit fifty dollars to i>.^|.'^ii2, § is7.
5 the person entitled thereto. R. l. 111, § 239. i906,463, 11, §§ 195, 258.
1 Section 205. Every railroad corporation shall, subject to the pro- Equal faciii-
2 visions of section two hundred and eleven, give to all persons reasonable portaUon!"'^'
3 and equal terms, facilities and accommodations for the transportation Jsylls?!
4 upon its railroad of themselves, their agents and servants, and of their |.^|*ii2 siss
5 merchandise and other property and for the use of its depot and other k. l. iii, §240.
^i-, ,. 1 11 ■ 1 • Ml 190b, 403, II,
D buildmgs and grounds; and, at any pomt where its railroad connects §§196,258.
7 with another railroad, it shall give reasonable and equal terms and facili- 12s Mass! 326!
8 ties of interchange. 147 Mass. 35. 255. 165 Mass. 39s. 235 Mass. 199.
1 Section 206. The preceding section shall apply to all persons en- Equal faciii-
2 gaged only in a local express business for the forwarding of express matter ex'prlssmen.
3 between points within the commonwealth in the trains or cars of any §§^/,'6.''^'
4 railroad corporation, and to persons desiring to engage therein who ob- P241 ^^^'
5 tain the recommendation of the department therefor, and who agree in |s''!97*'25s^'
6 ^\Titing to indemnify the corporation against all loss of and damage to any les Mass. s'gs.
7 property carried by them on its trains. Such recommendation shall be 235 m^ss. 199.
8 given only after notice to all parties interested and a hearing thereon, and
9 with regard, among other considerations, to the public interest. Such
10 corporation may contract with, one or more persons for the express serv-
11 ice over its railroad or system, subject to the rights of such persons as
12 may then be engaged in, or shall have obtained the recommendation afore-
13 said to conduct such local ex-press business thereon between points within
14 the commonwealth under this section; and the terms, facilities and ac-
15 commodations provided for such last named persons shall not be unrea-
16 sonable or unequal, having regard to the amount and character of the
17 service and also to such reasonable regulation of said business as may be
18 for the public interest and the efficient operation of the railroad. This
19 section shall not deprive any railroad corporation of any right which it has
20 under its charter or under general laws, to perform all the transportation
21 of property upon its railroad.
1744
EAILBOADS.
[CH-VP. 160.
to bc'fOT-'''^*' Section 207. Every railroad corporation shall promptly forward
warded merchandise consigned to or directed to be sent over another railroad
1859. 209! § 1. connecting with its railroad, according to the directions contained thereon
O S 6S § 114 .
1874. 372, ' or accompanying the same, and shall not receive and forward over its
p.^s^ii2. § 189. railroad merchandise consigned to or directed to be sent by a different
f 242."'' route. 1906, 463, II, §§ 198, 258.
1 243,
1906. 463. II.
§§ 199, 258.
124 -Masa. 561,
fransp?rtation SECTION 208. A railroad corporation shall not charge or receive for 1
of freight. the transportation of freight to any station on its railroad a greater amount 2
1S74! 372i than is at the time charged or received for the transportation of the like 3
p. s. 112. § 190. class and quantity of freight from the same original point of departure to 4
^ ' '^'' a station at a greater distance on its railroad in the same direction. Two 5
or more railroad corporations whose railroads connect shall not charge 6
or receive for the transportation of freight to any station on the railroad 7
of either of them a greater amount than is at the time charged or received 8
for the transportation of the like class and quantity of freight from the 9
same original point of departiu-e to a station at a greater distance on 10
the railroad of either of them in the same direction. In construing this 11
section, the amount charged or received for the transportation of freight 12
shall include all terminal charges; and the railroad of a corporation shall 13
include all the raih-oad in use by it, whether owned or operated under a 14
contract or lease. 15
corporation". Section 209. A railroad corporation violating any provision of the
G^I'Is'Viw fo^^ preceding sections, in addition to liability for all damages sustained
1874' 37°' ^y reason of such violation, shall forfeit two hundred dollars, to be re-
5 141. ■ covered in tort to his own use by the party aggrieved, or to the use of
p. s.'ii2,§ 191. the commonwealth by the attorney general or the district attorney of
§244. ' the district where such violation was committed; but no such action
llfoo.^lss"' shall be maintained unless brought within one year after the date of
such violation.
Freight differ-
ential against
Boston for-
bidden.
1912, 725,
n, § 7.
Section 210. A railroad corporation shall not, at any time, charge, 1
demand or receive a greater sum for transportation by it of freight from 2
any point of origin, for the same distances and under like conditions, on 3
any lines operated by it or in connection with it, to the port of Boston 4
for export to foreign countries, than is at the time received by it for 5
transportation of the like class and cjuantity of freight to any other port 6
reached by its lines for export to foreign countries; or charge, demand 7
or receive, a greater sum for transportation for the same distance and 8
under like conditions from the port of Boston of freight from foreign 9
countries tlirough said port of Boston to any point on any lines operated 10
by it or in connection with it than is at the time received by it for trans- 11
portation of the like class and quantity of freight tlu-ough any other port 12
on its lines to the same point; provided, that if the aforesaid provisions 13
of this section shall conflict with any regulations made by act of congress 14
this section shall be null and void so far as it conflicts therewith; and 15
provided, further, that notliing herein contained shall justify the charg- 16
ing of the same rate for freight for export or import tlirough any other 17
port reached by its lines where the mileage from the point of receipt or 18
delivery is less to the port of Boston than to the port in question, in 19
which case the rate tlirough Boston shall be proportionately less. 20
Chap. 160.] railro.u)s. 1745
1 Section 211. A railroad corporation shall not in its charges for the Discrimination
2 transportation of freight or in the conduct of its freight business, make or I?te?forbidden.
3 give any undue or unreasonable preference or advantage to or in favor r**l! iiif ^^'
4 of any person, nor subject any person to any undue or imreasonable 1906^463,11,
5 prejudice or disadvantage. 227 Mass. 197. §§ 261, 258.
TRANSPORTATION OF MILK.
1 Section 212. A railroad corporation shall not receive, forward or de- Transportation
2 liver milk in large quantities over any portion of its line, or permit others isra, 206,
3 so to do, under contract, lease or hiring of cars or otherwise, without at |>^ g.' 112, § 192.
4 the same time providing, as regards time, care and preservation of the Jf ^l' 111' ^ '"
5 milk and the return of the empty cans, equal facilities and advantages L246.
n 1} • • !• T 1 1 !• • -n 1 1 1906,463,11,
6 tor receiving, lorwardmg and dehvering milk bv the can over the same §§ 202, 25s.
. . . . . " . 1910 633 § 1
7 portion of its line; nor without establishing a tariff for the milk by the
8 can which is the same rate which it charges or receives as aforesaid for
9 milk in large quantities.
1 Section 213. Upon the petition of one or more persons who desire Tariff for miik.
2 to forward milk by the can over any railroad or any portion thereof, the ^^i'ii2.'ii93.
3 department, after notice to the railroad corporation and a hearing, shall ^^l[ l\°i ^ ^■
4 ascertam and compare the tariff established as aforesaid for milk by the 1906^463 u
5 can with the rate charged or received as aforesaid for milk in large quan- §§ 263, 258. '
6 titles over such railroad or such portion thereof; and if the former is, in issiiasa! 1. '
7 the judgment of the department, higher than the latter, the department
8 shall revise said tariff and shall fix such rate for milk by the can as it finds
9 to be the rate for milk in large quantities, including in both cases the same
10 care and preservation of the milk and the return of the empty cans, as
11 aforesaid; and shall notify the corporation in writing of the rate by the
12 can so fixed over such railroad or such portion thereof; but the rates by
13 the can so fixed shall not be liigher than the rates charged by the same
14 raUroad corporation for a longer distance on any part of its system.
1 Section 214. A raiboad corporation which refuses or neglects to Penalties.
2 receive, forward or deliver milk by the can over its railroad or any portion p's^'ml'/iM.
3 thereof at the tariff rate therefor, as provided in the preceding section, ^^l; fl°- ^ ^■
4 shall forfeit to the person tendering the same five dollars for every can f9o"{f463 n
5 of milk which it so refuses to receive or neglects to forward and deliver §§ 264, 25s. '
6 at the said tariff rate.
CHANGE OF NAME.
1 Section 215. On application of any railroad corporation, authorized change of
2 by a vote of two thirds of the shares present and voting at a meeting is9i,'3oo,
3 called therefor, the department may, after public notice and a hearing, isgi.Tas.
4 authorize such corporation to change its name. i906,463,ii, §§223, 25s. • 109, § .
1 Section 216. A certified copy of such authorization and a certificate Certificate of
2 of the vote of the corporation, signed and sworn to by the president, fiTedwith
3 treasurer and a majority of the du-ectors, shall be filed in the office of ilg^.'stw, § 3.
4 the state secretary. The department shall require public notice to be fgofiiM'n*"'
5 given of the change so authorized; and, upon receipt of proof thereof, the §§ 224, 258.
6 state secretary may grant a certificate of the name which the corpora-
7 tion shall bear, which, subject to the provisions of section fourteen, shall
8 thereafter be its legal name.
1746
RAILED ADS.
[ClL\P. 160.
Rights and
liabilities under
new name.
1891, 360, 5 4.
R. L. 109. 5 11.
1906. 463. II,
55 225, 258.
Section 217. A railroad corporation shall have the same rights, 1
powers and pri^•ileges, and be subject to the same duties, obligations and 2
liabilities, under its new name as before its name was changed, and may 3
sue and be sued by its new name; but any action brought against it by 4
its former name shall not be defeated on that account, and, on motion of 5
either party, the new name may be substituted therefor. 6
OFFENCES AND PENALTIES.
Walking on
track.
1853, 414. 5 4.
G. S. 63. I 102. , „
1874. 372, dollars
§ 148.
Section 218. Whoever without right knowingly stands or walks 1
on a railroad track shall forfeit not less than five nor more than fifty 2
p. S. 112, § 195. R.L. Ill, §249. 3
1906, 463, II. §§ 232, 258. 145 Mass. 433. 226 Mass. 522.
Loitering
in station.
1874. 372,
5149.
1878. 180. § 1.
P. S. 112. §196.
R.L. Ill,
§250.
1904, 59.
Section 219. Whoever without right loiters or remains within a 1
station house of a railroad corporation, or of the Boston Terminal Com- 2
pany, or upon the platform or grounds adjacent to such station, after 3
being requested to leave the same by a police officer or by a railroad police 4
officer, shall forfeit not less than two nor more than twenty dollars. 5
1905, 210. 1906. 463. II. §§ 233. 258.
Unlawful
riding upon
locomotive.
1905, 208.
1906. 463. II,
§§ 234, 258.
1909, 233.
Section 220. WTioever, without right, rides or attempts to ride upon 1
a locomotive engine, tender, freight car, caboose, or other conveyance 2
not a part of a passenger train, upon a railroad or upon the property 3
of the Boston Terminal Company, shall be punished by a fine of not 4
more than fifty dollars or imprisonment for not more than six months. 5
A sheriff, deputy sheriff, constable, police officer, railroad police officer, 6
or officer appointed with the powers of a railroad police officer, upon view 7
of such an offence, may, without warrant, arrest the offender and make 8
complaint against him therefor. 9
This section shall not apply to employees while in the discharge of their 10
duties. 11
Fees o^f^officers. Section 221. Exccpt iu SufTolk couuty, the fees and expenses of 1
officers in the apprehension, trial or commitment of a person arrested 2
or tried for violation of the preceding section shall be paid by the county 3
where the offence was committed. 4
drhnnl beasts Section 222. Whocvcr, without the consent of a raihoad corpora-
R° s'39"'§'85 ^^on, or its agent, rides, drives, or leads a horse, or other beast, on the
G. s. S3! §103. railroad opened for use of such corporation, except in the proper use of
P. s.'ii2,'§ 198.' a public or other way, or of a traveled place at a crossing of such rail-
§252. ' road therewith upon the same level, shall forfeit not more than one
§§'235*^25"' hundred dollars and be liable for any damage resulting therefrom.
Section 223. The person through whose fault or negligence a horse 1
or other beast goes at large within the limits of a railroad opened for use, 2
shall forfeit not more than twenty dollars, and be liable for any damage 3
p. S. 112, § 199. R. L. 111. § 253. 1906, 463, II, §| 236, 258. 4
Negligence in
permitting
Deast on rail-
road.
R. S. 39, I 86.
G. S. 63, I IM. ... , , »
1874,372,5152. resuitiug thereirom.
Neglect to
close gates at
private
crossing.
1862. 123.
1874. 372,
§183.
Section 224. Whoever enters upon or crosses a railroad at a private
w^ay closed by gates or bars, and neglects to close them securely, shall
forfeit not less than two nor more than ten dollars, and be liable for any
damage resulting therefrom.
p. S. 112, §200. R.L. HI, §254. 1906, 463, II, §§ 237, 258.
CH-'VP. 160.] RAILRO.'iDS. 1747
1 Section 225. ^^1loeve^ maliciously injures a railroad, or anj-thing Malicious
2 pertaining thereto, or any materials or implements for the construction rolTet?/*"'
3 or use thereof, or aids or abets in such trespass, shall be punished by a §; | If | Jgg
4 fine of not more than one thousand dollars or by imprisonment in jail P/^^'^^'
5 for not more than one year, or both, and shall for each offence forfeit P- | m. 5 201.
6 to the use of the corporation treble the amount of damages which it has § 255.
7 sustained thereby. 1906, 463, 11, §§238,253.
1 Section 226. ^^^loeve^ wilfully obstructs, or aids or abets in ob- obstructing
2 structing, or wilfully does or causes to be done anything with the intent caf.'etc"'^
3 to obstruct, the passing of an engine or car upon a railroad, or wilfully 1350,44' ^ '''
4 endangers, or aids or abets in endangering, or wilfully does or causes to Q^|'g|^'
5 be done anj'thing with the intent to endanger, the safety of persons con- fL\''%i''^'
6 veyed in or upon the same, shall be punished by a fine of not more than i§ 154-157.
7 one thousand dollars or by imprisonment in the state prison for not more §§201-204.
8 than twenty years, or both, and shall for each offence forfeit to the use it^Lui;
9 of the corporation treble the amount of damages which it has sustained 1906^4153^ n.
10 thereby. lOS Mass. 53. 109 Mass. 345. §5 239, 258.
1 Section 227. ^^^loever wilfully and maliciously stops a train on a wiUuiiy stop-
2 railroad or causes it to be stopped for the purpose of entering, leaving or isTg,*!??!'
3 wantonly delaj-ing the same shall be puni.shed by a fine of not more than r. l. i il 1 239!
4 one hundred dollars or by imprisonment for not more than one month. §§'240^158''
1 Section 228. ^\Tioever unlawfully uses, removes or tampers with Tampering
2 any tools or appliances carried on the cars of a railroad corporation as r882,*54,'^§ 2.
3 required by section one hundred and sixty-three shall be punished by a f 2m "''
4 fine of not more than one hundred dollars or by imprisonment for not ifsj^g^' 258
5 more than tliree months, or both.
accidents.
1 Section 229. If, upon the trial of an action against a city or town, Liability to
2 the plaintiff recovers damages for an injury to his person or property sonai injuor
3 caused by reason of a defect in a highway, within the location of a rail- l^iid^^^'
4 road, and if the corporation owning the railroad is liable for such damages, ^- ^ Vn ^ ^°^"
5 and has had reasonable notice to defend the action, the city or town may fgog"* ^gj „
6 recover from the corporation such damages and the costs of both plain- §§242,258.'
7 tiff and defendant in the action.
1 Section 230. If an engineer, fireman or other agent of a railroad cor- Penalty on en-
2 poration is guilty of negligence whereby an injury is done to a person, he negligence!' ^°'^
3 shall be punished by a fine of not more than one thousand dollars or by g.'^s.'63,^§95.'
4 imprisonment for not more than twelve months. is"4. 372, § lei.
p. S. 112, §210. R. L. Ill, §265. 1906, 463, II, §§ 243, 258.
1 Section 231. \Mioever, having the management or control of a Penalty for
2 railroad train while being used for the common carriage of persons, is fcnre'in^man-
3 guilty of gross negligence in or in relation to the management or control ^f^^'^^"^ °^
4 thereof, shall be punished by a fine of not more than five thousand dollars ^^^' i^*; gg
5 or by imprisonment for not more than tliree years. 1874, 372, § 162.
p. S. 112, § 211. R. L. Ill, § 2G6. 1900, 403, II, §§ 244, 258.
1748
BAILROADS.
[Chap. 160.
Liability for
damages in
case of col-
lision at grade
crossings, etc.
1871. 352.
1S74, 372,
5 164.
1S81, 199,
§§ 2. 5, 6.
P. S. 112,
§213.
R. L. Ill,
§268.
1906, 463, II,
§§ 245, 258.
120 Mass 372.
129 Mass. 440.
133 Masa. 3s3.
491.
136 Mass. 6.
145 Mass. 3.86.
146 Mass. 241.
154 Mass. 402,
524.
Section 232. If a person is injured in his person or property by col- 1
lision with the engines or cars of a railroad corporation at a crossing such 2
as is described in section one hundred and thirty-eight, and it appears 3
that the corporation neglected to give the signals required by said section, 4
and that such neglect contributed to the injury, the corporation shall be 5
liable for all damages caused by the collision, or to a fine recoverable by 6
indictment as provided in section three of chapter two hundred and 7
twenty-nine, or, if the life of a person so injured is lost, to damages 8
recoverable in tort, as provided in said section three, unless it is shown 9
that, in addition to a mere want of ordinary care, the person injured or 10
the person who had charge of his person or property was, at the time 11
of the collision, guilty of gross or wilfid negligence, or was acting in 12
violation of the law, and that such gross or wilful negligence or unlaw- 13
ful act contributed to the injury. 14
159 Mass. 493.
163 Mass. 132.
172 Mass. 98.
173 Mass. 136.
183 Mass. 393.
186 Mass. 474.
187 Mass. 84.
ISS Mass. 127.
194 Mass. 181.
196 Mass. 192, 554.
200 Mass. 8.
203 Mass. 453.
208 Mass. 137,451.
210 Mass. 179, 305.
212 Mass. 596.
220 Mass. 526.
223 Mass. 444, 550.
228 Mass. 487.
230 Mass. 370.
234 Mass. 415.
235 Mass. 469.
Non-liability
for acts of
ejq)ressmen.
1894, 469, § 3.
R. L. Ill,
§269.
1906. 463. II,
§§ 246, 258.
Section 233. A railroad corporation shall not be liable to any person 1
for personal injuries caused by the acts or omissions of any persons or 2
companies doing an express business over its railroad or of their servants 3
or agents. 17a Mass. 464. 201 Mass. 564. 4
Loss by fire
caused by
engine.
1837, 226,
§§ 9, 10.
1840, 85, § 1.
G. S. 63, § 101.
1864, 229, § 34.
1871,381, §45.
1874, 372,
§ 106.
P. S, 112, §214.
1895, 293.
R. L. HI,
§270.
1906. 463, II,
§§ 247, 258.
13 Met. 99.
4 Gush. 288.
16 Gray, 71.
FIRE.S.
Section 234. Every railroad corporation shall be liable in damages 1
to a person whose buildings or other property may be injured by fire 2
communicated by its locomotive engines, and shall have an insurable in- 3
terest in the property upon its route for which it may be so held liable, 4
and may procure insurance thereon in its own behalf. If held liable in 5
damages, it shall be entitled to the benefit of any insurance effected upon 6
such property by the owner thereof, less the cost of premium and expense 7
of recovery. The money received as insurance shall be deducted from 8
the damages, if recovered before they are assessed ; and if not so recovered, 9
the policy of insurance shall be assigned to the corporation held liable in 10
damages, and it may maintain an action thereon. 11
2 Allen, 331.
6 Allen, 87.
8 AUen, 438.
98 Mass. 414.
103 Mass. 583.
118 Mass. 543.
121 Mass. 124.
145 Mass. 129, 132.
147 Mass. 606.
169 Mass. 398.
171 Mass. 245.
179 Mass. 624.
181 Mass. 551.
184 Mass. 150.
196 Mass. 329.
208 Mass. 16.
210 Mass. 465.
211 Mass. 549.
213 Mass. 9.
225 Mass. 538.
230 Mass. 370.
Spark
arresters.
1907,431, § 1.
1919, 350,
§§ 39, 42.
Section 235. Every corporation operating a steam railroad shall, *1
subject to the approval of the department, install and maintain a spark 2
arrester on every engine in its service in which wood, coke or coal is used 3
as fuel, and shall, between April first and December first in each year, 4
keep the full width of all of its locations over which such engines are oper- 5
ated, to a point two hundred feet distant from the centre line on each 6
side thereof, clear of dead leaves, dead grass, dry brush or other inflam- 7
mable material, and shall not at any time leave any deposit of fire, hot 8
ashes or live coals upon its locations in the immediate vicinity of wood- 9
lands or grass lands, and shall post in stations and other conspicuous 10
places within its location and right of way such notices and warning 11
placards as are furnished to it for the purpose by the state forester; pro- 12
Chap. 160.] railroads. 1749
13 vided, that this section shall not prohibit any railroad corporation from
14 piling or keeping upon its location or right of way cross-ties or other
15 material necessary for the maintenance and operation of its railroad.
1 Section 236. Any railroad corporation may, upon giving notice as clearing land
2 herein provided, enter upon unimproved land adjoining any location or i907',"i3f,'§ 2*'
3 right of way upon which it operates engines burning wood, coke or coal, *''^' ^ ^
4 and may there, at its own expense and subject to the direction of the
5 forest warden, or the officer or board having his powers, in the city or
6 town where the land lies, clear such land of dead leaves, dead grass and
7 dead wood to a distance of one hundred feet from the tracks, without
8 thereby becoming liable for trespass; provided, that no railroad corpora-
9 tion shall, under this section, do any acts on unimproved land outside its
10 location or right of way, unless it has within two months given fourteen
11 days' written notice by mail or otherwise to the occupant of the land,
12 and to the owner thereof, if he resides or has a usual place of business in
13 the city or town where it lies, and if the land is unoccupied and the owner
14 does not reside or have a usual place of business in the city or town, then,
15 unless the railroad corporation has within two months published notice
16 of its purpose once in three successive weeks in a newspaper published
17 in the county where the land lies, and unless it has within three days
18 given at least twenty-four hours' notice to the forest warden, or the
19 officer or board having his powers, in the city or town where the land
20 lies of the location of the land which it intends to enter under this section,
21 and of the time at which it intends to enter the same; and provided, fur-
22 ther, that no notice hereby required shall be valid unless it sets forth the
23 provisions of this section.
1 Section 237. Any engineer, conductor or other employee on a train Engineer, etc.,
2 discovering a fire burning uncontrolled on lands adjacent to the tracks *? fZ" °°"°^
3 shall forthwith cause a fire signal to be sounded from the engine, which '^°^' *^^' ^ ^■
4 shall consist of one long and three short whistle blasts repeated several
5 times, and shall notify the next sectionmen whom the train passes, and
6 the next telegraph station, of the existence and location of the fire.
7 This section shall not affect the authority conferred upon the department
8 by section one hundred and thirty-nine.
1 Section 238. Sectionmen or other employees of a railroad corporation Employees to
2 receiving notice of the existence and location of a fire burning on land IreL"*""'''
3 adjacent to the tracks shall forthwith proceed to the fire and shall use all ^^^' ■*■"• ^ ^•
4 reasonable efforts to extinguish it; provided, that they are not at the
5 time employed in labors immediately necessary to the safety of tracks or
6 to the safety and convenience of passengers and the public.
1 Section 239. Railroad corporations shall inform their employees as Employees to
2 to their duties under the four preceding sections and shall furnish them and"pfovidrf
3 with the appropriate facilities for reporting and extinguishing such fires, g^^'j '^^^^"^ '"
1907, 431, § 5.
1 Section 240. The five preceding sections shall not authorize any Railroad not
2 railroad corporation to enter upon, or to interfere in the management park!"'' ""''''''
3 or care of, any public park or reservation. 1907,431, § 6.
1750
RAILROADS.
[Chap. 160.
Liability to
city or town
for fire.
1909, 394.
Section 241. Any railroad corporation which, by its servants or 1
agents, negligently, or in violation of law, sets fire to grass lands or forest 2
lands shall be liable to any city or town where such fire occurs, for the 3
reasonable and lawful expense incurred by such city or town in the 4
extinguishment of the fire. 5
Cities and towns may recover in contract in the superior court sums to 6
which they are entitled under this section. 7
Booka, ac-
counts and
annual returns.
R. S. 39, § 82.
1837, 226, § 5.
1838, 99. § 2.
1841, 69.
1849, 191,
§§1,4.
1851, 102,
§§1.2.
1854, 423.
1856, 165.
1857, 40,
§§5,6; 168:
240, § 2.
1858, 46, § S.
G. S. 63,
§§ 132-135.
1862, 135,
§§1,2.
1863, 224.
1864, 167, § 4.
1869, 419.
1870, 307,
§ 1;383.
1871,381, §52.
1873, 194.
1874, 372.
§§ 171, 174.
1876, 173;
185. § I.
P. S. 112,
§§81,84.
1889. 328, § 1.
R. L. Ill,
§§ 83, 87.
1906, 463,
IL §§ 248, 258.
1909. 502.
1910, 558.
1917, 122.
§§ 1, 3, 5.
BOOKS AND RETURNS.
Section 242. A railroad corporation shall at all times submit its 1
books to the inspection of any committee of the general court authorized 2
to inspect them. The directors of every railroad corporation shall annu- 3
ally within the time prescribed by section thirty-two of chapter one 4
hundred and fifty-nine transmit to the department a return of the cor- 5
poration for the year ending on December thirty-first preceding which 6
shall be sworn to by the treasurer and the chief accounting officer of the 7
corporation. Such return shall state whether any fatal accident or 8
serious injury has occurred to a passenger or other person upon the rail- 9
road during the year, and, if so, the cause of such accident or injury and 10
the circumstances under which it occurred; shall set forth copies of all 11
contracts or leases made with other railroad corporations during the year, 12
and specify the receipts and expenditures under the same; and shall in- 13
elude a detailed statement of all particulars relative to the railroad, its 14
business, receipts and expenditures during the year, in the form to be pre- 15
scribed by the department under said section thirty-two. The books 16
of each corporation shall be so kept that returns may be made in exact 17
conformity with the form so prescribed; and the accounts shall be closed 18
on December thirty-first in each year, so that a balance sheet of that 19
date can be taken therefrom and included in the return. Every railroad 20
corporation, neglecting to make said annual return within the time pre- 21
scribed as aforesaid, or to amend said return within fifteen days, when 22
required by the department as provided in said section thirty-two, shall 23
forfeit fifty dollars for each day during which such neglect continues; 24
and if such corporation unreasonably refuses or neglects to make said 25
return, it shall forfeit not more than five thousand dollars. 26
Quarterly
returns.
1889, 241.
1893, 131.
R. L. Ill, §85.
1906, 463,
IL §§ 249. 258.
Section 243. Every railroad corporation shall, within fifty days after 1
the expiration of each quarter of the year, transmit to the department a 2
quarterly statement of its business and financial condition, in such form 3
and with such detail as the department requires, which shall at reasonable 4
times be open to public inspection. A railroad corporation neglecting to 5
comply with this section shall forfeit fifty dollars for each day during 6
which such neglect continues. 7
Lessee of road
to make re-
turns required
of lessor,
1864, 167, § 3.
1867, 127.
1874, 372.
§ 173.
P. S. 112, § 83.
R. L. Ill, §86.
1906. 463,
XL §§ 250, 258.
Section 244. Every railroad corporation shall, during the continu- 1
ance of any lease which it has taken of the railroad of another corpora- 2
tion, make all the returns required of the lessor; and during the con- 3
tinuance of such lease, the lessor shall not be required to make such 4
returns, if, when requested by the lessee, the lessor furnishes all the in- 5
formation in its possession needed to make such returns; but if a rail- 6
road in this commonwealth is leased to a lessee in another state, the 7
lessors in this commonwealth shall make the annual return. 8
Chap. 160.] railroads. 1751
RAILROADS FOR PRFVATE USE.
1 Section 245. A person or corporation may construct a railroad for Railroads for
2 private use in the transportation of freiglit; but shall not take or use isnlMr'^"
3 lands or other property therefor without the consent of the owner thereof. §§^n|'i"76.
4 No such railroad shall be connected with the railroad of another corpora- |'j|23'224
5 tion without its consent; nor shall it be constructed across or upon a ?;,^g^^^'
6 public wav or traveled place without the consent of the board of alder- i9ob,'463,
. jj KR 251 25S
7 men or selectmen, nor except in a place and manner approved by them. is'eMass.'isg."
8 If the board of aldermen or selectmen consent, they shall from time to ^'^'
9 time make such regulations relative to motive power, rate of speed,
10 and time and manner of using the railroad over and upon such way or
11 traveled place, as in their judgment the public safety and convenience
12 require, and they may order such changes to be made in the track as are
13 rendered necessary by the alteration or repair of such way. If they allow
14 steam power to be used on such railroad, the provisions of this chapter
15 and chapter one hundred and fifty-nine relative to the crossing of ways
16 and traveled places by railroad corporations shall apply to such rail-
17 road, and to the person constructing or operating the same.
1 Section 246. If the consent of the department is required for the Regulation of
2 crossing of a way or traveled place by a railroad for private use, it may iSa'sll.
3 limit the number of tracks, and may impose other conditions relative to f 286."^'
4 the use of the crossing by said raihoad, and may modify such limitations ji°5§^2M, 258.
5 and conditions. The department may, upon the complaint of any party q ^\^g'
6 interested, or upon its own motion, exercise supervisory powers over all (i9i9) n*-
7 railroads for private use with regard to the character and condition of
8 the roadbed, tracks, crossings, rolling stock, machinery, equipment and
9 appliances used in or in connection with the operation of such railroads,
10 so far as is reasonable and expedient to promote the security of persons
11 employed in the maintenance and operation of the same and of the
12 public.
corporations to construct railroads in foreign countries.
1 Section 247. Fifteen or more persons, a majority of whom are in- Corporations to
2 habitants of this commonwealth, may associate themselves by a written roadsTn'fore'ign
3 agreement of association, with the intention of forming a corporation to Jlre^Sn. 5 1.
4 construct and operate a railroad, or railroad and telegraph, in any foreign ^ |; Yn ^ "^^'
5 country, but in accordance with the laws of such country; and, upon L?,|^-^p3
6 complying with section two hundred and forty-nine, shall, with their ii,^§§ 253. 253.
7 associates and successors, be a corporation for the piu-pose aforesaid,
8 with the powers necessary and incident thereto, and with such powers
9 and privileges, and subject to such duties, liabilities and restrictions,
10 as to the location, construction, maintenance and operation of its rail-
11 road, or railroad and telegraph, and the transfer of its property by
12 mortgage, lease or otherwise, as may be fi.xed by such country.
1 Section 248. The agreement of association shall state : Agreement of
2 (a) That the subscribers thereto associate themselves with the in- isrg, 274, § 2.
3 tention of forming a railroad corporation, or a railroad and telegraph r.l.Vu, ^^ '
4 corporation. fflol%63.
5 (6) The corporate name assumed. "• 5§ 254. 258.
1752
RAILRO.UJS.
[ClLU". 160.
(c) The termini of the railroad, or the railroad and the telegraph. 6
(d) The total amount of the capital stock of the corporation. '7
(e) The names and residences of at least five persons, who shall be 8
subscribers to the agreement of association, to act as directors until 9
others are chosen and qualified in their stead. 10
Each associate shall subscribe to the agreement of association his name, 11
residence, post ofiice address, and the number of shares of stock which 12
he agrees to take; but no subscriber shall be bound to pay more than 13
ten per cent of the amount of his subscription, unless a corporation is 14
chartered. 15
Certificate of
compliance
with require-
ments.
1879, 274, § 3.
P. S. 112, §227.
R. L. Ill,
§283.
1906. 463,
II, §§ 255, 258.
Section 249. 'NMien it is shown to the satisfaction of the depart- 1
ment that the requirements of the two preceding sections have been 2
complied Mith, the clerk of the department, upon its order, shall annex 3
to the agreement of association a certificate setting forth that fact. The 4
directors shall thereupon file the agreement of association and certificate 5
in the office of the state secretary, who, upon receipt of fifty dollars, shall 6
receive and preserve the same in form convenient for reference and open 7
to public inspection; and shall thereupon issue a certificate of incorpora- 8
tion substantially in the following form: 9
Commonwealth of Massachusetts.
Be it known, that whereas (names of the subscribers to the agreement of
association) have associated themselves with the intention of forming a cor-
poration, under the name of the (name of the corporation), for the purpose of
locating, constructing, maintaining and operating a railroad (or railroad and
telegraph) (description of the railroad or railroad and telegraph as in the agree-
ment of association), and have comphed with the statutes of this commonwealth
in such cases made and provided: Now, therefore, I, , secretary
of the commonwealth of Massachusetts, do hereby certify that the persons afore-
said, their associates arid successors, are legally established as a corporation, under
the name of the (name of the corporation), with all the powers and pri\dleges,
and subject to all the duties, liabilities and restrictions, set forth in the general
laws apphcable to such corporations.
In witness whereof, I have hereunto subscribed my official signature, and
affixed the great seal of said commonwealth, this day of ,
in the year
The state secretary shall sign the certificate of incorporation and cause 10
the great seal of the commonwealth to be thereto affixed, and such cer- 11
tificate shall have the force and effect of a special charter. The state sec- 12
retary shaU also cause a record of the certificate of incorporation to be 13
made, and such certificate, or such record, or a certified copy thereof, 14
shall be conclusive e\adence of the existence of such corporation. 15
r«iuctfon°of Section 250. The corporation may from time to time, at a meeting 1
capital stocky of dLrectors called therefor, reduce the amount of the capital stock, or 2
p. s. 112. § 228. increase it tor the purpose of constructing and equipping its railroad and 3
extensions or branches thereof. If such increase or reduction is made, a 4
certificate of the fact, signed by the president of the corporation, shall, 5
witliin thirty days thereafter, be filed in the office of the state secretary. 6
Such corporation may, by vote at a meeting of its directors, purchase, 7
acquire or lease the property, stocks, bonds or securities of any railroad 8
corporation whose line is located in the foreign country named in the 9
original agreement of association of such corporation or any amendment 10
R. L. ill
5 284.
1904, 169, § 1.
1906, 463,
II, §§ 256, 258,
Chap. 160.] railroads. 1753
11 thereof made as hereinafter provided, or of any steamship company as-
12 sociated in transportation or business with such corporation, upon such
13 terms and for such consideration as siiall be determined by such vote, and
14 in like manner may appoint an executive committee from the members of
15 its board, and delegate to such committee such power and authority as
16 by such vote shall be provided, and in like manner may divide the di-
17 rectors into classes as nearly equal as possible for the prescribed number
18 of classes, and prescribe the tenure of office of the several classes, but no
19 class shall be elected for a shorter period than one year or for a longer
20 period than five years, and the term of office of at least one class shall
21 expire at the next annual meeting and thereafter at the end of each year,
22 and at each annual meeting after such division directors shall be elected
23 only to fill the place of those whose terms of office shall then expire as
24 so provided and shall hold office for the period so prescribed, and all
25 directors shall hold office until their successors are chosen and qualified;
26 and such corporation may, by vote at an annual or a special meeting of
27 its stockholders, called therefor, amend its agreement of association to
28 provide for constructing and operating a railroad in any other foreign
29 countries in accordance with the laws of such countries, and shall file
30 such amendment in the office of the state secretary and pay liim fifty
31 dollars, and thereupon such corporation shall have the same powers
32 and privileges, and be subject to the same duties, liabilities and restric-
33 tions, in all respects, as if its agreement of association had originally
34 contained such amendment.
1 Section 251. Such corporation shall be subject to sections twenty- statutes
2 nine to forty, inclusive, and sixty-five, except as otherwise provided in corporatwn"'^
3 the four preceding sections.
1879, 274, §§ 5, 6. R. L. Ill, § 285. 1906, 463, II. §§ 257, 258.
P. S. 112, § 229. 1904, 169, § 2. 192 Mass. 129.
1 Section 252. The supreme judicial court shall have jurisdiction in Enforcement.
2 equity on petition of the attorney general, of the railroad corporation, isss! .350!
3 of any public body or of any other party interested to'compel the observ- g. I'. 63,
4 ance of and to restrain the violation of all laws which govern railroad is74t'i22';^372,
5 corporations and of all orders, rules and regulations made in accordance H^- **• ^°^'
6 with the provisions of this chapter by any public body or by the depart- J|^s. 219.
7 ment and to review, annid, modify or amend the rulings of any state ifsi, iii! § 4-
8 department relative to such corporations as law and justice may require. p!s. 112,
9 The superior court shall have such jurisdiction concurrent with the ii8!'i2o!\36,
10 supreme judicial court to enforce the provisions of sections forty-eight, }^,'222, § 2.
11 one hundred and ninety-three and two hundred and six. i^^' i'"' § ^■
1891, 129. 1906, 463, II, §§ C7, 71,
1894, 462, § 3; 469, § 5. 82, 103, 105, 106, 108. 118, 152,
R. L. 109, § 27; 111, §§ 88. 153, 166, 160, 189, 197, 258.
98, 120, 122, 123, 125, 141, 1907, 5S5, § 10.
193, 194, 197, 202, 233, 241. 1913, 784, | 16.
REFERENCES.
General provisions applicable to all corporations, Chap. 155.
General provisions relative to common carriers, Chap. 159.
1754
STREET RAILWAYS.
[Chap. ICl.
CHAPTER 161
STREET RAILWAYS.
Sect.
matter of construction.
1. Definitions.
2. Companies subject to this ihapter.
FORMATION.
3. Formation of street railway company.
4. Agreement of association.
5. Clerk and treasurer. Vacancies.
6. Publication of agreement of associa-
tion.
7. Location.
8. Certificates to be presented to depart-
ment.
9. Certificate of incorporation.
ORGANIZATION.
10. First meeting of incorporators.
11. Organization.
OFFICERa.
12. Officers.
13. Election of officers.
MEETINGS.
14. Meetings of stockholders.
15. Special meetings.
16. Voting rights of company upon its own
stock.
17. Voting rights of stockholders; proxies.
18. Meetings of directors.
CAPITAL STOCK AND BONDS.
19. Stock certificates.
20. Shares to be issued at par.
21. Assessments upon capital stock.
22. Collection of assessments.
23. Subscriptions to full capital stock and
payment of fifty per cent before con-
struction.
24. Liability of directors before stock paid
in.
25. Increase of capital stock and issue of
bonds for certain purposes.
26. Increase of stock and issue of bonds to
provide working capital.
27. Reduction of capita! stock.
28. Issue of capital stock, bonds, coupon
notes and other evidences of in-
debtedness.
29. Limit of issue of bonds, coupon notes
and other evidences of indebted-
ness.
30. Enforcement.
31. Penalties.
32. Issue of preferred stock.
Sect.
33. Exchange of common for preferred.
34. Form of certificates, etc.
35. Preferred stock; voting powers, issue,
etc.
STOCK AND SCRIP DIVIDENDS.
36. Stock and scrip dividends forbidden.
37. Liability of directors.
CORPORATE POWERS.
38. Powers to cease if railway is not built
within eighteen months after date of
incorporation, unless, etc.
39. Extension of corporate authority to
operate railway.
40. Connecting location.
41. Real and personal estate; stock and
bonds of other street railway com-
panies.
42. Pleasure resorts.
43. Motive power.
44. May acquire and use motor cars.
45. Power to manufacture and transmit
electricity.
46. Connecting companies. Joint use of
tracks.
47. Regulation of interchange of traflic and
cars.
48. Use of raUroad tracks.
49. Street sprinkling cars.
50. Gravel, etc., cars.
51. Coal and other supplies.
52. Carriers of mail.
53. Companies may become common car-
riers of freight, etc.
54. Private land.
55. Location by purchase or lease on pri-
vate land.
56. Regulation of location by purchase or
lease on private land.
57. Law applicable to locations on private
land.
58. Location by eminent domain on pri-
vate land.
59. Same subject.
60. Same subject.
61. Same subject.
LEASE OR SALE OF RAILWAY.
62. Railway not to be leased or sold, ex-
cept, etc.
63. Sale or consolidation.
Ch.\p. 161.]
STREET EAILWAYS.
1755
Sect.
64. Increase of capital stock, and issue of
bonds.
65. Powers and duties of consolidated com-
pany.
66. Operating contracts and leases.
67. Powers under contracts or leases.
68. Proceeds of sale not to be used for divi-
dends.
69. Purchase of connecting lines.
EXTENSION OF LOCATION.
70. Extension of location.
ALTERATION OF LOCATION. ^
71. Alteration of location.
TEMPORARY LOCATIONS.
72. Temporary locations.
73. Same in case of the alteration, etc., of
bridges.
74. Application to department.
75. Termination of temporary location.
76. Cost of temporary tracks reckoned as
part of expense of alteration of grade
crossing.
BEVOCATION OF LOCATION.
77. Revocation of location.
WIDENINO OF PUBLIC WAT.
78. Public way widening.
79. Alteration or change in grade of public
way.
80. Betterments.
STATE HIGHWAYS.
81. Location upon state highways.
82. Supervision by the division of high-
ways.
OPERATION.
83. Opening for use conditional upon cer-
tificate of department.
84. Rules as to rate of speed, etc.
85. Clearing snow from tracks.
86. Voluntary discontinuance of use of
tracks.
87. Temporary discontinuance of use of
tracks.
88. Taking up. alteration or discontinu-
ance of ways.
89. Repair of ways and bridges.
90. Liability of company for defective
ways and bridges.
91. Guards upon bridges and draws.
92. Cars to stop at railroad crossings.
93. Notice of approach of cars.
94. Obstruction of tracks.
95. Loitering within stations, etc.
96. Obstruction of ways by companies.
97. Sales by children upon cars.
98. Fenders, wheel guards, brakes and
emergency tools.
Sect.
99. Emergency lifting jack.
100. Heating of cars.
101. Enclosed platforms.
102. Penalty.
103. Day's work of employees.
fares and ACCOMMODATIONS.
104.
105.
106.
Reasonable accommodations.
Additional accommodations.
Companies shall not require passengers
riding on platform to do so at their
own risk.
107. Special service cars, free passes,
108. Special rates for school pupils.
Regulation of fares.
Withdrawal of free checks and
transfers.
Public notice of change of service.
Notice to cities and towns of proposed
changes in street railway rates.
Penalty for misuse of transfer checks.
Transportation of milk and cream.
109
110
111
112
113
114,
etc.
free
SERVICE AT COST.
115. Companies may provide service at
cost.
116. What included in cost of service.
Definitions.
117. Reserve fund.
118. Unfunded debt. Interest charges.
119. Use of reserve fund.
120. Schedules of grades of fare. Approval
and modification.
121. Changes in grades of fare.
122. Improvement fund.
123. Obligation of company to sell to state
or municipality.
124. Appointment of directors by governor.
125. Reports by companies. Supervision
and investigation by department.
126. Acceptance of act by companies.
127. Disposing of useless property.
128. Revising orders of department.
RAILROAD CROSSINGS.
129. Abolition of grade crossings.
130. Construction of tracks outside public
ways.
131. Structures within limits of public
ways or state highways.
CHANGE OF NAME.
132. Change of name.
133. Certificate of change to be filed with
state secretary.
134. Rights and liabilities under new name.
B.tLE BY RECEIVERS.
135. Sale of railway by receivers.
136. Agreement of association of new com-
pany.
137. Organization.
1756
STREET RAILWAYS.
[Chaf. 161.
Sect.
books, beturn3 and reports.
138. Books and returns.
139. Tables and abstracts of reports.
140. Lessee of street railway to make same
report to lessor.
141. Records of proceedings before depart-
ments, etc.
ADDITION,\I. REMEDY.
142. Enforcement of laws.
TRANSPORT.ITION AREAS.
143. Establishment of transportation area.
144. Preliminary agreement.
145. Acceptance by voters.
Sect.
146. Trustees, appointment, compensation.
147. Powers.
148. Officers of board, etc.
149. Taking of street railway.
150. Contribution by cities and towns.
151. Finances.
152. Borrowing by cities and towns.
Extension of lines, etc.
Exclusion of city or town from trans-
portation area, etc.
Rentals, etc.
Fare zones and fares.
157. Termination of lease, etc.
158. Taxation.
159. Boston Elevated Railway not affected
by sections 143 to 158.
160. Cities and towns which acted under
1920, 599.
153
154,
155.
156.
Definitions.
1874, 372, § 2.
P. S. 112, § 1.
1892. 110.
1S98, S78, § 1.
R. L. Ill, 5 1.
1906, 463,
III. § 1.
178 Mass. 300.
196 Mass. 329.
200 Mass. 551.
227 Mass. 547.
MATTER OF CONSTRUCTION.
Section 1. In this chapter, unless the context otherwise requires, the 1
following words shall have the following meanings : 2
"Board of aldermen", or "selectmen", includes the board or other 3
authority exercising the powers of a board of aldermen or of selectmen, 4
but nothing in this chapter shall affect the veto power of a mayor of a 5
city. ' 6
"Company", a street railway company. 7
"Department", department of public utilities. 8
"Extension", any railway constructed by a street railway company 9
in a city or town in addition to that authorized by its original location 10
therein. 11
"Location", as applied to a street railway, the grant to a street rail- 12
way company of the right to construct, maintain and operate a street 1.3
railway in a public way or place. 14
"Original", as applied to a street railway location in a city or town, 15
the first location granted to the company in such city or town. 16
"Public way", any way laid out by public authority. 17
"Street railway" or "railway", a railway, including poles, wires or 18
other appliances and equipment connected therewith, of the class oper- 19
ated by motive power other than steam, and usually constructed upon 20
public ways and places. 21
Companies
Bubject to
this chapter.
1864, 229,
§§ 1, 44.
1871, 381,
5§ 1, 58.
1874, 29, § 1.
P. S. 113. § 1.
R. L. 112, § 1.
1906. 463,
III, §J 2, 158.
Section 2. Street railway companies shall be subject to this chapter 1
and chapter one hundred and fifty-nine. Companies which have been 2
specially chartered shall continue to exercise and enjoy the powers and 3
privileges granted and be subject to all the liabilities imposed by their 4
respecti\-e charters, except as modified and controlled by amendments 5
thereof, or by this chapter or chapter one hundred and fifty-nine. All 6
street railway companies whether organized under general or special laws 7
shall be subject to any other general laws applicable thereto. 8
FORMATION.
ftreeTr^way SECTION 3. Fifteen or more persons may associate themselves by a 1
™™pi^°y- ■ftTitten agreement of association with the intention of forming a company. 2
p. S. 113, §2. R. L. 112, §2. 1906, 463, III, §§ 3, 158.
Chap. 161.] street railways. 1757
1 Section 4. The agreement of association shall state: Agreement of
2 (a) That the subscribers thereto associate themselves with the inten- ises.'lo'™'
3 tion of forming a street railway company. Uni slf. 1 27!
4 (6) The corporate name assumed, which shall be one not in use by any §f'|;|,®7.
5 other such company in the commonwealth, or, in the Judgment of the p^g^'i\°'-
6 department, so similar thereto as to be likely to be mistaken for it, and §§ 3, 4 '
7 which shall contain the words, "street railway company", at the end 112, §§3.'4.
0 _,! j» 1906, 463,
8 tnereor. in, §§ 4, iss.
9 (c) The termini of the railway.
10 (d) The length of the railway, as nearly as may be.
1 1 (e) The name of each county, city and town where the railway is to be
12 located.
13 (/) The gauge of the railway, which shall be four feet eight and one half
14 inches.
15 (g) The total amount of the capital stock of the company, which shall
16 be not less than ten thousand dollars for each mile, unless the railway is
17 to be wholly outside of a city, in which case said stock shall be not less
18 than five thousand dollars for each mile.
19 (h) The par value of the shares, which shall be one hundred dollars.
20 (i) The names and residences of at least five persons, who shall be sub-
21 scribers to the agreement of association, to act as directors until others
22 are qualified in their stead.
23 Each associate shall subscribe to the agreement of association his
24 name, residence, post ofBce address, and the number of shares of stock
25 which he agrees to take; but no subscriber shall be bound to pay more
26 than ten per cent of the amount of his subscription unless a company is
27 incorporated.
1 Section 5. The directors shall appoint a clerk and a treasurer who cierk and
2 shall hold their respective offices until a clerk and a treasurer of the com- vacanSi.
3 pany are cjualified in their stead. The directors shall fill any vacancy in p^^s.'m.Vs.
4 their board, or in the office of clerk or treasurer, before the organization of f^^- 1^2, § 5.
5 the company. 1906, 463. in, §§ 5,15s.
1 Section 6. The directors, before applying for locations for a railway, PubUcation ot
2 shall cause a copy of the agreement of association to be pubhshed in a association.
3 newspaper, if any, published in each of the cities and towns where the r s*.'m,\ 6.
4 railway is to be located, and, if, in any county, a newspaper is published fgQ^; Hf^ ^ *'•
5 in none of said cities and towns therein, in such newspaper pubhshed in "'^^ ^^ ^' '^*-
6 said county as shall be designated by the department, at least once in
7 each of three successive weeks; and the sworn certificate of the clerk
8 shall be conclusive evidence of such publication.
1 Section 7. The board of aldermen of a city or the selectmen of a town. Location.
2 upon petition executed in accordance with the by-laws or a vote of the itii. ssi! 1 14'
3 directors of a company organized or in process of organization under K&*'n3,\*7.
4 this chapter, or organized under a special act, for an original location is9|, 578,
5 of tracks in such city or town, shall gi\e fourteen days' notice of the time R jL. 112, |jr^
6 and place for a hearing on such petition by publication thereof in one or 399"'
7 more newspapers, if any, published in said city or town; otherwise, in lii, §§7,'i58.
8 such newspapers published in the county where the city or town is situ- ibi^iWs 4i'6.
9 ated as shall be designated by the board of aldermen or the selectmen {H Hl^ fig
10 thereof; and if, after a hearing, they deem that public necessity and con- j|J ^j^^ |5i]-
11 venience so require, they may grant said location, or any portion thereof, j;*^' Ma^" f-'*
1758 STREET RAILWAYS. [Ch.\P. 161.
188 Mass. ISO, and may prescribe how the tracks shall be laid, and the kind of rails, 12
i92Mass. 106. poles, wires and other appliances which shall be used, and, in addition to 13
199 Mais! 279. the general provisions of law governing such companies, and in respect 14
213 Ma.sl. ?03.' of matters not treated of in such provisions, impose such other terms, 15
245 U.S. 574. conditions and obligations, incidental to and not inconsistent with the 16
objects of a street railway company, as they deem the public interests 17
may require; but no such location shall be valid, until the department 18
after public notice and a hearing shall certify that such location is con- 19
sistent with the public interest. 20
If the department requires an alteration in such location before certify- 21
ing that the same is consistent with the public interest, it shall notify the 22
board of aldermen or selectmen granting such location of such alteration; 23
and thereafter said board of aldermen or selectmen may amend such loca- 24
tion accordingly; pro\'ided, that, if such alteration invoh'cs a change in 25
the route of the railway, public notice and a hearing shall be given as pro- 26
vided in the case of an original application for a location; and thereafter 27
the department may, as a part of the original proceedings before it, certify 28
that such location so amended is consistent with the public interest. A 29
location so certified to be consistent with public interest, shall be the true 30
location, if, within sixty days after the issue of notice of said certification 31
to the company, it shall file a -wTitten acceptance of such location, executed 32
in accordance with its by-laws or a vote of its directors, with the board of 33
aldermen or selectmen. A location granted by a board of aldermen or 34
selectmen, but refused certification hereunder by the department, or not 35
accepted as herein provided, shall be void. Such location shall also be 36
^'oid, if the certificate of incorporation of the street railway company is 37
not issued, and its organization is not completed, within eighteen months 38
after the issue of notice of certification, or if application for said certi- 39
fication is not made to the department within thirty days after the grant 40
of said location by the board of aldermen or selectmen. If in any city 41
or town the original location of a company expires, is revoked, or other- 42
wise becomes void, this section shall apply to a new petition for an 43
original location therein. 44
blpr^tnt^'°to Section 8. AVhen the amount of capital stock named in the agree- 1
i87"29f§V ment of association has been subscribed in good faith by responsible per- 2
Pj s. 112, § 43; sons, and ten per cent of the par value of each share has been paid in 3
1898, 578, §27. cash to the treasurer, the directors, clerk and treasurer shall annex to the 4
112. 1 8. ■ ■ agreement of association their certificate setting forth these facts, and 5
lii, §§ 8,' 158. that it is intended in good faith to locate, construct, maintain and operate 6
the railway as described in said agreement, shall annex to said agreement 7
the certificate of publication specified in section six and the several cer- 8
tificates of location, and shall present the same for inspection to the 9
department. 10
mco'^oration Section 9. Whcu It is showu to the satisfaction of the department 1
issi'iei^^' *^'^* t^^^ requirements of this chapter preliminary to the incorporation 2
p. s.'ii2,§44; of a company have been complied with, and that locations have been 3
1898. 578. § 27. obtained for a railway between the termini and substantially over the 4
m '§".^' ^ *''' route set forth in the agreement of association, the clerk of the depart- 5
iiF,''§r9%58. ment, upon its order, shall annex to the agreement of association a cer- 6
tificate stating such fact. The directors shall thereupon file the agree- 7
ment of association, with all the certificates annexed thereto, including 8
Chap. 161.] street railways. 1759
9 the plan, if any, required by the department, in the office of the state
10 secretary, who, upon receipt of fifty dollars, shall receive and preserve
11 the same in form convenient for reference and open to public inspection;
12 and shall thereupon issue a certificate of incorporation substantially in
13 the following form:
Commonwealth of Massachusetts.
Be it known that whereas (names of the subscribers to the agreement of as-
sociation) have associated themselves with the intention of forming a corpora-
tion under the name of the (name of company), for the purpose of locating,
constructing, maintaining and operating a street railway (description of the
railway as in the agreement of association) , and have complied with the statutes
of this conunonwealth in such cases made and provided: Now, therefore, I,
, secretary of the commonwealth of Massachusetts, do hereby
certify that the persons aforesaid, their associates and successors, are legally
established as a corporation under the name of the (name of the company),
with all the powers and privileges, and subject to all the duties, liabilities and
restrictions, set forth in all general laws which now are or liereafter may be in
force relating to street railway companies.
In witness whereof, I have hereunto subscribed my official signature, and
affixed the great seal of said commonwealth, this day of ,
in the year
14 The state secretary shall sign the certificate of incorporation, and
15 cause the great seal of the commonwealth to be thereto affixed, and
16 such certificate shall have the force and effect of a special charter. He
17 shall also cause a record of the certificate of incorporation to be made,
18 and such certificate, or such record, or a certified copy thereof, shall be
19 conclusive evidence of the existence of such corporation.
ORGANIZATION.
1 Section 10. Upon the issue of such certificate of incorporation, the First meeting
2 first meeting of the incorporators shall be called by a notice, signed by a rator™"^"
3 majority of the directors, stating the time, place and purposes of the p*s*'m,\«;
4 meeting. A copy of such notice shall, seven days at least before the day R^^fji § 48-
5 appointed for the meeting, be given to each incorporator or left at his Jgo6^463
6 residence or usual place of business, or deposited in the post office, postage lii. §§ lo. iss-
7 prepaid, and addressed to him at his residence or usual place of business,
8 and another copy thereof, and an affidavit of the clerk that the notice
9 has been duly served, shall be recorded with the records of the company.
10 If all the incorporators shall in writing waive such notice and fix the time
11 and place of the meeting, no notice shall be required.
1 Section 11. At such first meeting, or at any adjournment thereof, fgoe^lls*'""'
2 the incorporators shall organize by the adoption of by-laws, and by the !"■ 5 n-
3 election, by ballot, of not less than five directors. The clerk appointed
4 by the directors under section five shall make and attest a record of the
5 proceedings until the clerk of the company has been chosen and sworn,
6 including a record of such choice and qualification.
OFFICERS.
1 Section 12. The business of every company shall be managed and fg'^f 229 § 2
2 conducted by a president, a board of not less than five directors, a clerk, i^'M'Jg^-
3 a treasurer and such other officers and such agents as the company by its R. l- 112, § is.
4 by-laws shall authorize. 1906, 403, in, §§ 12, iss.
1760
STREET RAILWAYS.
[Chap. 161.
Election of
officers.
1864, 229. § 2.
1871,381. §2.
1874, 29, § 4.
P. S. 113,
§5 5,9.
R.L.I 12,
§§5,15.
1905, SO.
1906, 463. Ill,
§§ 13, 158.
1909,417, § 5.
1918, 257,
§367.
1919,5.
1920. 2.
167 Mass. 161.
Meetings of
stockholders.
1864. 229, § 3.
1871,381, I 3.
P. S. 113, § 10.
R. L. 112, § 16.
1906,463, III,
§§ 14, 158.
Section 13. The directors shall be elected annually by the stock- 1
holders by ballot, and the president shall be elected annually by and from 2
the board of directors, and the treasurer and the clerk annually by said 3
board. Every director, unless the by-laws otherwise provide, shall be a 4
stockholder. The treasurer may be required to give a bond for the faith- 5
ful performance of his duty in such sum and with such sureties as the 6
by-laws may prescribe. The clerk, who shall be a resident of the com- 7
monwealth, shall be sworn, and shall record all votes of the company in 8
a book kept therefor. The officers of a company shall hold office for one 9
year and until their successors are qualified. All other agents and officers 10
shall be chosen or appointed, and all vacancies filled, in the manner pre- 1 1
scribed by the by-laws, or, in default of such by-law, by the board of 12
directors. Any requirement in the general laws of action to be taken 13
or instruments to be signed by the president, directors, or a majority of 14
the directors, of a company, relative to grants, extensions, alterations, 15
and revocations of location, abolition of grade crossings and rights in 16
state highways, shall be sufficiently and legally complied with if such 17
action is taken by a vote, or if such instrument is executed in accordance 18
with, and by the persons designated in, a vote of the directors of such 19
company, at a meeting duly and properly held, at which a quorum of the 20
board is present. 21
MEETINGS.
Section 14. There shall be an annual meeting of the stockholders, and 1
the time and place of holding it, and the manner of conducting it, shall 2
be fixed by the by-laws. All meetings of stockholders shall be held in 3
the commonwealth, and shall be called, and notice thereof given, in the 4
manner provided in the by-laws of the company; or, if the by-laws make 5
no provision therefor, shall be called by the president, and a written 6
notice, stating the place, day and hour thereof, shall be given by the clerk, 7
at least seven days before such meeting, to each stockholder by leaving 8
such notice with him or at his residence or usual place of business, or by 9
mailing it, postage prepaid, and addressed to each stockholder at his 10
address as it appears upon the books of the company. Unless the by-laws 1 1
otherwise provide, a majority in interest of all stock issued and outstand- 12
ing and entitled to vote shall constitute a quorum. Notices of all meet- 13
ings of stockholders shall state the purposes for which the meetings are 14
called. No notice of the time, place or purpose of any regular or special 15
meeting of the stockliolders shall be required if every stockholder, or his 16
attorney thereunto authorized, by a writing filed with the records of the 17
meeting, waives such notice. 18
Special
meetings.
1876, 201.
P. S. 112, §52.
1897, 99.
R. L. Ill, §56.
1906. 463. Ill,
§§ 16, 158.
Section 15. A special meeting of the stockliolders shall be called,
and a written notice thereof, stating the time, place and purpose of the
meeting, given, by the clerk upon written application of three or more
stockholders entitled to vote, holding at least one tenth part in interest of
the capital stock.
Voting rights
of company
upon its own
stock.
Section 16. A company shall not directly or indirectly vote upon 1
any share of its own stock. 1864,229,54. i87i,38i,§4. 2
p. S. 113, §11. R. L. 112, §17. 1906, 463, III, §§17, 158.
Jtockhoiiera!"' Section 17. Stockholders entitled to vote shall have one vote for 1
?!;?^^oo each share of stock owned by them. Stockholders may vote either in 2
§§ 4. 5. person or by proxy. No proxy dated more than six months before the 3
Chap. 161.] street railways. 1761
4 meeting named therein shall be accepted, and no such proxy shall be isti.ss:,
5 valid after the final adjournment of such meeting. p. s. iis, §§ii, 12.
1889, 210. E. L. 112, § 17. 1906, 463, III, |§ 18, 158.
1 Section 18. Meetings of the board of directors may be held within Meetings of
2 or without the commonwealth. Any meeting of the board of directors looe.'ws, iii,
3 shall be a legal meeting without notice, if each director who is absent, ^ ^°-
4 by a writing filed with the records of the meeting, waives such notice.
CAPITAL STOCK AND BONDS.
1 Section 19. Each stockholder shall be entitled to a certificate which stock
2 shall be signed by the president and by the treasurer of the company, or igoel'Ss'^^iii.
3 by such other officers as may be authorized by the by-laws, shall be ^ ^^'
4 sealed with its seal, and shall certify the number of shares owned by
5 him in such company.
1 Section 20. Certificates of stock shall not be issued by a company shares to be
2 until the par value thereof shall have been paid in cash. liu. 229,Te.
1871, 381, § 7. R. L. 109, | 20: 141 Mass. 496.
P. S. 113, §13. 112, § 18. lOp. A. G. 659.
1894, 350, § 1. 1906, 463, III, §§ 26, 158.
1 Section 21. The directors may assess upon all the shares subscribed, Assessments
„ , . , upon capital
2 but not paid in, such amounts, not in excess of their par value, as they ^'"i^-ggq
3 think proper, and may direct the same to be paid to the treasurer, who §§ 8,'9. "
4 shall give written notice thereof to the subscribers. If a subscriber fails p. s.'ii3,'§ i7.
5 to pay liis assessment for tliirty days after such notice, the directors may fgoei III', ui^'
6 transfer the rights under such subscription to any person who subscribes ^^^''' '^'^
7 for the same and pays the assessments due, or may order the treasurer,
8 after giving notice of the sale, to sell such shares by public auction to the
9 highest bidder, and, upon the payment by him to the company of the
10 unpaid assessments, of interest to the date of sale and of the charges of
11 the sale, the shares shall be transferred to him. If, within thirty days
12 after the sale, the purchaser does not make said payment to the company,
13 the sale shall be cancelled, and the subscriber shall be liable to the com-
14 pany for the unpaid assessments, the interest thereon, and the charges of
15 sale. If the amount so paid by the purchaser to the company is more
16 than the amount for which the shares were sold, the subscriber shall
17 be liable to the purchaser for the deficiency; if it is less, the purchaser
18 shall be liable to the subscriber for the surplus.
1 Section 22. If a subscriber fails to pay his assessment for thirty Collection of
2 days, as provided in the preceding section, the directors may elect to pro- iloTSss" lii.
3 ceed by an action at law against said delinquent subscriber to recover all ^ ^^'
4 amounts due and payable by him with interest. If a judgment rendered
5 in an action against a subscriber remains unsatisfied for thirty days, all
6 amounts previously paid by liim shall be forfeited to the company, and
7 the directors may offer such shares for sale as above provided.
1 Section 23. A companv shall not begin to build its railway until it Subscriptions
_ , ,, , nt ^ • I m" (» 1 . ^ . , to full capital
2 shall have nled in the office oi tlie state secretary a certmcate, signed stock am! pay-
3 and sworn to by its president, treasurer, clerk and a majority of its di- pe'r°cent befOTe
4 rectors, stating that the amount of its capital stock has been uncondi- isS'^aglTo-
1762
STREET RAILWAYS.
[Chap. 161.
¥^i' ui'i 19 tionally subscribed for by responsible parties, and that fifty per cent of
R. L. 112, § 27. the par value of each share thereof has been paid in cash.
1906, 463, III, §§ 28, 158. 141 Mass. 496.
Liability of
directors
before stock
paid in.
1864, 229, § 0.
1871, 381, § 7.
P. S. 113, § 14.
R. L. 112, § 19.
1906, 463, m,
§§ 29, 158.
194 Mass. 590.
195 Mass. 571.
Section 24. The directors of a company shall be jointly and severally
liable, to the extent of its capital stock, for all its debts and contracts,
until the whole amount of its capital stock as originally fixed by its
agreement of association, or if a chartered company, by its directors,
and authorized by the department, shall have been paid in, and until
a certificate stating the amount thereof so fixed and paid in shall have
been signed and sworn to by its president, treasurer, clerk and a majority
of its directors, and filed in the office of the state secretary.
Increase of
capital stock
and issue of
bonds for cer-
tain purposes.
1864, 229, § 7.
1871, 381, § 8.
1874, 29, § 15.
P. S. 113, § 5.
1887, 366.
1889,316, §§ 1,
2,4.
1892, 192.
1895, 316, § 3.
1896, 409.
1898, 578, § 22.
R. L. 112,
§§ 20, 21, 23.
76.
1902, 370.
1906, 403. Ill,
§§ 103, 158.
1910, 536.
218 Mass. 367.
Section 2.5. A company, for the purpose of building an extension, or 1
acquiring land for pleasure resorts, or acquiring or building power houses 2
or car houses or park buildings, or acquiring or equipping additional roll- .3
ing stock, or changing its motive power, or furnishing electricity to a town 4
for light, or abolishing grade crossings, or paying betterment assessments 5
for widening or otherwise altering streets, or complying with any require- 6
ments lawfully imposed, or making permanent investments or improve- 7
ments, or acquiring any additional real or personal property necessary 8
or convenient for its corporate objects, or refunding its funded debt, or 9
paying money borrowed or indebtedness incurred for any of the foregoing 10
purposes, or other similarly necessary and lawful purposes, may, in ac- 11
cordance with sections twenty-eight and twenty-nine of this chapter, 12
sections fifty to fifty-two, inclusive, of chapter one hundred and fifty- 13
nine and sections forty-seven to fifty-five, inclusive, of chapter one 14
hundred and sixty, increase its capital stock or issue bonds, secured 15
by mortgage or otherwise, to such an amount, beyond the amounts fixed 16
and limited by its agreement of association or its charter, or by any 17
special law, as the department shall determine will realize the amount 18
which has been properly expended or will be properly required, and as 19
the department shall approve for such of the purposes aforesaid as are 20
set out in its petition to the department. 21
The department, in authorizing the issue of any bonds under this 22
section, may prescribe the minimum price at which such bonds shall be 23
sold, and may modify such price from time to time, as it deems proper. 24
Whenever it authorizes or has approved the issue or sale of bonds of a face 25
value in excess of the amount determined by it to have been properly ex- 26
pended or to be properly required, it may, in its order of approval, or at 27
any time thereafter, require the company issuing such bonds to establish 28
a sinking fund, estimated to realize at the maturity of said bonds a sum 29
equal to the difference between the amounts for which such bonds were 30
authorized or approved, and the face value of the bonds so authorized 31
or appro-\-ed therefor, and may designate a domestic trust company as 32
trustee and custodian of such fund, and may from time to time change 33
such trustee. Any agreement relative to said sinking fund, made between 34
the street railway company and the trust company selected as such 35
trustee, shall not be valid until approved by the department. 36
Bt"o"k*lnd°^ Section 26. In addition to the purposes for which a company may 1
issue of bonds incrcase its capital stock or issue bonds, as provided in the preceding sec- 2
working tiou, a Company to supply itself with working capital may, in accordance 3
i909?485. \\ith sections twenty-eight, twenty-nine and thirty-one of this chapter 4
Chap. 161.] street railways. 1763
5 or sections fifty to fift,y-two, inclusive, of chapter one hundred and
6 fifty-nine, in the case of companies to which said last named sections
7 are applicable, and of sections forty-seven to fifty-five, inclusive, of
8 chapter one hundred and sixty, increase its capital stock to an amount
9 not exceeding five per cent of the par value thereof then outstanding, or
10 may issue bonds, secured by mortgage or otherwise, to such an amount,
11 beyond the amounts fixed and limited by its agreement of association,
12 or by any general or special law, and not more than the department
1.3 shall determine will be properly required therefor, as the department
14 shall approve as being consistent with the interest of the public and of
15 the stockholders of such company and as not unreasonably reducing the
16 security of any bond previously issued.
1 Section 27. On petition of a company for authority to reduce its Reduction of
2 capital stock, presented in accordance with a vote of the stockholders at 1890^326°'^'^'
3 a meeting called therefor, the department may, after a hearing and such fgoi;; 463. m,^'
4 examination of the financial condition of the company as it considers f|7'Mass^536
5 necessary, authorize such reduction, if it appears to be consistent with
6 the public interest and with the limitations imposed by general or special
7 laws. A certificate of the amount of the reduction and of any terms and
8 conditions imposed shall be forthwith filed by the department in the
9 office of the state secretary. When such reduction is made, no money or
10 other property shall be paid or transferred to the stockliolders unless
11 specially authorized by the department, and by vote of the directors
12 of the company taken by yeas and nays at a meeting called therefor.
13 The directors voting therefor shall be jointly and severally liable for
14 the debts or contracts of the company existing when the capital stock
15 is reduced, to the extent of the money or property paid or transferred
16 to the stockholders.
1 Section 28. A company shall issue only such amounts of stock and ^f "f °f ca^jitai
nil 11 -1 !• • ^ I \ stock, bonds,
2 bonds, coupon notes and other evidences oi indebtedness payable at coupon notes
3 periods of more than one year after the date thereof, as the department evidences ot
4 may from time to time determine to be reasonably necessary for the pur- isw, 462"!^
5 pose for wliich such issue of stock or bonds has been authorized. The r^^'l; 109, 1 24.
6 department shall render a written decision upon an application for such §§°io7,'^i58."'
7 issue within thirty days after the final hearing thereon, assigning the |^| J}^^^ p^-
8 reasons therefor, and shall, if authorizing such issue, specify the respective 2i« Mag. 432.
9 amounts of stock, bonds, coupon notes or other evidences of indebt- (i9i9)'54'.
10 edness as aforesaid, which are authorized to be issued for the respective
11 purposes to which the proceeds thereof are to be applied, and the decision
12 shall, within seven days after it has been rendered, be filed in the office
13 of the department. A certificate of the decision shall, within three days
14 after it has been rendered and before the stock, bonds, coupon notes
15 or other evidences of indebtedness as aforesaid are issued, be filed in the
16 office of the state secretary, and a duplicate thereof delivered to the
17 company. Such company shall not apply the proceeds of such stock,
18 bonds, coupon notes or other e^'idences of indebtedness as aforesaid to
19 any piu-pose not specified in such certificate.
1 Section 29. A company, unless expressly authorized by its charter Limit of issue
2 or by special law, shall not issue bonds, coupon notes or other evidences coupon notes
3 of indebtedness payable at periods of more than one year after their evidence! ot
4 date to an amount which, including the amount of all such securities iss^'s^ililTi
1764
STREET RAILWAYS.
[Chap. 161.
1S97
previously issued and outstanding, computed as provided in section fifty- 5
R.i'.'i'og. §25. three of chapter one hundred and fifty-nine, exceeds in the whole the 6
§§ 108, 158. ' amount of its capital stock at the time actually paid in; but this limita- 7
222*Mals'. 35. ^ion shall not apply to an issue of bonds for the purpose of paying and 8
refunding at maturity bonds lawfully issued prior to June second, 9
eighteen hundred and ninety-seven; nor shall it apply to such of the 10
bonds issued or to be issued imder a mortgage as are deposited to retire at 11
or before maturity bonds or other evidences of indebtedness previously 12
issued and outstanding at the date of such mortgage, and as do not exceed 13
the par value of the funded or other debt so to be retired; nor shall it 14
apply to bonds, coupon notes or other evidences of indebtedness payable 15
at periods of more than one year after their date, in addition to, and not 16
exceeding twenty per cent of, the amount so computed, which shall be 17
authorized as consistent with the public interest by the department, and 18
which shall be subject to such requirement as to a sinking fmid or other 19
method of retiring said evidences of indebtedness within a period not 20
exceeding ten years, as the department may prescribe, to provide means 21
for, or to fund, the actual cost of replacement or reconstruction of any 22
existing property; and such company shall not issue the securities specified 2.3
in this section unless authorized by a vote of its stockholders at a meeting 24
called therefor. 25
Enforcement.
1894. 462. 5 3.
R. L. 109, §27.
1906. 463. Ill,
§§ 109, 158.
Section 30. The supreme judicial or superior court shall have juris- 1
diction in equity, upon the application of the department, the attorney 2
general, any stockholder, or any interested party, to enforce the two pre- 3
ceding sections and all lawful orders and decisions, conditions or require- 4
ments of said department made in pursuance thereof. 5
Penalties.
1894, 462, § 2.
R. L. 109, § 28.
1906. 463. III.
§§110, 158.
Section 31. A director, treasurer or other officer or agent of a com- 1
pany who knowingly votes to authorize the issue of, or knowingly signs, 2
certifies or issues, stock or bonds contrary to any provision of section 3
twenty-eight or twenty-nine, or who knowingly votes to authorize the 4
application, or knowingly applies the proceeds, of such stock or bonds 5
contrary to any provision of said sections, or who knowingly votes to 6
assume or incur, or knowingly assumes or incurs in the name or behalf of 7
such company, any debt or liability except for legitimate purposes of 8
the company shall be punished by a fine of not more than one thousand 9
dollars or by imprisonment for not more than one year, or both. 10
pISerred Sectiox 32. A Company organized under the laws of the common-
i902!'44i, § 1. '"'ealth may, by vote of two thirds in interest of its common stockholders
§§^'5"' ^* ^ meeting duly called therefor, with the approval of the department,
211 Mass. 424. and subject to section twenty-eight of this chapter and section fifty-
two of chapter one hundred and fifty-nine, issue, and from time to time
increase, preferred stock of one or more classes, for any lawful purposes
for which such companies may issue or increase their capital stock.
Each class of preferred stock shall be entitled to the preferences and rights
and subject to the restrictions and limitations fixed by such vote as
approved by the department.
1
2
3
4
5
6
7
8
9
10
Exchange of
common for
1913."^, § 2. iiiaiiner as shall be determined by vote of two thirds in amount of its 2
Section 33. Any such company may, upon such terms and in such 1
Chap. 161.] street railways. 1765
3 outstanding common capital stock and as shall be approved by the de-
4 partment, issue in lieu of outstanding common shares preferred shares
5 to such number, of such par value and with such preferences, rights, re-
6 strictions and limitations and entitled to such rate of preferred dividend
7 as shall so be determined and approved; provided, that the aggregate
8 par value of such preferred stock shall not exceed the aggregate par
9 value of the common stock in exchange for which it is issued.
1 Section 34. Each class of preferred stock issued under sections Form of cer-
2 thirty-two to thirty-five, inclusive, shall be designated by a name ap- wol'^i^t^.
3 proved by the department to distinguish it from all other classes of §§^3,'5."'
4 stock of the company. A certified copy of the vote creating, and of the
5 order of the department approving, the creation of any class of preferred
6 stock shall be filed in the office of the department and in the office of the
7 commissioner of corporations and taxation. Every certificate of stock
8 issued by such company after the approval by the department of the
9 creation by it of preferred stock shall contain a reference to all votes
10 creating preferred stock and a brief description of the respective pref-
1 1 erences, rights and restrictions of each class of such stock.
1 Section 35. Preferred stock issued under sections thirty-two to Preferred
"''■ thirty-five, inclusive, shall have the same voting power as the common
powers, issue,
3 stock, except that, in any case, there may be such limitations of the voting jg^, 441 § 1
4 power of said preferred stock as the department approves and finds con- Iff'!^'
5 sistent with public interest. The aggregate amount at par of preferred
6 stock of all classes issued by a company shall at no time exceed twice the
7 amount at par value of its outstanding common stock, and no class of
8 preferred stock shall be created which is not, in a manner approved by the
9 department, made subordinate in respect to dividends or to participa-
10 tion in the proceeds of liquidation to the preferences of every previously
1 1 created class of preferred stock. Upon any issue of preferred stock the
12 new shares shall, unless the common stockholders with the approval of
13 the department otherwise provide, first be offered to the common stock-
14 holders in the manner prescribed in sections fifty to fifty -two, inclusive,
1.") of chapter one hundred and fifty-nine, and any shares of the preferred
16 stock not duly subscribed and paid for by the common stockholders or
17 their assigns shall be offered in the same manner to the holders of pre-
18 ferred stock of the same class; and any of such preferred shares then
19 remaining untaken, and all of the preferred shares if the common stock-
20 holders so determine and the department approves, may be sold in the
21 manner provided by and subject to section fifty-one of chapter one hun-
22 dred and fifty-nine. In case of any increase in the common stock of the
23 company, holders of preferred stock shall be entitled to have offered to
24 them shares of the new stock in the manner provided in sections fifty to
25 fifty-two, inclusive, of chapter one hundred and fifty-nine, whenever the
26 vote creating such preferred stock as approved by the department shall
27 so provide.
STOCK .U\T) SCRIP DIVIDENDS.
1 Section 36. A company shall not declare any stock or scrip divi- stock and
2 dend or divide the proceeds of the sale of stock or scrip among its dends for-
3 stockholders. is94, 3.50, § 1.
R. L. 109, § 20. 1906, 463, III, §§ 105, 15S. 214 Mass. 529.
1766
STREET RAILWAYS.
[Ch.\p. 161.
Liability of
directors.
1894, 350, § 2.
R. L. 109, § 21.
1906, 463. Ill,
§§ 106, 158.
1918, 257,
§368.
1919, 5.
1920, 2.
Section 37. A certificate of stock or scrip issued in violation of the
preceding section shall be void; and each director of the company issuing
it shall be liable to a penalty of one thousand dollars, to be recovered by
indictment in the county where he resides, or, if he resides in no county
in the commonwealth, in the county where he is commorant, or the offence
was committed ; but if any such director proves that, before such issue, he
filed his written dissent thereto with the clerk, and at no time voted
therefor, he shall not be so liable.
Powers to
cease if rail-
way is not
built within
eighteen
months after
date of incor-
poration,
unless, etc.
1857, 198.
G. S. 63, § 140
1864, 229, § 12.
1871,381, § 12.
P. S. 113, § 20.
R. L. 112, § 28.
1906, 463, III,
§§ 30, 158.
CORPORATE POWERS.
Section 38. A company, incorporated under the laws of the com- 1
monwealth, may, subject to this chapter and chapter one hundred and 2
fifty-nine, construct, maintain and operate a street railway, but, if such 3
company does not build and put in operation its railway within eighteen 4
months after the date of its certificate of incorporation, its corporate 5
powers shall cease, unless the department, after public notice and a hear- 6
ing, shall extend said time by a certificate, stating that in its judgment 7
due diligence has been exercised by the company, and that public necessity 8
and convenience require such extension. 9
Extension of
corporate
autnority to
operate
railway.
1896, 501.
R. L. 112, § 92.
1906, 463, III,
§§ 31, 158.
Section 39. A company, which, by its charter or certificate of in- 1
corporation, or by special act, is authorized to construct, maintain and 2
operate a street railway in any city or town in the commonwealth, and 3
which has constructed its railway therein, may, subject to the provisions 4
of the general laws relative to the location, construction and operation 5
of street railways, extend its railway into such other cities and towns 6
in the commonwealth as the department shall, on application of such 7
company, and after public notice and a hearing, certify that the public 8
necessity and convenience require. An attested copy of such certificate 9
shall, within three days after it is granted, be filed by the department in 10
the office of the state secretary. 1 1
Connecting
location.
1898, 578,
R. L. 112,
1906, 46.i
§§ 32, 158,
III
Section 40. A company whose petition for a location, necessary, in
I \\- the judgment of the department, to furnish proper transportation facili-
ties between two cities, or two towns, or a city and town, has in whole or
in part been granted or refused, or has been neither granted nor refused
within three months after the filing thereof, may, within thirty days of
such grant or refusal of a location, or the expiration of said three months,
apply to the department for such location. If it shall appear at a hearing
on said application, after such notice to the board of aldermen or the 8
selectmen, and to all persons who own real estate abutting upon any way 9
in which such location was asked for, by publication or otherwise, as the 10
department orders, that the company has already been granted and has 11
accepted locations for a street railway in two cities, or two towns, or a 12
city and town, adjoining the city or town where such location has been 13
asked for, or has already been granted and has accepted locations for a 14
street railway in two adjoining cities, or two adjoining towns, or an ad- 15
joining city and town, and that a location is necessary to connect such 16
existing locations, the department may, if it finds that public necessity 17
and convenience so require, enter a decree granting a connecting location. IS
In granting the location the department may prescribe the appliances 19
and impose the conditions and obligations which are specified or referred 20
to in section seven relative to the granting of original locations. Such 21
Chap. IGl.] street railways. 1767
22 location shall be the true location, if, within thirty days after the issue of
23 notice to the company of the entry of said decree, the directors shall file
24 a written acceptance of such location with the department; otherwise,
25 said location shall be void.
1 Section 41. A company may piu-chase and hold real and personal ^n^\g"jate"
2 estate necessary or convenient for the operation of its railway; but it stock and '
3 shall not, except as provided in section sixty-four, directly or indirectly, street railway
4 subscribe for, take or hold stock or bonds of any sucli company orfjanized i864?229.^§ 13.
5 under general laws unless specially so authorized by the general coiu-t. Jgyi; 2o?'§ la'
p. S. 113, § IS. R. L. 112, § 26. 1906, 463, III, §§ 33, 158. 187 Mass. 536.
1 Section 42. A company may, except in Boston, acquire, hold, main- Pleasure
2 tain and equip land for purposes of recreation and for pleasure resorts, ilgs.'lie.
3 provided that the department shall find that the acquisition, equipment H L.^ifo, 5 76,
4 and maintenance of such land for such purposes and the cost thereof and Js^ij^fls"''
5 other circumstances relating thereto are consistent with the public inter- 2il\P'*' ss-i
6 est. Such recreation and pleasure resorts shall be subject in the same
7 manner as other places of amusement to the supervision and regulation of
S the local authorities of the cities or towns where situated, and shall be
9 subject to such further restrictions as the department may from time to
ID time impose. No company shall sell intoxicating liquors or allow them to
1 1 be sold within the limits of any resort held or maintained by it ; nor shall it
12 sell without the appro\'al of the department any land so acquired. No
13 company shall contribute, directly or indirectly, by payment of money
14 or otherwise, except in such cases and to such extent as the department
1.") shall first approve, to the establishment, equipment or maintenance of
10 any recreation park or pleasure resort not owned by such company.
1 Section 43. A company may use electricity, or such other motive Motive
2 power, other than steam, as the department may permit. 1864, 229, | 34. po»er.
1871, 381, § 44. R. L. 112, § 51. ISS Mass. 250.
P. S. 113, § 39. 1906, 463, HI, §§ 35, 158. 196 Mass. 329.
1 Section 44. Any company, with the approval of the department, May acquire
2 may acquire, own and operate, for the transportation of passengers or motorcars.
... . . 1918 226 § 1
3 freight, motor vehicles not running upon rails or tracks, but in such 1919! 37ii
4 operation shall be subject to sections forty-five to forty-nine, inclusive, '
5 of chapter one hundred and fifty-nine.
1 Section 45. A company may, for all purposes necessary or reasonably Power to
2 incident to the construction, maintenance or operation of its railway, "ncTtransmft
3 generate, manufacture, use and transmit electricity in any city or town f9i''i*"442.
4 where authorized to operate its railway, and may erect and maintain
5 therefor, as a part of its railway, and subject to sections seven, seventy,
G seventy-one and seventy-seven, relati^'e to tlie grant and revocation
7 of authority therefor, poles and trolley, feed and stay wires, and other
8 proper devices for, or used in connection with, the transmission of elec-
9 tricity, of materials and workmanship prescribed in the grant of au-
10 thority therefor, in, over and under any ways and bridges in any such
11 city or town; provided, that authority to erect and maintain the same
12 is granted by the board of aldermen of the city or selectmen of the
13 town, respectively; and may also erect and maintain such poles, wires
14 and other devices upon and over any private land, with the consent of
15 the owners thereof.
1768
STREET RAILWAYS.
[Chap. 161.
Connectinj
companies
Joint use
of tracks
Section 46. A company may permit another street raOway company 1
to operate cars over its tracks to such extent and under such rules and 2
^^t ni I Vs regulations as the department deems consistent with the public safety. 3
R.
1906,463, HI, §§36, 158.
Regulation
of interchantre
of traffic
and cars.
1863, 223,
§§ 1-5.
1864. 229,
§§ 29-31.
1871,381,
§§3S-41.
1874, 29,
§§ 12-14.
P. S. 113,
§§ 48-52, 55.
ISSS, 278, § 1.
R. L. 112,
§§ 77-81, 84.
1911, 487.
Use of rail-
road tracks.
1910, 596.
Section 47. The department may, on petition of a company or of 1
any interested party, after notice and a public hearing, determine the 2
reasonable conditions which shall govern the interchange of traffic and 3
cars between companies, and may, wherever it is reasonable and con- 4
sistent with the public interest, order such company to receive and con- 5
xey over its tracks the cars of another such company at such times and 6
o\-er such routes and upon such terms, including reasonable compensa- 7
tion, as the department may prescribe; provided, that a company shall 8
have control of and responsibility for the management and operation of 9
all cars while upon its railway as fully as if it owned them. The depart- 10
ment may also recommend such joint rates, fares and charges as are con- 1 1
sistent with the provisions of any special charter of any company, speci- 12
fying at the same time and in every instance the part of the joint rate, 13
fare or charge to which each company affected thereby shall be entitled, 14
and may make such other recommendations as seem appropriate to the 15
circumstances of each particular case. 16
Section 48. A company, with the consent of a railroad corporation
owning tracks, may, to such extent and subject to such terms and regula-
tions as the department may approve or prescribe, operate cars upon and
over such tracks of said railroad corporation as are equipped for opera-
tion by the electric system of motive power, and may connect its own
tracks with the tracks of such railroad in such manner as may be agreed
upon by the two companies and approved by the department.
Street
sprinkling
cars.
1897, 315.
Section 49. A company may allow street sprinkling cars or similar
apparatus to be used upon its tracks, may furnish the motive power and
K- L.ri|. 5 54. use of tracks or other facilities, and may make contracts therefor; but
■"--"' ' this section shall be operative only to such extent and subject to such
regulations and restrictions as the department, ha\'ing regard to the
necessities of public travel, may approve.
i 37, 158.
Gravel, etc.,
cars.
1898, 328.
R. L. 112, § 55.
1902, 288, § 1.
1906,463. Ill,
§§ 38, 158.
190 Mass. 527.
Section 50. A company may, with the consent of the board of alder- 1
men or the selectmen, convey in cars over its tracks snow, ice, stones, 2
gravel, dirt, or street sweepings, taken from any street or way over or 3
tlirough which its tracks are located, in order to keep said street or way 4
in proper condition for travel, or may-convey to any point on its line, or 5
deliA-er to any connecting line or any other such company, necessary 6
material for use in constructing, grading, repairing or improving any 7
street or way in any city or town, or any state highway, whether on the 8
line of any such company or not, and may make contracts with cities, 9
towns, the di\ision of highways of the department of public works, and 10
with other such companies for the transportation of such material. 11
oth'er'sutpiies. Section 51. A compauy may convey in cars over its tracks coal and
§^3°9^.' *^^' '"' other supplies for its own u.se.
190 Mass. 527.
Carriers
of mail.
Section 52. A company may carry the United States mail.
1901, 254. R. L. 112, | 75. 1906, 463, III, §§ 40, 158.
Chap. 161.] street railw.vys. 1769
1 Section 5.3. A company, on petition of any interested party, may Companies
rji '^i? \^ ^ J.J.J may become
2 become a common carrier or newspapers, baggage, express matter and common
3 freight, upon such parts of its railway and subject to such orders, rules fright! etc.
4 or regulations as may from time to time be made, established or pre- r °l'. m', § 75
5 scribed by the board of aldermen or the selectmen, in this section called J^o^, 202.
6 the licensing authorities. Any such petitioner or any company, aggrieved wo'''.' ■K'-'. ni,
7 by such orders, rules or regulations, or in case of failure of the licensing 1907, 402"
8 authorities of any city or town to act upon such petition within thirty
9 days of its presentation, may appeal to the department, whose decision,
10 after public notice and hearing, shall be made within thirty days of the
11 said appeal and shall be final. All orders, rules or regulations made,
12 established or prescribed as aforesaid shall be enforced in the manner
13 provided in section forty of chapter one hundred and fifty-nine. Any
14 company acting under the authority herein granted shall be subject to
1 5 all laws relating to common carriers in so far as consistent herewith. The
16 authority conferred upon any company by said licensing authorities by
17 virtue of this section may be revoked at any time by said licensing au-
18 thorities if, after public notice and hearing, they determine that the
19 public interest so requires; provided, that any company or interested
20 party, aggrieved at such revocation, may appeal to the department,
21 whose decision, after public notice and hearing, shall be made within
22 thirty days of the said appeal and shall be final and shall be enforceable
23 as prov-idetl in section forty of chapter one hundred and fifty-nine.
L.AND.
1 Section 54. Except as provided in this chapter or chapter one hun- Private land.
2 dred and fifty-nine or one hundred and sixty, and except for the purpose §§°3,'4.°^'
3 of reaching its car barns or repair shops, and of reaching and providing f^J^- Hf j\f^-
4 convenient terminals in parks and pleasure resorts situated upon the line flitf'rli^-
5 of its railway, and of reaching its freight yards and terminals, and of
6 maintaining spurs and sidings, and for other purposes incident to per-
7 forming the business authorized by the preceding section, a company shall
8 not, unless authorized by special act of the general court, construct or
9 operate any part of its railway outside the limits of a public way or bridge ;
10 but such a company which, prior to Jime fourteentli, nineteen hundred
1 1 and one, without special legislative authority therefor constructed any part
12 of its railway upon private land, with the consent of the owners thereof,
13 or upon land leased or purchased by such company, or which prior to said
14 date purchased or leased land for the purpose of constructing its railway
15 thereon, or which prior to said date after public notice and a hearing ob-
16 tained the approval of the board of aldermen of a city or of the selectmen
17 of a town to the construction of a part of its railway upon private land
18 within such city or town, and prior to said date actually with the consent
19 of the owners of the land began, or obtained their consent to begin, such
20 construction, may construct, maintain and operate its railway upon such
21 private land, subject to the provisions of this chapter conferring upon
22 the department control over street railwavs constructed upon ])ri\'ate
23 land.
1 Section 55. A company, organized, or in process of organization. Location by
2 under the laws of the commonwealth, having first obtained the approval fease'^on^ °^
3 of the board of aldermen of the city or of the selectmen of the town where ?9oY m'^^i
4 private land is situated to the construction of its railway thereon, may, rlii2!§9.
1770 STREET RAILWAYS. [ChAP. 161.
i90fi, 4(53, III, for the purpose of avoiding grades and curves in public ways, and for 5
sucli other pm-poses incidental to the use of such ways, as the depart- 6
ment may in the manner hereinafter provided approve, petition the de- 7
partment for authority to construct and maintain parts of its railway or 8
extension thereof upon such priA'ate land outside the limits of such w^ys. 9
The company in such petition shall set forth the purpose for which such 10
authority is desired in each case, and shall file with the petition a plan, in 11
such form and upon such scale as the department prescribes, of the rail- 12
way or extension, and of the localities where it is desired to construct the 13
same upon private land, and the department, after public notice and a li
hearing, if satisfied that public necessity and convenience demand that 15
parts of the railway or extension should be built outside the limits of such 16
ways, substantially on the private land selected, and that the approval of 17
the board of aldermen or the selectmen of the city or town where the 18
land is situated has been obtained as aforesaid, may authorize the peti- 19
tioner to construct and operate its railway or extension upon and over 20
private land, and for that purpose to pm-chase or lease private land or 21
rights therein and thereover, in such cases and to such extent as the 22
department deems public necessity and con^■enience in the construction 2.3
and operation of the railway or ex"tension require. The department in 24
granting such authority may determine the kind of construction to be 25
used, the grade and alignment of the tracks, and may order such special 26
appliances to be furnished and such safeguards to be adopted in the con- 27
struction and operation of the railway or extension upon private land as 28
it deems public necessity, convenience and safety demand. 29
o/k)cation SECTION oG. A Street railway constructed upon pri\'ate land shall not 1
OT le^e'ra" t)e opcucd for public use until the department, after examination, certifies 2
itJoT'los"!'-' *^^^* ^^^ laws relative to its construction and all requirements of the de- 3
inofi' 4m' ni "' Partment have been complied with, and that it appears to be in a safe 4
§§ 44, 13S. ' condition for operation. The department may, at any time after the 5
opening of a street railway for public use, order such changes and im- 6
provements to be made in the construction and operation of any 7
part thereof upon private land as it deems necessary for public safety 8
in the use thereof; and such order shall be complied with by such 9
company. 10
toTocMfonTon Section 57. A compauy, whose railway is constructed in part outside 1
im'loi.^l's the limits of public ways, shall, in respect of the eciuipment, use and 2
ioofi.' Ifi.l.' 111°' operation of its railway and transportation thereon, be subject to the laws 3
§ j 45, los. ^elati^•e to street railway companies, as fully as if its railway were located 4
wholly within the limits of public "ways. 5
em|nent°do- SECTION 58. A domcstic company may apply to the board of aldermen 1
pm-atTiand. "^ ^ ^'^^Y Or to the Selectmen of a town where it desires to take land, for 2
1906' 483' III ^^ adjudication that public necessity and convenience require that cer- 3
•'i3*M ^^s^'s4 ^^'^ land, or interests in land, as described in its petition, and for the 4
specific purpose therein stated, be taken by such company, to enable it, 5
in constructing its street railway, or extension thereof, to a"\"oid dangerous 6
curves or grades existing in the highways, or for other similar purposes 7
incident to and not inconsistent with its corporate franchise of operating S
a railway to accommodate public tra^-el in public ways. If the board to 9
which such application is made finds in favor of the petitioner, after tlie 10
Chap. IGl.] street railways. 1771
11 notice and hearing required by law in the case of the grant of locations for
12 street railways in public ways, tlie company may, upon compljang with
13 the provisions prescribed for railroad corporations by section eighteen
14 of chapter one hundred and sixty, apply to the department for a certificate
15 that pubhc necessity and convenience require the construction of the
16 railway between the termini and substantially upon the route fixed by
17 the agreement of association in case of a company organized under the
IS general la\\s and by the charter of a company created by special statute,
19 or of the extension substantially on the locations already granted therefor,
20 and for approval of the adjudication of the board of aldermen or of the
21 selectmen as to the necessity and reasons for taking land or rights in land
22 in every city or town where such adjudication has been made. If the
23 department, after public notice and a hearing, at which all persons or
24 corporations alleging that they would be injured by the construction of
25 the railway shall be deemed to be interested parties and entitled to be
26 heard, grants the certificate as prayed for, the petitioner may take by
27 eminent domain under chapter seventy-nine any land or rights in land
28 the taking of which has so been approved by the department.
1 Section 59. A company acting under authority of the preceding same subject.
2 section shall be subject to sections seventy-fi^'e, seventy-six, eighty, jgoe! les! iiii
3 eighty-one, eighty-six, ninety to ninety-three, inclusive, ninety-six and ^^ *''• ^^*'
4 two hundred and fifty-two of chapter one hundred and sixty, and, if its
5 railway crosses a public way or another street railway, except where its
6 railway is constructed ^\ithin the limits of another public way crossing
7 such way or street railway, it shall also be subject to sections ninety-seven
8 to one hundred and three, inclusive, one hundred and forty, one hundred
9 and forty-one, and one hundred and forty-se^•en to one hundred and
10 fifty, inclusive, of said chapter; pro\'ided, that wherever by said sections
11 any jurisdiction is conferred upon a board of county commissioners,
12 the same shall in the case of a company be exercised by the board of
13 aldermen of the city or by the selectmen of the town where the land or
14 other property proposed to be taken is situated.
1 Section 60. A company authorized to construct its railway at grade same subject.
2 across a public way in any place where such crossing is not a part of the 1906,' 463] iii;
3 crossing of such way by another public way, and incident to the construe- ^^ '**■ ^''^■
4 tion of the street railway longitudinally wdthin the limits of such other
5 public way, shall, in any proceedings for the abolition of such grade
6 crossing, be considered as a railroad corporation under sections sixty-five
7 to eighty-two, inclusi\'e, of chapter one hundred and fifty-nine if such
8 company has taken any land or other property under authority of the
9 two preceding sections; and it may bring a petition, or be made a re-
10 spondent to any petition brought by any of the other parties named in
11 said sections, in the same way and be subject to the same liabilities as if
12 it were a railroad corporation.
1 Section 61. The three preceding sections shall not enlarge the extent ?™« ?"'?J|<^*-
^ !• 1 . 1 .1 1 1 1 1903, 47fi, § 4.
2 or purposes tor which a street railway may be constructed or operated woe, 483. in,
3 outside the limits of public ways as defined and limited in sections fifty-
4 four and fifty-five.
1772
STREET RAILWAYS.
[CH.VP. 161.
LEASE OR SALE OF RAILWAY.
tob'n^sed'or SECTION 62. A Company shall not lease or contract for the operation
8oW, except, of its railway for a period of more than ninety-nine years without the con-
1S64. 229. 1 24. sent of the general court, nor, except as provided in the three following
p. s.'ii3,'§66.' sections and in section one hundred and twenty-three, shall it sell its
R. h. 112; § So. railway unless authorized so to do by its charter or by special act of the
iimIIi'. 158. general court. ii.yien.Go.
173 Mass. 286. 191 Mass. 522. 206 Mass. 215. Op. A. G. (1919) 20.
Sale or con-
solidation.
1897, 269. § 1.
R. L. 112. § 86.
1906, 463, III,
§§ 52, 158.
1911. 357.
209 Mass. 213.
Section 6.3. A domestic company may sell and convey the whole 1
or a part of its franchise and property to, or may consolidate with, any 2
other such company whose railway connects with, intersects or forms 3
a continuous line with its own, if the facilities for travel on the railway 4
of each of said companies shall not be thereby diminished, or the rates of 5
fare increased, and such other company may purchase of or consolidate 6
with it as aforesaid; but such purchase and sale or consolidation shall 7
not be valid or binding until its terms have been agreed to by a majority 8
of the directors, and have been approved, at meetings called therefor, by 9
a vote of two thirds in interest of the stockliolders of each of the con- 10
tracting companies, and by the department as required by section fifty-four 1 1
of chapter one hundred and fifty-nine. Whenever a company sells and 12
conveys the whole or a part of its franchise and property to, or consoli- 13
dates with, any other company, every stockholder of both the purchasing 14
or consolidated company and of the selling company shall be deemed 15
to assent to the terms of purchase and sale or of consolidation, when 16
approved by the department in accordance with any provisions of law 17
requiring such approval, unless, within thirty days after the date of such 18.
approval, he shall file with the clerk of the department a writing, declar- 19
ing his dissent from said terms and stating the number of shares held by 20
him and the number of the certificates evidencing the same; provided, 21
that, as against any stockholder under any legal incapacity to act for 22
himself and having no legal guardian, said period of thirty days shall not 23
begin to run until the removal of such incapacity by the appointment of 24
a legal guardian, or otherwise. The shares of any stockholder so dissent- 25
ing shall be acquired by the purchasing or consolidated company, and 26
shall be valued, and the value thereof paid or tendered to, or deposited 27
to or for the account of, such stockholder in the manner following : Within 28
sixty days after the filing as aforesaid of his dissent from the terms of such 29
sale or consolidation, the said dissenting stockholder or the purchasing 30
or consolidated company shall file a petition with the supreme judicial 31
court, sitting within and for the county where said stockholder resides 32
or in any county in which said company operates any part of its railway, .33
which petition, if filed by the company in a county other than that of the 34
stockholder's residence, may upon his application be removed to the 35
county where the said stockholder resides, setting forth the material 36
facts and praying that the value of such dissenting stockholder's shares 37
may be determined. Thereupon, after such notice to all parties con- 38
cerned as it deems proper, said court shall make an order requiring such 39
dissenting stockholder's certificates of stocks to be deposited with the 40
clerk of said court, and shall appoint three commissioners to ascertain 41
and report the value of such dissenting stockholder's shares on the day 42
of the approval by the department of the terms of the agreement of 43
purchase and sale or consolidation. Said report shall be made to the 44
Chap. IGl.] street railways. 1773
45 court as soon as practicable, and, after clue notice to the parties in in-
46 terest, shall be accepted by the court, unless before such acceptance
47 either of the parties to said proceedings shall claim a trial by jury, in
48 which case the court shall order the value of said shares to be tried and
49 determined by a jury in the same manner as other civil cases are tried
50 in said court. The said commissioners' report, or the verdict, when ac-
51 cepted by the court, shall be final and conclusive as to the value of such
52 dissenting stockholder's shares, and the amount so ascertained as such
53 value shall at once be paid or tendered to such stockholder; or, if such
54 payment or tender be impracticable for any cause, shall be paid into
55 court. Upon such payment, tender or deposit, the shares of such dis-
56 senting stockholder and the certificates thereof shall become the property
57 of the purchasing or consolidated company, whose right and title thereto
58 may be enforced by the court by any appropriate order or process. Ex-
59 ceptions may be taken to any ruling or order of said court, to be heard
60 and determined by the full court as in other civil cases; and said court
01 may make all such orders for the enforcement of the rights of any party
62 to the proceedings, for the consolidation of two or more petitions and
63 their reference to the same commissioners, for the consolidation of claims
64 for a jury trial and the trial of two or more cases by the same jury, and
65 for the payment of interest upon the value of a stockholder's share
66 as determined, and the payment of costs by one party to the other, as
67 justice and equity and the speedy settlement of the matters in contro-
68 versy may require.
1 Section 64. The purchasing or consolidated company may, subject increase of
2 to section twenty-eight, increase its capital stock and issue bonds to l'iS\lsue°oi '
3 an amount necessary for the purposes authorized in the preceding sec- is97f269, § 2.
4 tion, and may exchange its securities for those of the selling or merged ^g^- Ij^- f j^-
5 company, if the aggregate amount of the capital stock and debt of the §5 53, iss.
6 two contracting companies shall not by reason of such purchase and
7 sale or consolidation be increased.
1 Section 65. Such purchasing or consolidated company shall have Powers and
2 the powers and privileges, and be subject to the duties, liabilities and consohdlted
3 restrictions, of the company selling or merged, but, except as provided JsU^yPjeg' §3
4 in this chapter or chapter one hundred and fifty-nine, no right to con- Pme' los' iif *'
5 duct an express business or to be a common carrier of merchandise shall, §§^54, iss.
6 by reason of any such sale or consolidation, be allowed over any location
7 where it had not been granted prior to April tenth, eighteen hundred and
8 ninety-seven.
1 Section 66. Two domestic companies, whose railways connect with Operating con-
2 or intersect each other or together form a continuous line, may contract feases.""
3 that either company shall perform all the transportation upon and over H^i'i^^'
4 the whole or any part of the railway of the other; or any such company f^^^.- ii| |jP-
5 may lease its franchise, property and railway to any other such com- §§55, iss.
6 pany; but the facilities for travel on either of the railways of said com-
7 panics shall not be thereby diminished or the rates of fare increased.
8 Such contract or lease shall not be valid or binding until its terms have
9 been agreed to by a majority of the directors, and have been approved,
10 at meetings called therefor, by a vote of a majority in interest of the
11 stockholders of each of said companies, and by the department as
1774
STREET RAILWAYS.
[Chap. IGl.
required by section fifty-four of chapter one hundred and fifty-nine. The 12
income arising from such contracts or leases shall be subject to the 13
provisions of law relative to the reduction of fares in the same manner 14
as that arising from the use of the railway's. Such railways shall be 15
considered as connecting with or intersecting each other, or forming a 16
continuous line, if one of them connects with or intersects or forms a 17
continuous line with a railway leased to or operated by the other under 18
a contract authorized bv this section. 19
Powers under
contracts or
1897, 213. § 4.
R. L. 112, §90.
1906, 463. Ill,
§§ 56, 158.
Section 67. A company which contracts for the operation, or takes 1
a lease, of another railway shall, subject to the terms of such contract or 2
lease, have and enjoy the powers and privileges, and be subject to the 3
duties, liabilities and restrictions of the company owning it; but no right 4
to carry on an express business or to be a common carrier of merchandise 5
shall be allowed, except as provided in this chapter or chapter one hun- 6
dred and fifty-nine, over any location where it had not been granted 7
prior to March twenty-ninth, eighteen hundred and ninety-seven. 8
Proceeds of
sale not to be
used for
dividends.
1864, 229, § 39.
1871,381, §51.
P. S. 113, § 57.
K. L. 112, §91.
1906,463,111,
§§ 57, 158.
Purchase of
connecting
Jines.
1910, 443.
Section 68. A company shall not appropriate for the payment of 1
dividends any money received from the sale of any portion of its railway, 2
unless it first reduces its capital stock issued, by an amount which, at its 3
par value, is equal to the amount which such portion of its railway cost 4
said company. 5
Section 69. A domestic company may purchase from a street rail- 1
way company incorporated under the laws of another state so much of 2
the railway, franchise and property of such other company as is located 3
or used and exercised within this commonwealth when the railway of such 4
other company connects with, intersects, or forms a continuous line with 5
that of the purchasing company; provided, that the facilities for travel 6
on the railway of each of said companies within this commonwealth 7
shall not thereby be diminished, or the rates of fare increased; and pro- 8
vided, that no such purchase shall be valid or binding until the terms 9
thereof have been approved by the department as required by section 10
fifty-four of chapter one hundred and fifty-nine. 11
Kxtension of
location.
1874,29, § 11.
P. S. 113, §21.
1898, 578. § 1").
R. L. 112, §30.
1902, 399.
1906, 463, III,
§§ 64, 158.
1909, 417, § 2.
121 Mass. 485.
125 Mass. 51.5.
175 Mass. 5I.S.
231 Mass. 540.
1 Op. A. G.
392, 489.
extension of location.
Section 70. The board of aldermen of a city or the selectmen of a 1
town, on petition of fifty legal voters, or on petition executed in accord- 2
ance M'ith the by-laws or a vote of the directors of a company whose 3
tracks are located in said city or town, after public notice and a hearing 4
as provided in section seven, may grant a location for the extension of the 5
tracks of such company, and prescribe how said tracks shall be laid and 6
the kind of rails, poles, wires and other appliances to be used; but they 7
shall impose no terms or conditions to such grant in addition to those 8
imposed by general laws on such companies in force on October first, 9
eighteen hundred and ninety-eight, or such as may have been imposed in 10
the grant of original location to such company in such city or town sub- 1 1
sequent to said date. No such extension of a location shall be valid, 12
until the department, after public notice and a hearing, shall certify that 13
such extension is consistent with the public interest. If the department 14
requires an alteration in such extension before so certifying, it shall 15
notify the board of aldermen or selectmen, granting such extension, of 16
Chap. 161.] steeet railways. 1775
17 such alteration; and thereafter said board of aldermen or selectmen may
]S amend such extension in accordance with such alteration; provided,
19 that, if such alteration involves a change in the route of the railway,
20 public notice and a hearing shall be given as provided in the case of the
21 original application for an extension; and thereafter the department
22 may, as a part of the original proceedings before it, certify that such ex-
23 tension so amended is consistent with the public interest. An extension,
24 so certified, shall be a valid location, if, within sixty days after the issue
25 of notice of said certification to the company, it files a written acceptance
26 of such extension, executed in accordance with its by-laws or a ^'ote of
27 its directors, with the board of aldermen or selectmen. An extension
28 granted by a board of aldermen or selectmen, but refused certification
29 hereunder by the department, or not accepted as hereinbefore proxnded,
30 shall be void.
ALTERATION OF LOCATION.
1 Section 71. The board of aldermen of a city or the selectmen of a Alteration of
2 town, on petition executed in accordance with the by-laws or a vote of i°s64,'22b. § i4.
3 the directors of a company whose tracks are located in said city or town, j^s'.'ns'lil;
4 or on petition of any interested party, after public notice and a hearing ^^l' |J5' I if
5 as provided in section seven, mav alter the location of the tracks in the 1902, 399!
^ •II- 1 1 • " 1 1- • oil 1900,463.111,
0 manner prescribed in, and subject to, the preceding section, buch alter- §§ es, iss.
7 ation shall be made by such company within such time, and the expense §§ .s.'e. ''
8 thereof shall be borne by such parties and in such proportions, as the 392^489.
.A. G
392;.
9 board of aldermen or selectmen may determine. No such alteration of
10 a location shall be valid, until the department, after public notice and a
11 hearing, shall certify that such alteration is consistent with the public
12 interest. If the department requires an amendment to such alteration
13 before so certifying, it shall notify the board of aldermen or selectmen
14 of such amendment; and thereafter the board of aldermen or selectmen
1.5 may amend such alteration in accordance with the said amendment; pro-
1() vided, that, if the amendment involves a change in the route of the rail-
17 way, public notice and a hearing shall be given as provided in the case of
18 the original application for an alteration; and thereafter the department
19 may, as a part of the original proceedings before it, certify that such
20 alteration so amended is consistent with the public interest. An alter-
21 ation, so certified, shall be a valid location, if, within sixty days after
22 the issue of notice of said certification to the company, it files a ■wTitten
23 acceptance of such alteration, executed in accordance with its by-laws
24 or a vote of its directors, with the board of aldermen or selectmen.
TEMPORARY LOCATIONS.
1 Section 72. The several boards, departments and commissions an- Temporary
2 thorized by law to grant locations to companies may, to enable any such ioTo.'mI'.
3 company to avoid interruption of its service, on petition of such company
4 or of any interested party, grant temporary locations for the tracks of
5 the company in any public place or way, or may approve temporary loca-
6 tions upon private land without notice and hearing. The body granting
7 or approving such temporary locations may place a limit of time upon
8 their use, and if unlimited as to time such use shall terminate after such
9 reasonable time as, in the opinion of such body, will permit, without in-
10 terruption, the restoration of service upon the locations of the company.
11 The department may app^o^•e such temporary locations without notice
12 and hearing.
1776
STREET KAILWATS.
[Chap. 161.
the°Steratfon.°' SECTION 73. If a bridge upon which a company is authorized to lay 1
i908,'266,'''^^' ^^^ ^^^ tracks is being or is to be altered, rebuilt, improved or repaired, 2
§5 1. 3. the board of aldermen of a city or the selectmen of a town on petition 3
of the president or a majority of the directors of such company may grant 4
a temporary location for the extension of the tracks of such company in 5
any public way in such city or town so as to provide such connection be- 6
tween the existing tracks of such company upon either side of such bridge 7
as will prevent any interruption of proper transportation facilities by S
reason of such alteration, impro^-ement, rebuilding or repair, and may 9
prescribe how said tracks shall be laid and the kind of rails, poles, wires 10
and other appliances to be used. Such location shall not be valid unless 11
the board of aldermen or selectmen file with the clerk of the city or town 12
concerned a certificate that the granting of the location is consistent 13
with the public interest. In no case shall a location be valid unless, 14
within thirty days after the filing of the said certificate or after the en- 15
tering of a decree by the department, a majority of the directors of the 16
company shall file with the body granting the location a written accept- 17
ance thereof. IS
Application to
department.
1908, 266, § 2.
Termination
of temporary
location.
1908, 266, § 4.
Cost of tem-
porary tracks
reckoned as
part of ex-
pense of alter-
ation of grade
crossing.
1908, 266, § 5.
Section 74. A company whose petition for such temporary location
has been refused in whole or in part, or has been neither granted nor
refused, within fourteen days after the filing thereof, may apply to the
department for such temporary location. If the department deems public
necessity and convenience require such temporary location, it may enter
a decree granting the same, and may prescribe the use of such appliances
and impose such conditions and obligations as it deems proper.
Section 75. A company which is granted such temporary location
for the extension of its tracks shall not maintain them nor operate cars
over them beyond the period during which the operation of its cars over
such bridge is interrupted by reason of such alteration, improvement, re-
building or repair, and at the end of such period shall remove its tracks
from the public ways upon and over wliich such temporary location has
been granted.
Section 76. If such bridge is altered, rebuilt, improved or repaired
under sections fifty-nine to sixty-four, inclusi\'e, of chapter one hundred
and fifty-nine, the cost of construction of the tracks upon and over such
temporary location shall be reckoned as a part of the charges and expenses
of the alteration, improvement or repair of the crossing, to be apportioned
by the special commission as provided thereunder.
Revocation of
location.
1S64, 229, § 15.
1871. 381,
H 16, 17.
P. S. 113, §§23,
24.
189S, 57S, 5 17.
R. L. 112, § 32.
1906, 463, III,
§§ 66, 158.
Ill Mass. 232.
184 Mass. 566.
191 Mass. 522.
199 Mass. 394.
235 Mass. 95.
245 U. S. 674.
revocation of location.
Section 77. The board of aldermen or selectmen, after the expiration 1
of one year from the opening for use of a street railway in their city or 2
town, and after public notice and a hearing as provided in section seven, 3
if public necessity and convenience in the use of the public ways so re- 4
quire, may, for good and sufficient reasons to be stated in the order there- 5
for, revoke the location of a street railway in any public way therein; but 6
unless, within thirty days after such order of re\'ocation, the company 7
consents thereto in ^^Titing, such order shall not be valid until approved 8
by the department after public notice and a hearing. Upon the approval 9
of such order of revocation, the company shall remove the railway in con- 10
formity with such order and shall put the surface of said ways disturbed 11
ClL\P. 161.] STREET RAILWAYS. 1777
12 by such renjoval into as good condition as the adjacent surface of said
13 ways. If the company fails to comply with such order after thirty days'
14 notice of the approval thereof, the board of aldermen or selectmen may
15 cause it to be executed and the work to be done at the expense of the
16 company, and such expense shall be recovered in tort.
■WIDENING OF PUBLIC WAY.
1 Section 78. If application is made for a location in a public way PuWicway
2 where no street railway tracks are located, and such way is widened un- TsgirsTs. § in.
3 der chapter eighty or eighty-two by an order declaring the widening to fg'oe,' lit inf '
4 be necessary for public convenience for the purpose of granting such loca- ^^ ^^' ^^®-
5 tion of street railway tracks therein, a proportionate share of the expense
6 of such ^N-idening may be assessed upon a company accepting a location
7 in the way so widened; but the amount of such assessment, in addition
8 to the amounts assessed on real estate, shall not exceed one half of the
9 total cost of such widening.
1 Section 79. If a public way where the tracks of a company have Alteration or
2 been located for a period of five years is altered, or if the grade thereof is of pifbiio°way.^
3 changed under chapter eighty or eighty-two, the company shall pay such ^^l\ fH] | 34:
4 proportionate share of the expense thereof, including therein the neces- sl^es^ris'"'
5 sary cost of changing its railway to conform to such alteration or change
6 of grade, as may be assessed upon it, provided that, if betterments are
7 assessed, no such assessment on the company shall exceed the aggregate
8 amount of all the betterments assessed upon real estate, and that in no
9 case shall such assessment exceed one quarter of the total cost of such
10 alteration or change of grade.
1 Section 80. The provisions of chapter eighty relative to the assess- Betterments.
2 ment of betterments on real estate, so far as applicable, shall applj' to ^^t iil] | Ik
3 assessments made under the two preceding sections.
1906. 463, III, §§ 69, 15S.
STATE HIGHWAYS.
1 Section 81. If the board of aldermen of a city or the selectmen of a Location
2 town and a company having a location in a way which said board of h[X™ys.^
3 aldermen or said selectmen or the county commissioners of the county r °l! lit, § as.
4 where said city or town lies have in writing requested the common- l^^o.^fls"''
5 wealth to take charge of, make application to the division of highways J?'?'!''''
6 of the department of public works, and with the application submit satis- 213 Mass. loa.
7 factory plans, profiles and cross sections of said way, said division shall
8 indicate on such plans, profiles and cross sections a location and grade
9 for the tracks of said company. If said division considers said way suit-
10 able for a state highway, and the division and the company by vote of
11 its directors agree as to the proportionate part of the cost of construc-
12 tion which shall be paid by the commonwealth and by the company, the
13 division may pay, out of the appropriations for the construction and
14 repair of state highways, said proportionate part of the damages sus-
15 tained by a person whose property may be injured by the construction
16 of such state highway, and of the cost of grading it to the lines established
17 by such division. A way graded under this section shall remain a town
18 way or a highway, subject to all laws relative thereto, until said way is
19 taken charge of as a state highway by the commonwealth.
1778
STREET RAILWAYS.
[ClL\P. 161.
by'thTdivn"sion Section 82. If E public Way in which a street railway location has
1898*578^1 24 ^ccn granted shall be thereafter laid out, taken charge of or constructed
1906' 463' ^^ ^y ^^ under the authority of said division, it shall thereafter, relative to
III. §§ 7i', 158. the location and maintenance of a street railway upon such state high-
way, have the authority conferred by sections seven, seventy, seventy-
one, seventy-seven and eighty-nine upon boards of aldermen and select-
men, and shall exercise such authority in the same manner, and subject
to the same rights and limitations.
OPERATION.
Opening for
use conditional
Section 83. No street railway or portion or extension thereof shall
ca'te'oTde''art- ^^ Opened foF public usc Until the department, after an examination,
i90i''368 certifies that all laws relative to its construction have been complied with,
R. l'. 112, 5 39. and that it appears to be in a safe condition for operation; but this sec-
§§ 73, 158. ' tion shall not compel the department to grant such certificate until the
entire road included in the location of such railway, portion or extension
has been completed.
Rules as to
rate of speed,
1864,229. §16.
1871.381,
§S 18, 19.
1874, 29. § 13.
P. S. 113.
H 27-29.
R. L. 112.
§§40.42.
1903. 143.
190.5. 376.
1906, 463. III.
§§ 74, 158.
Section 84. The board of aldermen or the selectmen may, subject 1
to the approval, revision or alteration of the department, estab- 2
lish such regulations as to the rate of speed, the manner and extent of 3
use of tracks, and the number and routes of cars which run over such 4
tracks, within their city or town, as public interest and convenience 5
require; and a street railway company whose servants or agents wilfully 6
or negligently violate any such regulations shall forfeit not more than 7
five hundred dollars. 190 Mass. 527. 222 Mass. 270. 8
Som track's"" Section 85. The superintendent of streets of a city, or any officer
R ^L 111 1 4i' exercising like authority therein, and the selectmen of a town, shall estab-
1906.' 463.' III. ■■'
§§ 75. 158.
11 Allen, 287.
lish regulations for the clearance of snow from its tracks by any street
railway company operating therein, and for the removal of such snow
by said company from the public ways in which such tracks are located;
provided, that no such company shall be compelled to remove from the
public ways in which its tracks are located an amount of snow greater
than it has cleared from between its rails and between its tracks and 8
from a space eighteen inches wide on either side of its tracks. 9
Annually on or before September first, the local authorities above 10
named shall transmit to the president or other officer of each company 11
operating its cars in the public ways of their city or town, and to the de- 12
partment, a copy of the regulations as established by said authorities. 13
Within fourteen days after the receipt by any company of such regula- 14
tions, such company may, by its president or a majority of its board of 15
directors, petition the department for such amendment thereof as said 16
president or said board of directors deem reasonable. The department 17
shall, after notice and a hearing, within sixty days of the receipt of said 18
petition, file with said local authorities and with the president of such 19
company its findings upon said petition, including such amendments of 20
said regulations, if any, as the department deems reasonable, and there- 21
after such regulations as amended shall be and remain in force until 22
September first following and until other regulations are established as 23
herein provided. 24
ClL\.P. 161.] STREET RAILWAYS. 1779
1 Section 86. If a company voluntarily discontinues the use of any Voluntary
2 part of its tracks for a period of six months, the public ways occupied anceof'Sseof
3 thereby shall, upon order of the board of aldermen or the selectmen, 1894^^229, § 19.
4 forthwith, at the expense of the company, be cleared of said tracks, and J^'g; ffl' 1 1|;
5 be put into as good condition for public travel as they were in immediately fgj^- ijj, l^se.
6 before being so occupied. If a company without right or lawful excuse '^J,'!,^ ''^■■^n^'
7 discontinues the use of any track and when requested by the board of
8 aldermen of the city or by the selectmen of the town where such track
9 is located refuses to operate the same, the mayor of such city, if duly
10 authorized by vote of the city council or the selectmen of such town if
11 duly authorized by vote of the town, may petition the supreme judicial
12 court to compel said company to resume the use of such track and to
13 perform all its corporate duties relating thereto. Such petition shall set
14 forth the facts upon which the petitioner relies and the relief sought, but
15 shall not be defeated for informality, and may be amended at any stage;
16 and said court shall have jurisdiction in equity to determine the cause
1 7 and enforce its decrees and orders relative thereto. Upon the filing of any
18 such petition said court shall order due notice to be served upon the com-
19 pany and shall advance the cause to speedy hearing and final decision.
20 In case the track, the use of which has been discontinued, is located in
21 two or more cities or towns, any or all of such cities or towns, acting by
22 the officials above named and authorized as hereinbefore provided, may
23 join in such petition. This section shall not be deemed a legislative con-
24 struction of any existing law or an impairment of any existing right of a
25 company to discontinue the use of tracks.
1 Section 87. The aldermen or selectmen may order a company to Temporary
2 discontinue temporarily the use of any tracks ^\itlun the hmits of their anc™ "f'll^e
3 city or town, if they determine that pubUc safety or convenience so ?|m^229, § 20.
4 requires. i87i, ssi, § 26.
p. S. 113, § 2ti. R. L. 112, § 37. 1906, 463, III, §§ 77, 158.
1 Section 88. A city or a town which, for any lawful purpose, takes Taking up,
2 up, alters or discontinues public ways in which the tracks of a company discontinu"
3 are located, shall not be liable in damages therefor to said company. i864,'229,''m7.
1871, 381, § 20. P. S. 113, §31. R. L. 112. § 43. 1906, 463, III, §§ 78, 158.
1 Section 89. A company shall not be required to keep any portion of ^IPfJ^j
2 the surface material of public ways and bridges in repair, but it shall bridges.
3 remain subject to all legal obligations imposed in original grants of loca- 1866] 286,'
4 tions, and may, as incident to its corporate franchise, and without being issi! 121! '
5 subject to the payment of any fee or to any other condition precedent, fssl', 57l,\^u.
6 open any such way or bridge in which any part of its railway is located, fgjg- 4g|; j^i"-
7 in order to make repairs or renewals of the railway, or of any part thereof, l04^^ias^3*■l8
8 and the superintendent of streets or other officer exercising like authority, ^f m''^^' 420
9 or the board of aldermen or selectmen shall issue the necessary permits iso Mass! 492!
10 therefor in a city or town where such are required. If, during the original 149 Mali'. 335!
11 construction or subsequent alteration or extension or the making of any 203.^'"'^' ^°*'
12 such repairs or renewals of any railway or a portion thereof, said surface sf?.^^"^^' ^°^'
13 material is disturbed, the company which owns or operates such railway gfo ^'*^^*''
14 shall, at its own cost, except as provided in sections seventy-one and 1^ Mass. 65.
15 eighty-two, replace to the reasonable satisfaction of the said superin- i89Mas3. 254.
16 tendent, or other officer, said surface material with the same form of 192 Mass! loe!
1780
STREET RAILWAYS.
[Chap. 161.
194 Mass. 80.
213 Mass. 103.
228 Mass. 357,
575.
231 Mass. MO.
construction as that which was disturbed, or, by first obtaining the 17
approval thereof by such officer, with a different material and form of 18
construction, and shall restore said way or bridge to as good condition as 19
existed at the time of such disturbance. Such company shall be liable 20
for any loss or injury sustained by any person in the management and 21
use of its tracks and during the construction, alteration, extension, repair 22
or renewal of its railway, or while replacing the surface of any way dis- 23
turbed as aforesaid, and resulting from the carelessness, neglect or mis- 24
conduct of its agents or servants who are engaged in the prosecution of 25
such work, if notice of such loss or injury is given to the company and 26
an action therefor is commenced in the manner provided by section 27
eighteen of chapter eighty-four. Tliis section shall not affect the obli- 28
gations of any company in respect of the construction or maintenance of 29
any bridge or part thereof which any private person or corporation may 30
be liable, in whole or in part, to construct or maintain. 31
Liability of
company for
defective ways
and bridges.
1866,280.
1871, 381.
P. S. 113,
§1 32, 33.
R. L. 112, §45.
1904, 110.
1906, 463. Ill,
§§ 80, 158.
186 Mass. 274.
197 Mass. 76.
Section 90. If, upon the trial of an ^action against the common- 1
wealth, a city, town, railroad corporation or bridge corporation, the 2
plaintiff recovers damages for an injury to his person or property caused 3
by reason of a defect in a public way or bridge occupied by the tracks 4
of a company, and such company is liable for such damages under the 5
preceding section, and has had reasonable notice to defend the action, 6
the commonwealth, city, town, railroad corporation or bridge corpora- 7
tion may recover the damages, and all the costs of both plaintiff and 8
defendant in the action from said company. 9
bridges and" SECTION 91. Evcry company shall, in a manner satisfactory to the
isfig^'soo department, erect and maintain guards or railings upon every bridge,
11% ^ii' ^^ draw of a bridge, crossed by its tracks, to prevent its cars from running
p. s. lis! off. If, for sixty days after service on it of an order of the department
R. L.'ii2, § 46. relative to such guards or railings, it fails to comply therewith, it shall,
II 8i,*i58. ' for each month of such failure subsequent to said sixty days, forfeit two
hundred dollars, to the use of the city or town.
Cars to stop
at railroad
crossings.
1859, 126, § 2.
G. S. 63, § 142.
1864, 229, § 36.
1871, 381,
§§ 47, 48.
P. S. 113,
§§41,42.
R. L. 112, § 62.
1906, 463, III,
§§ 82, 158.
1911, 290.
Section 92. If a street railway crosses at the same level a steam 1
railroad where locomoti^'e engines are in daily use, e\ery motorman of 2
a car upon the street railway shall, when approaching the point of inter- 3
section, stop his car within one hundred feet of the crossing; but the 4
department may, for such term and under such restrictions as it may 5
from time to time prescribe, modify or suspend the requirements of this 6
section with respect to any such crossing by a street railway of a rail- 7
road built for private use under section two hundred and forty-five of 8
chapter one hundred and sixty, or of a branch, spur or siding of a rail- 9
road built or used only for the transportation of freight to the premises 10
of manufacturing or other industrial plants. For each violation of this 11
section, the motorman shall forfeit ten dollars, and the company em- 12
ploying him shall forfeit twenty dollars. 13
Notice of
Section 93. The board of aldermen or the selectmen may, subject
*° *^^ approval of the department, establish such regulations, requiring
Pl^'m '§^6*' ^^^ motorman or conductor to give notice or warning of the approach of
R. L. 112, § 47. street cars, as they deem will best secure the unobstructed use of the
lonR Ar,-i TTT ' ^
1864, 229, § 22,
§§ 83, 158. ' tracks and the free passage of the cars
Chap. 161.] street railways. 1781
1 Section 94. Whoever wilfully obstructs a company in the legal use Obstruction
2 of a railway track, or delays the passing of its cars thereon, or aids islirsM, § 22.
3 or abets in such obstruction or delay, shall be punished by a fine of not Wi.'ni.'^^sf.'
4 more than five hundred dollars or by imprisonment for not more than ^°l' ■Jjf 5 ^g
5 three months. Whoever commits any of said acts in such manner as to ll^li*??^''^'
6 endanger the life or safety of persons conveyed in or upon said cars, or 7 Alien, 5V3.
7 aids or abets therein, shall be punished by a fine of not more than one
8 thousand dollars or by imprisonment in the state prison for not more
9 than ten years.
1 Section 95. Whoever without right loiters or remains witliin a sta- Loitering
2 tion or waiting room of a company, or upon the platform, stairs, grounds ™o'na,"etc*"
3 or other property owned or controlled by a company, adjacent to such lloR'leaiii
4 station or waiting room, after being requested to leave the same by a 5§ se, iss.
5 special or other police officer, shall forfeit not less than two nor more
6 than twenty dollars.
1 Section 96. If a company, its agents or servants, wilfully or negli- Obstruction
2 gently obstructs a public way or bridge, or hinders the passing of vehicles eompanies.
3 over the same, or wilfully detains the cars of another company having the isri] ssi! 1 30!
4 lawful right to pass thereon, such company shall be punished by a fine r. l.Vi\ § 49.
5 of not more than five hundred dollars; and any such agent or servant §§°88,*i58."''
6 shall be punished by a fine of not more than ten dollars or by imprison-
7 ment for not more than three months.
1 Section 97. If a company, its agent or servant, allows a child under saies by
2 ten years to enter upon or into any of its cars for the purpose of selling upin'^cars
3 newspapers or other articles therein or offering them for sale, it shall ^^^- 22?^
4 forfeit fifty dollars, to be recovered by any person by an action brought woe; 463.' in, "
5 within three months aft^r the offence has been committed.
1 Section 98. A company shall equip its cars, when in use, with such Fenders,
2 headlights, fenders, wheel guards, brakes, and other safety devices as br'ake's^rnd''^'
3 may be required from time to time by the department. Ss^'^'"'^
1890,364. R. L. 112, §52. 1911,345.
1891. 360, 1903, 134. 1913, 357.
1895, 378, § 1. 1906, 463, III, §§ 90, 158.
1 Section 99. All street railway cars operated in the commonwealth Emergency
2 shall be equipped with an emergency lifting jack and with such other I'gi's.Vg's.'''
3 emergency tools as may be approved by the department. Any company,
4 its officers or employees, operating a street railway car in the use of
5 which this section is violated, shall be punished by a fine of not less than
6 fifty nor more than one hundred dollars.
1 Section 100. The department shall require every street railway Heating
2 company to heat its cars, when in use for the transportation of passengers, i89"T36,
3 at such times, by such means, and to such extent, as the department fgoo; lei,' ni,^"
4 shall determine, and the company shall forfeit twenty-five doOars for i|2^Mi^s*'59s
5 each trip run by any of its cars not so heated, except in case of accident
6 to the heating process or apparatus, or otlier unavoidable cause. The
7 state police shall cause this section to be enforced.
1782
STREET RAILWAYS.
[Ch.\p. 161.
Enclosed
platforms.
1897, 452.
§§ 1.2
1900,414,
§§1.3.
R. L. 112,
§§ 56, 58.
1906, 463, III,
Jl 92, 158.
Section 101. Every street car in use for the transportation of pas- 1
sengers in December, January, February and March, which, while in 2
motion, requires the constant care or service of an emplo\-ee upon its 3
platforms or upon one of them, shall have said platforms enclosed in 4
such manner as to protect the motormen, conductors or other employees 5
operating such car from exposure to wind and weather in such manner as 6
the department shall approve. 7
i897'452 § 1 Section 102. A company failing to comply with the preceding section 1
u'h' 111' 1 59 ^'^^'^ ^^ punished by a fine of not more than one hundred dollars for each 2
, 1906, 463', in, day during which such failiue continues. 3
1906. 463. in
§§ 95, 158.
1909, 514, § 46.
1912. 533.
1913, 833.
1915, 277.
?f''e^mpk>y'e'^es. Section 103. A day's work for all conductors, guards, drivers, motor- 1
1894' 508' § 9 ni^n, brakemen, despatchers and gatemen employed by or on behalf of a 2
?„•„?;■ i"?!!' t,?2- street railwav or elevated raihvav companv shall not exceed nine hours, 3
and shall be so arranged by the employer that it shall be performed within 4
eleven consecutive hours. No officer or agent of any such company shall 5
require from said employees more than nine hours' work for a day's labor. 6
Threat of loss of employment or threat to obstruct or prevent the obtain- 7
ing of employment by the employees, or tlireat to refrain from employing 8
any employee in the future sliall be considered "requiring", within the 9
meaning of this section. But this section shall not prevent an employee 10
of the character mentioned herein, if he so desires, from working more 11
hours than those prescribed herein for extra compensation. A company 12
violating any provision of this section shall forfeit not less than one hun- 13
dred nor more than five hundred dollars. 14
Reasonable
accommoda-
tions.
1864, 229, § 26.
1865, 261.
1871, 381, § 33.
P. S. 113. §43.
R. L. 112, § 69.
1906, 463, III.
§§ 96, 158.
233 Mass. 347.
FARES AND ACCOMMODATIONS.
Section 104. Every company shall furnish reasonable accommoda- 1
tions for the conveyance of passengers, and for every wilful neglect to 2
provide such accommodations shall forfeit not less than five nor more 3
than twenty dollars; and may establish the rates of fare for all passengers 4
and property conveyed or transported in its cars, subject to the limita- 5
tions of its charter or other provisions of law. 6
Additional
acconunoda-
tions.
1891,216.
R.L.I 12, § 70.
1906, 463, III,
§§ 97, 158.
1911,462.
199 Mass. 394.
Section 105. If the department deems additional accommodations 1
including waiting rooms, stations, water closets and other sanitary con- 2
veniences for the traveling public are required upon any street railway, 3
it may, after due notice to the company and a hearing, make an order 4
for such additional accommodations, and may alter, renew or revoke the 5
order. A company which, for more than one week after receiving writ- , 6
ten notice of such order, fails to comply therewith, shall forfeit to the 7
use of the city or town where such additional accommodations are to be 8
used, or if they are to be used in more than one city or town, to the use 9
equally of such cities or towns, one hundred dollars for each day there- 10
after during which such failure continues. 1 1
Companies
shall not re-
quire passen-
gers riding on
platform to
do so at their
own risk.
Section 106. No company shall by rule or otherwise require passengers
M'hom it permits to ride upon the platform to do so at their own risk, and
no such passenger shall be prevented from recovering compensation in
damages for any injury by reason of the fact that he is so riding.
1910. 453. 183 Mass. 96. 191 Mass. 509. 201 Mass. 114. 202 Mass. 450.
Chap. 161.] street railways. 1783
1 Section 107. A company may provide cars for special service, and ffrT'frel"™"^
2 may make special rates therefor; and may make special rates for working ^^fhSl''-^ ,„
3 men and working women on week days between the hours of five and R. l'. 112', § 71!
4 seven in the morning and fi\'e and seven in the evening, and for children §§ 98, iss. '
5 attending school.
6 A company shall not give free tickets or passes to any state, county,
7 city or town official, or to any person in the employ of the common-
8 wealth or of any county, city or town, except policemen, firemen and
9 letter carriers in uniform; but it may give them to a director of the
10 company or to any person who is connected with it in any executive
11 capacity. A company which violates any of the provisions of this section
12 shall forfeit not less than one hundred nor more than five hundred dollars.
1 Section 108. The rates of fare charged by street or elevated railway Special rates
2 companies for the transportation of pupils of the public day schools or pupUs.°°
3 public evening schools, of vocational schools subject to chapter seventy- r °l'. m, § 72.
4 four, or of private schools, between a given point from or to which it is gl^gg^'fls"''
5 necessary for them to ride in traveling to or from the schoolhouses in ^^^^ ^^^
6 which they attend school and their homes, whether such schoolhouses i9io'.567.'
7 are located in the city or town where the pupils reside or in another city i87 Mass! 436.'
8 or town, shall not exceed one half the regular fare charged by such street 199 Mall'. 279!
9 or elevated railway company for the transportation of other passengers ^^^ ^^"^^^ *^'
10 between said points, and tickets for the transportation of pupils as afore-
11 said, good during the days or evenings on which said schools are in ses-
12 sion, shall be sold by said companies in lots of ten each. A railway
13 company violating any provision of this section shall forfeit twenty-five
14 dollars.
1 Section 109. All laws relative to changes and regulation of fares Regulation
2 upon railroads shall apply to changes and regulation of fares upon street i864,T29, § 26.
3 railways. i87i, ssi, § 34. p. s. 113, § 44.
1898, 578, § 23. R. L. 112, § 73. 185 Mass. 183.
1901, 180. 1906, 463, III, §§ 100, 158. 199 Mass. 279.
1 Section 110. A company shall not withdraw or discontinue the use withdrawal of
2 of any free checks or free transfers from one car or line of cars to another am! free" ^
3 without the approval of the department, but may regidate the use thereof is^flss.
4 to conform to rates of fare estabhshed under authority of section one J^oe' icil' iiZ*'
5 hundred and four. §§ loi' i^s.
1 Section 111. All companies shall furnish the public with full infor- PuUic notice
2 mation, by notice posted for seven consecutive days prior to the date se^^•ice"^'' °
3 when the same are to take effect in the cars on the lines affected, of any ^^^®' ^^®'
4 intended change in the running of cars, or the discontinuance of any linei
5 or any change in the general public service of said companies.
6 The department shall give notice to all such companies of the fore-
7 going provisions.
1 Section 112. The department shall forthwith, upon the filing of a Notice to cities
2 petition or schedule for any change in the tariff" or rates of any company, proposKT^ °
3 give written notice of the proposed change to the mayor or selectmen of all sueerraiiway
4 cities and towns where the street railway is operated, or which, in the 5|\fj44
5 opinion of the department, would be affected by the proposed change. 232 Mass. 309.
1784
STKEET RAILWAYS.
[Chap. 161.
Penalty for
misuse of
transfer
checks.
1904, 267.
1906, 463, III,
§5 102, 158.
Transporta-
tion of milk
and cream.
1908, 278.
Section 113. Every company shall cause to be printed on the trans- 1
fer tickets issued by it to passengers the conditions under which such 2
tickets may be used. Whoever uses a transfer ticket in \'iolation of any 3
such condition, or whoever uses or attempts to use a transfer ticket not 4
issued to him, or whoever for value disposes of or attempts to dispose of 5
to any other person a transfer ticket issued to him, or whoever for value 6
delivers or attempts to deliver a transfer ticket not issued to him to any 7
person, shall be punished by a fine of not more than fifty dollars or by 8
imprisonment for not more than one month. 9
Section 114. All companies may transport milk and cream over 1
and upon their respective lines of railway and from and to any point 2
thereon, subject only to the supervision of and to such regulations as 3
may be imposed by the department. 4
Companies
may provide
service at
cost.
1918, 280, § 1.
SERVICE AT COST.
Section 115. Any company, except the Boston Elevated Railway 1
Company and the Eastern Massachusetts Street Railway Company, and 2
the successors of either of the said companies, which accepts sections 3
one hundred and fifteen to one hundred and twenty-eight, inclusive, as 4
pro\'ided in section one hundred and twenty-six, or has accepted cor- 5
responding provisions of earlier laA\s, shall thereafter furnish ser\ice to 6
the public at cost, and shall be subject to said sections, inclusive, with 7
reference to the matters specified therein, but in all other respects shall 8
be subject to the general laws relating to street railway companies. The 9
words "the company" as used in said sections, inclusive, shall mean 10
any street railway company which has accepted said sections or corre- 11
spending pro\asions of earlier laws. 12
incost'o?'"'''^ Section 116. The cost of the service shall include operating expenses, 1
service. taxcs, rentals, interest on all indebtedness as hereinafter defined, divi- 2
1918, 280, § 2. dends on preferred stock, an interest return at the rate of six per cent 3
per annum upon the stock investment as determined by the department 4
under this section and such allowances for depreciation, obsolescence, and 5
losses in respect to property sold, destroyed or abandoned as may be 6
fLxed from time to time in the case of each company by the department, 7
and all other expenditures and charges which, under the classification of 8
accounts of the interstate commerce commission and under the laws of the 9
commonwealth, are properly chargeable against income or surplus. The 10
words "stock investment" as used in said sections shall mean the capital 11
in\estment, as hereinafter defined, less the amount paid in for outstand- 12
ing preferred stock, bonds and other evidences of funded indebtedness. 13
The words "capital investment" as used in said sections shall mean the 14
amount of cash or fair value of the property paid in for stock, bonds and 15
other evidences of funded indebtedness and properly expended for cap- 16
ital purposes, such amount to be determined by the department; pro- 17
vided, that if it has approved the issue of any such securities, no further 18
determination in regard to the capital investment represented by such 19
securities shall be necessary. 20
?9l?l,'2lo,"§'3. Section 117. No company may accept sections one hundred and 1
fifteen to one hundred and twenty-eight, inclusive, until it has pro\'ided 2
a reserve fund of not less than six, nor more than twelve per cent, of the 3
Chap. 161.] street railways. 1785
4 gross earnings of the preceding year, except as otherwise provided in this
5 section. Such reserve fund may be provided by the issue of either bonds
6 or stock or preferred stock issued under the laws regulating such issues.
7 The reserve fund shall at all times be kept separate and distinct and shall
8 be used only for the purpose of making up a deficiency of income where
9 the income of the company is insufficient to pay the cost of service as
10 provided in the preceding section. Until so used, the reserve fund may
11 be invested in bonds of the United States, or of this commonwealth or
12 any city or town thereof. The reserve fund shall be fully subscribed for
13 upon acceptance of said sections by the company, but shall be paid in,
14 over a period not exceeding two years, at such times and in such amounts
15 as shall be directed by the department. Any company may furnish a
16 larger reserve fund or increase it wth the approval of the department.
17 The reserve fund as originally provided for or as later increased shall be
18 considered the normal reserve fund.
1 Section 118. Any company desiring to accept said sections shall, in'Jeralf'^ '^°'''"
2 at the time of its application to the department to determine the amount ;^"e^o„ , ,
3 or its stock investment, apply to it to determine the status or its then
4 unfunded debt. The department shall thereupon disallow any amount
5 thereof which it deems was improperly incurred. Interest charges upon
6 the debt so disallowed shall be borne by the company and charged to
7 the amount which would otherwise be available as a return upon the
8 stock investment. Interest charges upon the residue of the unfunded
9 debt shall be included in the cost of service. Interest charges upon the
10 unfunded debt incurred by the company after its acceptance of said
11 sections shall be included in the cost of service unless the department
12 determines any portion of such debt to be unreasonable or improper. In-
13 terest charges upon any portion disallowed shall thereafter be deducted
14 from the return upon the stock investment.
1 Section 119. Whenever the income of the company is insufficient Useof
2 to meet the cost of service as defined in section one hundred and sixteen, lois, 28o, § 's.
3 the reserve fund shall be used, so far as necessary, to make up the de-
4 ficiency, but when the income exceeds the cost of the service, the excess
5 shall be transferred to and become a part of the reserve fund.
1 Section 120. A company accepting said sections shall file with its schedules of
2 acceptance a schedule of nine different grades of fare and of transfer Appmvai and
3 privileges. One such grade it shall designate as the initial grade which it ms'^lsoITs.
4 desires to establish and which will, in its opinion, enable it to earn income
5 sufficient to meet the cost of service. Four of the other grades shall
6 provide for progressive increases and four for progressive decreases in
7 revenue, and each interval of increase or decrease shall be calculated to
8 increase or decrease the reserve fund by thirty per cent of the normal
9 reserve fund. Within thirty days thereafter, after notice and a pubhc
10 hearing, the department shall either approve the schedule so filed or
11 shall establish a schedule similarly designed in place thereof; provided,
12 that if, during any period of sixty days, more than one company shall
13 file its acceptance of said sections and a schedule of proposed grades of
14 fare, the department shall not be required to approve or establish the
15 grades of fare for any such company until thirty days after it has passed
16 upon all schedules previously filed in accordance with this section. When-
17 ever, by reason of any change in the existing rate of fare, there are less
1786
STREET RAILWAYS.
[Chap. 161.
than four grades either above or below the rate of fare then in force, the 18
company shall forthwith file with the department a schedule of additional 19
grades of fare, so that there will always be both above and below the 20
existing rate of fare not less than four grades of fare, and the department 21
shall thereupon, within sixty days thereafter, either approve the schedule 22
so filed or itself establish in lieu thereof the necessary additional grades of 23
fare. 24
If at any time it shall appear to be in the interest of the public or of 25
the company that the said schedule should be changed either with regard 26
to the method or basis upon which the fares and transfer privileges are 27
established, or because the steps between the different grades are too 28
small or too great, or for any other reason, the company, with the ap- 29
proval of the department, may change the said schedule. ,30
Except as above provided, the department may modify such schedule 31
only after it has been in effect for a period of one year; provided, that 32
no modification of the schedule which diminishes the rate of return on the 33
stock investment shall be continued in effect for a period exceeding four 34
months. 35
Changes in
grades of fare.
1918, 2S0. § 7.
Section 121. If, as of the last day of any March, June, September 1
or December, the reser\e fund shall exceed by thirty per cent or more the 2
normal reserve fund, and during the three preceding months the income 3
shall have exceeded the cost of the service, the company shall, within 4
thirty days thereafter, put into effect the next lower grade of fare adopted 5
as aforesaid ; and if, as of the last day of any March, June, September or 6
December, the reserve fund shall be less than seventy per cent of the 7
normal reserve fund, and during the three preceding months the income 8
has been less than the cost of service, the company shall, within thirty 9
days thereafter, put into effect the nex-t higher grade of fare, and the fare 10
shall continue to be decreased or to be increased, if the amount of the 11
reserve fund is above or below said limits, as of such quarterly dates. 12
The company, with the consent of the department, may put into effect 13
the next higher or lower grade of fare at any time when the reserve fund 14
is below or above the normal amount. 15
Improvement
fund.
1918, 280, § 8.
Section 122. The company shall provide an improvement fund of 1
an amount required by the department but not exceeding five per cent 2
of the capital investment. Such fund may be raised by the issue of 3
bonds or stock or preferred stock. It shall be fully subscribed within 4
sixty days after determination of the capital investment of the company, 5
and shall be paid in from time to time, as required, by a plan of gradual 6
improvement to be approved by the department. 7
Obligation
of company
to sell to state
or munici-
pality.
1918, 280, § 9.
Section 123. Any company accepting said sections shall be bound 1
thereby to sell its entire property and franchises as a going concern to 2
the commonwealth or to any city or town at any time for an amount 3
in cash equal to the stock investment, and the amount of cash paid in 4
for preferred stock, and the purchaser sliall in addition assume all out- 5
standing bonds, contracts, leases and other liabilities of tlie company. 6
Said sections shall not affect the right of the commonwealth or of any 7
city or town to acquire at any time, by eminent domain under chapter 8
seventy-nine, the property and franchises of any company accepting 9
said sections. 10
Chap. 161.] street railways. 1787
1 Section 124. The governor, wnth the advice and consent of the Appointment
2 council, shall appoint for terms of three years each three persons to be by governor.
3 members of the board of directors of any company which accepts said ^^^^' ^*'*' ^°'
4 sections, of whom at least two shall be residents of a city or town served
5 by the company, and none shall be an ownier of its stocks or bonds.
6 They shall have and exercise all the power and privileges of the other
7 directors of the company, and shall receive such fees as are paid to the
8 other directors. The by-la^^•s of the company shall be modified so as to
9 permit of the appointment of such persons as directors, and shall also pro-
10 vide for monthly meetings of the board. If any such board shall have
11 an executive committee or a finance committee, or any other standing
12 committee, at least one of the persons appointed by the governor shall
13 be a member of every such committee.
1 Section 125. In order that the department may at all times be in a Reports by
2 position to take such action as the public interest requires, the companies s'^meT^^fion
3 shall furnish it each month with such statements as it requires, showing tion by de^^°'"
4 the condition of the reserve fund, the income and expenditures of the fgjg^lgo 5 n
5 previous month and such other information as the department may de-
6 sire. The commonwealth shall be divided by the department into street
7 railway districts, and for each district within which one or more com-
8 panics has accepted said sections the department shall appoint one or
9 more resident supervisors for terms of three years, their salaries and
10 expense allowance to be fixed by the department and paid by the com-
1 1 pany as an operating expense, or, if their duties extend to more than one
12 company, their salaries and expenses shall be apportioned among the
13 several companies in respect to which they act, in such manner as the
14 department may determine. Said supervisors shall keep in constant touch
15 with the operation of the companies and il^form the department of all
16 complaints and criticism of the service rendered.
17 If the department deems any special investigation of any company
18 necessary it may order the same at the expense of the company.
19 The department may require such changes in the management and
20 operation of any company which has accepted said sections as it deems
21 necessary for the efficient conduct of the business of the company in the
22 public interest.
23 Any foreign company furnishing electric light or power to any street
24 railway company operating under said sections shall file annually with
25 the department a schedule of all rates charged to all its customers for
26 power where the electricity is furnished by a central plant to others than
27 the said railway company and with such other information in such form
28 as the department requires. The department may proliibit the trans-
29 mission of electricity for either light or power unless such information is
30 filed as requested and the prices charged therefor are determined by it
31 to be fair and reasonable.
1 Section 126. Any company desiring to accept said sections shall ^iH^^^y"^^
2 apply to the department to determine the amount of its capital invest- Jq^oP^'ro^'s 12
3 ment and of its stock investment, and upon such determination the
4 company may accept said sections by filing ^\^th the department its
5 election so to do, authorized by a vote of not less than a majority of its
6 capital stock, and evidence satisfactory to the department that it has pro-
7 vided or will provide the reserve and improvement funds mentioned in
8 sections one hundred and seventeen and one hundred and twenty-two.
1788
STREET RAILWAYS.
[Chap. 161.
The department may permit any company desiring to operate under 9
said sections to begin operations before the determination of its capital 10
investment and of its stock investment; provided, that the company has 11
met all the other requirements of said sections, but no dividends shall be 12
disbursed to the holders of any common stock until after said determi- 13
nation has been made. 14
?f'SS^ Section 127. The department may order any company accepting
1917^ Sp' 373, ^^^'^ sections to dispose of any property no longer of service to the com-
igl's '>8o § 13 P^^y- ^^y ^°^^ thereby incurred it may, with the approval of the depart-
' ment, distribute over such period, not exceeding ten years, as the depart-
ment shall designate, instead of charging the entire amount of such loss
against its earnings or surplus for the year in which such loss may accrue.
Revising
orders of
department.
1918, 280, 5 14.
Section 12S. If a majority of the state directors of a company believe 1
that a particular order or decision of the department would impair the 2
ability of the company to pay the six per cent interest return on the 3
stock investment as provided in section one hundred and sixteen, they 4
shall so advise the department in writing, and if, after reconsideration, 5
the department insists upon the order or decision the company may apply 6
by petition to the supreme judicial court for a reversal or modification 7
thereof. The court may appoint three commissioners to determine the 8
facts and questions at issue, and their report, if confirmed by the court, 9
shall be final. 10
187 Mass. 445.
RAILROAD CROSSINGS.
of'^^de" Section 129. For the purpose of avoiding or abolishing a crossing of 1
im'4M § 1 ^ railroad by the tracks of a street railway company at grade, the com- 2
?906' 463 iii^' P^^y '^^y purchase or take by eminent domain under chapter seventy- 3
' ■ 113, 158. ' nine land necessary therefor, not exceeding fifty feet in width, outside the 4
limits of a public way; but no land shall be so taken which cannot lawfully 5
be taken for the laying out of a railroad, nor shall it be so taken until a 6
plan on an appropriate scale, showing by metes and bounds the land, and 7
the names of the owners thereof, has, after notice to such owners, and 8
after such public notice and hearing as is required by section seven, 9
been approved in writing by the board of aldermen of the city or the 10
selectmen of the town where such land is situated ; nor shall the land of 1 1
a railroad corporation or of another street railway company be so taken 12
without its consent, except with the approval of the department after 13
notice and a hearing. 14
Construction
of tracks
outside
public ways.
1898, 404, I 3.
R. L. 112, 1 67.
1906, 403. Ill,
§§ 115, 158.
Section 130. A company, which has acquired land for such purpose,
may construct its railway over or under a railroad, in the manner agreed
upon by the companies, or, if they do not agree, in the manner prescribed
by the department; but no overhead structure shall be built at a height
of less than eighteen feet above the railroad track without the written
consent of the department.
structures
within limits
Section 131. The board of aldermen of a city or the selectmen of a
or sttte'^ *"^'' town, if a public way, and the division of highways of the department of
public works, if a state highway, may authorize structures or alterations
or state
highways.
R. l'. 112, 1 (is. within, or partly within, the limits thereof, which are necessary for carry-
5§ 116, 158. ' ing a street railway over or under a railroad, if such wav is not thereby
187 Mass. 445. , e r \i i i- x i
made unsaie tor other public travel.
Chap. 161.] street railw.\ys. 1789
CHANGE OF NAME.
1 Section 132. Upon the application of any company, authorized by change of
2 a vote of two tloirds of the shares present and voting at a meeting called i89i?360,
3 therefor, the department may, after public notice and a hearing, author- 1892,^198.
4 ize such company to change its name.
R. L. 109, § 9. , 1906. 463, III, §§ 122, 158.
1 Section 133. A certified copy of such authorization and a certificate certificate of
2 of the vote of the company, signed and sworn to by the president, treas- be filed with
3 urer and a majority of the directors, shall be filed in the office of the isoitsM,^?"?''
4 state secretary. The department shall require public notice to be given f^^[ HI] fi}"'
5 of the change so authorized; and upon receipt of proof thereof the state
6 secretary shall grant a certificate of the name which the company shall
7 bear, which, subject to the restrictions of section four, shall thereafter
8 be its legal name.
123, 158,
1 Section 134. A company shall have the same rights, powers and [?^||5jj'i*°'*
2 privileges, and be subject to the same duties, obligations and liabilities, under new
3 under its new name as before its name was changed, and may sue and be i89i, seo, § 4.
4 sued by its new name; but any action brought against it under its former igoo,' 463.' in, "
5 name shall not be defeated on that account, and, on motion of either ^^ ^'*' ^^^'
6 party, the new name may be substituted therefor.
sale by receivers.
1 Section 135. A receiver of the property of a company may, by order saie of raii-
2 of the court, sell and transfer the railway, and property of such company, receivers.
3 its locations and franchises, on such terms and in such manner as the §§°i','2^®6,'
4 coiut orders. The purchasers from such recei\'er, and a company or- J^'on' 463 ' Ai ^'
5 ganizcd under the following section, if such railway has been transferred fli'^^jsg^^jjo
6 to it, shall hold and possess said railway, all its rights and franchises 222 Mass. 35.
7 and all property acquired in connection therewith, with the same rights
8 and privileges and subject to the same duties and liabilities as the original
9 company; but no action shall be brought against such piuchasers or such
10 new company, to enforce any liability incurred by said original com-
11 pany, except debts and liabilities owing from said original company to
12 any city or town where the railway is operated and taxes and assess-
13 ments for which said original company is liable under the laws relating
14 to street railways, which shall be assumed and paid by said new company.
15 This section shall not impair the powers of the holders of an outstanding
16 mortgage to enforce their rights by suit or otherwise.
1 Section 136. The purchasers at .such sale shall, with their associates. Agreement of
2 to the number of at least fifteen, within sixty days after such sale, or- ncw'"Smpany.
3 ganize a company for the piupose of holding, owning and operating the p''.s.'ii3,§4.
4 street railway purchased, by filing in the office of the state secretary a 5§'3^'4.*^"
5 written agreement of association, which shall state: H4 i3"i4
6 (a) That the subscribers thereto associate themselves with the inten- j?".''' ???, ?"•
_ . » „ . ., §54, 145, I08.
7 tion of forming a street railway company. i** Mass. 310.
8 (b) The corporate name assumed, which shall be one not in use by any 218 Mass! 367.
9 other street railway company in the commonwealth, or, in the judgment
10 of the department, so similar thereto as to be likely to be mistaken for it,
11 and which shall contain the words, "street railway company", at the
12 end thereof.
1790
STREET RAILWAYS.
[Chap. 161.
(c) The corporate name of the company whose property and fran- 13
chises have been purchased. 14
(d) The termuii of the railway. 15
(e) The length of the railway, as nearly as may be. 16
(J) The name of each city and town where the railway is located. 17
ig) The name of the court by which the sale was ordered, the date of 18
such order, and date of sale. 19
(A) The total amount of the capital stock of the company, which shall 20
be fixed at an amount approved by the department, but which shall not 21
exceed the fair cost, as determined by the department, of replacing the 22
railway and property so acquired, less the amount of any outstanding 23
mortgages to wliich said railway and property may be subject in the 24
hands of the new company. 25
(i) The par value of the shares, which shall be one hundred dollars. 26
(j) The names and residences of at least five persons, who shall be 27
subscribers to the agreement of association, to act as directors until 28
others are chosen and qualified in their stead. 29
Each associate shall subscribe to the agreement of association his name, 30
residence, post office address, and the number of shares of stock which 31
he agrees to take. , 32
Organization,
1900. 381,
§§ 3, 5.
R. L. 112,
5§ 13, 14.
1906, 463. Ill,
§§ 146. 1.5S.
218 Mass. 367.
Section 137. The state secretary shall receive the agreement of as- 1
sociation, and preserve it in form convenient for reference and open to 2
public inspection, and shall issue a certificate of incorporation in the form 3
authorized by section nine. Thereupon, the company shall organize in 4
the manner provided in this chapter for the organization of a company. 5
Such company may begin busrness as soon as it is organized, and shall 6
have all the rights and be subject to all the duties of a street railway 7
company, except as otherwise provided in this and the preceding section. 8
If said purchasers fail to organize a company as hereinbefore provided, 9
all rights and powers to operate said railway shall thereupon cease. 10
Books and
returns.
1857. 40,
|§ 5, 6; 240,
G. S. 63,
§§ 143. 144.
1864. 229.
§§40.41.
1S70. 307,
l§ 1.3,4;
1871.381.
51 52, 53. 56.
1876. 173.
P. S. 113.5 58.
R. L. 112. § 93.
1906. 463, III.
§§ 151, 158.
1917, 122, § 4.
383.
BOOKS, RETURNS AND REPORTS.
Section 138. The directors of every street railway company shall 1
annually within the time prescribed by section thirty-two of chapter 2
one hundred and fiftj'-nine transmit to the department a return of the 3
company for the year ending on December thirty-first preceding which 4
shall be sworn to by the treasurer and the chief accounting officer of the 5
company. Such return shall set forth copies of all leases and contracts 6
made during the year with otlier street railway companies, and shall 7
contain full and complete information upon the several items contained 8
in the form prescribed by the department. A company owning a leased 9
railway shall be responsible for the completeness and correctness of its 10
annual return to the same extent as if the railway were in its own pos- 11
session. A company which fails to make a return, or to amend it when 12
notified so to do, shall forfeit twenty-five dollars for each day during 13
which such failure continues. 14
Section 139. The department shall prepare tables and abstracts
Tables and
abstracts of
isnrssi. § 55. of the returns of the several companies, and may include in its annual
p. s. 113, § 60. report such of them as it deems expedient.
R. L. 112, § 96. 1906, 483, III, §§ 153, 158.
CSAF. 161.] STRKET RAILWAYS. 1791
1 Section 140. The lessee of a street railway shall make to the com- Lessee of
2 pany wliich owns it the same annual return on oath of the operations to'^make same
3 and business of the raOway as is required of the company which owns fJifsor**"
4 it; and, for failure so to do, shall be liable in tort to said company for all J^Sj; |gj' | li'
5 the penalties prescribed by law for failure by it to make its annual return. ?• s- ns, § 6^^
I90G, 463, III, §§ 154, 158.
1 Section 141. Every state department and commission shall keep a Records of
2 record of its proceedings in any matter considered by it under any laws Eeforrdepan-
3 affecting street railways in which it shall enter every request, made by i89"s'''57g° § 25
4 any party before it, for a ruling of law and of its action upon such re- ^qL. 112, § gs.
5 quest, and the neglect either to grant or refuse such request shall, subject lii. §§ iss,
6 to section five of chapter twenty-five, be taken in any judicial review
7 of such proceedings as a refusal.
ADDITIONAL REMEDY.
1 Section 142. The supreme judicial or superior court shall have Enforcement
2 jurisdiction in equity, on petition of a company, or of the board of alder- 18617199, § 1.
3 men of a city or the selectmen of a town where the street railway is ilee', 294,' § i*^'
4 located, or of any interested party, to compel the obser\-ance and to Ra'm.'fes"
5 restrain the violation of all laws wliich govern street railway companies, J|^i. 293. ^
6 and of all orders, rules and regulations made in accordance with this R l 112,
7 chapter by the board of aldermen, selectmen or the department, and to i906,'463. iii,
8 review, annul, modify or amend the rulings of any state department or 1911,487* '
9 commission relative to street railways as law and justice may require. J?5 Maasl sis!
179 Mass. 449. 205 Mass. 94. 229 Mass. 399.
184 Mass. 294, 310. 209 Mass. 213. 231 Mass. 540.
192 Mass. 90, 106.
TRANSPORTATION AREAS.
1 Section 143. A city or town may establish, or two or more cities or Establishment
2 two or more towns, or two or more cities and towns, may unite for the tk>ntrla°^'^'
3 purpose of establishing, transportiition areas for the operation of freight '^-°' ^^' § ^■
4 or passenger ser\'ice, or both, on street railways existing therein. Upon
5 the approval of such an agreement by the department and by the voters,
6 as provided in section one hundred and forty-five, such a transportation
7 area shall be a body corporate or politic, and may become vested with
8 all the rights and powers and shall be subject to all the duties and obliga-
9 tions hereinafter conferred or imposed. All the laws and penalties re-
10 lating to privately operated street railways within the commonwealth,
11 and such rules and regulations as may from time to time be prescribed
12 by the department shall apply to such an area. The area shall be given
13 a distinctive name by the trustees, hereinafter provided for, which shall
14 include the words "Transportation Area".
1 Section 144. A city, by vote of its city coimcil, subject to the Preliminary
2 pro\'isions of its charter, or a town by vote of its board of selectmen, may i92o^'599' § 2.
3 make prehminary agreements with one or more companies operating
4 \\ithin its territory for the lease or purchase and operation of the prop-
5 erties of said company. For the purposes of this section, a company
6 shall act by a majority of its board of directors.
1 Section 145. Upon the acceptance of such a preliminary agreement Acceptance by
2 by a majority in interest of all classes of stock in such a company entitled 1920, 599, 5 a.
1792 - STREET RAILWAYS. [ChaP. 161.
to vote, and approval by tlie department after a public hearing of which 3
due notice shall be given, the agreement shall thereupon be binding 4
upon the company, subject to acceptance by the voters as hereinafter 5
pro\-ided. The department shall make an appraisal of the property to 6
\\'hich the agreement relates, and shall determine the value thereof and 7
the price or rental to be paid therefor by the transportation area. The 8
appraisal shall be on the basis of the actual value at the time of appraisal 9
and not of the cost of replacement. Thereupon the said agreement and 10
appraisal shall be advertised in a newspaper published in every city 11
and town witliin said area, or in the county as the department may 12
determine, and shall, within sixty days, be submitted to the voters in 13
e\"ery such city at a regular or special mimicipal election, and in every 14
such to\^Ti at a town meeting called for the piu-pose, in the form of the 15
following question to be placed upon the official ballot: "Shall the 16
agreement with the company, pro\"iding for tlie operation 17
of its property by a transportation area imder sections one hundred 18
and forty-tliree to one hundred and fifty-eight, inclusive, of the General 19
Laws to which tlie city of (or town of ) shall be 20
a party, be accepted?" If appro%'ed by a majority of the voters voting 21
tliereon by ballot in every such city and to^\Ti, except such as may have 22
been excluded by the department, acting imder section one hundred and 23
fifty-foiu-, the said agreement shall thereupon be binding, but not other- 24
wise, and the mayor and city council and the selectmen shall have author- 25
ity to execute such firrther agreements, contracts or leases as may be neces- 26
sary to effect the piu-poses and terms of the preliminary agreement. 27
pS^t^nt^ Section 146. The management and control of a transportation area 1
iSlaTgf.i"!: s^^^^ be vested in a board of trustees of whom two shall be chosen by the 2
mayor of each city concerned, ^"ith tlie approval of tlie city council, and 3
two by the selectmen of each town concerned. The initial appointees 4
shall ser\e for terms of one and two years, respectively, and their sue- 5
cessors for terms of two years. If a transportation area is established 6
by a single city, or town, its board of trustees shall consist of five members, 7
of whom tJie initial appointees shall serve for one, two, tliree, four and 8
five years, respectively, and tlieir several successors for five years each. 9
Each trustee shall be sworn to the faithful performance of his duty, and 10
a certificate thereof shall be recorded in the records of the secretary of 11
the area, and shall serve until his successor is qualified. A trustee may 12
be removed for cause by the appointing authority, and any vacancy shall 13
be filled in the same manner as an original appointment. The trustees 14
shall not be deemed public ofiicers within the meaning of section forty 15
of chapter two hmidred and seventy-one, nor shall they incur any personal 16
liabUity as such. Together with their agents and employees, they shall 17
be deemed agents of tlie transportation area. The trustees shall receive IS
no stated salaries, but may be paid not more than ten dollars each for 19
every meeting attended, but no trustee shall receive in the aggregate more 20
tlian three himdred dollars annually. No stockholder in a street railway 21
company tlie property of which is leased to a transportation area shall 22
act as a trustee for such area. 23
i92o?599, §6. Sectiox 147. The board of trustees of a transportation area shall 1
have full power to operate the street railway property leased or acquired 2
thereby, or to lease or sublease the same, subject to such conditions as 3
Chap. 161.] street railways. 1793
4 may be approved by the department, and may appoint and remove and
5 fix the compensation of such officers, managers and assistants as may be
6 necessary.
1 Section 148. At the first meeting of the said trustees, and at each officers of the
2 annual meeting thereafter, they shall elect from their number a chair- 1920, slg^s 7.
3 man, vice chairmai), treasurer and a secretary who shall perform such
4 duties as the trustees shall prescribe. The treasurer shall give a surety
5 company bond in such amount as the trustees shall fix, and the premium
6 thereon shall be paid as an expense of the area. Each trustee shall be
7 entitled to one vote on all matters calling for the determination of the
• 8 board. The trustees shall hold such meetings and transact such business
9 as may be necessary for the efficient operation of the transportation area.
10 A majority of the board shall constitute a quorum for the transaction of
11 business and the action of a majority of those present at any meeting
12 shall be deemed the action of the trustees. The trustees shall annually,
1.3 before February first, report, with a detailed statement of the finances
14 of the area, to the several cities and towns of the area, and the treasurer
15 shall, once in every three months, make a financial report to said cities
16 and towns in such form as the trustees prescribe.
1 Section 149. Upon the request of the board of trustees of a trans- Taking of
2 portation area established under this chapter the department shall take illo'sgg,""^"
3 by eminent domain under chapter seventy-nine on behalf of such trans- ^^ ®' ^^'
4 portation area the whole property, or any part thereof, of a street rail-
5 way which the company has ceased, for more than ninety days, to
6 operate, provided that the department has determined that public
7 necessity and con'venience require the operation of such street railway,
8 or part thereof and approves the taking, and provided also that the
9 proposed taking has been approved by a majority of the voters, voting
10 thereon, substantially in the manner provided by section one hundred
11 and forty-five, in every city and town included within the transportation
12 area.
1 Section 150. The cities and to'RTis comprising a transportation area Contribution
2 shall contribute to the discharge of its habiUties and obligations on the towns!^"""
3 basis of one third part according to the single track street railway mileage ^^'°' ^^®' ^ ^'
4 rumiing in or through their respective limits, one third part according to
5 their population, and one third part according to their assessed valuation.
6 The department shall establish the said basis at least once in tliree years.
1 Section 151. The financial year of a transportation area shall end on Finances.
2 the last day of each calendar year. The cities and to\\Tis comprising the ^®^°' ^^^' ^ '""
3 area shall, in proportion to their respective interests, as defined in the
4 preceding section, contribute to make up any financial deficit resulting
5 from the operation of the area for any financial year, and the board of as-
6 sessors of any such city or town, upon receipt from the trustees of a certifi-
7 cate showing the amount so found to be due, shall include said amount
8 in the annual tax le\y of the city or town for the year following the said
9 financial year. If there is a surplus from such operation for any financial
10 year, eighty-five per cent thereof shall be distributed by the trustees
11 among the cities and towns comprising the area in proportion to their
12 respective interests, and fifteen per cent thereof shall be held by the
1794
STREET RAILWAYS.
[Chap. 161.
trustees to be applied to reduce any deficit in any succeeding year. In 1.3
reckoning a profit or a deficit, the trustees shall first charge off as depre- 14
elation not less than tliree per cent and not more than five per cent of the 15
book Aalue of the property. 16
Borrowing by
cities and
towns.
1920,599, § 11.
Section 152. For the pm-pose of acquiring street railway property 1
under sections one hundred and forty-three to one hundred and fifty- 2
eight, inclusive, of operating the same, or of contributing toward the 3
sums expended by the transportation area for capital purposes, cities 4
and towns may, with the approval of the department, borrow money in 5
excess of the statutory limit, but not exceeding the sum of two per cent 6
of their respective assessed valuation. Boards of trustees of transporta- 7
tion areas may for current expenses issue from time to time short term 8
notes for terms not exceeding one year, provided that the notes shall 9
first have the approval of the department. 10
Hneritc°°^ Section 153. No extension of lines or trackage shall be made or 1
1920, 599, § 12. additional equipment purchased by a transportation area without the 2
consent of the department. 3
Exclusion of
city or town
from trans-
portation area,
etc.
1920, 599, § 13.
Section 154. The department may exclude from a transportation 1
area any city or town, but such exclusion shall not prevent the operation 2
of street railways in or through its territory. The department may also 3
exclude any city or towii or part thereof, the inclusion of which would, 4
in its opinion, handicap the eflScient operation of a transportation area. 5
The department may permit the operation of street railwaj^s without the 6
commonwealth by any transportation area which borders on the boundary 7
line of another state. 8
Rentals, etc.
1920, 599, § 14.
Section 155. The amount to be paid as rental under a lease of a 1
street railway property shall not exceed seven per cent of the price fixed 2
in any option to purchase the property. Rentals shall be paid to the 3
owners of street railway property by a transportation area at least once 4
in six months. No lease shall be made for a term of more than five or 5
less than two years, but a lease may be renewed if public necessity and 6
convenience, in the opinion of the department, so require. A renewal 7
of a lease shall be made in the same manner as a new lease, except that 8
the transportation area shall give \\Titten notice to the owners of the 9
property at least foiu- months in advance of such renewal. A lease may 10
be terminated by the consent of a majority in interest of all classes of stock 1 1
in such company entitled to vote, and of a majority of the voters of each 12
city and town comprising the transportation area, voting thereon upon 13
submission at a regular or special city election or town meeting upon 14
petition of ten per cent of the registered voters of each city or town filed 15
with the city or town clerk within thirty days of such election or meeting. 16
Fare zones
and fares.
1920, 599, § 15.
Section 156. Subject to the approval of the department, the trustees 1
shall establish such fare zones and shall fix such rates of fare to be charged 2
by a transportation area as will reasonably assure suflScient income to 3
meet the cost of the service, including operating expenses, taxes, rental, 4
interest and the allowance for depreciation required by section one hun- 5
dred and fifty-one. 6
Ch.\p. 162.]
ELECTRIC RAILROADS.
1795
1 Section 157. The trustees shall maintain the street railway prop- Termination
2 erty in good operating condition. At the expiration of any lease which igsasgg, §i6.
3 is not renewed, a transportation area shall retin-n the property to the
4 owners in as good condition as it was when first taken over, ordinary
5 wear and tear to be taken into consideration. All leases shall be subject
G to a provision that any question of damages shall, within ninety days
7 from the date of expiration of a lease, be submitted to the department,
8 and its decision or award shall be final, it being understood that fluctua-
9 tions in the value of the property and equipment shall not be taken into
10 consideration.
1 Section 158. Nothing contained in sections one hundred and forty- Taxation.
2 three to one hundred and fifty-seven, inclusive, shall affect the right of " ' "
3 the commonwealth or any subdivision thereof to tax the property owned
4 or leased by a transportation area in the same manner and to the same
5 extent as if the same were under private management, but cities and
6 towns may abate in whole or in part the taxes thereon.
1 Section 159. Sections one hundred and forty-three to one hundred ®°f*?°„^',^
n T np * 1 ' 1 * in 1 • vated Railway
2 and nity-eight, mclusive, shall not apply to any territory served by the notaCfected
3 Boston Elevated Railway Company. 1920, 599, § is. 143 to iss,
inclusive.
Sections one hundred and fort-\--three to one hundred p"''^ ^"^ ,
towns which
1 Section 160.
2 and fifty-eight, inclusive, so far as applicable, shall apply to any trans- acted under
3 portation area now estabUshed under chapter fi^'e hundred and ninety-
4 nine of the acts of nineteen hundred and twenty or now in process of
5 estabUshment thereunder.
REFERENCES.
Location of street railways in metropolitan parks, Chap. 92, §§ 43-47.
Investments by savings banks in street railway securities. Chap. 168, § 54, cl. 4.
Enforcement of this chapter by the department of public utilities, Chap. 159.
Operation of motor cars for hire. Chap. 159, §§ 45-49.
Reserved spaces for street railwaj's in public ways. Chap. S2, § 34.
General provisions applicable to all corporations. Chap. 155.
General provisions relative to common carriers, Chap. 159.
CHAPTER 162
ELECTRIC RAILROADS.
Sect.
1. Definitions.
2. Chapter to apply to Boynton bicycle
railway.
3. Formation.
4. Powers.
5. Agreement of association.
6. Publication of agreement of association.
7. Certificate of public exigency.
S. Proceeding before board of aldermen of
cities or selectmen of towns.
9. Fixing of the route.
10. Location on public way, etc.
11. Certificate of incorporation.
Sect.
12. Powers cease unless construction begun,
etc.
13. Powers to construct extension cease
unless construction begun, etc.
14. Common carriers of baggage and
freight.
15. Certain provisions of street railway law
applicable.
16. Certain sections of railroad law not to
apply.
17. Elevated structure an additional servi-
tude.
18. Walking on track.
1796
ELECTRIC EAILRO.U)S.
[ClLiP. 162.
Definitions.
1906, 616, § 27.
1919, 350,
§ 117.
Section 1 . In this chapter, unless the context otherwise requires, the 1
" department " means the department of pubhc utihties. An " interested 2
party", in any proceeding under this chapter before the department, the 3
board of aldermen of any city or the selectmen of any town, shall in- 4
elude any person whose land is to be taken or whose estate abuts upon 5
any highway through which the electric railroad is to pass, and any rail- 6
road corporation or street railway company having a location in any 7
city or town included within the proposed route of the electric railroad S
company. 9
Boynton bicycle railway.
a'^T^toBo n- Section 2. This chapter, so far as applicable, except sections twelve 1
ton bicycle and thirteen, and laws relative to the taxation of companies organized 2
1907, 556, § 1. under this chapter, shall apply to the form of railway known as the 3
1910,687, §3. f '_ ft ^ ^
I906r5*i6!'§ 1. Section 3. Fifteen or more persons may associate themselves by a 1
written agreement of association with the intention of forming an electric 2
railroad company. 3
Powers.
1906, 516, § 2.
Section 4. Such company may, subject to this chapter, construct, 1
operate and maintain a railroad or railway, including poles, wires, or 2
other appliances and equipment connected therewith, of the class oper- 3
ated by electricity or by any power other than steam, which the depart- 4
ment approves, and constructed wholly upon private land purchased or 5
taken by said company under this chapter; or constructed partly upon 6
such private land and partly upon public ways and places, but at least 7
one half of which is constructed upon such private land. Such company 8
shall have all the powers and privileges, and be subject to all the duties^ 9
liabilities and restrictions, relative to railroad corporations, set forth in 10
chapters one hundred and fifty-nine and one hundred and sixty, except 1 1
as is otherwise specially provided in this chapter. 12
Agreement of
association.
1906, 516, I 3.
Section 5. The agreement of association shall state —
(a) That the subscribers thereto associate themselves with the inten-
tion of forming an electric railroad company;
(b) The corporate name assumed, which shall be one not in use by
any other electric railroad company in the commonwealth, or, in the
judgment of the department, so similar thereto as to be likely to be mis-
taken for it, or for any railroad corporation or street railway company in
this commonwealth, and which shall contain the words, "electric rail-
road company", at the end thereof;
(c) The termini of the railroad;
(d) The length of the railroad, as nearly as may be;
(e) The name of each county, city and town in which the railroad is to 12
be located; 13
(/) The gauge of the railroad, which shall be four feet eight and one 14
half inches; 15
ig) The total amount of the capital stock of the company, which shall 16
be not less than ten thousand dollars for each mile; 17
(h) The par value of the shares, which shall be one hundred dollars; 18
(t) The names and residences of at least five persons, who shall be sub- 19
scribers to the agreement of association, to act as directors until others 20
are chosen and qualified in their stead. 21
1
2
3
4
5
6
7
8
9
10
11
Chap. 162.] electric railro.vd.s. 1797
22 . Each associate shall subscribe to the agreement of association his
23 name, residence, post office address, and the number of shares of stock
24 which he agrees to take, but no subscriber shall be bound to pay more
25 than ten per cent of the amount of his subscription unless a company
26 is incorporated.
1 Section 6. The directors, before applying to the department as here- Publication of
2 inafter provided, shall publish a copy of the agreement of association as tss^iatSn"'
3 provided in section six of chapter one hundred and sixty-one, and the ^^°®' ^^^' ^ *■
4 sworn certificate of the clerk shall be conclusive evidence thereof.
1 Section 7. After compliance with section three and the two pre- Certificate
2 ceding sections, and within thirty days after the first publication of exiKency.
3 notice of the agreement of association therein required, the directors losVasa'. 94^'
4 therein named shall apply to the department for a certificate that public
5 convenience and necessity require the construction of a railroad as pro-
6 posed in such agreement. With such application said directors shall file
7 a map of the railroad showing the cities and towns through which it will
8 pass, the principal highways, railways, railroads, navigable streams and
9 tide waters to be crossed, and the extent to which the route of the rail-
10 road will be fixed upon private land or will be located longitudinally upon
11 public ways and places, together with a general profile of the railroad
12 showing the grades, and an estimate showing in reasonable detail the
13 cost of construction. The directors shall also furnish such additional
14 maps and information as the department may require. Prior to the
15 decision of the department the directors may change or modify the route
16 in any city or town in whole or in part either at the suggestion of the
17 department or otherwise. If the department refuses to issue such cer-
18 tificate, no further proceedings shall be had, but the application may be
19 renewed after one year from the date of such refusal.
1 Section 8. If the department grants the certificate specified in the Proceeding
2 preceding section, the directors may, within sixty days after the granting of aiSermen
3 thereof, apply to the board of aldermen of each city and to the selectmen geiectmen'^of
4 of each town where the railroad is to be located to fix the route of the ^gSe'^'sie § 6
5 railroad in such city or town, and with such application the directors isO'. 428, § i.
6 shall file a copy of the maps and general profile, and, upon request, the
7 other information presented to the department. The board of aldermen
8 and the selectmen shall give fourteen days' notice of the time and place
9 for a hearing on such application by publication thereof in one or more
10 newspapers, if any, published in said city or town; otherwise in such
11 newspaper or newspapers published in the county where the city or town
12 is situated as shall be designated by the department; and written notice
13 of the time and place at which such hearing will be held shall be mailed
14 at least seven days before said hearing by the clerk of the city or town,
15 where the application for locations has been filed, to the owners as
16 determined by the last preceding assessment for taxation of real estate
17 along the public ways or parts of ways upon which it is proposed to con-
18 struct said line and to the owners of private land upon which the route
19 of the railroad is to be fixed; and said clerk shall make and deliver to
20 the directors at the hearing a certificate setting forth the fact that such
21 notice was published and mailed as herein provided, and such certificate
22 shall be conclusive evidence thereof.
1798 ELECTRIC RAILRO.U)S. [Ch.4P. 162.
fhSoute Section 9. If the route designated in the application is agreed to by 1
1906, 516, 1 7. tijg board of aldermen or the selectmen, and all requirements in respect 2
1908; 450.' ' of the part of said route located longitudinally upon public ways and 3
places are assented to by the directors, and thereafter are approved in 4
writing by the department, the board of aldermen or the selectmen shall 5
make a certificate setting forth the route as fixed by them, which shall be 6
certified by said board or their clerk to the directors, and no further pro- 7
ceedings shall be necessary, but the route so agreed to shall be the route S
of said railroad in such city or town, except as hereinafter provided. If 9
the board of aldermen or the selectmen agree with the directors upon a 10
route different from that designated in the appHcation, or fail within 11
ninety days after the date of the fihng of the application to agree with 12
the directors upon a route, or as to requirements in respect of the part of 13
the route located longitudinally upon public ways and places which meet 14
with the approval of the department, the directors or the board of alder- 15
men or selectmen, within one hundred days after the date of the filing of 16
the application, may apply to the department, which may, in its discre- 17
tion, after notice to the directors and board of aldermen or selectmen, IS
and after public notice and a hearing, fix the route and determine the 19
grades and method of constructing said railroad in such city or town, and 20
no change shall thereafter be made by the directors in the grades or method 21
of construction so determined without the written approval of the de- 22
partment after notice to the board of aldermen or selectmen and after 23
public notice and a hearing. The department shall thereupon make a cer- 24
tificate setting forth the route as fixed by it, which route shall be certified 25
by its clerk to the directors. In fixing such route the department shall 26
not locate it longitudinally upon any public way or place in such city or 27
town without the consent of tlie board of aldermen or the selectmen. 28
That part of the route consisting of a location longitudinally upon a 29
public way or place shall not be deemed to be fixed until all require- 30
ments imposed in respect of it by the board of aldermen, or the selectmen, 31
are approved in writing by the department. If the route in any city or 32
town, as fixed either by the board of aldermen or selectmen, or by the 33
department, in the manner hereinbefore pro\-ided, is different from the 34
route designated in the appUcation of the directors and if said change of 35
route in the opinion of the directors makes it desirable to change the 36
route of said railroad in any of the other cities or towns through which 37
the route of said railroad passes, or if the directors deem it desirable to 38
change the route of the railroad so as to pass through any cities or towns 39
not named in the agreement of association of said railroad company or 40
to change the route so as no longer to pass through certain cities or 41
towns where the directors have applied to have the route fixed, then the 42
directors may at any time before the route in all the cities and towns is 43
finally fixed, or within thirty days thereafter, apply to the department 44
for leave to apply again to the board of aldermen or selectmen of any 45
cities or towns to fix a new route otiier than that originally applied for 46
within such cities or towns or to apply to the board of aldermen or select- 47
men of any cities or towns not named in the agreement of association of 48
said railroad company to fix a route of the railroad passing through such 49
cities or townis, or for leave to abandon the route in any cities or towns 50
where the directors h&xe applied, as aforesaid, to have the route fixed. 51
With such application to the department the directors shall file a map 52
and general profile showing the change in the route as proposed, which 53
map and general profile shall be in the same form as those filed under 54
Chap. 102.] electric railroads. 1799
55 section seven, and the directors shall also furnish such additional infor-
56 mation as the department may require. The department shall give a
57 public hearing upon such application after giving such notice to the direc-
58 tors and to the board of aldermen or selectmen of such cities or towns
59 as it deems requisite. If the department authorizes the directors to
CO apply to any cities or towois to fix a route other than that designated in
61 the original ajjplication, then all proceedings theretofore taken in regard
62 to fixing the route in such cities or towns shall become null and A'oid, and
63 the directors shall, within sixty days thereafter, again apply to the board
64 of aldermen of such cities and to the selectmen of such towns to fix anew
65 the route of the railroad in such cities or towns, and with such application
66 shall file a copy of the maps and general profile of such proposed altered
67 route, and, upon request, the other information presented to the depart-
68 ment. The proceedings thereafter upon such application shall be as
69 pro-v'ided for an original application. If the department authorizes the
70 directors to apply to any cities or towns not named in said agreement of
71 association to fix a route of the railroad passing through said cities or
72 towns, then the directors shall, within sixty days after the granting of
73 such authority, apply to the board of aldermen or selectmen to fix the
74 route of the railroad in such cities or towns. Said application shall be
75 made in the same manner and the proceedings thereon shall be the same
76 as in an application to fix the route of the railroad to the board of alder-
77 men or selectmen of a city or town originally named in the agreement of
78 association of such railroad company. If the department authorizes the
79 directors to abandon entirely the route in any cities or towns where the
80 directors have applied, as aforesaid, to have the route fixed, then any
81 action taken in regard to fixing the route in such cities or towns shall
82 become null and void, and the railroad company shall be under no obli-
83 gation to construct its railroad therein. The order of the department
84 authorizing the directors to apply for a route of the railroad in any city
85 or town not named in the agreement of association or the order of the
86 department under which the route in any cities or towns is abandoned,
87 shall operate as an amendment to the clauses in said agreement of associ-
88 atioii which name the cities or towns where the railroad is to be located,
89 and the termini thereof, and a certified copy of said order shall be at-
90 tached to the agreement of association.
1 Section 10. If the board of aldermen or the selectmen deem public Location on
2 convenience and necessity require the railroad to be constructed in part etc^'^" ™''^'
3 longitudinally upon a public way or place, they may, in granting or agree- ■^®°^' ^^"^ ^ ^•
4 ing to a location thereon, prescribe how the tracks shall be laid, the kind
5 of wires, poles, rails and other appliances which shall be used, and may
6 impose such terms, conditions and obligations incidental to and not
7 inconsistent with the objects of a street railway company as the public
8 interests may require, and the department approves.
1 Section 11. The certificate of incorporation issued by the state sec- Certificate of
2 retary to the company shall contain the words, " electric railroad com- i906,'5'ie*'§'9.
3 panics", instead of the words, "railroad corporations".
1 Section 12. If an electric railroad company, incorporated under this Powers cease
2 chapter, does not begin the construction of its railroad and expend thereon stmction
3 at least ten per cent of the amount of its original capital stock within two i9io,°6s7!'§ i.
1800
ELECTRIC RAILRO.VDS.
[Chap. 162.
years after the date of its certificate of incorporation, and does not com- 4
plete and open its railroad for use within four years after said date, its 5
corporate powers and existence shall cease, unless the department, after 6
public notice and a hearing, extends said time by a certificate, stating 7
that it deems due diligence has been exercised by the corporation, and 8
that public necessity and convenience require such extension. 9
Powers to
construct ex-
tension cease
unless con-
struction
begun, etc.
1910, 587, § 2.
Section 13. If an electric railroad company, incorporated under this 1
chapter, does not complete and open for use an extension within four years 2
after the date of the authorization of the extension by the department, 3
the power of the company to construct and operate the same shall cease, 4
unless the department after public notice and a hearing, extends said 5
time by a certificate stating that it deems due diligence has been exercised 6
by the corporation, and that public necessity and convenience require the 7
said extension of time. 8
Common car-
riers of
baggage and
freight.
1906, 516, § 10.
Section 14. An electric railroad company shall act as a common 1
carrier of baggage, express matter and freight in such cases, upon such 2
parts of its railroad, and to such extent, in any city or town as, after 3
public notice and a hearing upon the petition of the president or a ma- 4
jority of the directors of the company or any interested party, the board 5
of aldermen or the selectmen, or those exercising the powers of such 6
board or selectmen, in such city or town, shall by order approve; pro- 7
vided, that a company shall actually engage in the business of a common 8
carrier under this chapter only in such cases, upon such of the parts of 9
its railroad, and to such extent, approved as aforesaid, as the depart- 10
ment shall certify, after public notice and a hearing upon said petition, 11
that public necessity and convenience require; and provided, that any 12
company acting under authority hereof shall be subject to such regula- 13
tions and restrictions as may from time to time be made by the local 14
authorities aforesaid, with the approval of the department, and shall 15
also be subject to all laws relating to common carriers so far as consistent 16
herewith and with said regulations and restrictions. 17
Certain pro\*i-
sions of street
railway law
applicable.
1906. 516. § 11.
205 Mass. 94.
Section 15. An electric railroad company shall be subject to sections
twenty-five, forty, forty-two, forty-six, forty-nine, fifty, seventy, seventy-
one, seventy-seven to ninety-eight, inclusive, one hundred to one hun-
dred and three, inclusive, one hundred and twenty-nine to one hundred
and thirty-one, inclusive, and one hundred and forty-one of chapter one
hundred and sixty-one and section one hundred and two of chapter two
himdred and sixtv-six.
Certain sec-
tions of rail-
road law not
to apply.
1906, 516, § 12.
1907, 42S, § 3.
Section 16. An electric railroad company shall not be subject to the 1
following pro\'isions of law relative to railroad corporations contained 2
in chapter one hundred and sixty: so much of section twenty-two as 3
refers to tracks laid longitudinally within the limits of a public way; so 4
much of section forty-one as applies to grain elevators; sections sixty- 5
five to sixty-seven, inclusive, and sections one hundred and thirty-eight, 6
one hundred and fifty-one, one hundred and fifty-two, one hundred and 7
sixtj'-eight to one himdred and se^•enty-one, inclusive, and two hundred 8
and twenty-seven; but the department shall prescribe rules and regula- 9
tions relative to the equipment of cars, the ringing of bells, the sounding 10
of whistles and the giving of signals, for the prevention of accidents. 11
Chap. 163.]
TRACKLESS TROLLEY COMPANIES.
1801
1S7 Mass. 445.
1 Section 17. The location, construction, maintenance or operation of Elevated struc-
.... i*-i !■ !■ 1 I 1 *• ture an addi-
2 said lines of railroad in so tar as the same are located longitudinally t'onai servi-
3 upon an elevated structure upon a public way or place shall be deemed i907^448, § r
4 an additional servitude, and shall entitle parties having an e'State in
5 such public ways or places, or in premises M-hich abut thereon, and who
6 are damaged by reason of such location, construction, maintenance and
7 operation, to recover such damages from the electric railroad company
8 under chapter seventy-nine.
1 Section 18. WTioever without right knowingly stands or walks on walking on
2 an electric railroad track not within the limits of a highway shall forfeit is53,'4i4, § 4.
3 not less than five nor more than fifty dollars, g. s. 63, § 102. is74, 372, § i4s.
p. S. 112. § 195.
R. L. Ill, § 249.
1906,403, II, §§ 232
516, § 13.
258;
1907, 428, § 4.
142 Mass. 296.
REFERENCES.
General provisions applicable to all corporations, Chap. 155.
General provisions relative to common carriers, Chap. 159.
CHAPTER 163
TRACKLESS TROLLEY COMPANIES.
Sect.
1. Definition.
2. Use of troUeymotors on public ways,
etc., permitted.
3. Incorporation of troUeymotor com-
panies.
4. Agreement of association.
5. General laws governing street railway
companies apply.
Sect.
6. Corporation must secure permit.
7. To become common carrier.
S. To be subject to laws governing street
• railway companies.
9. Time limit upon erection of poles, etc.
10. May purchase electricity.
11. Real and personal property.
1 Section 1. In this chapter, unless the context otherwise requires, the Definition.
2 "department" means the department of public utilities. l^ni^^'
1 Section 2. Any corporation organized as provided in this chapter. Use of troiiey-
2 and any domestic street railway company may, as hereinafter provided, pubilc^wrys,
3 transport for hire passengers, freight, express parcels and mail over public igie.'^lee!'!'!'?"
4 ways or over private lands with the consent of the owners thereof by
5 the system knowai as troUeymotor or trackless trolley, and may build,
6 equip, operate and maintain vehicles for such transportation, and estab-
7 lish and maintain power houses, poles, wires, conduits or other structures
8 within the limits of and over or under such public ways or private lands
9 for the generation and transmission of electricity for the operation of
10 such vehicles, and the authorities having jurisdiction over such public
11 ways may grant permits for the operation of the said vehicles over such
12 ways, and for the erection of poles, wires and other necessary structures
13 within, over or under such public ways in the manner and to the extent
14 provided by law for the granting of locations to street railway companies.
1 Section 3. Five or more persons may associate themselves by ■WTitten incorporation
2 agreement of association with the intention of forming a troUeymotor or motor com-
3 trackless trolley company. i9i6, 266, § 2. pames.
1802
TRACKLESS TROLLEY COMPANIES.
[Ch.\p. 163.
Agreement of
association.
1916, 266, § 3.
Section 4. The agreement of association shall state — 1
(a) That the subscribers thereto associate themselves with the inten- 2
tion of forming a trolleymotor or trackless trolley company; ,3
(b) The corporate name assumed, which shall be one not in use by any 4
other trolleymotor or trackless trolley company, or by any street rail- 5
way company, or, in the judgment of the department, so similar thereto 6
as to be likely to be mistaken for it, and shall contain words indicating 7
the object of the company; 8
(c) The termini of the proposed route; 9
(d) The length of the proposed route as nearly as may be ; 10
(e) The name of each county, city and town where the proposed route 1 1
is to be situated; 12
(/) The total amount of the capital stock of the company, which shall 13
not be less than two thousand dollars for each mile, nor in any event less 14
than twenty thousand dollars; , 1.5
(g) The par value of the shares, which shall be one hundred dollars; 16
(h) The names and residences of at least five persons, who shall be 17
subscribers to the agreement of association, to act as directors until 18
others are chosen and qualify in their stead. 19
Each associate shall subscribe to the agreement of association his 20
name, residence, post office address, and the number of shares of stock 21
which he agrees to take, but no subscriber shall be bound to pay more 22
than ten per cent of the amount of his subscription unless the company 23
is incorporated. 24
General laws
governing
Btreet railway
companies
apply.
1916, 266, § 4.
Section 5. Except as otherwise provided in this chapter, corporations 1
organized hereunder shall be organized in accordance with the general 2
laws governing the organizatior^ of street railway companies so far as 3
applicable and consistent with this chapter. 4
Corporation
must secure
permit.
1916, 266, § 5.
Section 6. Every corporation undertaking to perform in public 1
ways the kind of public service authorized by this chapter shall first 2
procure a permit from the authorities having jurisdiction over such 3
public ways in the manner prescribed in and in accordance with section 4
seven of chapter one hundred and sixty-one, and the granting of such 5
permit shall be subject to the approval of the department as provided in 6
said section for the location of street railways. No such appro\-al shall be 7
given for any line any part of which, in the opinion of the department, is 8
so nearly contiguous or adjacent to the line of a street railway company 9
that its construction would result in a competitive service injurious to 10
the public and to such street railway company: pro\ided, that the latter 11
is ready and willing and offers to construct and does construct, within 12
such reasonable time as the department may fix, a line of street railway 13
or a line of trolleymotor or trackless trolley in the public way described 14
in the petition, which the department deems will serve the public as 15
well as would the proposed line described in the petition; and no such 16
appro\al shall be granted in any e\'ent if the department deems that 17
the granting of the same would be unduly injurious to any street railway 18
or trackless trolley line covering the same or substantially the same 19
territory. 20
To become
common
carrier.
1916, 266, § 6.
Section 7. Every corporation undertaking to perform the kind of 1
public service authorized by tliis chapter shall thereupon become a 2
Chap. 163.] trackless trolley companies. 1803
3 common carrier, with all the duties and liabilities of common carriers,
4 and the department shall ha\'e the same jurisdiction over the operation
5 and the service rendered that it has over street railway companies, except
6 that no corporation shall be required, without its consent, to extend
7 its trackless trolley ser-\-ice beyond that described in its petition under
8 the preceding section or in its offer to the department thereunder, and .the
9 department may permit the suspension of curtailment in whole or in
10 part of the trackless trolley service of any corporation operating under
11 authority of this chapter whenever, by reason of weather or traffic con-
12 ditions, or of the condition of the highways, or the season of the year,
13 such suspension or curtailment may be desirable for the safety of the
14 traveling public or to avoid loss in operation.
1 Section S. E^'ery corporation doing business under this chapter shall J°]^l^^J^^^
2 be subject to general laws governing street railway companies in respect era'^g st^et
3 to the futiu^e issue of stocks and bonds, consolidation, leases, revocation panies.
4 of permits and locations; and shall also be subject to the same regulation
5 and superv-ision, and shall file with the department the same reports
6 and information required of street railway companies, so far as such
7 regulation, supervision and requirements are applicable to corporations
8 doing business under this chapter and are consistent with its provisions.
1 Section 9. The right of any corporation to erect poles, wires and up™n erection
2 other appliances in accordance with any permit granted under section "gfe'lee^'s s
3 six, and to operate trackless trolley vehicles upon the line designated in
4 such permit, shall cease as to so much thereof as shall not be in operation
5 within two years after the date of approval by the department, or witliin
6 such further time as it may, after a hearing, grant.
1 Section 10. Any corporation doing business under this chapter may May purchase
2 purchase electricity from any person, city or town, engaged in its man- i9i6, 266, § 9.
3 ufacture or distribution or from any street railway company, on such
4 terms and conditions as the department appro\'es, and, with like ap-
5 proval, may make contracts with any corporation having poles, wires,
6 conduits or other structures or appliances within the limits of public
7 ways or on private lands for the purchase or for the use of such poles,
8 wires, conduits or other structures.
1 Section 11. Any corporation doing business under this chapter may Real and per-
2 purchase and hold personal and real estate necessary or convenient for i9i6, 266, § lol
3 the operation of its lines.
REFERENCE.
General provisions applicable to all corporations, Chap. 155.
1804
MANUFACTURE AND SALE OF GAS AND ELECTRICITY. [CuAF. 164.
CHAPTER 164.
MANUFACTURE AND SALE OF GAS AND ELECTRICITY.
Sect.
definitions.
1. Definitions.
2. Construction.
COHPOR-iTE EIGHTS AND LIABILITIES.
3. Corporations governed by this chapter.
4. Application of business corporation
law.
Formation of corporations.
Agreement of association.
By-laws.
Par value of shares.
Issue of securities of hydro-electric
companies.
Increase or reduction of capital stock.
Stock or scrip dividends forbidden,
etc.
Penalty for stock dividends.
Bonds and mortgages of gas or electric
companies.
Issue of stock and bonds by gas and
electric companies.
Disposition of bonds.
Capital impaired to be made good.
Penalties.
Disposition of new shares of gas or
electric companies.
When shares to be sold at auction.
Capital to be paid in before com-
mencing business.
Transfer of franchise forbidden.
Change of corporate business.
Gas company authorized to sell elec-
tricity.
Time prescribed for equipping plant.
Record of orders for erection of plant
and of compliance.
Purchase of franchise, etc., of electric
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
company.
Powers and duties of company so au-
thorized.
Change of corporate name.
Certificate of change of officers to be
filed.
Change of location.
Other companies may hold gas stock.
Liability of officers.
Fees.
MUNICIPAL LIGHTING PLANTS.
34. City or town may acquire plant.
35. Vote of city.
36. Vote of town.
37. Certification of vote to department.
38. Certification of subsequent votes, etc.
39.. Penalty for failure to certify vote.
Sect.
40. May incur debt for plant.
41. Enlargement of plant.
42. Purchase of existing plant.
43. Enforcement of purchase.
44. Performance of final decree.
45. Property in adjoining city or town.
46. Supply of adjoining city or town.
47. Supply by municipal plants to adjoin-
ing cities or towns.
48. Owner to file statement of plant.
49. Property in adjoining city or town,
when included.
50. Vendor's rights to terminate.
51. Purchase of gas or electricity.
62. Certain towns may purchase from
street railway company.
53. Delivery of electricity so purchased.
54. Department to fix price in ease of dis-
agreement.
55. Municipal light board.
56. Manager of municipal lighting.
57. Annual income and expenses.
58. Price for gas and electricity regulated.
59. Prices to be certified to department.
60. Compulsory supply.
61. Assessment of cost of services, etc.
62. Ordinances and by-laws relative to
plant.
63. Records and return to department.
64. Liability for injury or damage.
65. Application of chapter to plants spe-
cially chartered.
66. City or town owning plant, subject to
general laws, etc.
67. Revocation of locations restricted.
68. Sale of plant.
69. Enforcement of certain provisions.
DISTRIBUTION OF GAS AND ELECTRICITY.
70. Street locations for gas mains.
71. Construction of lines.
72. Taking land for transmission lines.
73. Construction of transmission lines over
railroads, etc.
74. Damages for injuries to persons or
property.
75. Regulations by local authorities.
STATE SUPERVISION.
76. General duties of department.
77. Annual report to general court.
78. Violations of law.
79. Enforcement of orders of department.
80. Office of company where works lo-
cated. Department to have access
to records.
Chap. 1(>4.] manufacture and sale of gas and electricity.
1805
Sect.
81.
82,
83.
84.
85.
Form of books and accounts pre-
scribed.
Form of station records prescribed.
Form of annual returns prescribed.
Penalty for failure to make return.
Department may examine books, etc.,
of companies.
86. Entry of gas company restricted.
87. Entry of electric company, etc., re-
stricted.
88. Appeal.
89. Right of municipal lighting plant re-
specting such entry.
90. Restrictions upon entry for supplying
electricity in bulk.
91. Enforcement of such restrictions.
92. Supply of gas or electricity enforced.
93. Reduction in price, etc., enforced.
94. Revision of orders relative to price and
quality.
95. Report of accidents.
96 Consolidation of gas or electric com-
panies.
97. Consolidation of electric and hydro-
electric companies.
9S. Effect of consolidation.
99. Increase of capital stock to effect con-
solidation.
100. Consolidations restricted.
101. Time for filing applications for con-
solidations.
102. Certain consolidations prohibited.
Sect.
inspection op gas and meters.
103. Powers and duties of inspectors.
104. Fees for testing gas meters.
105. Companies to provide photometer.
106. Regulation of quality of gas.
107. Calorific standard for gas.
108. Companies to provide calorimeter.
109. Inspection of gas by photometer.
110. Penalty for supplying gas below
standard.
111. Unit of measure for gas.
112. Companies, etc., to provide meter
provers.
113. Penalty for using meters not tested.
114. Testing gas meters in use.
115. Gas meters to register plainly.
116. Entry on premises to examine meters,
etc.
117. Customer to be given meter reading.
118. Electric meters to register plainly.
119. Meter rental.
120. Testing electric meters in use.
121. Inspection of electric meters, expense
and registration thereof.
122. Penalty for use of incorrect electric
meter, etc.
123. Use of prepayment meters regulated.
124. Gas or electricity may be shut off,
when.
125. Refusal of supply restricted.
126. Penalty for injury to gas meter, etc.
127. Penalty for injury to electric meter, etc.
DEFINITIONS.
1
2
3
4
5
Section 1. In this chapter, unless the context otherwise requires, Deenitions
the following words shall have the following meanings :
"Department", the department of public utilities.
"Electric company", a corporation organized under the laws of the
commonwealth for the purpose of making by means of water power,
6 steam power or otherwise and selling, or distributing and selling, elec-
7 tricity within the commonwealth, or authorized by special act so to do,
8 even though subsequently authorized to make or sell gas.
9 "Gas company", a corporation organized mider the laws of the com-
10 monwealth for the purpose of making and selling, or distributing and sell-
1 1 ing, gas within the commonwealth, even though subsequently authorized
12 to make or sell electricity.
13 "Supplying electricity in bulk", engaging in the business of making
14 and selling or distributing and selling electricity to electric companies,
15 railroads, street railways or electric railroads, or to municipalities for
16 municipal use or re-sale to their inhabitants, or to persons, associations
17 or corporations under limitations imposed by special law or under section
18 ninety or corresponding provisions of earlier laws.
1885, 240, § 1.
R. L. 110, I 80.
1908, 529, § 1.
1914, 742,
5§ 1. 199.
1919, 350,
§ 117.
Op. A. G.
(1920) 29.
1 Section 2. In construing sections seventy, seventy-one, seventy-four Construction.
2 to eighty-three, inclusive, ninety-two to ninety-five, inclusive, one hun- k a'e^^i i9^.^'
3 dred and three, one hundred and five, one hundred and six, one hundred Jsl?; HI, | e.
4 and nine, one hundred and twelve to one hundred and fourteen, inclu- R°/'5s^k\|:
5 sive, one hmidred and sixteen, one hundred and seventeen, one hundred i2i. §§ 38, 4i'.
1806
HLW^^UFACTUEE AND SALE OF GAS AND ELECTRICITY. [ChAP. 164.
1909, 4S3, § 4.
1914, 742.
§§ 198, 199.
and nineteen, one hundred and twenty, one hundred and twenty-one, 6
one hundred and twenty-three to one hundred and twenty-seven, inchi- 7
sive, unless the context otherwise requires, the terms "corporation", 8
"gas company" and "electric company" shall include all persons, firms, 9
associations and private corporations which own or operate works or a 10
distributing plant for the manufacture and sale or distribution and sale 11
of gas for heating and illuminating purposes, or of electricity, withui 12
the commonwealth; and in construing sections one hundred and tliree, 13
one hundred and five, one himdred and nine, one hundred and twelve 14
to one hundred and foiu-teen, inclusive, one hundred and sixteen, one hun- 15
dred and seventeen, one hundred and twenty, one hundred and twenty- 16
one, and one hundred and twenty-three to one hundred and twenty-seven, 17
inclusive, the terms "corporation", "gas company" and "electric com- 18
pany" shall include municipal corporations which own or may acquire 19
municipal lighting plants. 20
Corporations
goveroed by
this chapter.
R. S. 38, § 1.
G.S.60, § 1.
CORPOR.\.TE RIGHTS AND LIABILITIES.
Section 3. This chapter shall apply to gas and electric companies or- 1
ganized or chartered imder any general or special laws applicable thereto, 2
and to the respective officers and stockholders of such corporations. 3
1870, 224, 5§ 13, 64, 65. P. S. 106, | 3. R. L. 110, § 2. 1914, 742, §§ 2, 199.
Application of
business cor-
poration law.
1808, 65. § 1.
1829. S3. § 1.
R. S. 33,
S§ 2-5.
Section 4. Sections four, eight, nine, twenty-one, twenty-two, 1
twenty-eight, thirty-one and thirty-four of chapter one hundred and 2
fifty-six shall apply to companies subject to the pro\isions of this 3
chapter. issi, 133, §1 4, 5. isss, ue, § 1. 4
G. s. 60, §i
1870, 224,
3-6; 61, 5§ 5, 15.
§ 10. 15-18.
P. S. 100, S
R. L. 110,
i 20, 23-26.
§ 19, 22-24.
1914, 742, §§ 9, 13-15, 199.
1919,333, §§ 17, IS.
Formation of
corporations.
1851, 133. § 1.
1855, 146, § 1.
G.S.61, §11,
15.
1870.224.15 1,
5, 55-58.
1874, 165.
1879, 202, § 1.
P. S. 106, §§6,
11. 14.
1885. 240. § 1.
1891, 189, § 1.
Section 5. Three or more persons may associate themselves by an 1
agreement in wTiting, with the intention of forming a gas or electric 2
company, and, upon complying with section nine of chapter one hmidred 3
and fifty-eight, shall be and remain a corporation. Nothing herein con- 4
tained shall authorize the organization of a combined gas and electric 5
company, unless the department, after notice and a public hearing, shall 6
certify to the commissioner of corporations and taxation that it deems 7
the public convenience will be promoted thereby. 8
1893. 397.
R. L. 110. §§
1910, 346.
1914,742, |g
4, 9. 13.
3, 199.
11 Gray, 139.
15 Gray, 211,494.
12 Allen, 273, 362.
98 Mass. 98.
101 Mass. 381. 385.
1 Op. A. G. 47. 185.
2 Op. A. G. 36, 346.
3 Op. A. G. 120.
Agreement of
association.
1S51. 133,
§§3,6.
G.S.61, §§1.2.
1866, 290, § 2.
1870, 224,
§§ 5, 7, 8.
1879. 202, § 1.
P. S. 106,
§§ 11. 16. 17.
1885, 240, § 1.
1.S91. 189, § 1.
1893, 397.
R. L. 110,
§§ 9, 15, 16.
1902, 441.
1910, 346.
1914, 742, §§ 5,
199.
11 Grav, 139.
97 Mass. 494.
149 Mass. 436.
Section 6. The agreement of association shall state: 1
(a) That the subscribers thereto associate themselves with the inten- 2
tion of forming a gas or an electric company, as the case may be. 3
(6) The corporate name assumed, which shall contain the words "gas 4
company" or "electric company", as the case may be, at the end 5
thereof. 6
(c) The name of the to-mi in which it is to be established or situated. 7
(d) The amount of its capital stock, which shall be not less than one 8
thousand dollars; the number of shares into which the capital stock is to 9
be divided; and, if there are to be preferred shares, the number of such 10
shares, wliich shall not exceed the number of the common shares, and all
statement of the preferences and voting powers or restrictions or qualifi- 12
cations upon which they are to be issued. • 13
Chap. 164.] manufactube aktd sale of gas and electricity. 1807
1 Section 7. Every such corporation may by its by-laws, except as is By-iaws.
2 otherwise expressly provided, determine the manner of callinjr and con- ism] 53,' |§\,
3 ducting its meetings; the number of shares which shall entitle a stock- Ifss, 53, § 1.
4 holder to one or more votes; what number of stockliolders shall attend, 7'. f4^f2^^ ^•
5 either in person or by proxy, or what number of shares or amount of G- Ig"? ./^ 2,
6 interest shall be represented, at any meeting, to constitute a quorum; is7o,'224,'§ 20.
7 the mode of voting by proxy; the mode of selling shares for the payment i66V§ 28.
8 of assessments; and, except as provided in section twenty-two of chapter no^§^26.'^^"
9 one hundred and fifty-six, the tenure of office of the several officers and §§^8/1^99.
10 agents; and may annex suitable penalties to such by-laws, not exceed- l^^'"" ^oi.
11 ing twenty dollars for one offence; but no by-law shall be made by a
12 corporation not consistent with law. If not otherwise so determined, a
13 majority in interest of the stockliolders shall constitute a quorum. If
14 not otherwise so determined, each stockholder shall be entitled to one
15 vote for each share owned by him.
1 Section 8. The aggregate par value of the outstanding shares shall ^^3^]^^^^®
2 not be increased by a change in the par value thereof. i9i4. 742, 1 29.
1 Section 9. An electric company which owns or operates an hydro- issue of secun-
2 electric plant may, subject to all laws governing the issue of capital stock electrL''^'''^""
3 by electric companies, issue preferred stock to such amount, not exceed- JgJe''^'^'
4 ing twice the amount of the general or common stock then outstanding,
5 as the department may from time to time approve; and, in approving,
6 imder section fourteen, the issue of stock or bonds by an hydro-electric
7 company which has theretofore issued and has outstanding stock or bonds
8 for which the approval of the department or its predecessors was not
9 required, the department may direct that such new stock or bonds shall
10 bear some distinctive designation.
1 Section 10. Every corporation subject to this chapter, unless other- increase or
2 wise expressly provided, at a meeting called therefor may increase its c^^ta'rstock.
3 capital stock from time to time by such amounts as may be authorized Jq^®' ^^- ^^ ^•
4 by the department in accordance with section foiu-teen, and may reduce Jq^-^*' ^^ '^'
5 its capital stock, and the number of shares therein, subject to the pro- i|5i, 133, § s.
6 visions of tliis chapter and of chapter one hundred and fifty-eight. o.s.'eo, §§ 11.
1870, 224. § 24. P. S. lOfi, §§ 33-35. 1906, 437. ^^' ^^' ^ "'
1871,110,5 2. 1899, 199. § 2. 1908.534.
1873, 39, § 2. R. L. 110. §§ 31, 32. 1914, 742, §§ 35, 199.
1 Section 11. No gas or electric company shall declare any stock or scrip stock or scrip
2 dividend or divide the proceeds of the sale of stock or scrip among its biciden'!'i\c°'"
3 stockholders; nor shall any gas or electric company except as provided 1I75,' ?77,' 1 2!
4 in this chapter issue any share of stock to any person unless the par value f^if w|' ^ ^*'
5 of the shares so issued or the price thereof as fixed and determined under i^'-'i'' ?5o'' § 1.
D sections eighteen and nineteen is first paid in cash to its treasurer, ihe no. § 44.
7 conveyance to such company of real or personal property shall be deemed §§ 313, 199.
8 a sufficient paying in of its original capital stock to such amount as may "^^^ " '
9 be approved by the department under the provisions of section fom-teen.
1 Section 12. All certificates of stock or scrip issued in violation of the Pen.iity for
2 preceding section shall be void ; and the directors of the corporation fms. 310, §"2.^"
3 which issues them shall be liable to a penalty of one thousand dollars i's9'!,35o,V2^.'
1808
M.\NUFACTUKE AND SALE OF GAS AND ELECTKICITY. [ClIAP. 164.
R. L. 109, I 21
1914, 742,
§§ 37, 199.
1918, 257,
§375.
1919, 5.
1920, 2.
Bonds and
mortgages of
gas or electric
companies.
ISSli, 346, § 3.
1890, 371.
1894, 450, § 1.
E. L. 121,
§§ 10-12.
1914, 742,
§§ 38, 199.
1S9 Mass. 505.
each, to be recovered by indictment in any county where any of them 4
reside; but if any such director proves that, before such issue, he filed 5
his wTitten dissent thereto with the clerk, and at no time voted therefor, 6
he shall not be so liable. 7
Section 13. A corporation subject to this chapter may, by vote of a 1
majority in interest of its stockholders at a meeting called therefor, and 2
subject to the limitations and restrictions of the following section, issue 3
bonds, at not less than par, to an amount not exceeding its capital stock 4
actually paid in at the time of such issue and applied to the purposes of 5
the corporation, and bearing interest at a rate not exceeding six per 6
cent per annum; and may secure the payment of the principal and 7
interest of said bonds by a mortgage of its franchise and property. All 8
persons who acquire any mains, conduits, poles, wires, fixtures or other 9
apparatus in, over, under or across public ways by virtue of such mort- 10
gage shall have the same rights and be subject to the same obligations 11
relative to their erection, care, maintenance and operation as the cor- 12
poration would have had, or would have been subject to, if the mortgage 13
had not been made. 14
Issue of stock
and bonds by
gas and elec-
tric companies.
1894, 450, § 1.
R. L. 109, § 24.
1910, 374.
1914,742, §§39,
199.
1916, 64.
179 Mass. 15.
199 Mass. 356.
214 Mass. 529.
1 Op. A. G. 659.
2 Op. A. G. 58.
Disposition
of bonds.
1919, 104, § 1.
Section 14. Gas and electric companies shall issue only such amount 1
of stock and bonds as the department may from time to time vote is 2
reasonably necessary for the purpose for which such issue of stock or 3
bonds has been authorized. The department may take into considera- 4
tion any resources of the companies available or which might have been 5
available for said piupose. The department shall render a decision 6
upon an application for such issue within thirty days after the final 7
hearing thereon. The decision shall be in writing, shall assign the reasons 8
therefor, shall, if authorizing such issue, specify the respective amounts 9
of stock or bonds authorized to be issued for the respective purposes to 10
which the proceeds thereof are to be applied, and shall, within seven 11
days after it has been rendered, be filed in the office of the department. 12
A certificate of the vote of the department shall, within three days after 13
such decision has been rendered and before the stock or bonds are issued, 14
be filed in the office of the state secretary, and a duplicate thereof deliv- 15
ered to the corporation, which shall enter the same upon its records. A 16
company subject to this section shall not apply the proceeds of such 17
stock or bonds to any purpose not specified in such certificate. No appli- 18
cation for the approval of an issue of stock shall be made unless authorized 19
by vote of the incorporators, if an original issue, or of the stockliolders 20
if an increase of stock, passed not more than foiu- months prior to such 21
application; but a vote of the stockholders to increase the capital stock 22
may be passed before or after the decision of the department. 23
Section 15. A gas or electric company, under the supervision of
the department, issuing bonds under the two preceding sections, shall
invite proposals for the purchase thereof by advertisements in two or
more newspapers published in the city or town where it is situated, if
there be such, and in two or more newspapers pubhshed in Boston. It
maj^ however, reserve the right to reject any and all bids. If no such
proposal is accepted, it may sell the whole or any part of the bonds to
any persons or corporations in such manner, at such times, and upon
such terms, but in no case at less than the par value thereof to be ac-
tually paid in cash, as its directors shall determine.
1
2
3
4
5
6
7
8
9
10
Chap. 164.] manufacture and sale of gas and electricity. 1809
1 Section 16. If, when the department approves an issue of new stock Capital im-
2 or bonds by a gas or electric company, it determines that the fair struc- mad'e''go°od*
3 tural value of the plant and of the land of such company is less than isgil; 473' ^ ''■
4 its outstanding stock and debt, it may prescribe such conditions and Rg,;^^'
5 requirements as it deems best adapted to make good within a reasonable J|'V''P'
6 time the impairment of the capital stock; or before allowing an increase, 199 i\iass. 352.
7 it may require the capital stock to be reduced by a prescribed amount,
8 not exceeding the amount of such impairment. The amount of impair-
9 ment and the conditions and requirements imposed shall be stated in
10 the annual report of the department. The supreme judicial or superior
11 court shall have jurisdiction in equity, on application of the department,
12 the attorney general, any stockholder or any interested party, to enforce
13 this section and section fourteen and all orders and decisions, conditions
14 or requirements of the department made in pursuance thereof.
1 Section 17. A director, treasurer or other officer or agent of a gas Penalties.
2 or electric company who knowingly votes to authorize the issue of, or r^l! 10°! | Is.
3 knowingly signs, certifies or issues, stock or bonds contrary to any pro- jj^o.'igg.
4 vision of section fourteen or sixteen, or who knowingly votes to authorize
5 the application of, or knowingly applies, the proceeds of such stock or
6 bonds contrary to any said provision, or who knowingly votes to assume
7 or incur, or knowingly assumes or incurs in the name or behalf of such
8 corporation, any debt or liability except for the legitimate purposes of
9 the corporation, shall be punished by a fine of not more than one thou-
10 sand dollars or by imprisonment for not more than one year, or both.
1 Section 18. If a gas or electric company increases its capital stock, Disposition
2 such new shares shall, except as provided in the following section, be "f gl7m"'^^
3 offered proportionately to its stockholders at such price, pot less than oompinies.
4 par, as its directors may fix. The vote of the department, as provided in \^l'^- ^l^-
5 section foiu-teen, as to the amount of stock reasonably necessary for the |, 1^ 333.
6 purpose for which such increase has been authorized, shall be based on the §§39-41!
7 price fixed by the directors, unless the department deems that such price §§ i.'s. ""
8 is so low as to be inconsistent with the public interest, in which case it 1909; 477, ^ ^°'
9 may fix the price at which such shares may be issued. Its determination 1910,174
10 shall be made part of the vote of the department as provided in section ls'43^i^Qg
11 fourteen, and shall be certified and recorded as therein prescribed. The
12 directors, upon the approval of such increase as provided in section
13 foiu'teen and the fixing of the price as herein provided, shall cause WTit-
14 ten notice of such increase to be given to every stockholder who M-as
15 such at the date of the vote to increase, stating the amount of such in-
16 crease, the number of shares or fractions of shares to which he, accord-
17 ing to the proportionate number of his shares at the date of such vote,
18 is entitled, the price at which he may take them, and fixing a time, not
19 less than fifteen days after the date of such determination, within which
20 he may subscribe for such additional stock; provided, that when the capi-
21 tal stock of the corporation consists of preferred and common stock,
22 the agreement or amended agreement of association or the by-laws or
23 amended by-laws of the corporation may provide that the holders of
24 preferred stock only shall be entitled to subscribe for new or additional
25 preferred stock and that the holders of common stock only shall be en-
26 titled to subscribe for new or additional common stock, and that notice
27 of such increase as aforesaid need be given only to the stockliolders so
28 entitled to subscribe. Every stockholder entitled to subscribe as afore-
1810
MANUFACTURE AND SALE OF GAS AND ELECTRICITY. [CHAP. 164.
said may, within the time hmited, subscribe for his portion of the stock, 29
which shall be paid for in cash before the issue of a certificate therefor. 30
All votes and proceedings relative to the increase, and all rights of stock- 31
holders to subscribe for the new shares, shall be void unless the directors, 32
after the vote to increase and within sixty days after final action of the 33
department, shall cause written notice of such increase to be given as 34
herein provided, or, if such increase is within the provisions of the fol- 35
lowing section, shall dispose of the same as therein provided. 36
When shares
to be sold
at auctiou.
1870. 179.
1873. 39.
§ 1; 3.33.
P. S. lOG. § 40.
1894, 472, § 2.
R. L. 109, § 31.
1909. 477.
§§2.3.
1914. 742.
§§ 44, 199.
Section 19. If an increase subject to the preceding section does not 1
exceed four per cent of the existing stock of the company, the directors, 2
without first ofi'ering the shares to the stockliolders, may sell them by 3
auction or by tender to the highest bidder in such manner, at such 4
times and upon such terms, not less than par to be paid in cash, as the 5
directors shall determine. They shall also so sell at public auction any 6
shares which under the provisions of the preceding section remain unsub- 7
scribed for by the stockliolders entitled to take them. Such shares shall 8
be offered for sale in Boston or in such other town as the department pre- 9
scribes, and notice of the time and place of the sale "shall be published at 10
least five times, during the ten days immediately preceding the sale, in 11
each of tliree, at least, of such daily newspapers as the department may 12
prescribe. 13
Capital to be
paid in before
commencing
business.
1829. 53. § 6.
R. S, 38.
§§ 10, 17.
1851, 133, § 4.
1857, 276, § 1.
G. S. 60.
§§ 17. IS;
61. § 8.
1866. 290, § 8.
1870, 224, § 32.
1875, 177, § 2.
Section 20. A corporation subject to this chapter shall not begin 1
business until the whole amount of its capital stock, or such part thereof 2
as may have been approved by the department, has been paid in and a 3
certificate of that fact, and of the manner in which it has been paid in, 4
and, at the time of making the certificate, been invested or voted by the 5
corporation to be invested, signed and sworn to by the president, treasurer 6
and a majority of the directors, has been filed in the office of the state 7
secretary. p. s. loe. § 46. r. l. no, § 43. 1914, 742, §1 48, 199. 8
6 Met. 114.
101 Mass. 381.
117 Mass. 476.
152 Mass. 428.
179 Mass. 15.
ISO Mass. 325.
Transfer of
franchise
forbidden.
1886, 340. § 4.
R. L. 121, § 13.
1911, 349.
1914, 742,
§§51, 199.
Section 21. A corporation subject to this chapter shall not, except 1
as otherwise expressly provided, transfer its franchise, lease its works 2
or contract with any person, association or corporation to carry on its 3
works, without the authority of the general court. 4
166 Mass. 217
215 Mass. 394.
Op. A. G. (1920) 29.
Change of
corporate
business.
1875. 177. §4.
P. S. 106, § 51.
1885, 310.
R. L. 110. § 47.
1910, 124.
1914. 742.
§§ 52. 199.
1915, 192.
Section 22. A corporation subject to this chapter may, by a vote of 1
all its stockliolders at a meeting duly called for the purpose, alter, add to 2
or change the business for which it was incorporated, but it shall not be 3
empowered thereby to engage in any business not authorized by this 4
chapter, and if a gas company, it shall not engage in the business of 5
making or selling electricity unless duly authorized to engage therein 6
as provided in the following section, and if an electric company, it shall 7
not engage in the business of making or selling gas. A certificate setting 8
forth such alteration, addition or change, signed and sworn to by the 9
president, treasurer and a majority of the directors, shall be filed in the 10
office of the state secretarv. H
Gas company
authorized to
sell electricity.
1887. 3S5, § 1.
Section 23. The department, upon -m-itten application of a gas com- 1
pany, may, after notice and a hearing, authorize said company to engage 2
Chap. 164.] m.\nuf.\ctube and sale of gas and electricity. 1811
3 in the business of generating and furnishing electricity in the territory, R. l. 121, § 14.
4 or any such part thereof as the department may designate, in which it §§ 53. '199.
5 is authorized to supply gas; but it shall not engage in said business unless ^^^ ^^''^'' ^^'''
6 authorized by vote of two tliirds of the stockholders, representing not
7 less than two thirds of the stock, at a meeting duly called therefor. Said
8 company shall file in the office of the state secretary a certificate as pro-
9 vided in the preceding section.
1 Section 24. The department, when granting such authority, shall ^^Xd"f^r
2 prescribe the time, not exceeding six months, within which said company equipping
3 shall acquire a plant for generating the electricity required in the specified issy.'sss, § 2.
4 territory, and shall designate the minimum capacity of the plant; and if \9u.~h'.
5 the company fails to acquire said plant within the time prescribed, said ^^ ^' '^^'
6 authority shall be void and no such authority shall be again granted to
7 it within two years thereafter. The department may, for cause shown,
8 extend the time for erecting and equipping said plant for not more than
9 three months after the expiration of the time first prescribed.
1 Section 25. At the expiration of such time or of any extension thereof, ^rd™s''for
2 the department shall, after such examination as it deems proper, make, in erection of
3 a book kept tlierefor, a record that its orders relative to the acquisition of compliance.
4 said plant have or have not been complied with, which record shall be r. l. 121,' § le.
5 conclusive evidence of the truth of the matters stated therein. Il'^ss/ilg.
1 Section 26. Such gas company may, subject to the provisions of f^^lSitse °itc
2 sections ninety-six, ninety-eight and ninety-nine, purchase or lease and of electric
3 use the property, licenses, rights, privileges and franchises of any electric iss?, sss, § 9.
4 company engaged in the business of furnishing electricity in the territory 1914! 742!
5 where such gas company may be authorized to furnish such electricity. ^^ ''^' ^^^'
1 Section 27. Except as otherwise expressly provided in this chapter. Powers and
2 such gas company shall, in exercising the powers conferred by the four company so
3 preceding sections, have all the powers and privileges and be subject to i887?385!'§ s.
4 all the duties, restrictions and liabilities of an electric company. ^ ^ ^"^' ^ ^^•
1914,742, §§ 57, 199.
1 Section 28. If a corporation subject to this chapter changes its name, change of
2 as provided iia section ten of chapter one hundred and fifty-five, the new tmmt'^ "
3 name shall contain, at the end thereof, the words "gas company", or ^^"' ^^' ^^'
4 "electric company", as the case may be.
1 Section 29. Whenever any change is made in the officers of a cor- Certificate of
2 poration subject to this chapter, except at the annual meeting, a certifi- officers to
3 cate of such change, signed and sworn to by the clerk, shall forthwith be 190*7,^282.
4 filed in the offices of the commissioner of corporations and taxation and Jgif; yfj]
5 of the department. Any such corporation failing to file such certificate i9i|^'257^§ 376
6 within thirty days after such change has been made, or which fails to i9i9!5;350,
7 keep a clerk of the corporation in the commonwealth, shall forfeit not 1920,2.
8 more than fi\'e hundred dollars, to be recovered in the manner prescribed
9 by section forty-two of chapter one hundred and fifty-eight.
1 Section 30. The department may, after notice and a public hearing, change of
2 authorize a gas or electric company to carry on its business in any 1877,67.
3 town in the commonwealth other than the town named in its agreement r. l.\to,§7.
1812
MANUFACrUEE .AND SALE OF GAS -AND ELECTRICITY. [ClIAP. 164.
1910, 197.
1914. 742,
§§ 61, 199.
1919, 111.
of association or charter, subject to sections eighty-sLx to eighty-eight, 4
inclusive, and it may purchase, hold and convey real and personal estate 5
in such other town necessarv for carrying on its business therein. 6
panfesm?y SECTION 31. A manufacturing or other corporation having its place 1
°g^d gas^stodi. Qf business in a city or town where a gas company proposes to manufac- 2
G_s.'6i. |;is.^ ture gas for light may hold not more than ten per cent of the capital 3
1870, 224, § 58. , , ,
p. s. 106, § 78. stock or such gas company.
R. L. no. §79.
1914, 742, |§ 64. 199.
Liability
of officers.
1821. 38.
1829. 53,
§§ 8, 9.
189 Mass. 566.
190 Mass. 61.
183 Mass. 557.
5 Allen, 398.
127 Mass. 663.
156 Mass. 490.
173 Mass. 242.
198 Mass. 76.
Section 32. The officers of a corporation subject to this chapter shall 1
be jointly and severally liable for its debts and contracts in the following 2
cases, and not otherwise : R. s. 38, §§ 23-25, 28. 3
, 30. P. S. 106, § 60.
12 Gray, 203.
148 Mass. 226.
150 ilass. 264.
G. S. 60. §§ 17-£
1862, 218, § 1.
1870, 224, I 38.
1877, 230, § 1.
P. S. 106,
1898, 266.
R. L. 110, §58.
1914, 742, §§ 73,
199.
10 Gray, 232, GOO.
15 Gray, 216.
108 Mass. 523.
137 Mass. 516.
The president and directors shall be so liable —
First, For making or consenting to a dividend if the corporation is or
thereby is rendered insolvent, to the extent of such dividend.
Second, For debts contracted between the time of making or assenting
to a loan to a stockholder and the time of its repayment, to the extent of
such loan.
Third, If the debts of a corporation other than bonds heretofore law-
fully issued or other than bonds hereafter approved under section
fourteen exceed its capital, to the extent of such excess existing at the 12
time of the commencement of the suit against the corporation in which 13
the judgment was recovered upon which the suit in equity to enforce such 14
liability is brought as provided in section forty-nine of chapter one hun- 15
dred and fifty-eight.
The president, directors and other officers shall be so liable —
Fourth, For signing any certificate required by law, knowing it to be
false; but onh- the officers having knowledge thereof shall be liable.
182 Mass. 530, 578. 190 Mass. 35.
9
10
11
16
17
18
19
193 Ma^. 138. Fifth, For debts contracted before the original capital has been fully 20
paid in and the certificate of such payment has been filed in accordance 21
with section twenty. Liability of stockholders. Chap. 158, §§ 45-54. 22
Fees.
1863,
231,
§2.
1865,
76.
1870,
224.
§ 59.
1871,
356.
1875,
177,
1 4.
1879.
202.
§ 2.
P. S.
106,
§84.
1887,
225.
1895,
169.
1896,
369:
523, §§ 1,
o
R.L.
110.
1 86.
1908,
219;
382.
1914,
742,
§§91
,199
1915, 92;
264.
lOp.
A.G
;. 205,
300.
Other certifi-
cates
1870,
224,
§59.
1875, 177, § 4.
1879,
,202,
, §2.
1895,
,169.
1896, 523, § 1.
R.L.
,110,
§86.
Section 33. The fees for filing and recording the certificates required 1
to be filed with the state secretary by corporations subject to this chapter 2
shall be as follows: 3
For filing and recording the certificates required by section nine of 4
chapter one hundred and fifty-eight, including the issuing of the certifi- 5
cate of incorporation by the state secretary, one twentieth of one per 6
cent of the amount of the capital stock as fixed by the agreement of asso- 7
ciation, but not less than five dollars. 8
For filing and recording the certificate required by section thirty-nine 9
of chapter one hundred and fifty-eight, one twentieth of one per cent of 10
the amount by which the capital is increased. 11
For filing and recording the copies of the votes or certificates required 12
by section eleven, thirty-six or forty of chapter one hundred and fifty- 13
eight, section sixteen of chapter one hundred and fifty-five or section 14
twenty or twenty-three of this chapter, ten dollars for each copy or cer- 15
tificate; for filing and recording the certificate required by section thirty- 16
Chap. 164.] m.\nufactuee and sale of gas and electricity. 1813
17 seven of chapter one hundred and fifty-eight, ten dollars; for filing and Jlzo Mk ^"^^^
18 recording any other certificate required by law, one dollar. §§5.'6-
MUNICIPAL LIGHTING PLANTS.
1 Section 34. A town may, in accordance with this chapter, construct, city or town
2 purchase or lease, and maintain within its limits, one or more plants for plant.
3 the manufacture or distribution of gas or electricity for municipal use or isb*! 533.'
4 for the use of its inhabitants. Such plants may include suitable land, fcioe] Ira.^iii,
5 structures and machinery and other apparatus and appliances for manu- igi4^'742*'
6 facturing, using and distributing gas or electricity for said purposes. i9i7"'2os^§ 2
150 Mass. 592. 153 Mass. 129. 155 Mass. 598.
1 Section 35. A city shall not acquire such a plant until authorized by vote of city.
2 a two thirds vote of its city council, or of a majority of the commissioners isos! 454,' § 7."
3 if the city government consists of a commission, passed in each of two Ifl*' *^^'
4 consecutive municipal years and thereafter ratified by a majority of the ^914; -^2^ ^■
5 voters at an annual or special city election. If such a vote is not rati- §§93,199.
6 fied, no similar vote shall be submitted for ratification within one year
7 thereafter.
1 Section 36. A town shall not acquire such a plant until authorized ^^^^ 370°!"
2 by a two thirds vote, taken by ballot with the use of the voting list, at k l'. 34, 1 3
3.
1914, "42,
3 each of two town meetings called therefor and held at intervals of not §§ 94, 199
4 less than two nor more than thirteen months. If the first of such votes 103 Mass! 346!
5 is favorable and the second unfavorable, or if both such votes are un- ^"'^ ^''^^' '''
6 favorable, no similar vote shall be passed within two years thereafter.
1 Section 37. After a city or town has voted under section thirty-five Certification
2 or thirty-sLx, the city or town clerk shall forthwith transmit to the de- department.
3 partment a certified copy of so much of the records of the city council or r*^l! 34^§V'
4 of the town as relates to the result of the vote. i9i4, 742, §§ 95, 199.
1 Section 38. If a city or town which has authorized the acquisition of Certification
2 such a plant subsequently votes to establish, purchase, reconstruct, ex- votes, etc.
3 tender enlarge a plant, or to issue bonds, notes or certificates of indebted- r £'34^1 s."
4 ness on account thereof, or to regulate the management or conduct thereof, sl'gs.^i'gg.
5 or to adopt an ordinance or by-law relative thereto, the city or town clerk
6 shall, within ten days after such vote, transmit to the department a certi-
7 fied copy thereof.
1 Section 39. A city or town clerk failing to comply with any pro- Penalty for
2 vision of the two preceding sections shall forfeit not more than twenty- cert"iiy \°ote.
3 five dollars. is92, 259, § 4. r. l. 34, § g. 1914, 742, §§ 97, 199.
1 Section 40. A city or town which has duly voted to acquire a mu- May incur
2 nicipal lighting plant may incur debt as provided in section eight of chap- pfant.""^
3 ter forty-four for the purpose of establishing, purchasing, extending or isgs] 454,' § 9!
4 enlarging it within its territorial limits.
1894, 182. 1908, 341, §§ 2, 4. 1914, 742, §§ 98, 199.
R. L. 27, § 5; 34, §§ 7, 8. 1913, 719, § 6. 1915,115.
1 Section 41. A city or town owning such a plant shall not, except by Enlargement
2 a vote taken in the manner prescribed in section eight of chapter forty- i89ir37b, 1 5.
1814
MANUFACTURE AND SALE OF GAS AND ELECTRICITY. [ChAP. 164.
R. L. 34, § 9.
1913, 719, § e.
1914, 742,
§§ 99, 199.
four, reconstruct, enlarge or extend the same beyond the necessary and 3
ordinary maintenance, repair and replacement thereof, or the provision 4
of increased appliances necessary to distribute gas or electricity to new 5
consumers. 6
Purchase of
existing plant.
1891, 370. § 12.
1893, 454, § 5.
1894, 538.
R. L. 34, § 10.
1903, 255.
1914, 742,
§§ 100, 199.
1915,20. § 1.
179 Mass. 305.
232 Mass. 7.
Section 42. If, whci^ a town votes to establish a municipal lighting 1
plant, any person or corporation engaged at the time of the first vote 2
required by sections thirty-five and thirty-six in generating or distributing .3
gas or electricity for sale for lighting purposes in such town shall elect 4
to sell in the manner liereinafter provided, tlie town shall purchase of 5
him or it such portion of his or its plant and property within the limits 6
of such town as is suitable for, and is used in connection with, such 7
business. Such purchase shall be required to include both a gas and 8
electric lighting plant only if a single corporation owns or operates both 9
such plants. If the main gas works or the central electric station lie 10
within the town limits, such town shall purchase the whole of such plant 11
and the property used in connection therewith, lying within such limits, 12
at its fair market value for the purposes of its use, taking into account 13
any depreciation or obsolescence thereof or of any part thereof; but no 14
portion of such plant shall be estimated at less than its fair market 15
value for any other purpose, including, as an element of value, the dam- 16
ages, if any, caused by the severance of any portion of such plant lying 17
outside such town limits, if not purchased by the town, and excluding 18
any mortgage or other encumbrance or lien to which such plant or any 19
part thereof may be subject at the time of such purchase. The town 20
may require the plant and property to be transferred to it free of any 21
mortgage or lien unless the department, under the following section, 22
otherwise determines. Such value shall be estimated without enliance- 23
ment on account of future earning capacity, or good will, or of exclusive 24
privileges derived from rights in the public ways. If the main gas works 25
or central electric station of such plant lie without the town limits, the 26
town shall purchase only that portion of the plant or property within 27
its limits, estimating its value as above provided, but without allowance 28
of damages on account of severance of plant. No town shall be required 29
to buy any apparatus or appliances covered by letters patent of the 30
United States or embodying a patentable invention, unless a complete 31
right to use the same and all other apparatus or appliances necessary 32
for its use, to such extent as such town shall reasonably require, shall be 33
assigned or granted to it at a cost as low as it would be to the vendor 34
whose plant is purchased. No town shall be required to buy any prop- 35
erty unnecessarily added to a phint after the passage of its first vote 36
under section thirty-five or thirty -sLx, nor any property except such as 37
would be suitable for the ordinary business of the vendor. If any prop- 38
erty or plant which the town would be entitled or required to buy would 39
not be available to it if piu-chased, by reason of liens, interests of third 40
parties, private contracts or other causes whereby the town would be at 41
a greater disadvantage in its use than the vendor, it may be released 42
from buying the same, or it may be allowed an equitable discomit from 43
the purchase price as the department may determine as provided in tlie 44
following section. 45
o°purch"s°' Section 43. The owner of any such plant for the manufactiu-e or 1
1893' 454' I "■ distribution of gas or electricity for lighting purposes, desiring to sell it 2
R. l!34, '§ ii! under this chapter, shall, within sixty days after the passage of the final 3
Chap. 164.] m-\nufacture and sale of gas and electricity. 1815
4 vote of the town required by section tliirty-five or thirty-six, file with i905, 4io. § i.
5 the clerk of the town a good and sufficient conveyance, duly executed, of §§ i6i, Too.
6 such parts of his plant as are defined in section forty-eight as he desires l^l Mass! tlf.
7 to sell, together with a detailed schedule of the plant included in the 232 Mass. 7.
8 conveyance and a statement of the price which he is willing to accept.
9 Upon the filing of this conveyance, the property thereby conveyed shall
10 vest in the town, and within ninety days thereafter the towTi shall take
11 possession of the property so con\'eyed; and the owner shall surrender
12 possession thereof upon request. A city, by vote of the city council, and
13 a town, by vote of the selectmen, may agree ^N-ith the owner upon the
14 price to be paid for the plant con^'eyed; but the agreement as to price
15 shall not be binding in to^\'ns until ratified by a majority vote at a town
16 meeting. If the city or town does not agree with the OMTier as to such
17 price, or notifies him within thirty days after the filing of the conveyance
18 that it is dissatisfied with the contents thereof, either as including prop-
19 erty wliich ought not to have been included or as not including property
20 which ought to have been included, either party may, within sixty days
21 after the filing of the conveyance, apply to the supreme judicial court
22 for the county where the city or town is situated to determine what
23 property ought to have been included in the conveyance and its value.
24 The court upon hearing and upon proof that the foregoing conditions
25 have been complied with shall refer the application to the department,
26 which shall hear the parties and determine, in accordance with the rules
27 prescribed in the preceding section, the A'alue of the property conveyed,
28 and, if the sufficiency of the conveyance in this regard is disputed, what
29 property ought to have been conveyed by the owner to the town and its
30 value. The department shall file a report of its determination, which,
31 when accepted by the court, shall be final. The award shall not be set
32 aside or recommitted for error in law unless the court is satisfied that
33 such error has substantially affected the interests of the party complaining
34 thereof; and in that event the court may recommit the same to the de-
35 partment with such directions as justice may require. The expense of
36 the litigation, if any, arising under this section may be included as part
37 of the indebtedness for wliich bonds may be issued under section forty.
1 Section 44. Any property conveyed which, according to the final offinardecTee
2 decree of the court, ought not to have been conveyed, shall forthwith be jsw. 37o, § 14.
3 reconveyed by the town to the owner, without liability to account for the 1905' 41b, § 2.
4 mesne profits thereof or to pay interest on the value thereof; and any §§ 162, 199.
5 property which, according to said decree, ought to have been but was
6 not included in the conveyance, shall forthwith be conveyed by the
7 owner to the town. The town shall pay the owner the value, determined
8 as provided in section forty-two, of the property conveyed or, if the
9 sufficiency of the con\'eyance in this regard is disputed, the A'alue of the
10 property which ought to have been conveyed, with interest from the
11 date of the conveyance or, if any additional conveyance is required by
12 the decree, from the dates of the several conveyances.
1 Section 45. If a town pm-chases a gas or electric lighting plant hav- Property in
2 ing mains, poles, wires or other distributing apparatus in an adjoining or\°own.* "^'^
3 town where there is no private gas or electric lighting company, it may r*^!!! s^'s^s!
4 also purchase such mains, poles, wires or other distributing apparatus jjWA'ot.
5 therein, subject to the three preceding sections.
1816
M.'VNUFACTUEE AND SALE OF GAS .-USTD ELECTRICITY. [Cli\P. 164.
Supply of
adjoining city
or town.
1893, 454, § 2.
R. L. 34, § 14.
1914, 742,
§§ 1(M, 199.
Supply by
municipal
plants to ad-
joining cities
or towns.
1915, 191.
Owner to file
statement of
plant.
1893,454, § 3.
R. L. 34, § 15.
1914. 742.
§§ 105, 199.
Section 46. A to\\n which has acquired, as hereinbefore provided, 1
mains, poles, wires or other distributing apparatus in an adjoining town 2
may thereafter manufacture, sell and distribute gas or electricity to said 3
adjoining town or to its inhabitants, and shall thereafter have therein 4
the same rights and franchises and be subject to the same hmitations and 5
obligations as the vendor from whom such outlying plant was purchased 6
would have had or to which he would have been subject had such pur- 7
chase not been made. If the adjoining town shall itself establish a gas 8
or electric lighting plant, it shall, under sections forty-two, forty-three 9
and forty-four, purchase the plant and property within its limits owned 10
by the other town, which, within thirty days after demand filed with its 11
clerk, shall file with the clerk of the purchasing town the schedule re- 12
quired by section forty-three, and shall sell the same; and thereupon 13
its rights to maintain a gas or electric lighting plant or to sell gas or 14
electricity within the limits of the purchasing town shall cease as to 15
the plant sold. 16
Section 47. The department may, after notice and a public hearing, 1
authorize a town which has acquired a municipal lighting plant to extend 2
its mains or lines into an adjoining town in order to distribute and sell 3
gas or electricity therein, if such town or a private corporation therein is 4
not then supplying such town with gas or electricity, as the case may be. 5
Such authorization shall be upon such terms and with such limitations 6
and restrictions as the department deems for the public interest. A town 7
so authorized shall thereafter have in such adjoining town the same 8
rights and privileges, and be subject to the same limitations and obliga- 9
tions, as it has within its own territorial limits. If the adjoining town 10
shall vote to establish a gas or electric plant, it shall, under sections 11
forty-two, forty-tliree and forty-four, purchase the plant and property 12
within its limits owned b,y the other town, which, within thirty days 13
after demand filed with its clerk, shall file with the clerk of the pur- 14
chasing to^n the schedule required by section forty-three, and shall sell 15
the same; and thereupon its rights to maintain a gas or electric plant 16
or to sell gas or electricity within the limits of the purchasing town shall 17
cease as to the plant sold. 18
Section 48. After the first of the two votes required by section 1
thirty-five or thirty-six shall have been passed in a town, any person or 2
corporation owning a gas or electric lighting plant therein and desiring 3
to preserve the right to enforce the obHgation of such town to purchase 4
his or its plant shall, within thirty days after a written request therefor 5
by the mayor, authorized by the city council or by the selectmen, file 6
with the town clerk a detailed statement of all the property and plant 7
which he or it proposes to sell to such town, if it votes to establish a 8
plant, and the proposed terms of sale. If any part of the plant or prop- 9
erty which the town would have the right to buy lies in an adjoining 10
town, a separate schedule and the proposed terms of sale shall be filed; 11
and all the property named in such schedule, or used in connection 12
therewith, shall at all reasonable times thereafter be open to the exami- 13
nation of the mayor, of any committee of the city council selected by 14
him, and of any experts necessary to determine its value, or to the exami- 15
nation of the selectmen and of any such ex-perts selected by them. The 16
reasonable expenses of such schedule and of such examination or in- 17
spection shall be paid by the town requesting the same. 18
Chap. 164.] manufactitke and sale of gas and electricity. 1817
1 Section 49. Such town may, at any time within sixty days after the Property in
2 filing of said schedule, by ^-ote of its city council or of the ^-ote^s of the Sr town.'^wliTn
3 town, determine that such purchase shall include the property in an ad- ism.'^Im, § 4.
4 joining town, and thereupon it shall be under the same obligations and 5^14' ^42^ '*■
5 have the same rights in regard to the purchase of such outhing property §§ ^o^, 199.
6 as if it were witliin its limits; but such vote shall not prejudice the right
7 of the town voting to resist its obligation to purchase the same for any
8 reason except that said property is not wtliin its hmits. If such vote is
9 not taken within said sixty days, the right of the town to buy the out-
10 hang property shall cease.
1 Section 50. If a town acquires a gas or electric lighting plant, the vendor's rights
2 right of any vendor from whom such plant was acquired to manufacture iso^rsTa^l^is.
3 and distribute gas or electricity within its limits shall cease. ^ ^- ^*' ^ ^^•
1914, 742. §§ 107, 199.
1 Section 51. A town which has acquired a plant for the manufacture Purchase
2 or distribution of gas may purchase gas from another town authorized ei^eftriaty.
3 to sell the same or from any corporation selling gas; and a town which r '""l 34?'§\l'
4 has acquired a plant for the manufacture or distribution of electricity }g?^'742'
5 may purchase electricity from another town authorized to sell the same §§ los, 199.
6 or from any corporation selling electricity, except as provided in the fol-
7 lowing section.
1 Section 52. A town in which no person or corporation is engaged in Certain towns
2 generating or distributing electricity for sale and which has voted or f?om stTee't"^^
3 shall vote to construct one or more plants for the manufacture or dis- coiiTpany.
4 tribution of electricity for municipal use or for the use of its inhabitants, \^^f ^^|: ^^^^
5 or for both purposes, may make contracts, for terms not exceeding ten ^^'' §1'],°' ^^^■'
6 years, with any street railway company operating a street railway in §5 169. Tot.
7 such town, for the purchase of electricity from such company in order § ii7. '
8 to furnish electricity for municipal use or for the use of its inhabitants,
9 or both; and street railway companies may make contracts to furnish
10 electricity as aforesaid to a town, but the contracts shall not become
11 operative unless the department shall, after a public hearing, approve
12 the terms thereof as consistent with the public interest. This and the
13 three following sections shall not apply to cities.
1 Section 53. Electricity supplied by a street railway company to a Delivery of
2 town shall be delivered to the distributing system of said town at some purchased.""
3 specified place or places therein, and the meter or meters by which such \IqI[ *qI[ ^ ^'
4 electricity is measured shall be a part of the distributing system. '^^' ^^ *^^' ^2*-
1914, 742, §§ 110, 199.
1 Section 54. If a town voting to purchase electricity from a street Department
2 railway company is unable to agree with such company at the expira- case of di?- '°
3 tion of a contract, made in accordance with section fifty-two, upon the liol'; 449,'§ 3.
4 price to be paid for electricity by, or upon the manner in which elee- in,''§|62 iss
5 tricity is to be furnished to, said town in the future, its selectmen may ^^^*^ "■'2.
6 apply to the department to fix the price which it shall pay for said elec- laio. aso,
7 tricity to, and the manner in which electricity shall be furnished by,
8 said company; and thereupon the department shall set a date for a
9 public hearing upon such application, giving said company reasonable
10 notice thereof; and after the hearing the department shall, if it deems
11 the furnishing of such electricity consistent with the interest of public
1818
MANUFACTUEE AND SALE OF GAS AND ELECTKICITY. [ChAP. 164.
travel upon the railway of such company, fix the price which said town 12
shall pay for electricity to, and the manner in which electricity shall be 13
furnished by, said company; and said company shall thereupon furnish 14
to said town electricity at the price and in the manner fixed by the 15
department. 16
Municipal
light board.
1893. 4M, § 10.
R. L. 34, § 19.
1914, 742,
§§ 112, 199.
Section 55. A town which has established or votes to estabhsh a gas 1
or electric plant may elect a municipal light board consisting of three 2
citizens of the town, one of whom shall be chosen for one year, one for 3
two years, and one for three years, and at each annual meeting thereafter 4
one for a term of three years, who shall have authority to construct, pur- 5
chase or lease a gas or electric plant in accordance with the vote of the 6
town and to maintain and operate the same. 7
Manager of
municipal
ligliting.
1891, 370, § S.
1893, 454, § 10.
R. L. 34. § 20.
1905, 410. § 3.
1914, 742,
§§ 113, 199.
196 Mass. 41.
Section 56. The mayor of a city, or the selectmen or municipal 1
light board, if any, of a town acquiring, a gas or electric plant shall ap- 2
point a manager of municipal lighting who shall, under the direction and 3
control of the mayor, selectmen or municipal light board, if any, and 4
subject to this chapter, have full charge of the operation and management 5
of the plant, the manufacture and distribution of gas or electricity, the 6
pm-chase of supplies, the emplojinent of agents and servants, the method, 7
time, price, quantity and quality of the supply, the collection of bills, and 8
the keeping of accounts. His compensation and term of office shall be 9
fixed in cities by the city council and in to\\'ns by the selectmen or mu- 10
nicipal fight board, if any; and, before entering upon the performance 11
of his official duties, he shall give bond to the city or town for the faith- 12
ful performance thereof in a sum and form and with sureties to the satis- 1.3
faction of the mayor, selectmen or municipal light board, if any, and 14
shall, at the end of each municipal year, render to them such detailed 15
statement of his doings and of the business and financial matters in his 16
charge as the department may prescribe. All moneys payable to or re- 17
ceived by the city, to\™, manager or municipal light board in connection 18
\nth the operation of the plant, for the sale of gas or electricity or other- 19
wise, shall be paid to the city or town treasurer. All bills chargeable 20
to the plant or to the appropriations therefor shall be paid by the said 21
treasurer on requisition by the manager or municipal Ifght board, if any. 22
The manager shall at any time, when required by the mayor, selectmen, 23
municipal light board, if any, or department, make a statement to such 24
officers of his doings, business, receipts, disbursements, balances, and of 25
the indebtedness of the to^ai in his department. 26
Annual income
and expense.^.
1891, 370,
l§4, 8.
R. L. 34. § 21.
1905.410. § 4.
1900.411.
1908. 486.
1914. 742,
§§ 114, 199.
1918, 77, § 1.
Section 57. At the beginning of each fiscal year, the manager of 1
municipal lighting shall furnish to the mayor, selectmen or municipal 2
light board, if any, an estimate of the income from sales of gas and elec- 3
tricity to private consumers during the ensuing fiscal year, and of the 4
expense of the plant during said year, meaning the gross expenses of 5
operation, maintenance and repair, the interest on the bonds, notes or 6
certificates of indebtedness issued to pay for the plant, an amount for 7
depreciation ec^ual to three per cent of the cost of the plant exclusive of 8
land and any water power appurtenant thereto, or such smaller or larger 9
amount as the department may approve, the requirements of the sinking 10
fund or debt incurred for the plant, and the loss, if any, in the operation 11
of the plant during the preceding year, and of the cost, as defined in the 12
Chap. 164.] manufacture and sale of gas and electricity. 1819
18 following section, of the gas and electricity to be used by the town. The
14 town shall include in its annual appropriations and in the tax le\'y not less
1 5 than the estimated cost of the gas and electricity to be used by the town
16 as above defined and estimated. By cost of the plant is intended the
17 total amount expended on the plant to the beginning of the fiscal year for
18 the piupose of establishing, purchasing, extending or enlarging the same.
19 By loss in operation is intended the difference between the actual income
20 from private consumers plus the appropriations for maintenance for the
21 preceding fiscal year and the actual expense of the plant, reckoned as
22 above, for that year in case such expenses exceeded the amount of such
2.3 income and appropriation. The income from sales and the money ap-
24 propriated as aforesaid shall be used to pay the annual ex-pense of the
25 plant, defined as abo\'e, for the fiscal year, except that no part of the sum
26 therein included for depreciation shall be used for any other purpose than
27 renewals in excess of ordinary repairs, extensions, reconstruction, enlarge-
28 ments and additions. The siuplus, if any, of said annual allowances for
29 depreciation after making the above payments shall be kept as a sepa-
30 rate fund and used for renewals other than ordinary repairs, extensions,
31 reconstruction, enlargements and additions in succeeding years; and no
32 debt shall be incurred under section forty for any extension, reconstruction
33 or enlargements of the plant in excess of the amount needed therefor in
34 addition to the amount then on hand in said depreciation fimd. Said
35 depreciation fund shall be kept and managed by the towTi treasurer as
36 a separate fund, subject to appropriation by the city comicil or select-
37 men or municipal light board, if any, for the foregoing purpose. So
38 much of said fund as the department may from time to time approve
39 may also be used to pay notes, bonds or certificates of indebtedness
40 issued to pay for the cost of reconstruction or renewals in excess of or-
41 dinary repairs, when such notes, bonds or certificates of indebtedness
42 become due. All appropriations for the plant shall be either for the
43 annual expense defined as above, or for extensions, reconstruction, en-
44 largements or additions; and no appropriation shall be used for any pur-
45 pose other than that stated in the vote making the same. No bonds,
46 notes or certificates of indebtedness shall be issued by a town for the
47 annual expenses as defined in this section.
1 Section 58. There shall be a fixed price for gas and electricity, which Price for gas
2 shall not be changed oftener than once in three months. Any change r^uiatcti"''''^
3 shall take effect on the first day of a month, and shall first be advertised r^l! 3i%^-2^x
4 in a newspaper, if any, published in such town. The price shall not, |R'*i5''f99
5 except with the ■uTitten consent of the department, be fixed at less than i^is, 77, § '2.
6 cost, in which shall be included all operating expenses, interest on the out-
7 standing debt, the recjuirements of the serial debt or the sinking fund es-
8 tablished to meet such bonds, and also depreciation of the plant reckoned
9 as provided in the preceding section, and losses; but any losses exceeding
10 three per cent of the investment in the plant may be charged in different
1 1 years at not more than three per cent per annum. Such price shall not
12 be greater than shall allow, above such cost, a profit of eight per cent
13 per annum to the town upon its in\-estment. The gas and electricity
14 used by the town shall be charged to it at cost. A sufficient deposit to
15 secure the pajTnent for gas or electricity for three months may be re-
16 quired in advance from any consumer, and the supply may be shut off
17 from any premises until all arrears for gas or electricity furnished thereon
1820
MANtTFACTtlRE AND SALE OF GAS AND ELECTRICITY. [CiL'iP. 164.
to such consumer shall have been paid. After three months' default in 18
the payment of such arrears, all appliances for distribution belonging to 19
such town on the premises may be removed and shall not be restored 20
except on payment of all such arrears and the expenses of removal and 21
restoration. 22
Prices to be
certified to
department.
1892, 259,
§§3,4.
R. L. 34,
§23.
Section 59. Wlien a town fixes or changes a price, the manager 1
of municipal lighting shall send a certified copy of the notice thereof to 2
the department and for a failure so to do shall forfeit not more than 3
twenty-five dollars. im. 742, §s iie, 199. 4
Compulsory
supply.
1891, 370, § 7.
1894, 533.
R. L. 34, § 24.
1914, 742,
5§ 117, 199.
Section 60. A town shall not be compelled to furnish gas or elec-
tricity to any person or corporation except upon order of the depart-
ment, to whom any person aggrieved by the refusal of a town to furnish
gas or electricity may appeal, stating the facts in such detail as the
department directs.
Assessment
of cost of
services, etc.
1891, 370, § 6.
R. L. 34, § 25.
1914, 742,
§1 118, 199.
Section 61. A town acquiring a plant may provide by ordinance or 1
by-law for the equitable assessment upon the owner or occupant of any 2
premises of the cost, or any part thereof, of laying and maintaining pipes, 3
conduits, conductors or other appliances thereon. Payment of such 4
assessments shall not be compulsory, but it shall be a condition precedent 5
to the supplying of gas or electricity to the occupants of such premises, 6
and may be required before providing appliances therefor. 7
Ordinances
and by-laws
relative
to plant.
1891, 370,
§11.
R. L. 34, § 26.
Section 62. A town operating a plant may pass ordinances or by- 1
laws, imposing penalties not exceeding fifty dollars, to protect the plant, 2
control its use and prevent accidents from gas or electricity supplied by 3
it, and to govern consumers in their use thereof. i9i4, 742, §§119, 199. 4
Records and
return to de-
partment.
1891, 370, §9.
1S96, 35fi; 480.
R. L. 34, § 27.
1905,410, § 5.
1914, 742,
|§ 120, 199.
1918, 78, § 1.
Section 63. A town manufacturing or selling gas or electricity for 1
lighting shall keep records of its work and doings at its manufacturing 2
station, and in respect to its distributing plant, as may be required by 3
the department. It shall install and maintain apparatus, satisfactory 4
to the department, for the measurement and recording of the output of 5
gas and electricity, and shall sell the same by meter to private consumers 6
when required by the department, and, if required by it, shall measure 7
all gas or electricity consumed by the town. The books, accounts and 8
returns shall be made and kept in a form prescribed by the department, 9
and the accounts shall be closed annually on the last day of the fiscal year 10
of such town, and a balance sheet of that date shall be taken therefrom 11
and included in the return to the department. The mayor, selectmen or 12
municipal light board and manager shall, at any time, on request, submit 13
said books and accounts to the inspection of the department and furnish 14
any statement or information required by it relative to the condition, 15
management and operation of said business. The department shall, in 16
its annual report, describe the operation of the several municipal plants 17
with such detail as may be necessary to disclose the financial condition 18
and results of each plant; and shall state what towns, if any, operating 19
a plant have failed to comply with this chapter, and what towns, if any, 20
are selling gas or electricity with the approval of the department at less 21
than cost. The mayor, or selectmen, or municipal light board, if any, 22
shall annually, on or before the second Wednesday of February, make 23
Chap. 164.] manufactuke and sale of gas and electricity. 1821
24 a return to the department, for the preceding fiscal year, signed and
25 sworn to by the mayor, or by a majority of the selectmen or municipal
26 light board, if any, and by the manager, stating the financial condition
27 of said business, the amount of authorized and existing indebtedness, a
28 statement of income and expenses in such detail as the department may
29 require, and a list of its salaried officers and the salary paid to each. The
30 mayor, the selectmen or the municipal light board may direct any addi-
31 tional returns to be made at such time and in such detail as he or they
32 may order.
1 Section 64. A town owning or operating a gas or electric plant shall ^I'fury oV"
2 be Hable for any injury' or damage to persons or property, or for the death ff^i^l^ . jg
3 of a person who is in the exercise of due care, caused bv its maintenance R l'. 34, '§ 28.
. . ' *, 1914 742
4 or operation, in the same manner and to the same extent as a private §§ 121. 199.
5 corporation, but shall not be liable for damages caused by competition isS iiass.' 214.
6 with an existing gas or electric plant therein. 212 Mass. 243.
1 Section 65. A town authorized by special act to construct, purchase. Application
2 lease, establish or maintain a gas or electric plant shall be subject to this to plants'^
3 chapter, so far as the same may be applicable. cEartered.
1S92, 259. § 5. R. L. 34. § 29. 1905, 410, | 6. 1914, 742, §§ 122, 199.
1 Section 66. This chapter, and all ordinances or by-laws of any city or town
2 town acting under its provisions relati^•e to the manufacture, use or dis- °^\^^t to^°'"
3 tribution of gas or electricity, or to the quality thereof, or to the plant f™*^"^^' '''"^'
4 or the appliances therefor, shall apply to such town, so far as applicable. )^\^ "z^'k-^'
1914, 742, §§ 123, 199. 212 Mass. 243. 1 Op. A. G. 550.
1 Section 67. No town having within its limits the main gas works or Revocation
2 the central electric station, or the major portion of the wires, poles, con- ?estrict'ed°^
3 duits or pipes used in connection with any such works or plant, shall, J^^l' 34°'§ 3i*'
4 except for a violation of the terms or conditions upon which the same ssY-^/^igg
5 were granted or for a violation of law respecting the exercise thereof, i6i Riass. 432.
6 revoke any rights granted to any person or corporation engaged in
7 manufacturing or distributing gas or electricity for sale after the intro-
8 duction of the first vote authorizing the establishment of a gas or elec-
9 trie plant in a city council under section thirty-five or after the calling
10 of a town meeting under a warrant including an article on the passage
11 of such vote, until the proceedings so begun have been finally deter-
12 mined by granting or denying authority to establish such plant. After
13 the ratification of the votes required by section thirty-five and the pas-
14 sage of both votes required by section thirty-six, no town, except as here-
15 inbefore provided, shall revoke any rights, locations or licenses granted
16 to any such person.
1 Section 68. A town which has acquired a municipal lighting plant fmy",!?^''?*;
2 shall not sell it for the purpose of abandoning the distribution of gas or
3 electricity to its inhabitants until such sale has been authorized in the
4 manner and by the votes prescribed for the acquisition of such plants by
5 sections thirty-five and thirty-six.
1 Section 69. The supreme judicial court for the county where the town Enforcement
2 is situated shall have jurisdiction on petition of the department or of pro^^ons.
1822
M.'tNUFACTURE AND SALE OF GAS AND ELECTRICITY. [ClL4.P. 164.
1905. 410, § 7.
1914. 742.
§§ 125, 199.
twenty taxable inhabitants of the town to compel the fixing of prices by 3
the town in compliance with sections fifty-seven and fifty-eight, to pre- 4
vent any town from purchasing, operating or selling a gas or electric 5
plant in violation of any provision of this chapter, and generally to enforce 6
compliance with the terms and provisions thereof relative to the manu- 7
facture or distribution of gas or electricity by a town. 8
Street loca-
tions for
gas mains.
1855, 146, § 2.
G. S. 61, § IB.
1870, 224, § 56;
353. § 2.
1S79. 202, § 1,
last clause.
P. S. 106, § 75.
1885. 240. § 1.
1896, 544, § 1,
R. L. 110, § 76.
1914. 742.
§§ 126, 199.
12 Allen, 75.
188 Mass. 242.
DISTRIBUTION OF GAS AND ELECTRICITY.
Section 70. A gas company may, with the written consent of the 1
aldermen or the selectmen, dig up and open the ground in any of the 2
streets, lanes and highways of a town, so far as necessary to accomplish 3
the objects of said corporation; but such consent shall not affect the right 4
or remedy to recover damages for an injury caused to persons or prop- 5
erty by the acts of such corporation. It shall put all such streets, 6
lanes and highways in as good repair as they were in when opened; 7
and upon failure so to do within a reasonable time, shall be guilty of a 8
nuisance. 220 Mass. 575. 2 Op. a. g. 416. 9
of°iin'es"*'''°° Section 71. A Corporation subject to this chapter may, as provided 1
G**!.' 64,' 1 2.' ^n chapter one hundred and sixty-six, construct lines for the transmission 2
p. s. 109, § 2. of electricitv. i883, 221. is89, 434. 1395. 350. 3
R. L. 121, § 17;
122, § 1.
1911. 509, § 1.
1914.742, |§ 127,199.
97 Mass. 555.
153 Mas.s. 200.
184 Mass. 566.
ISS Mass. 250.
207 Mass. 341.
239 U. S. 313.
1 Op. A. G. 80, 88.
2 Op. A. G. 416, 423.
Taking land
for transmis-
sion lines.
1914, 742,
§128.
1917, 141.
1918.91.
202 Mass. 402.
226 Mass. 210.
Section 72. An electric company may petition the department for 1
authority to construct and use or to continue to use as constructed or with 2
altered construction a line for the transmission of electricity for distribu- 3
tion in some definite area or for supplying electricity to itself or to another 4
electric company or to a municipal lighting plant for distribution and 5
sale, or to a railroad, street railway or electric railroad, for the pur- 6
pose of operating it, and shall represent that such line will or does serve 7
the public convenience and is consistent with the public interest. The 8
company shall file with such petition a general description of such trans- 9
mission line and a map or plan showing the towns through which the 10
line will or does pass and its general location. The company shall also 11
furnish an estimate showing in reasonable detail the cost of the line and 12
such additional maps and information as the department requires. The 13
department, after notice and a public hearing in one or more of the 14
towns affected, may determine that said line is necessary for the purpose 15
alleged, and will serve the public convenience and is consistent with the 16
public interest. If the company has acquired or thereafter shall acquire 17
rights in the public ways or lanes of the towns through which said line 18
will or does pass, or over private lands therein, for the construction of 19
not less than one half of the total length of said line and shall file with 20
the department a map or plan of the transmission line sho\\ing the rights 21
acquired, and the towns tlirough which it will or does pass, the public 22
ways, railroads, railways, navigable streams and tide waters in the 23
town named in said petition which it will cross, and the extent to which 24
it will be located upon private land or upon, under or along public ways 25
and places, the department, after such notice as it may direct, shall give 26
a public hearing or hearings in one or more of the towns through which 27
CiL\P. 164.] AL-INUFACTURE .\ND SALE OF GAS AND ELECTRICITY. 1823
28 the line passes or is intended to pass and may by order authorize the
29 company to take by eminent domain inider chapter seventy-nine such
30 lands, not exceeding one hundred and fifty feet in width, or such rights
31 of way or other easements therein necessary for the construction and
32 use or continued use as constructed or with altered construction of the
33 remainder of such line along the route prescribed in the order of the
34 department; provided, that notwithstanding the company has not ac-
35 quired easements for such purpose in one half of the total length of said
36 line, yet the department may by such order authorize the taking of any
37 easements in private lands necessary to effect only the alteration of con-
38 struction of an existing line. The department shall transmit a certified
39 copy of its order to the company and the clerk of each such town. The
40 company may at any time before such hearing change or modify the
41 whole or a part of the route of said line, either of its own motion or at the
42 instance of the department or otherwise, and, in such case, shall file with
43 the department maps, plans and estimates as aforesaid showing such
44 changes. If the department dismisses the petition at any stage in said
45 proceedings, no fm'ther action shall be taken thereon, but the company
46 may file a new petition after the expiration of a year from such dismissal.
47 Wlien a taking imder this section is effected, the company may forthwith
48 proceed to erect, maintain and operate thereon said line. If the company
49 shall not enter upon and construct such line upon the land so taken within
50 one year thereafter, its right under such taking shall cease and determine.
1 Section 73. An electric company may erect and maintain wires for Construction
2 a transmission line across or over the location on private land of any rail- sion lines"^
3 road, electric railroad or street railway corporation at such places, in such gl'" ""''■°'"^^'
4 manner and on such terms and conditions as it may agree upon with such Pi.>g "^^^^
5 corporation, or, in case of failure so to agree, then with the consent of the wis.sso, § ii7.
6 department and at such places, in such manner, with such safeguards,
7 and upon such terms and conditions as it may specify ; but no pole, tower
8 or similar structm-e shall be located witliin the location of any such rail-
9 road, electric railroad or street railway corporation without its consent.
10 The department may, from time to time, specify such changes in the
11 manner of crossing and in the terms and conditions thereof as it deems
12 advisable.
1 Section 74. If a person injured in his person or property by a defect Damages for
2 in a public way caused by the operations of a corporation subject to this persons or
3 chapter, in laying down or repairing its pipes, or in laying, erecting, main- i86ori2i.
4 taining or repairing its Unes of wires, or in otherwise obstructing such May, fssl, sm.^'s^.'
5 recovers damages therefor in an action against the town where such r^^'l. no, 1 77;
6 injury is received, such town shall, if said corporation is liable for said J|}iV42
7 damages and has had reasonable notice to appear and defend the original §§ i3i. 'M-
8 action, recover of said corporation the damages so recovered from it,
9 with the taxable costs of both parties in such original action.
1 Section 75. The aldermen or selectmen may regulate, restrict and J^.,^f"J.ai'''°^
2 control all acts and doings of a corporation subject to tliis chapter wliich j^'jj"!]^''^^ 3
3 may in any manner affect the health, safety, convenience or property of c;. s.' 6i,§ n'.
4 the inliabitants of their towns. p. s. 106, § 77. , , .
1887, 385, § 6. R. L. 110, § 78; 121, § 19. 1914, 742, §§ 132, 199.
1824
MANUFACTURE AXD S.VLE OF GAS .\ND ELECTRICITY. [Ch.\P. 164.
General duties
of department.
1885, 314. § S.
1887, 382,
5§ 1.6; 385,
§§ 7. 10.
R. L. 121.
§§ 5, 20.
1914. 742,
§§ 138, 199.
1 Op. A. G. 81.
STATE SUPERVISION.
Section 76- The department shall have the general supervision of
all gas and electric companies and shall make all necessary examination
and inquiries and keep itself informed as to the condition of the respective
properties OAvned by such corporations and the manner in which they
are conducted with reference to the safety and convenience of the public,
and as to their compliance with the provisions of law and the orders,
directions and requirements of the department.
Annual report
to general
court.
1SS5. 314. § 14.
18S6. 346. § 2.
1887, 382,
« 2. 6.
1888. 350. 5 2.
R. L. 121. § 7.
1911. 293.
1914. 742.
H 140, 199.
1918, 78, § 2.
Section 77. The department shall make an annual report of its
doings under this chapter, with such suggestions as to the condition of
afl'airs or conduct of corporations and companies subject to this chapter
as may be appropriate, \\ith such abstracts of the returns required by
section eighty-three as it deems expedient, but including the names and
addresses of the principal officers and of the directors, and an abstract of
the accidents reported to it under section ninety-five.
Violations
of law,
1885. 314. § 12.
1887. 382,
§§2.6.
R. L. 121, I 8.
1914. 742.
§§ 141. 199.
197 Mass. 556.
Section 78. If any corporation engaged in the manufacture and sale
or distribution and sale of gas or electricity violates or fails to comply
with the provisions of law, or \-iolates or fails to comply with any lawful
order of the department, it shall give WTitten notice thereof to such
corporation and to the attorney general. i Op. a. g. si.
Enforcement
of orders of
department.
ISSS 314. § 13.
1887. 382, J 2.
1896, 426.
R. L. 121, §9.
Section 79. The supreme judicial or superior court shall have juris-
diction in equity, upon application of the department, to enforce its
lawful orders and all laws relative to cities, towns or corporations engaged
in the manufacture and sale or distribution and sale of gas or electricity.
1914, 742, § I 142, 199. 197 Mass. 556.
Office of com-
pany where
works located.
Department
to have access
to records,
1886. 346. § 1.
1887. 382,
§§2.6.
R. L. 121, § 28.
1914, 742,
§1 143, 199.
Section 80. Gas and electric companies shall have an office in a town 1
where their works are located and, unless otherwise authorized by the 2
department, shall keep in said office all books and papers required by 3
law to be kept within the commonwealth, and also such books as may 4
be required to show their receipts, expenditures, indebtedness and financial 5
condition; and shall at all times, upon application, submit their books to 6
the inspection of the department and its duly authorized employees. The 7
department may from time to time, by its members or its didy authorized 8
employees, examine all books, records, contracts, documents, papers and 9
memoranda of such corporations, and shall have free access thereto for 10
such purpose at any and all reasonable times. 11
Form of books
and accounts
prescribed.
18S6, 346. § 2.
1887. 382,
§§2,6.
R. L. 121, § 29.
1914, 742,
§§ 144, 199.
1920,583, § 1.
Section 81. Gas and electric companies or persons engaged in the 1
manufacture and sale or distribution of gas or electricity shall keep 2
their books and accounts in a form to be prescribed by the department, 3
and the accounts shall be closed annually, so that a balance sheet can be 4
taken therefrom. INIanufacturing companies in wliich the manufactiu-e 5
of gas or electricity is a minor portion of their business shall be re- 6
quired to keep accounts of the expenses and income of their gas or elec- 7
trie business onlv. 8
1
ftatwniecords Section 82. Gas and electric companies and manufacturing com^
ISM ^356^480 Ponies or persons engaged in the manufacture or sale of gas or electricity 2
Chap. 164.] manufactuke and sale of gas and electricity. . 1825
3 shall keep such records of their work at their manufacturing station, and f^^- i^J- § 30-
4 in respect to their distributing plant, and in such form as the department §§ i-Js. iss-
5 may from time to time require.
1 Section 83. Gas and electric companies and manufacturing com- Form of
2 panics and persons engaged in the manufacture and sale or distribution p?°scHbed."™'
3 and sale of gas or electricity shall annually, on or before such date as isle, sis! 1 2!
4 the department fixes, make to the department, in a form prescribed by it, J^^l' 121' fli
5 a return for the year ending on such date as the department may from }9°|' |0f^- ^ ^
6 time to time require, signed and sworn to by the president and treas- J?!^'"*^.'
7 urer and a majority of the directors, of the amount of their authorized i92o. s'ss. § 2.
8 capital, their indebtedness and financial condition, on the said date, their 2 Op. a. g. 8,
9 income and expenses during the preceding year, their dividends paid ^^^'
10 and declared, a list of the names of all their salaried officers and the
11 amount of the salary paid to each, and the balance sheet of their ac-
12 counts as of said date. Such companies and persons shall at all times,
13 upon request, furnish any information required by the department or
14 its duly authorized employees relative to their condition, management
15 and operation, and shall comply Mith all lawful orders of the depart-
16 ment; but manufactiuing companies in which the manufacture and
17 sale of gas or electricity is a minor portion of their business shall be
18 required to include in their annual returns the income and expenses
19 and other data relative to their gas and electric business only.
1 Section 84. Each such gas or electric company or manufacturing Penalty for
2 company or person neglecting to make the annual return required by the mLke^rturn.
3 preceding section shall, for the first fifteen days or portion thereof during jsgf; lei' ^ ^'
4 which such neglect continues, forfeit five dollars a day; for the second ^gj^' 249' ^ ^^'
5 fifteen days or any portion thereof, ten dollars a day; and for each day 5|^^;7^''fng
6 thereafter not more than fifteen dollars a day. If any such company
7 or person unreasonably refuses or neglects to make such return, it or he
8 shall, in addition thereto, forfeit not more than five hundred dollars.
9 All forfeitures incurred under this section may be recovered by an in-
10 formation in equity brought in the supreme judicial court by the at-
11 torney general, at the relation of the department, and when so recovered
12 shall be paid to the commonwealth.
1 Section 85. The officers and employees of the department may be Department
2 authorized by it to examine the books, contracts, records, documents and books;^et"c",°of
3 memoranda or the physical property of any company subject to this ^g^i^^'e'sr!'? 2.
4 chapter and shall be entitled to full access thereto. No such officer or
5 employee shall di^'ulge any fact or information coming to his knowledge
6 during the course of such an examination unless directed by the depart-
7 ment or by the court, or authorized by law.
1 Section 86. In a town where a gas company exists in active opera- Entry of gas
2 tion, or where a person owns or operates works for the manufacture resTnS.
3 and sale of gas, no other gas company, nor any other person, shall dig }||b; HI] 1 7°-
4 up and open the streets, lanes and highways of such town in order to fgiV 742' ^ "^'
5 lay gas pipes therein, without the consent of the aldermen or selectmen, §§ iss. i99-
6 granted after notice by publication or otherwise to all parties interested
7 and a public hearing.
1826
MANUFACTURE AND SALE OF GAS AND ELECTRICITY. [Ch.AP. 164.
Kntry of
electric com-
pany, etc..
restricted.
1887, 382, § 3.
1892, 274,
1895, 350.
1901, 389.
K. L. 121, § 26.
1914, 742,
|§ 156, 199.
157 Mass. 86.
188 Mass. 250.
Appeal.
1885,314. § 16.
1887, 382, § 5.
R. L. 121, § 27.
1914. 742,
§§ 157, 199.
1 Op. A. G. SO.
Section 87. In a town where a person is engaged in the manufacture 1
or sale of electricity, no other person shall lay, erect, maintain or use, 2
over or under the streets, lanes and highways of such town, any wires 3
for the transmission of electricity except -nnres used by street railway 4
companies for heat or power, without the consent of the aldermen or 5
selectmen granted after notice to all parties interested and a public 6
hearing. i Op. a. g. 88. 7
Section 88. Any person aggrieved by the decision of the aldermen 1
or selectmen, under either of the two preceding sections, may, within 2
tliirty days after notice of said decision, appeal therefrom to the de- 3
partment, which shall thereupon give due notice and hear all parties 4
interested, and its decision shall be final. 5
S'clliii°Ug'h«ng Section 89. A town which has duly acquired a municipal lighting
such'ent^"'"^ plant and is authorized to supply gas or electricity in any other town
1914.742, shall have all the rights which a private corporation supplying gas or
electricity in said other town would have under the three preceding
sections.
§ 158.
Restrictions
upon entry for
supplying
electricity
in bulk.
1908. 617. § 1.
1914. 742.
§§ 159, 199.
Enforcement
of such
restrictions.
1908. 617, § 3.
1914, 742.
|§ 160, 199.
Section 90. In consenting to the laying, erecting, maintaining or 1
using by an electric company, for the sole purpose of supplj-ing electricity 2
in bulk, of any wires for the transmission of electricity over or under 3
streets, lanes and highways, as provided in section eighty-seven, the 4
aldermen or selectmen may, in addition to the laws governing such com- 5
panics, impose such other terms as they deem public interest requires, 6
and upon an appeal under section eighty-eight, the department may, in 7
addition to its authority under said section, affirm, amend, alter or add 8
to the terms so imposed as it deems public interest requires. 9
Section 91. The supreme judicial or superior court shall ha\-e juris- 1
diction in equity, on application of the department or of the mayor of 2
any city or the selectmen of any toi^Ti where electricity is distributed 3
and sold under the preceding section, to compel the observance and to 4
restrain the violation of any provision thereof and of the general laws 5
relating to electric companies and of all lawfid orders, decisions and terms 6
made or imposed by the department or by the aldermen or selectmen 7
under said section. 8
Supply of gas
or electricity
enforced.
1886, 346, 5 5.
1887. 382,
§§2.6.
R. L. 121, § 33.
1903, 164.
1914, 742,
§§ 161, 199.
197 Mass. 556.
Section 92. On WTitten petition of any person, having a residence 1
or place of business in a town where a corporation is engaged in the 2
manufacture or sale of gas or electricity, aggrieved by its refusal or 3
neglect to supply him with gas or electricity, the department may, after 4
notice to the corporation to appear at a time and place therein named 5
to show cause why the prayer of such petition should not be granted, 6
issue an order directing and requiring it to supply the petitioner with 7
gas or electricity, upon such terms and conditions as are legal and 8
reasonable. 9
Reduction in
price, etc.,
enforced.
1885, 314, § 9.
1887, 382,
§§ 2, 6.
1888, 350, § 1.
1894, 327.
R. L. 121. § 34.
1914, 742,
§§ 162,199.
Section 93. On ^Titten complaint of the mayor of a city or the select-
men of a town where a gas or electric company is operated, or of twenty
customers thereof, either as to the quality or price of the gas or electricity
sold and delivered, the department shall notify said company by lea^^ng
at its office a copy of such complaint, and shall thereupon, after notice,
give a public hearing to such petitioner and said company, and after said
Chap. 164.] manufacture and sale of gas .\nd electricity. 1827
7 hearing may order any reduction in the price of gas or electricity or an 235 Mass. is.
8 improvement in the quality thereof, and a report of such proceedings and (1919)' 52.
9 the result thereof shall be included in the report required by section
10 seventy-seven. The maximum price fixed by such order shall not there-
1 1 after be increased by said company except as provided in the following
12 section.
1 Section 94. A gas company furnishing gas under general or special ^r^™'°°,°!
2 laws or any contract with a town, and a gas or electric company en- to price and
3 gaged in the sale and delivery of electricity, may apply to the depart- isss. 350. § 1.
4 ment to fix and determine the price of gas or electricity to be thereafter r. l! i2ii § 35.
5 sold and delivered by said company, or to re\'ise any former order or if^^ea'i^fgg.
6 action of the department relative to the quality or price thereof. The ^^^ ^^^^^- ^^■
7 department shall, after notice, give a public hearing to the petitioner, to
8 the town and to all other persons interested, and thereafter may pass
9 such orders relative to the price and quality of the gas or electricity
10 thereafter to be furnished by said company as it deems just and reason-
1 1 able. Such orders shall be binding upon all parties until further order
12 of the department.
1 Section 95. Corporations, persons and municipalities engaged in Report of
2 the manufacture or sale of gas or electricity shall, within twenty-four isss.^sso. § 2.
3 hours after every accident caused by gas or electricity manufactured or ^^l] ^If § 39
4 supplied by them, whereby an employee or other person is injured, ren- J?"e4'*fg9
5 dered insensible, or killed, report in writing to the department, stating
6 the time, place and circumstances of the accident and such other facts
7 relative thereto as the department may require. The chief of police of
8 the town, and the medical examiner of the district, where such accident
9 occiu-s shall, in ^\Titing, report the same to the department. The chief
10 of police shall so report within twenty-four hours, and the medical
11 examiner within seven days, after he has notice thereof. The members
12 of the department shall personally investigate all such cases requiring
13 investigation.
1 Section 96. A gas company may purchase the property of another ConsoUdation
2 gas company whose gas mains are in the same or contiguous municipal- uif companies.
3 ities, or may consolidate with such other gas company, and such other \l°f^ j^l' ^ ^•
4 gas company may sell and convey its property to, or may consolidate ^^ i*^^' ^^^•
5 with, such first mentioned gas company; and an electric company may
6 piu-chase the property of another electric company whose lines are in
7 the same or contiguous municipalities, or of a combined gas and electric
S company whose gross receipts for the preceding financial year from the
9 sale of electricity are at least three times its gross receipts from the sale
10 of gas and whose lines are in the same or contiguous municipalities, or
1 1 may consoHdate with such other electric company or such gas company,
12 and such other electric company or such gas company may sell and con-
13 vey its property to, or may consolidate with such first mentioned electric
14 company; but no such purchase and sale or consohdation shall be valid
15 or binding until the terms thereof have been approved, at meetings called
16 therefor, by a vote of at least two thirds in interest of the stockliolders
17 of each of the contracting companies, and until the department, after
18 notice and a public hearing, has determined that the facilities for fm-nish-
19 ing and distributing gas or electricity will not thereby be diminished and
20 that such purchase and sale or consolidation and the terms thereof are
1828
MANUFACTURE .^'D SALE OF GAS .VSD ELECTRICITY. [Ch.\P. 164.
Consolidation
of electric and
hydro-electric
companies.
1914, 742,
§ 166.
1919. 350.
§§ 52, 53.
consistent with the public interest. This section shall not authorize an 21
electric company engaged in suppKang electricity in bulk to consolidate 22
with, or to piu-chase the property of, or to sell its own property to, 23
another electric company in whose territory the first named company is 24
engaged in supplying electricity in bulk to private customers. 25
Section 97. An electric company may, subject to the four following 1
sections, from time to time purchase or acquire any or all of the property 2
of any domestic or foreign corporation or association owning or operating 3
a water storage reser\oir or hydro-electric plant with which the lines of 4
the said first mentioned electric company are actually connected, or own- 5
ing and operating lines for the transmission of electricity within or with- 6
out the commonwealth with which the lines of said first named electric 7
company are actually connected ; and any such domestic or foreign cor- 8
poration or association may, subject to the four following sections, the 9
charter thereof and the laws of the state under which such corporation 10
or association, if a foreign corporation or association, is organized, so far 1 1
as applicable, sell any or all of its property to said first mentioned elec- 12
trie company, or consolidate or merge with said first mentioned electric 13
company, or merge and consolidate its capital stock and property with 14
said first mentioned electric company; but no such purchase and sale 15
or merger and consolidation shall be valid or binding until the same and 16
the terms thereof shall have been approved, at meetings called therefor, 17
by vote of at least two thirds in interest of the stockholders of each IS
of the contracting parties, and until the department, after notice and a 19
public hearing, shall have approved the same and the terms thereof as con- 20
sistent with the public interest; proA-ided, that such electric company 21
shall not exercise in this commonwealth any powers, rights, locations, 22
licenses or privileges or any franchise so acquired which cannot be law- 23
fully exercised by electric companies under this chapter. The shares of 24
the capital stock of the piu'chasing or consolidated company upon which 25
the true value of the corporate franchise of such company is to be com- 26
puted in any year, as provided in section fifty-five of chapter sixty-three, 27
shall be taken as such number of all the shares in its capital stock out- 28
standing on April first of such year as is proportional to the value of its 29
works, structures, real estate, machinery, underground conduits, ^\-ires 30
and pipes situated ^sitliin tliis commonwealth. From the true value of the 31
corporate francliise of such company as so computed there shall be de- 32
ducted the amount and market value of all stock in other corporations 33
held by it upon wliich a tax has been paid in this or any other state for 34
the twelve months last preceding the date of the return referred to in 35
said section, and also the value of its works, structures, real estate, ma- 36
chinery, poles, undergroimd conduits, ^\-ires and pipes subject to local 37
taxation within tliis commonwealth. For the purposes of tliis section, the 38
value of the property of the company ^\•ithin and without this com- 39
monwealth, respectively, shall be determined from time to time by the 40
commissioner of corporations and taxation. 41
Effect of
consolidation.
1908, 529, I 3.
1914, 742,
§§ 167, 199.
Section 98. The purchasing or consolidated company shall, except
as provided in the preceding section, have and enjoy all the powers,
rights, locations, licenses, privileges and franchises, and be subject to all
the duties, liabilities and restrictions, of the company selling or merged
as aforesaid, so far as they are appUcable to the purchasing or consolidated
company.
Chap. 164.] manufacture and sale of gas and electricity. 1829
1 Section 99. The purchasing or consolidated company may, for the increase of
2 pm-poses authorized by sections ninety-six and ninety-seven, increase to'^ffect °'
3 its capital stock and issue bonds in the manner and subject to the limita- i90f;?392''°°'
4 tions provided in sections thirteen, fourteen, eighteen and nineteen; {gif; fH; ^ *'
5 and may, for the same purpose and subject to the same limitations and ^^ ^^^' i^^-
6 notwithstanding any special law applicable thereto, exchange its securi-
7 ties for those of the selling or merged company upon such terms as the
8 department approves; but the aggregate amount of the capital stock
9 and the aggregate amount of the debt, respectively, of the consolidated
10 companies shall not, by reason of such consolidation, be increased.
1 Section 100. No electric company shall purchase the franchise or Consolidations
2 property of, or consolidate with, a gas company except as provided in igo's^'slg,' § 5.
3 section ninety-six; and no gas company shall piu-chase the franchise or JIiL'tII;
4 property of, or consolidate with, an electric company except as authorized §5 1^^' i^^-
5 by sections twenty-six and ninety-six; but a gas company authorized to
6 engage in the business of generating and furnishing electricity under
7 section twenty-three may, with the approval of the department, and
8 subject to the tliree preceding sections, so far as they may be applicable,
9 sell its locations and the property used in its business of generating and
10 furnishing electricity to an electric company whose lines are in the same
11 or in a contiguous municipality.
1 Section 101. All applications for the approval by the department Time for filing
2 of purchases and sales or consolidations under sections twenty-six, ninety- for'consoiida-
3 six, ninety-seven and one hundred shall be filed with the department I'S'sie, §2.
4 within four months after the passage by the contracting companies of §§^0/199.
5 votes authorizing such purchase and sale or consolidation.
1 Section 102. The five preceding sections shall not be construed to Certain con-
2 authorize the consolidation of the Boston Consolidated Gas Company prohibited.
3 and The Edison Electric Illuminating Company of Boston. J|?f ■ fp' ^ *'■
l§ 171, fgg.
inspection of gas and meters.
1 Section 103. The inspector and assistant inspectors of gas and gas Powers and
2 meters appointed under section thirteen of chapter twenty-five, subject inspectors.
3 to rules and regulations prescribed by the department, shall make the jf^'s.^^'
4 inspections of gas required by section one hundred and nine and in- p*f •6^i^'§/5^'
5 spect, examine, ascertain and prove the accuracy of all meters which JOj^ ^^'^ ^^
6 are to be used for measuring illuminating gas and which are to be R- l! ss, '
7 fm^nished to, or for the use of, any consumer or company, and shall 1902.228,
8 seal, stamp or mark e\ery such meter, if it be found correct, with some i909~4S3,
9 suitable de\ice to be determined by the department and recorded in 1914,742,
10 the office of the state secretary. A meter shall not be stamped correct ^^ ^'^^' ^^^■
11 if it varies more than two per cent from the standard measiu-e. The
12 department shall keep a correct record of all meters examined by said
13 inspectors witJi their proof at the time of inspection, which shall be open
14 at all times for examination by the officers of any gas company in the
15 commonwealth. The inspectors shall also perform such other duties
16 and make such reports of their doings as the department may require.
1 Section 104. For examining, comparing and testing gas meters. Fees for testing
2 with or without stamping them, the department may collect a fee of isei, lus, §4.
1830
M.\NUFACTUKE AND SALE OF GAS -AN'D ELECTRICITY. [ChAP. 164.
P. S. 61, § 6.
1899, 465, § 2.
R. L. 58. § 5.
1902. 228,
§§ 5, 8.
1909,318;
483, § 7.
1914. 742,
§§ 177. 199.
1920, 242.
twenty-five cents for each meter delivering not more than a cubic foot 3
of gas in four revolutions, vibrations or complete repetitions of its action, 4
and for each meter so deli\ering more than a cubic foot, a fee of thirty 5
cents, with twenty cents added for every additional cubic foot so deliv- 6
ered. For examining, comparing, testing or calibrating meter provers 7
and test or photometer meters, with or without sealing or certifying to 8
the same, the department may collect such fees as it may from time to 9
time prescribe. The department shall designate one of its employees 10
to receive all fees collected under this section and section one hundred 11
and twenty, and he shall give bond to the state treasurer in the sum of 12
five thousand dollars. 13
Companies
to pro\'ide
photometer.
1880, 230, § 4.
P. S. 61, § 13.
1885, 240, § 1.
R. L. 5.8. § 13.
1909, 483. § 2.
1914. 742.
§§ 180, 199.
Section 105. Every gas company which annually manufactures or
sells more than fifteen million cubic feet of gas shall, when required by
the department, provide and maintain a suitable room at least a quarter
of a mile from the gas works with a disc photometer and its appurte-
nances, of a construction approved by the department, and which shall
be open to the inspector and assistant inspectors on every working day
from eight o'clock in the forenoon until six o'clock in the afternoon.
Regulation
of quality
of gas.
1885,314. §11.
R. L. 121. § 6.
1914. 742.
§§ 139, 199.
1918, 9, § 2.
Section 106. The department shall, from time to time, ascertain the 1
degree of purity that can reasonably be required in gas made and sup- 2
plied by persons engaged in the manufacture or sale of gas, and shall 3
report to the general court when it deems any change in the law relative 4
thereto is desirable, and may from time to time, after notice and a pubhc 5
hearing, establish rules and regulations consistent with law, governing 6
the quality of gas supplied by persons or municipalities subject to this 7
chapter. Such rules and regulations shall be enforced in the manner pro- 8
vided in section seventy-nine. 9
Calorific
standard
for gas.
1916, 167, § 1.
Companies to
pro\-ide calo-
rimeter.
1916, 167, § 3.
Inspection
of gas by
photometer.
1861. 168, § 10.
1880, 230. ^ 5.
P. S. 61. § 14.
1885.240. § 1.
1886, 250.
1892, 67.
R. L. 58. § 14.
1903. 464.
1909, 483, § 3.
1912. 233.
1914, 742,
§§ 181, 199.
Penalty for
supplying gas
below standard.
1880, 230, § 5.
Section 107. To establish a calorific standard for gas, the depart- 1
ment may from time to time, after notice and a public hearing, determine 2
how many British thermal units shall thereafter be required of gas sup- 3
plied to their consumers by gas companies or municipal lighting plants. 4
Section 108. Every gas company or municipal lighting plant which
distributes and sells to its consumers over fifteen million cubic feet of
gas in a year shall, when required by the department, provide and main-
tain a suitable room not less than a quarter of a mile from the gas works
with a calorimeter of a type and construction approved by the depart-
ment, which shall be open at all reasonable times to the inspector and
assistant inspectors of gas.
Section 109. The gas of every company which supplies more than
fifty consumers shall be inspected at least twice a year and as much
oftener as the department may determine. The department may, from
time to time, to estabhsh a new standard of purity for gas, after a public
hearing, determine how many grains of sulphur and ammonia per hun-
dred cubic feet of gas may be permitted, but not more than thirty grains
of sulphur per hundred cubic feet and no sulphuretted hydrogen shall be
allowed. wis, 9, § i. i Op. a. g. 550.
Section 110. If the gas of any gas company or of any city or town 1
supplying gas is found on three consecutive inspections or on three in- 2
Chap. 164.] m.-vnufactuee and sale of gas and electricity. 1831
3 spections made within a period of thirty consecutive days, upon such p. s. oi. § u.
4 averaging of inspections as the department may prescribe, to be below Jsgo; ll": ^ ''
5 the standard of purity fixed under the preceding section or the calorific J^^^l! tl'. § u.
6 standard fixed under section one hundred and seven, unless such defect \^°^' fH- , ,
7 IS m the opmion of the department due to unavoidable cause or acci- 1912. 233.
8 dent, such company, city or town shall be liable to a forfeitiu-e of one § isi.
9 hundred dollars, which may be recovered by an information in equity loisig, §'1.
10 brought in the supreme judicial court by the attorney general, at the
1 1 relation of the department, and when so recovered shall be paid to the
12 commonwealth.
1 Section 111. The unit of measure for the sale of gas by meter shall ^r''e\oT ^t^^'
2 be the cubic foot, containing sixty-two and two thousand nine hundred p^'g'g'f^sl®-
3 and ninety-three ten thousandths pounds avoirdupois weight of air-free R- l. m. § s.
4 distilled water at sixty degrees FahrenJieit when weighed in dry air at §§ is2. 199.
5 the same temperature and at a barometric pressure of thirty inches of ■ ■ ■
6 mercury.
1 Section 112. Every gas company with a capital paid in of one hun- companies,
2 dred thousand dollars or more, and every other gas company, if required meter°prover3.*
3 by the department, and all makers and vendors of meters shall set up at p*"'6\'^'*§ fo^'
4 some convenient place upon their premises one or more meter pro vers fg^^ Its^i'i
5 of a size and t.\-pe approved, tested and calibrated by the department, 5?\*g3^*f^9
6 by means of which meters may be tested.
1 Section 113. A gas company providing a meter for measuring gas Penalty for
2 supplied to a customer which, if never before used, has not been duly not'tested^"
3 sealed and stamped, or, if opened after being sealed and stamped, has isso! 230! 1 1'.
4 not been again tested, sealed and stamped, shall be punished by a fine r.l.ss.Vio.
5 of five dollars for every such meter in use, payable to the city or town I?^*g4''''f99
6 where the meter is situated.
1 Section 114. Meters in use shall be tested by the inspector or by Testing gas
2 one of his assistants or by a deputy, on the request of the consumer or of iseries.Ts-
3 the gas company, in the presence of the consumer if desired, and with r. l.ss.Vii.
4 sealed apparatus. If he finds that the meter is correct, the person request- §§ Yss.^wq.
5 ing the inspection shall pay the fees for such inspection and the expense of
6 removing the meter for the piu-pose of being tested, and the reinspection
7 shaO be stamped on the meter. If he finds that the meter is incorrect,
8 the gas company shall pay such expenses and shall furnish a new meter
9 without charge to the consumer.
1 Section 115. Meters for measuring gas supplied to consumers shall ^|fgf2r'p!Sin°y
2 register the quantity of gas passing tlirough them in cubic feet so that Jf ^l Is^'s^l'
3 the number of cubic feet of gas consumed may be easily ascertained by isi+i V42,
4 the consumer thereof. No meter shall be used which may confuse or 2ioMkss. 498.
5 deceive the consumer in ascertaining the price he pays per thousand cubic
6 feet or the number of cubic feet consumed.
1 Section 116. An officer or servant of a gas company who is duly Entry on
2 authorized in WTiting by the president, treasm-er, agent or secretary of eSSin?
3 said company, may at any reasonable time enter any premises supplied i86'"i'68!'§ 11.
4 with gas by such company for the piu-pose of examining or removing the ^ i', ss, Vis-
5 meters, pipes, fittings and works for supplying or regulating the supply ls^i*87^*f99
1832 MANUFACTURE .AND SALE OF GAS ,AND ELECTRICITY. [Ch.\P. 164.
of gas and of ascertaining the quantity of gas consumed or supplied ; and 6
if any person, directly or indirectly, prevents or hinders such officer or 7
servant from so entering such premises or from making such examination 8
or removal, such officer or servant may make complaint to any court 9
or magistrate authorized to issue criminal process, who may thereupon 10
issue a warrant directed to the sheriff or to any of his deputies, or to a 11
constable of the town where such company is located, commanding him 12
to take sufficient aid and repair to said premises accompanied by such 13
officer or servant, who shall examine such meters, pipes, fittings and works 14
for supplying or regulating the supply of gas, and ascertain the quantity 15
of gas consumed or supplied therein, and shall, if required, remove any 16
meters, pipes, fittings and works belonging to said company. 17
Svin me'ter" '"' SECTION 117. When a gas or electric meter in a building owned or 1
iln'fis. used by a customer of a gas or electric company is read by an employee 2
§§Yss^^"'i9 °'" ^g^nt of such company, he shall, upon request, deliver to the person 3
using the gas or electricity measured by the meter a WTitten statement of 4
the amount recorded by the meter at that time. 5
meterTto SECTION 118. Mctcrs for measuring electricity for lighting purposes 1
"^lainf^ supplied to consumers shall register the quantity of electricity passing 2
1913. 623. through them in kilowatt hours, so that the number of kilowatt hours 3
§§ 189, 199. consumed may easily be ascertained by the consumer. 4
i886"34^r'§'u. Section 119. No charge shall be made by a corporation furni.shing 1
?9i3'254-^6% electricity for lighting purposes or gas for the use of a meter during any 2
1914^742, portion of twelve consecutive months, if the consumer during that time 3
199. ' ' uses electricity to the value of nine dollars, or gas to the value of seven 4
dollars, and whoever makes a charge therefor contrary to this section 5
shall be punished by a fine not exceeding one hundred dollars. 6
mtterTin use"" SECTION 120. A customer of a Corporation subject to this chapter, or 1
R°Li^i'l3u such corporation, may apply to the department for an examination and 2
i-jii. 348! test of any electric meter, demand indicator, so called, and any other 3
i9i4!742!^ device or appliance installed by such corporation upon a customer's 4
premises and used by such corporation to determine the charge to the 5
customer for its service. The department shall forthwith cause such 6
examination and test as in its judgment is practicable and reasonable to 7
be made by a competent and disinterested person, and shall furnish 8
to the corporation and to the customer a certificate of the result and 9
expense thereof. If, upon such examination and test, it appears that 10
the appliance does not register correctly, the department may order the 1 1
corporation to correct or remove such meter, demand indicator or other 12
device or appliance and to substitute a correct meter, demand indicator 13
or other device or appliance therefor. All fees for examinations and 14
tests shall in the first instance be paid by the person or corporation 15
making application therefor; but if the examination or test is made at the 16
request of a customer, and the meter is found to be incorrect because too 17
fast, the corporation shall pay such fees to the department, to be repaid 18
by it to the applicant. A meter shall be deemed correct for the purposes 19
of this section if it appears from such examination or test that it does 20
not vary more than five per cent from the standard appro\'ed by the 21
department. This section shall not authorize or prohibit differential 22
prices for electricity supplied by any such company. 23
190, 199.
Chap. 164.] manufacture and sale of g.as and electricity. 1833
1 Section 121. The person designated to make such examination and gfec'tric'metere
2 test may at any reasonable time enter upon the premises where the expense and
3 meter to be inspected is placed for the purpose of making the inspection, thereof. ^
4 He shall receiye such compensation for his services as the department §§2.'3. '"
5 may determine, together with his necessary trayeling and other ex- 1914; 742!
6 penses, which shall be audited by the department and paid by the com- ^^ ^^^' ^°^-
7 monwealth; but the total amount of compensation and expenses shall
8 not exceed three thousand dollars in any year; and if the total amount
9 of such compensation and expenses shall in any year exceed the amount
10 of the fees received for such examinations and tests, the excess shall be
11 assessed and recovered from the electric companies in the manner now
12 provided for the assessment and recovery of the other expenses of
13 the department. The department may establish such rules and regula-
14 tions, fix such standards, prescribe such fees, and employ such means and
15 methods in, and in connection with, such examinations and tests of
16 electric meters as it deems most practicable, expedient and economical.
17 The department may piu-chase such materials, apparatus and stand-
18 ard measiu-ing instruments for such examinations and tests as it deems
19 necessary.
1 Section 122. Whoever, being engaged in the sale of electricity, penalty for use
2 maintains upon the premises of a customer for the purpose of determining eiectric'^meter,
3 the charge to be made for electricity supplied to him a meter, demand jg'^j2 437 5 2.
4 indicator or other mechanical device or appliance which is found upon If'i^gJ^fgg
5 examination and test, as pro\aded in section one hundred and twenty,
6 to register incorrectly as against such customer, shall refund to him such
7 an amount as, if not agreed upon, shall, upon application of the customer
8 and after opportunity given to the vendor to be heard, be determined by
9 the department.
1 Section 123. All gas and electric companies using prepayment meters use of pre-
2 shall be responsible for the loss by fire of any money deposited in said metere"
3 meters. 1911, 434. 1914, 742, §§ 193, 199. reguJat .
1 Section 124. A gas or electric company may stop gas or electricity Gas or eiec-
2 from entering the premises of any person failing to pay the amount due shut'off'^w^hen.
3 therefor or for the use of the meter or other article hired by liim from p^'s.'ei'.Vie.^'
4 such company; and, for such purpose, the officers, servants or workmen jf^L'ss'^'s 16.
5 thereof may, after twenty-four hours' notice, enter his premises between i?\*^/*f^9
6 the hours of eight in the forenoon and four in the afternoon and separate 199 Mass. 324.
7 and take away such meter or other property of the companj', and may
8 disconnect any meter, pipe, ^\-ires, fittings or other works, whether they
9 are property of the company or not, from its mains, pipes or wires.
1 Section 125. A gas or electric company shall not refuse to supply Refusal of
2 gas or electricity for any building or premises to a person applying sfncted'^'^
3 therefor who is not in arrears to it for any gas or electricity previously r®®l; ||^§ 17.
4 supplied to him, because a bill for gas or electricity remains unpaid by jl^gj^'gg
5 a previous occupant of such building or premises. i99 ^i^^^- ^-*-
1 Section 126. Whoever wilfully or fraudulently injures, disconnects. Penalty for
2 removes or otherwise interferes with, or suffers to be injured, discon- metS^, e'tc^"'
3 nected, removed or otherwise interfered with, any meter, pipes or If^s/u.'
4 fittings belonging to a gas company, or prevents a meter from duly ?s^7^Vs
1834
WATER .USTD AQUEDUCT COMP,«^IES.
[ClL\P. 165.
R. L. 58, §
1914, 742,
§§ 196, 199.
4 Allen, 308.
IS.
Penalty for
injury to elec-
tric meter, etc.
1895, 330.
R. L. 121, §40.
1908, 243.
1914, 742,
§§ 197, 199.
registering the quantity of gas supplied through the same, or in any 5
way hinders or interferes with its proper action or just registration, or 6
fraudulently burns or wastes the gas of such company, or whoever 7
attaches a pipe or any appliance to a main or pipe belonging to a gas 8
company or, without the written consent of such company, uses or 9
causes to be used any gas supplied by it, unless the same passes through 10
a meter set by the company, shall be punished by a fine of not more 11
than one hundred dollars or by imprisonment for not more than one 12
year, or both. 13
Section 127. Whoever unlawfully and intentionally injures or de- 1
stroys, or suffers to be injured or destroyed, any meter, pipe, conduit, 2
wire, line, pole, lamp or other apparatus belonging to a corporation 3
engaged in the manufacture or sale of electricity, or unlawfully and 4
intentionally prevents an electric meter from duly registering the 5
quantity of electricity supplied, or in any way interferes with its proper 6
action or just registration, or, without the consent of such corporation, 7
unlawfully and intentionally diverts any electric current from any wire 8
of such corporation, or otherwise unlawfully and intentionally uses 9
or causes to be used, without the consent of such corporation, any 10
electricity manufactured or distributed by it shall be punished by a 11
fine of not more than one hundred dollars or by imprisonment for not 12
more than one year, or both. 13
REFERENCES.
As to voluntary associations holding stock in or under the same management as
gas and electric light companies, Chap. 182.
For power of gas and electric companies to issue preferred stock, Chap. 155, § 18.
General provisions applicable to all corporations, Chap. 155.
No shares to be issued for less than par value. Chap. 155, § 17.
CHAPTER 165.
WATER AND AQUEDUCT COMPANIES.
Sect.
water companies.
1. Definitions.
2. Water companies subject to certain
sections of other chapters.
3. Certain powers of department of public
health not affected.
4. Supervision.
5. Taking by city or town of water works.
6. Department of public health to furnish
assistance.
7. Annual report.
8. Streets not to be opened without con-
sent of municipal authorities.
9. Appeal to department.
10. Testing of water meters.
11. Injury of water meters and unlawful
use of water.
AQUEDUCT COMPANIES.
12. Laws applicable.
13. Certificate of pajinent of capital stock.
Sect.
14. PajTuent of capital by conveyance of
property.
15. Meetings and records of certain com-
panies.
16. Shares to be entered in books.
17. Directors.
18. Assessments.
19. Real estate.
20. Corporation may dig up highways, etc.
21. Liability of corporators after dissolu-
tion.
22. Indi\-idual liability of shareholders.
23. Upon dissolution, real estate to be in
common.
24. Penalty for injuring aqueducts.
25. Towns to have use of water in case of
fires.
Provisions by selectmen for taking
water.
Recovery of damages.
26
27,
Chap. 165.] water comp.vnies. , 1835
WATER COMPANIES.
1 Section 1. In sections one to eleven, inclusive, the following words Definitions.
2 shall have the following meanings: 1919; sfo.' §Vi7.
3 "Corporation" or "company", every person, partnership, associa-
4 tion or corporation, other than a municipal corporation, engaged in the
5 distribution and sale of water in the commonwealth and occupying the
6 public streets with its mains and pipes therefor.
7 "Department", the department of public utilities.
iames gub-
ect to certain
1 Section 2. Chapter one hundred and fifty-eight and sections ten, water
2 eleven, twelve, thirteen, fourteen, sixteen, seA'cnteen, eighteen, nineteen, P
3 twenty-one, seventy-eight, se\-enty-nine, eighty, eighty-one, eighty-two, o^he°?hrpters
4 eighty-three, eighty-foiu-, ninety-two, ninety-three, ninety-four, ninety- Jq??'^!?-
5 six, ninety-eight, ninety-nine, one hundred and one, one hmidred and §§ s,' 12. '
6 twenty and one hundred and twenty-one of chapter one hundred and 1920! 295'; oss.
7 sixty-four shall include and apply to all such corporations and companies.
1 Section 3. This chapter shall not affect or impair the powers and ^^^'^/"of
2 duties of the department of public health with respect to water supply department
3 under chapter one hundred and eleven. i9i4. vs-. § 12. health not
affected.
1 Section 4. The department shall have general supervision of all fgfl^^j""! j
2 corporations and companies subject to this chapter, and shall make all 1919! 350,'
3 necessary examinations and inquiries and keep itself informed as to the
4 compliance by all such corporations and companies with the law.
1 Section 5. In all proceedings for the acquisition by a town of the Taking by
2 water works and other property of a water company created by special o/wat'er°"°
3 law in the commonwealth providing for the appointment of commis- r9T7ri66, § 2.
4 sioners for the determination of the price to be paid for such water l^nf.^^"'
5 works and property, the matters to be referred to, heard and determined
6 by, such commissioners shall be referred to, heard and determined by,
7 the department, and its determination and award shall have the same
8 force and effect as if the determination and award had been made by
9 the commissioners provided for in the charters of such companies.
1 Section 6. In all proceedings conducted by the department under Department
2 the laws relating to the petition of any water company for authorization Liith to
3 to issue capital stock or bonds, and in all matters connected with the ^fstance.
4 determination by the department of any question relating thereto and ]g}?' |f°' ^ ^•
5 before any such authorization is given, the department of public health ||j2. 3._^
6 shall, on request of tlie department, furnish without charge engineering § n?-
7 services and advice for its assistance and guidance in such proceedings.
1 Section 7. The department shall make an annual report of all its Annual report.
2 doings under this chapter, together with such suggestions as to the 1919! 350,'
3 condition of affairs or conduct of the corporations and companies as
4 may be appropriate and with such abstracts of the returns required by
5 section two as it deems expedient.
1 Section 8. In a town where a water company exists in active opera- streets not to
2 tion, no other company or person shall dig up and open the streets, lanes ^th^ut"'
1836
WATER COMPANIES.
[Chap. 165.
consent of
municipal
authorities.
1914, 787, § 9.
and highways of such town for the purpose of laying water mains and 3
pipes therein without the consent of the aldermen or selectmen after 4
notice, by publication or otherwise, to all parties interested and a public 5
hearing. 6
Appeal to
department.
1914, 787. § 10.
1919, 350.
§§ 117, 121.
Section 9. Any corporation, company or person aggrieved by the 1
decision of the aldermen or selectmen under the preceding section may, 2
within thirty days after notice of said decision, appeal therefrom to the 3
department which shall thereupon give due notice to and hear all parties 4
interested, and render decision thereon. 5
Testing of
water meters.
1914, 397.
Section 10. Any person using water supplied by a city, town, 1
district or company, measured by a meter, shall be entitled to an exam- 2
ination and test of such meter to determine the accuracy of the same in 3
any quarter or period, upon written application therefor, which shall be 4
made before the expiration of the time when the rate for such quarter or 5
period is required to be paid, to the board, commissioner or officer in G
charge of the water works of the city, town or district, if the water is 7
supplied by a city, town or district, or to the company, if the water is 8
supplied by a company. Such examination and test shall be made by a 9
competent person employed by the city, town or district, if the water 10
is supplied by a city, town or district, or by a competent person des- 11
ignated by the mayor of the city or the selectmen of the town where 12
the water is supplied, if it is supplied by a company. A written report 13
of the result of the examination and test shall be furnished to the person 14
making the application, and if it appears that the meter has registered 15
with substantial accuracy, the expense of the examination and test shall 16
be paid by the person applying therefor, and in no case shall the expense 17
so required to be paid exceed three dollars for each examination and IS
test, but if it appears that the meter has not registered with substantial 19
accuracy and that the person has been charged with, or has paid for, 20
more water than he should have been charged M'ith or should have paid 21
for, the amount of such excess shall forthwith be credited to such person 22
or remitted to him if he has paid the same, and the expen.se of the exam- 23
ination and test shall be borne by the city, town, district or company 24
supplying the water; if, however, it appears that the person has been 25
charged with, or has paid for less water than he should have been charged 26
with or should have paid for, he shall forthwith be charged with the 27
proper additional amount and shall pay the same, together with the 28
expense of the examination and test, to the city, town, district or com- 29
pany supplying the water. 30
Injury of
water meters
and unlawful
use of water.
1914, 284.
Section 11. Whoever unlawfully and intentionally injures, or suffers 1
to be injured, a water meter belonging to a city, town, district, or com- 2
panj' engaged in supplying water, or prevents such meter from duly 3
registering the quantity of water supplied through it, or hinders or in- 4
terfers with its proper action or just registration, or attaches a pipe to a 5
main or pipe belonging to a city, town, district or water company, or 6
otherwise uses or causes to be used the water supplied by a city, town, 7
district or company without the consent of the same, unless it passes 8
through a meter set by such city, town, district or company, shall be 9
punished by a fine of not more than one hundred dollars or by imprison- 10
ment for not more than one year, or both. 1 1
Chap. 165.] aqueduct companies. 1837
AQUEDUCT COMPANIES.
1 Section 12. Aqueduct companies shall, except as otherwise herein LawsappU-
2 provided, be subject to chapter one hundred and fifty-eight and also to rtl'^'iog,
3 sections four to ten, inclusive, of chapter one hundred and sixty-six except ll.fs, 30, 3i';
4 that all rights and duties imposed on the department by sections four Jgjg^lgg ^^•
5 and five of said chapter one hundred and sixty-six shall in the case of §§ si, 117.
6 aqueduct companies be exercised by the commissioner of corporations
7 and taxation.
1 Section 13. Immediately after the payment of the capital of an Certificate of
2 aqueduct company, as authorized by the commissioner of corporations capiTau'tock.
3 and taxation, a certificate, signed and sworn to by its president, treas- r^^l! 10°! I22.
4 urer and a majority of its directors, stating the fact of such payment, l^^^- ^^°'
5 the manner in which the capital has been paid in and has been invested
6 or voted to be invested, and approved by said commissioner, shall be
7 filed in the office of the state secretary.
1 Section 14. A conveyance to an aqueduct company of real or per- Payment of
2 sonal property at a fair valuation shall be a sufficient payment of the cmveyaifce
3 capital stock to the extent of such value, if a description of such property Js94,°38a^§ 2.
4 and a statement of the value at which it has been taken in payment, in f^^- 1^-
5 such detail as the commissioner of corporations and taxation shall require § 52.
6 or approve, is included in the certificate mentioned in the preceding
7 section, and a statement that he is satisfied that such valuation is fair
8 and reasonable is endorsed by him upon such certificate.
23.
1 Section 15. The proprietors of an aqueduct corporation, which has Meetings and
2 been organized under chapter one hundred and ten of the Public Statutes certain com-
3 or corresponding provisions of earlier laws, may at a legal meeting agree 1798*;^, 1 3.
4 upon the method of calling future meetings of the corporation, and may §; f; g?; 1 1;
5 choose a clerk, who shall be sworn and who shall record in books to be ^- ^ ^23 Wi
6 provided and kept by him for that purpose all by-laws, votes and other
7 proceedings of the corporation. Such books shall at all times be subject
8 to the inspection of. any person appointed for that purpose by the gen-
9 eral court.
1 Section 16. The clerk, at or immediately after the first meeting, shares to be
2 shall enter in the books the names of the several proprietors and the books.
3 shares owned by each. 1798, S9, §§ 6, s.
R. S. 40, § 4. G. S. 65, § 4. P. S. 110, § 4. R. L. 123, § 42.
1 Section 17. The proprietors may choose any number of directors Directors.
2 and other officers to manage the business; and the directors shall choose r. s.'40,' § 6.'
3 one of their number to be the president of the corporation. p. |. u6,\*5.
R. L. 123, § 43.
1 Section 18. The directors may make such assessments on each Assessments.
2 share as they find necessary; and, upon the default of a proprietor for r'. s.'40,'§7.'
3 thirty days after notice thereof to pay an assessment, they may sell by p.f.'no.Ve.
4 public auction so many of his shares as will be sufficient to pay the ^- ^- '"'^' ^ **•
5 assessment and the necessary charges, such sale being first advertised
6 three weeks successively in a newspaper published in the county, or
1838
AQUEDUCT COMP.UvIES.
[Chap. 165.
notices thereof being posted thirty days at least before the sale in public 7
places in the to\\Ti. The surplus proceeds arising from the sale shall 8
be paid to the owner of the shares sold. 9
i7M,M^?6. Section 19. Such corporation may purchase and hold real estate 1
G. s. 6°; I i: necessary for the purpose of its association not exceeding thirty thousand 2
p. s. 110. § 9. dollars in value. r. l. 123, § 45. 3
Corporation
may dig up
highwavs. etc.
1798. 59. § 7.
H. S. 40. § 9.
G. S, 65. § 9.
P. S. 110. § 10.
R. L. 123. § 46.
11 Gray, 154.
Section 20. Such corporation may, with the •nTitten consent of the 1
aldermen of a city or the selectmen of a town, dig up and open any 2
street or way therein for the purpose of placing such pipes as are neces- 3
sary in constructing its aqueduct or in repairing or extending the same, 4
if the same is so done as not to prevent the convenient passing of teams 5
and vehicles. 6
Liability of
corporators
after dissolu-
tion.
1798. 59. § 9.
R. S. 40. 5 10.
G. S. 65. I 10.
P. S. 110.§ 11.
R. L. 123. § 47
Section 21. Contracts made by or with such a corporation shall 1
remain in force after its dissolution, and the shareholders at such dissolu- 2
tion shall continue liable and capable as a corporation in all its suits rela- 3
tive to such contracts until they are performed, if suit is commenced 4
within six years after the dissolution or after the right of action accrued. 5
Individual
liability of
shareholders.
1798. 59. § 9.
R. S. 40. § 11.
G. S. 65. § 11.
P. S. 110. § 12.
R. L. 123. § 48.
Upon dissolu-
tion, real
estate to be
in common.
1798. 59. 5 9.
R. S. 40. I 12.
G. S. 65. I 12.
Section 22. If no corporate property can be found to satisfy a 1
judgment recovered against the shareholders after the dissolution, and 2
it is not satisfied within sLx months after it is recovered, the judgment 3
creditor may satisfy the same out of the private estate of the share- 4
holders or any of them, as if the judgment had been against them in 5
their private capacity. 6
Section 23. If the corporation at its dissolution is seized of real 1
estate, the proprietors shall become tenants in common thereof in 2
proportion to their respective shares or interests in the stock of the 3
corporation. p. s. no, §i3. r, l. 123, §49. 4
Penalty for
injuring
aqueducts.
1798. 59. I 10.
R. S. 40. § 14.
G. S. 65. § 13.
P. S. 110, § 14.
Section 24. WTioever maliciously injures an aqueduct or any of its
appurtenances shall forfeit not more than one hundred dollars to the
use of the town where the offence is committed, and shall be liable to
the corporation for treble the amount of damages sustained thereby.
R. L. 123, § 50.
usT'of^water^ Section 25. A town in wliich such aqueduct is situated may put
m rase of conductors into the pipes for the purpose of drawing therefrom, free of
R^^l.'lo.'l 15.' expense, as much water as is necessary if a building is on fire therein and
§1 ?,^A^s^*- such conductors are so secured that water shall not be drawn therefrom
r. a. 110. 8 lo. pi p • * i • n
R. L. 123, § 51. except for the purpose of extingmshmg fires. 144 Mass. 177.
seleMmen^for SECTION 26. If the Selectmen consider it necessary, for the protection
ile^^isa""^' of persons and property in their town against fire, to take water from
§§i'6^i7' ^^^ conductors or pipes therein of an aqueduct corporation, they may
R- L. 123, §52. dii'ect the engineers of the fire department to request the corporation to
put into such conductors or pipes, in such places as said engineers shall
tliink necessary, connections or conductors for the purpose of attacliing
hydrants or conducting water into reservoirs. If the corporation refuses
or neglects for two weeks after such request to comply therewith, said
engineers may make such connections at the cost of the town, using all
Chap. 166.] telephone and telegraph companies, etc.
1839
10 necessary means for making the same and using reasonable care for the
11 protection of the pipes and works of such corporation.
1 Section 27. Any person who has sustained injury in his land or by Recovery ot
2 the diversion of water by the operations of an aqueduct corporation, 1851,2^9.
3 and who is entitled to damages for such injm-y by the act establishing g s. e's,
4 such corporation or otherwise, may recover such damages under chapter |.^ g^iJo,'
5 seventy-nine. r. l. 123, §53. 16 Gray, 347. §§i8, 19.
REFERENCE.
General provisions applicable to all corporations, Chap. 155.
CHAPTER 166.
TELEPHONE AND TELEGRAPH COMPANIES, AND LINES FOR THE
TRANSMISSION OF ELECTRICITY.
Sect.
finances of telephone and telegraph
companies.
1. Certain proportion of capital stock to be
subscribed, etc., before constructing
line. Filing of statement.
2. Limit of debt.
3. Liability of officers.
4. Issue of stock and bonds.
5. Enforcement of preceding section.
6. Penalty for violation of section 4, etc.
7. New shares to be offered to stockholders
upon increase of capital stock.
8. Stock to be sold at auction, when.
9. Stock or scrip dividends forbidden,
when.
10. Liability of directors.
RETURNS.
11. Returns of telephone and telegraph
companies.
12. Penalty for failure to make annual
return.
TELEPHONE COMPANIES.
13. Service to telegraph companies without
discrimination.
14. Telephone service without discrimina-
tion.
15. Enforcement.
TELEGRAPH COMPANIES.
16. Duties of companies.
17. Charges for despatches received by
mail, etc.
18. Penalty for violation of two preceding
sections.
19. Liability for negligence in transmission
of telegraphic messages.
20. Telegrams to contain time of filing, etc.
Penalty.
Sect.
construction of lines for transmitting
electricity.
21. Construction of lines.
22. Location, etc., by aldermen or selectmen.
23. Establishment of telegraph and tele-
phone lines by citizens.
24. Transmission of electricity for private
use.
25. Regulation of wires in or under public
ways.
26. Proceedings if regulations are violated.
27. Approval of ordinance or regulation.
28. Approval of location by department.
DAMAGES.
29. Damages caused by erection of lines.
Costs.
POLES AND WIRES.
30. Regulations concerning wires in cities
and towns.
31. Names of owners to be attached.
32. Inspector of wires; duties.
33. Enforcement.
34. Insulation of poles. Penalty.
35. Penalty for affixing telephone wires,
etc., to property without permission.
36. Name of corporation on pole or struc-
ture. Penalty.
37. No easement obtained by poles, etc.
38. Injury to lines, wires, etc. Penalties.
39. W'ires may be cut, when.
40. Penalty for cutting wires without
notice.
41. Limitation of two preceding sections.
42. Liability of telegraph company for in-
jury from poles, etc.
GENERAL PROVISIONS.
43. Application of chapter to others than
corporations.
1840
TELEPHONE AND TELEGRAPH COMPANIES.
[Chap. 166.
Certain pro-
portion of
capital stock
to be sub-
scribed, etc.,
before con-
Btmcting line.
Filing of
statement.
1851, 247, § 3.
G. S. 64, § 7,
FIN.\NCES OF TELEPHONE AJSTD TELEGRAPH COMP.\NIES.
Section 1. A telegraph or telephone company shall not commence 1
the construction of its line until three fourths of its capital stock have 2
been unconditionally subscribed for, and at least one half has been paid 3
in in cash; and the directors shall, within ten days after commencing 4
construction, file in the office of the state secretary a sworn statement 5
of such subscription and payment. 6
p. S. 109, § 7.
1893, 274.
R. L. 122, § 6.
i85i''247'^M' Section 2. Such company shall not at any time contract or owe 1
p I' 109^8 d^bts to a larger amount than one half of its capital stock actually 2
R. L. 122, § 7. paid in. 3
Section 3. The president and treasurer of such company shall be 1
Liability of
officers.
i*\MPi56. iointlv and severally liable for all its indebtedness, in case of wilful 2
tj. ft. o4, § 9. •' ^ .... 1*1 • •
P. s. 109, §9. neglect or omission on their part to comply with any provision of sec- 3
R. L. 122, § 8. . . ,
tion one, two or eleven. 4
Issue of stock
and bonds.
1875, 161.
P. S. 110, § 7.
1894. 450, § 1 ;
452, §1;
462, § 1.
1897,337. § 1.
R. L. 109, §24.
1913. 784, § 3.
1918, 54.
1919, 350,
§117.
214 Mass. 529.
216 Mass. 432.
233 Mass. 503.
1 Op. A. G. 659.
Section 4. Such company shall issue only such amount of stock
and bonds as the department of public utilities may from time to time
determine is reasonably necessary for the purpose for which such issue
of stock or bonds has been authorized. Said department shall on an
application for such issue, within thirty days after the final hearing
thereon, render a written decision assigning the reasons therefor, and,
if authorizing such issue, specifying the respective amounts of stock
or bonds authorized for the respective purposes to which the proceeds
thereof are to be applied. The decision shall, within seven days after
it has been rendered, be filed in the office of the department and a cer-
tificate of said decision shall, within three days after rendition and
before the stock or bonds as aforesaid are issued, be filed in the office
of the state secretary, and a duphcate thereof delivered to the corpora- 13
tion which shall enter the same upon its records. Such corporation 14
shall not apply the proceeds of such stock or bonds as aforesaid to any 15
purpose not specified in such certificate. 16
1
2
3
4
5
6
7
8
9
10
11
12
Enforcement
of preceding
section.
1894, 450, § 3;
452, § 3;
462, I 3.
1896, 473.
R. L. 109. § 27.
1913, 7S4, § 3.
Section 5. The supreme judicial or superior court shall have juris-
diction in equity, upon the application of the department, attorney
general, any stockliolder or interested party, to enforce the preceding
section and all lawful orders and decisions, conditions or requirements
of said department in pursuance thereof. wis, 54. i9i9, 350, § 117.
^Xtion of Section 6. A director, treasurer or other oSicer or agent of any 1
isM^^lit'^'- ^"^'^ company who knowingly votes to authorize the issue of, or know- 2
*^;'li' "igly signs, certifies or issues, stock or bonds contrary to section four, 3
R. L. 109, § 28. or who knowlugly votes to authorize the application, or knowingly applies 4
the proceeds, of such stock or bonds contrary to said section, or who 5
knowingly votes to assume or incur, or knowingly assumes or incurs 6
in the name or behalf of such corporation, any debt or liability except 7
for the legitimate purposes of the corporation shall be punished by a 8
fine of not more than one thousand dollars or by imprisonment for not 9
more than one year, or both. 10
Chap. 10(3.] telephone .\kd telegraph companies. 1841
1 Section 7. If any such company increases its capital stock, such New shares to
2 new shares necessary to produce the amount of increased capital stock sto?khofders
3 authorized shall, except as proA'ided in the follo^^■ing section, be offered oFrapUar^*^
4 proportionately to its stockholders at not less than the market value i8°7oii79.
5 thereof at the time of increase, to be determined by the department of Jfli'SS^il'-
• •■ »• • • 1 ^ It 1/11 io/Oi oy, 8 1 ,
G public utilities, taking into account previous sales of stock of the cor- 3o.5
7 poration and other pertinent conditions, which determination shall be is79,'9o!§i!
S in writing and with the date thereof shall be certified to and recorded ii2,| ss-
9 in the books of the corporation. The directors, upon the approval of Jsgs, 315, § 1.
10 such increase as provided in section foiu- and the determination of the r*^l.' lol; 1 30.
11 market value as hereinbefore provided, shall cause WTitten notice of }g}9'f|5
12 such increase to be given to each stockholder who was such at the date | yj-, .„„
. '^ . , PI- 1 216 Mass. 432.
13 01 the vote to increase, stating the amount or such increase, the number
14 of shares or fractions of shares to which he, according to the propor-
15 tionate number of his shares at the date of such vote, is entitled, the
16 price at which he is entitled to take them, and fixing a time, not less
17 than fifteen days after the date of such determination, within which he
18 may subscribe for such additional stock. Each stockholder may, within
19 the time limited, subscribe for his portion of such stock, which shall be
20 paid for in cash before the issue of a certificate therefor.
1 Section S. If such increase does not exceed four per cent of the stock to be
2 existing capital stock of the corporation, the directors, without first when!* ''"'^"°°'
3 offering the same to the stockliolders, may sell them by auction to the JfyJ; 393; § 2.
4 highest bidder at not less than the par value thereof to be actually paid ggP'la^s ^ ^'
5 in cash, and shall so sell any shares which remain unsubscribed for by jpt' IpiV^'
6 the stockliolders entitled to take them after the expiration of the time 1879] 90!
7 limited in the notice required by the preceding section. Such shares 112, § 59-
8 shall be offered for sale in Boston or such other city or town as the 1893, 3\s, § 2.
9 department of public utilities directs; and notice of the time and place lft:2.'''
10 of such sale shall be published at least five times during the ten days fgig 350^^''
11 immediately preceding the sale in each of at least three daily news- 5 117.
12 papers approved by said department. 113 Mass. 79. 216 Mass. 432.
1 Section 9. Xo such company established under the laws of this com- stock or scrip
2 monwealth shall declare any stock or scrip dividend or divide the pro- hidden, when.
3 ceeds of the sale of stock or scrip among its stockholders; nor shall any i87i!3S9!
4 such company issue any share of stock to any person unless the par value ["ni.^^^"
5 of the shares so issued is first paid in cash to its treasurer. fil s^ei' ^ '*'
1894, 350, § 1. R. L. 109, | 20. 214 Mass. 529.
1 Section 10. All certificates of stock or scrip issued in violation of the Liability of
2 preceding section shall be void; and the directors of the corporation which ism 3id, § 2.
3 issues them shall be liable to a penalty of one thousand dollars each, to ni'ji'ei'. ^^'
4 be recovered by indictment in any county where any of them reside; but j^^^l; 109,' fli.
5 if any such director proves that, before such issue, he filed his written
6 dissent thereto with the clerk, or was absent and at no time voted there-
7 for, he shall not be so liable.
returns.
1 Section 11. Every telephone or telegraph company doing business Returns of
2 in the commonwealth shall annually, on or before Alarch thirty-first or telegraph "^
3 such subsequent date as the department of public utilities, for good cause issi^mTi s.
4 shown in any case, may fix, file with said department a report of its doings \lll] 4°; | J;
1842
TELEPHONE AXD TELEGRAPH COMPANIES.
[Chap. UiG.
G. S. G4, §
p. S. 109
R. L. 122,
1906, 433,
12.
1917, 122,
1918, 54.
1919, 350,
§ 117.
12.
§24.
§§S.
§1.
for the year ending December thirty-first preceding, which report shall 5
be in such detail as the department prescribes, and shall be called the 6
"Annual Return." Such return shall be sworn to by the treasurer and 7
by the chief accounting officer of such company, and shall include a state- 8
ment of its business, receipts and expenditures within the commonwealth 9
during the year, its dividends paid out and declared, the amount of its 10
authorized capital and its indebtedness and financial condition. The 11
word "company" in this and the following section shall include every 12
person, partnership, association and corporation engaged in the business 1.3
of the transmission of intelligence by electricity. 1-1
Penalty for
failure to
make annual
return.
1906, 433, § 9.
Section 12. Any such company neglecting to make the annual return 1
required by the preceding section shall, for the first fifteen days or por- 2
tion thereof during which such neglect continues, forfeit five dollars a 3
day; for the second fifteen days or any portion thereof, ten dollars a day; 4
and for each day thereafter a sum not exceeding fifteen dollars a day. 5
If any company unreasonably refuses or neglects to make such return, it 6
shall, in addition thereto, forfeit not more than five hundred dollars for 7
each offence. AH forfeitures recovered under this section shall be paid 8
to the commonwealth. 9
Serv-ice to tele-
graph com-
panies without
discrimination.
1885, 267. § 1.
R. L. 122, I 12.
TELEPHONE COMPANIES.
Section 13. A person owning, controlling or operating a telephone
exchange or service in the commonwealth shall, upon application of a
telegraph company, furnish such company with the use of telephones
and telephone service, and connection with his exchanges, with the sub-
scribers thereto, and with his telephone service, without discrimination
between telegraph companies as to such connection, service or use of
instruments furnished or charges therefor for the same class of ser\ace.
Telephone
service without
discrimination.
1885. 267, § 2.
R. L. 122, § 13.
Section 14. A person owning, controlling or operating a telephone 1
exchange or service in the commonwealth shall, on application and the 2
tender of the charges or rental usual or customary for the class of service 3
required, without discrimination for the same class of service rendered, 4
furnish the applicant with the use of a telephone and telephone service 5
and connection with his exchanges and the subscribers thereto, if the 6
applicant secures the rights necessary to make the connections applied 7
for and pays to the telephone company in advance an amount sufficient 8
to cover the actual cost of the extension, if said extension is more than 9
one mile from any main exchange circuit of such company. 10
i8sr2?57™3 Section 1.5. The supreme judicial or superior court shall have juris- 1
R. l! 122, 1 14, diction in equity to enforce the two preceding sections. 2
Duties of
conipanie,'^.
1849, 93, § 6.
G. S. 64. § 10.
P. S. 109. § 10.
R. L. 122, § 9.
13 Alien, 226.
113 Mass. 229.
137 Mass. 403.
TELEGRAPH COMP.^NIES.
Section 16. A telegraph company shall receive despatches from and
for other telegraph companies and associations, and from and for any
person; and, upon payment of the usual charges for transmitting
despatches according to the regulations of the company, shall transmit
them faithfully and impartially. 205 Mass. 598. 207 Mass. 401.
Charges for
despatches
received by
mail, etc.
Section 17. A telegraph company shall receive, compute and transmit 1
despatches received at its offices from another telegraph company or by 2
Chap. IGG.] lines for transmitting electricity. 1843
3 mail, at the same rates of charge as for despatches received for trans- ism, 93. §6.
4 mission from individuals on the same day and at the same place. isgV, 348.
p. S. 109, §§ 10. 11. R. L. 122. § 10. 205 Mass. 598. 207 Mass. 401.
1 Section 18. A telegraph company which wilfully neglects or refuses Penalty for
2 to comply with any provision of the two preceding sections shall forfeit prelSMng"' ""^
3 not more than one hundred dollars to the company or person who sends i^g™!, 5 5,
4 or desires to send the despatch. o. s. &4, § 10. ise?, 34s.
p. S. 109, §§ 10. 11. R. L. 122, § 10. 205 Mass. 59S. 207 Mass. 401.
1 Section 19. A telegraph company shall be liable for damages to the Liability for
2 amount of one hundred dollars actually caused by its negligence, or that tnfnsm°ssion
3 of its agents, in transmitting, receiving or delivering telegraphic mes- mellages^'""
4 sages, and any limit of such liability by contract or regulation shall apply js^s. 3|o. ^^
5 only to the damages in each case in excess of one hundred dollars; but no la Alien, 226.
' . . ... 197 Mass 119
6 action therefor shall be maintained unless a written claim is presented to 205 Mass! sqs!
7 such company or its agent within sixty days after such right of action
S accrues. This section shall not apply to negligence occurring in a tele-
9 graph office established for the convenience and safety of a railroad cor-
10 poration in the running of its trains, and transacting a public telegraph
11 business only as incidental thereto, nor to negligence in the delivery of
12 messages received at such office.
1 Section 20. Every person engaged in the business of transmitting Telegrams to
2 communications by telegraph in the commonwealth and charging tolls of'fiUng. etc^
3 therefor, shall cause to appear plainly upon the addressee's copy of every i909,'402,
4 telegram originating at and destined for a point within the common- §5 1.2; 542.
5 wealth, the hour and minute of the day on which it was filed for trans-
6 mission and the hour and minute of the day of its receipt at its destination,
7 and no charge shall be made for or on account of the additional matter
8 required b,v this section. Violation of any provision of this section shall
9 be punished by a fine of not more than one hundred dollars for every
10 telegram in respect to which the violation occurs.
construction of lines for tr.\nsmitting electricity.
1 Section 21. A company incorporated for the transmission of intelli- Construction
2 gence by electricity or by telephone, whether by electricity or otherwise, is49, 93, § 2.
3 or for the transmission of electricity for lighting, heating or power, or for p. s. 106, §"2.
4 the construction and operation of a street railway or an electric railroad, Ittl', HI'.
5 may, under this chapter, construct lines for such transmission upon, r.^l^i??' 5 1.
6 along, under and across the public ways and across and under any waters JgJ^' 5°.?' ^ ^■
7 in the commonwealth, by the erection or construction of the poles, piers, |J|j- '
8 abutments, conduits and other fixtures, except bridges, which may be ise Mass. 75!
r\ 1 ^ ■ ^ J. ^\ • J! ■.. r u 1 1 153 Mass. 200.
9 necessary to sustain or protect the wires or its hues; but such company iss Mass. 250.
10 shall not incommode the public use of public Mays or endanger or inter- 239 u.^lf'als!'
1 1 rupt navigation. 2 Op. a. g. 423.
1 Section 22. A company desiring to construct a line for such trans- i.oeation, ete .
2 mission upon, along, under or across a public way shall in writing petition or selectmen
3 the board of aldermen of the city or the selectmen of the town where it cf*!.' 64,' 11.
4 is proposed to construct such line for permission to erect or construct ^- f; \22 V2
5 upon, along, under or across said way the wires, poles, piers, abutments JUort' n?'
6 or conduits necessary therefor. A public hearing shall be held on the i9h!509'§2.
1844 LINES FOR TRANSMITTING ELECTRICITY. [ChaP. 166.
1916, 166. petition, and \vTitten notice of the time and place of the hearing shall be 7
97 Mass. 555. mailed at least seven days prior thereto by the clerk of the city or by the 8
202 Mass^ 402! sclectmcn of the town to all owiiers of real estate abutting upon that 9
239 u Ts^a'' P^rt of the way upon, along, across or under which the line is to be con- 10
structed, as such o\^-nership is determined by the last preceding assessment 1 1
for taxation. After a public hearing as aforesaid, the board of aldermen 12
or the selectmen may by order grant to the petitioner a location for such 13
line, specifying therein where the poles, piers, abutments or conduits 14
may be placed, and in respect to overhead lines may also specify the kind 15
of poles, piers or abutments which may be used, the number of wires or 16
cables which may be attached thereto, and the height to which the wires 17
or cables may run. 18
After the erection or construction of such line, the board of aldermen 19
or selectmen may, after giving the company or its agents an oppor- 20
tunity to be heard, or upon petition of the company without notice or 21
hearing, by order permit an increase in the number of wires or cables, 22
and direct an alteration in the location of the poles, piers, abutments 23
or conduits or in the height of the wires or cables. The board of alder- 24
men or selectmen may, on written petition by two or more companies 25
subject to this chapter, and having locations in any of the public ways 26-
of such city or town, without notice or hearing, by order authorize any 27
such company to attach its wires and fixtures to existing poles, piers 28
or abutments of either or any of the other petitioners, or to maintain 29
its wires or cables in the conduits of either or any of said other peti- 30
tioners, or by order grant to said companies joint or identical locations 31
for the maintenance of said existing poles, piers, abutments or conduits, 32
to be used in common by them. The board of aldermen or selectmen 33
may, on WTitten petition by two or more companies subject to this 34
chapter, and after notice to abutting land owners and a hearing as here- 35
inbefore provided, by order grant to said companies joint or identical 36
locations for the erection or construction of poles, piers, abutments or 37
conduits, to be owned and used in common by them. No order of the 38
board of aldermen or selectmen shall be required for renewing, repair- 39
ing or replacing wires, cables, poles, piers, abutments, conduits or fixtures 40
once erected or constructed under the provisions of law, or for making 41
house connections or connections between duly located conduits and dis- 42
tributing poles. 43
The order granting a location or an alteration thereof, or authorizing 44
an increase in the number of wires or cables or attachments, such as are 45
hereinbefore described, shall be recorded by the city or town clerk in 46
books kept exclusively therefor, and where notice has been given as 47
hereinbefore provided the clerk of the city or the chairman or a majority 48
of the selectmen shall certify on said record that the order was adopted 49
after due notice and a public hearing as hereinbefore prescribed, and no 50
such order shall be valid without such certificate. The company or com- 51
panics in whose favor the order is made shall pay for such record the 52
same fees allowed for the entering and recording of deeds by registers of 53
deeds, and shall be entitled to attested copies of said orders and certificates 54
upon paj-ment of the same fees allowed to registers of deeds for copies. 55
The board of aldermen or selectmen may under this section authorize 56
the attachment of the wires and fix-tiu-es of a street railway or electric 57
railroad company to the poles, piers and abutments of another owner, 58
or the attachment of the wires and fixtures of another owner to the 59
poles, piers and abutments of such company, and may grant joint or 60
Cli^P. 166.] LINES FOR TR.\NSMITTING ELECTRICITY. 1845
61 identical locations for the erection or construction of poles, piers, or
62 abutments to be owned and used in common by such Company and
63 other owners, and locations for the transmission lines and telephone, sig-
64 nal and feed wires of such company in public ways or parts thereof, other
65 than those public ways in which the tracks of such company are laid, and
66 locations for additional poles to support, or alterations of locations for
67 existing poles supporting, trolley or span wires; and all locations granted
68 to a street railway or electric railroad company hereunder shall be sub-
69 ject only to revocation as provided in sections seventy-seven and eighty-
70 two of chapter one hundred and sixty-one; but nothing contained in this
71 section save as hereinbefore expressly set forth shall be held to apply to
72 the poles, wires and other appliances and equipment which a street railway
73 or electric railroad company, by a grant of location, or extension or
74 alteration thereof, under any general or special law now or hereafter in
75 force relating to street railways or electric railroads may be authorized
76 to construct, maintain and operate in a public way; and no terms,
77 restrictions and obligations, other than those imposed upon a grant of
78 location for a street railway or electric railroad, or an extension or alter-
79 ation thereof, under any general or special law now or hereafter in force
80 relating thereto, shall be imposed upon locations granted to a street
81 railway or electric railroad company hereunder, save locations for its
82 transmission lines or telephone, signal or feed wires in public ways other
S3 than those public ways in which the tracks of such company are laid.
1 Section 23. Selectmen may authorize citizens of the commonwealth Establishment
2 to establish and maintain, in their town, poles, wires and other apparatus and^tdJphone
3 for telegraphic and telephonic communication, in conformity with this cuflens.
4 chapter and other laws applicable to telegraph or telephone companies, j?'!' •2*7%^4^9
R. L. 25, § 36. 239 U. S. 313.
1 Section 24. The selectmen may, upon terms and conditions pre- Transmission
2 scribed by them, and subject to the provisions of this chapter, so far for" private uso.
3 as applicable, authorize a person to construct for private use upon, g^f.'s.^'^'
4 along and under the public ways of the town telegraph and telephone fs8\|2i! *^'
5 lines and lines for the transmission of electricity for light, heat or power. i|89' *34.
6 Upon the construction of any such line, the poles and structures thereof R l!25, "
7 within the location of such ways shall become the property of the town,
8 and the selectmen may regulate and control the same, may at any time
9 require the persons using the same to make alterations in the location
10 or construction thereof and may, after notice and a hearing, order the
11 removal thereof. The town may at any time attach wires for its own
12 use to such poles and structures, and the selectmen may permit other
13 persons to attach wires for their private use thereto or to poles and
14 structiu-es constructed by the to^Ti, and may prescribe reasonable terms
15 and conditions therefor. Whoever unlawfully injures or destroys any
16 wire, pole, structure or fixture of any such line shall be punished by a
17 fine of not more than five hundred dollars or by imprisonment for not
18 more than two years, or both.
1 Section 25. The selectmen may, witliin their towns, permit tele- Regulation of
2 graph and telephone lines to be laid under any public way or place, under'pubiic
3 and may establish reasonable regulations for the erection and main- isso.'ss, §i
4 tenance of all lines for the transmission of intelligence by telegraph or 28.^§4^' ^'*'''
5 telephone, or for the transmission of electricity for light, or for heat or i^^^, 221.
1846 LINES FOR TR,iNSMITTING ELECTRICITY. [CbL\P. 1G6.
1889,398; 434. powcr except for the use of street railway companies, by every person 6
R. L.'25, §54; having authority to place such structures in or under public ways or 7
202 Miss, 402. places, including all lines owned or used by said towns. Regulations 8
226M^I.2io.' established by a city hereunder shall be made by ordinance. 9
^reS'^tloL Section 26. The selectmen shall forthwith give \sTitten notice in 1
i8so,'83'*§'2 detail to the owner, constructor or person using any line constructed 2
fir?,- ^I,'o^ *^- or maintained in violation of such regulations; and if thereafter such 3
R. L. 25. § 55. unlawful construction is continued or it said lines are not within a 4
reasonable time so altered as to conform to said regulations, the supreme 5
judicial or superior court may enjoin the further progress of said work, 6
or order such line removed or altered at the expense of the owners, con- 7
structors or persons using the same. If such line belongs to or is used 8
by a town, like action may be taken upon complaint of a person injured, 9
after such notice to the town as the court may order. 10
onJman?eor SECTION 27. No Ordinance or regulation of a city or town, or regu- 1
t|Euiation. latiou or restriction imposed in a grant of location, aifecting the erection, 2
1914] 742.' 5 132. maintenance or operation of a line for the transmission of electricity for 3
light, heat or power extending or intended to extend from some point in 4
one city or town through or to some point in another city or town, 5
shall take effect until approved by the department of public utilities. 6
1919,350. §117.
iocatiorfby^ SECTION 28. Any Company subject to this chapter, except a telegraph 1
department. or telephone company, desiring to construct a line for the transmission 2
1919! 33o! ' of electricity which will of necessity pass through one or more cities or 3
towns to connect the proposed termini of such line, whose petition for 4
the location necessary for such line has been refused, or has not been 5
granted within three months after the filing thereof by the board of 6
aldermen of a city or the selectmen of a town through which said com- 7
pany intends to construct such line for the pm-pose aforesaid, may apply 8
to said department for such location. The department shall give a pub- 9
lie hearing thereon after notice to the board of aldermen or selectmen 10
refusing or neglecting to grant such location, and to all persons owning 11
real estate abutting upon any way in the city or town where such loca- 12
tion is sought, as such ownership is determined by the last assessment 13
for taxation. The department shall, if requested by the board of aldermen 14
or selectmen, hold said hearing in the city or town where the location 15
is sought. If it appears at the hearing that the company has already 16
been granted and has accepted a location for such line in two cities, or in 17
two towns, or in a city and town adjoining the city or town because of the 18
refusal or neglect of whose board of aldermen or selectmen to grant a 19
location therefor the application is made, and if the department deems 20
the location necessary for public convenience, and in the public interest, 21
it may by order grant a location for such line in the city or town with 22
respect to which the application is made, and shall have and exercise 23
relative thereto the same powers and authority conferred by section 24
twenty-two upon the board of aldermen or selectmen, and in addition 25
to the pro\-isions of law governing such company may impose such other 26
terms, limitations and restrictions as it deems public interest may re- 27
quire. The department shall cause an attested copy of its order, Mitli 28
the certificate of its clerk, endorsed thereon, that the order was adopted 29
after due notice and a public hearing as hereinbefore prescribed, to be 30
forwarded to the city or town clerk, who shall record the same and fur- 31
Chap. 166.] lines for tkustsmitting electricity. 1S47
32 nish attested copies thereof upon the terms and in the manner specified
3.3 in section twenty-two.
DAMAGES.
1 Section 29. An owner of land abutting upon a public way along Damages
2 which telegraph or telephone, electric light, heating or power lines are ejection of
3 constructed, erected or altered in location or construction by any tele- i™9,93r°*'^'
4 graph or telephone, electric light, heating or power company, whose |;^ s' 1;,
5 property is injuriously affected or diminished in value by occupation of |>^s'f5g
6 the ground or of the air, or otherwise by such construction, erection or §§4.5.'
7 alteration, whether such owner is also the owner of the fee in such way is9o,' 350.'
S or not, may recover damages therefor from the company under chapter 130 Mass' 75.'
9 seventy-nine. i~2 Mass. 197. 2 Op. a. g. 423.
POLES AND WIRES.
1 Section 30. A person or a corporation, private or municipal, owning Regulations
2 or operating a line of wires over or under streets or buildings shall use ^ires^"' Sfties
3 only strong and proper wires safely attached to strong and sufficient is9o!°4ci3r§ 1
4 supports and insulated at all points of attachment; shall remove all R^L'il^'lie
5 wires the use of which is abandoned; shall properly insulate every wire lei Mass. ssa.'
6 where it enters a building, and, if such wire is other than a wire designed
7 to carry an electric light, heat or power current, shall attach to it at a
8 proper point in the circuit, near the place of entering the building, and so
9 situated as to avoid danger from fire, an appliance adapted at all times
10 to prevent a current of electricity of such intensity or volume as to be
11 capable of injuring electrical instruments or of causing fire from entering
12 the building by means of such wire beyond the point at which such
13 appliance is attached; and shall properly insulate every wire within a
14 building designed to carry an electric light, heat or power current.
1 Section 31. Such person or corporation shall plainly mark each pole. Names of
2 pier, abutment or other fixture supporting wires or cables containing auaciied" ^^
3 wires over streets or buildings with the name or initials of the owner of Jlgg;!?^: ^ '■
4 such pole, pier, abutment or other fixture. Wherever cross arms or other if\^^ri, i7
5 appliances for the support of wires or cables belonging to different 1911] sou, § 3.'
6 owners are attached to the same pole, pier, abutment or other fixture,
7 every such cross arm or other appliance shall plainly be tagged or marked
8 with the name or initials of the owner thereof. Wherever wires or cables
9 belonging to different owners are attached to the same cross arm or other
10 appliances for the support of wires or cables, every wire or cable shall be
11 tagged or marked with the name or initials of the owner at or near its
12 point of attachment to such cross arm or other appliance. No such tag
13 or mark shall be required for the wires, poles, piers, abutments and other
14 fixtures of a street railway or electric railroad company, except for its
15 feed wires supported by poles carrying wires or cables belonging to another
16 owner, and for its poles supporting wires or cables belonging to another
17 owner, and for poles belonging jointly to the street railway company and
18 another owner.
1 Section 32. A city shall, by ordinance, designate or provide for the inspector of
2 appointment of an inspector of wires, and any town may provide ^9a'404,''^^'
3 by vote or by by-law for the appointment by its selectmen of such an flgg, 337,
4 inspector. Such inspector shall supervise every wire over or under fj^ f,' ^122, 5 ig.
5 streets or buildings in such city or town and every wire within a build- '^^^o, 591', § is.
1848
LINES FOR TRANSMITTING ELECTRICITY.
[Chap. 166.
ing designed to carry an electric light, heat or power current; shall 6
notify the person owning or operating any such wire whenever its at- 7
tachnients, insulation, supports or appliances are improper or unsafe, 8
or whenever the tags or marks thereof are insufficient or illegible; shall, 9
at the expense of the city or town, remove every wire the use of which 10
has been abandoned, and every wire not tagged or marked as herein- 11
before required, and shall see that all laws and regulations relative to 12
wires are strictly enforced. A city or town may recover in contract of 13
the owner of any such wire so removed the expense which it has incurred 14
for the removal thereof. 15
Enforcement.
1890. 404, § 5.
R. L. 122, § 19.
Section 33. The supreme judicial or superior court shall have juris-
diction in equity upon petition of the inspector designated or appointed
as aforesaid, to enforce the three preceding sections and to restrain the
use or maintenance, or to cause the removal, of any wire, pole or other
support erected, maintained or used in violation of said sections.
Insulation
of poles.
Penaltv.
1895, 228,
§§ 1-3.
R. L. 122,
§§ 20, 21.
1911, 509,
§4.
Section 34. Poles and other structures used to support lines for the 1
transmission of electricity shall be insulated in such manner as to protect 2
employees and other persons from accidents. If such poles and other 3
structures are of any material except wood, and support lines which are 4
operated at a voltage in excess of two thousand volts, they shall be 5
plainly and conspicuously marked "Dangerous. Keep Away." The 6
inspector of wires appointed under the authority of section thirty-two, 7
or the commissioner of wires of Boston, shall enforce this section, and 8
he shall be the sole judge of what constitutes a proper insidation and 9
marking. Any owner of poles, used for the transmission of electricity, 10
failing to comply with any provision of this section shall be punished by 11
a fine of not less than ten nor more than one hundred dollars for every 12
pole left uninsulated for an unreasonable time after a request for a 13
proper insulation by the inspector or commissioner acting under this 14
section. 15
Penalty for
affixing tele-
phone wires,
etc., to prop-
erty witnout
permission.
1884, 302. § 1.
R. L. 122, § 2i
Section 35. A corporation or person maintaining or operating 1
telephone, telegraph or other electric wires or any other person who in 2
any manner affixes or causes to be affixed to the property of another 3
any pole, structure, fixture, wire or other apparatus for telephonic, 4
telegraphic or other electrical communication, or who enters upon the 5
property of another for the purpose of affixing the same, without first 6
obtaining the consent of the owner or lawful agent of the owner of such 7
property, shall, on complaint of such owner or his tenant, be punished by 8
a fine of not more than one hundred dollars. 9
pomraJoS"^' Section 36. A corporation or person maintaining or operating tele- 1
poieorstruc- phouc, telegraph or other electric wires shall, at all places where such 2
, wires are affixed by any pole, structure or fixture to the property of an- 3
23. other, mark such pole, structure or fixture in a clear, durable and legible 4
manner with the name or initials of the corporation or person maintaining 5
or operating such wires, and any corporation or person failing to comply 6
with this section shall be punished by a fine of not more than one hun- 7
dred dollars. 8
ture,
Penaltv.
1884, 302,
R. L. 122,
1911. 509,
SjuTn^cTby' Section 37. No enjoraient, for the purposes specified in section 1
iS5T'2^47 § 1 twenty-one, for any length of time of the privilege of having or main- 2
Chap. 166.] lines for transmitting electricity. 1849
3 taining poles, ^-ires or apparatus in, upon, over or attached to any build- p | fog Yio
4 ing or land of other persons shall give a legal right to the continued en- f^s'h^^^-^i^^-
5 joyment of such easement or raise any presumption of a grant thereof.
1 Section 38. Whoever unlawfully and intentionally injures, molests injury- to lines,
2 or destroys any line, wire, pole, pier or abutment, or any of the materials Penalties'
3 or property of any street raOway company, of any electric railroad com- g.s.'64,'|i5.
4 pany, or of any city or town engaged in the manufacture and sale of elec- r i/i^iliz.
5 tricity for light, heat or power or of any company, owner or association i^o^' 233.
6 described in sections twenty-one and forty-tlu-ee shall be punished by
7 a fine of not more than five hundred dollars or by imprisonment for not
8 more than two years, or both; and whoever does any act prohibited
9 by this section between the hours of four o'clock in the afternoon and
10 seven o'clock in the forenoon shall be punished by a fine of not more than
1 1 one thousand dollars or by imprisonment for not more than four years,
12 or both.
1 Section 39. Whenever, in order to move a building or for any other wires may be
2 necessary purpose, a person desires that the wires of any such company i8oiri4i.§ i.
3 be cut, disconnected or removed, the company shall forthwith cut, dis- r.l.\22,|28.
4 connect or remove the same, if the person desiring this to be done has }ss mTss'. les.
5 first left a WTitten statement, signed by him, of the time when, and the
6 place, described by reference to the crossings of streets or highways,
7 where he wishes to remove said wires, at the office of the company in the
8 city or town where such place is situated, twenty-four hours before the
9 time so stated, or, if there is no such office, if he has deposited such
10 statement in the post office, postage prepaid, and directed to the com-
11 pany at its office nearest to said place, three days before the time men-
12 tioned in said statement. If the company neglects or refuses to cut,
13 disconnect or remove wires as hereinbefore provided, the inspector of
14 wires, or the selectmen of a town having no such inspector, may cause
15 the same to be cut, disconnected or removed, and the city or town may
16 Tecovev of the company in contract the expense of so doing.
1 Section 40. Whoever wilfully cuts, disconnects, removes or other- Penalty for
2 wise interrupts the use of the wires of any such company, ■without first without notice.
3 giving notice as provided in the preceding section, shall be punished as p*s\'ic»,'|fs.
4 provided in section thirty-eight. R- l. 122, § 29.
1 Section 41. The two preceding sections shall not apply to any wires Limitation of
2 attached to poles not erected in compliance with law. secUons^^ '°^
1869, 141, I 3. p. S. 109, § 19. R. L. 122, § 30.
1 Section 42. A telegraph company shall be liable in damages to a Liability of
2 person injured in his person or property by the poles, wires or other plny^for injury
3 apparatus of such company. If they are erected upon a public way, the ii^_ ^fj^'^ f."'
4 city or town shall not, by reason of an\-thing contained in this chapter or g ^I.'l4.°i ii
5 done thereunder, be discharged from its liability, but all damages and RL\°2^il\|
6 costs recovered against it on account of such injury shall be reimbursed scray. ssfe
7 by the company owning the poles, wires or other apparatus. ise Mass. 75.
IGl Mass. 558. 184 Mass. 150.
1850
BANKS AND BANKING.
[Chap. 167.
GENERAL PROVISIONS.
rt''apte?'to° °^ Section 4.3. Owners and associations engaged in the business speci- 1
others than gg(j j^ section twentv-one although pot incorporated shall be subject 2
corporations. i-i p" tii o
1849.93, to this chapter so lar as applicable. 3
1S51. 57. I 2. p. S. 109, 5 14. 1906. 433, § 12. •
G. S. 64, § 13. R. L. 122, § 25. 13 AUen, 226.
il.6.
REFERENCES.
General provisions applicable to all corporations, Chap. 155.
For the organization of companies included in this chapter, see the following:
Telephone and telegraph companies, Chap. 158.
Railroads, Chap. 160.
Street railways, Chap. 161.
Electric railroads, Chap. 162.
TroUej-motors, Chap. 163.
Gas and electric companies. Chap. 164.
Super\-ision of telephone, telegraph, railroad, street railway, electric railroad and
troUejTnotor companies. Chap. 159.
CHAPTER 167
BANKS AND BANKING.
Sect.
SUPERVISION.
1. Definitions.
2. Examination of banks.
3. Commissioner may summon and ex-
amine officers. Penalty.
4. Examination of bank on request of
officers, etc.
5. Commissioner may report and prosecute
violations of law. Publication of
certain facts.
6. Books and accounts.
7. Reports of banks. Penalty.
8. Penalty for failure to make reports.
9. Report to general court.
10. Appraisal of real estate offered as
security.
11. Returns, etc., may be destroyed.
REGULATION OF BUSINESS.
12. Unauthorized banking prohibited.
13. Penalty therefor.
14. Joint deposits regulated.
15. Joint deposits, interest on.
16. Interest on sums deposited at intervals.
17. DiWdends on deposits. Computation
thereof when interest day falls ou
Sunday or holiday.
IS. PajTnent of unearned di\adends pro-
hibited; penalty.
19. Return of vouchers. Notices.
20. Lost pass books.
LIQUID.ITION.
21. Receivers to deposit unclaimed money.
22. When commissioner may take posses-
sion of bank. Voluntary dissolution.
Sect.
23. Possession of commissioner; effect and
subsequent procedure.
24. Authority of commissioner in posses-
sion.
25. Litigation and sales of property.
26. Commissioner may appoint agents to
assist, etc.
27. Inventory.
28. Notice and proof of claims.
29. List of claims.
30. Fees and expenses.
31. Di\-idends; objections to claims.
32. Disposition of property deposited with
bank.
33. Application to court to enjoin proceed-
ings of commissioner.
34. Stockholders' meeting.
35. Disposition of funds remaining in hands
of commissioner.
36. Enforcement.
FOREIGN B.INKS.
37. Certain foreign banking associations not
to do business without permission,
etc.
38. Annual examination.
39. Commissioner to have access to vaults
and may summon ■n'itnesses, etc.
40. Proceedings for enjoining insolvent cor-
poration from doing business, etc.
41. Savings department.
42. Funds, etc., to be kept separate.
43. Income.
44. Number of offices in commonwealth
limited.
45. Application of sections 41 to 44.
Chap. 167.] banks and banking. 1851
SUPERVISION.
1 Section 1. In this chapter, unless the context otherwise requires, the Definitions.
2 following words shall have the following meanings: i9io!399!§i!
3 "Bank", a savings bank, co-operative bank, trust company or any i^i^' ^so, § 46.
4 person, partnership, association or corporation, incorporated or doing a
5 banking business in the commonwealth, subject to the supervision of
6 the commissioner of banks.
7 "Commissioner", the commissioner of banks.
1 Section 2. The commissioner, either personally or by his exam- Examination
2 iners, or such others of his assistants as he may designate, shall, at least ^sss.'u^,' § 2.
3 once in each year, and whenever he considers it expedient, visit each g.^s'sI.Vs^'
4 bank. At such visits the person making the examination shall have iff's'*^'
5 free access to the vaults, investments, cash, books and papers, and shall is^e, 231, § 3.
6 examine the affairs, of the bank, and ascertain whether it has complied isss. 51/
7 with the law. In case of banks not subject to section seventeen of chap- r. l' 113! § 3!
8 ter one hundred and sixty-eight, the person making the examination § §°f,' f.^s.
9 shall also ascertain the condition of the bank, and its ability to fulfil §|f;o9°'
10 its obligations. The commissioner shall preserve a full record of such Jgio'e^o'li'
11 examinations, including a statement of the condition of every bank so 1912! ns.'
12 examined. Such records, and information contained in reports of such §§45,'46,'49.
13 banks, other than information required by law to be published or to be
14 open to the inspection of the public, shall be open only to the inspec-
15 tion of the commissioner, his examiners and assistants, and such other
16 officers of the commonwealth as may have occasion and authority to
17 inspect them in the performance of their official duties. The commis-
18 sioner may furnish to the national bank examiners, the federal govern-
19 ment, any organization created by federal legislation, or the banking
20 departments of other states, such information, reports and statements
21 relating to the institutions under his supervision as he deems best.
1 Section 3. The commissioner, or his examiners or such others of his Commissioner
2 assistants as he may designate, may summon the trustees, officers or ^Y/x"m'ine°
3 agents of a bank, or any other witnesses, and examine them relative to p*na[ty.
4 the affairs, transactions and condition of the baiok, and for that purpose }|^*' ^f 5 3.
5 may administer oaths. ^Mioever, without justifiable cause, refuses to ap- issi. ^fM,^-
6 pear and testify when so required, or obstructs the person making such isoe, 192, s's.
7 examination in the performance of his duty, shall be punished by a fine p. s.'ii6.'§4.'
8 of not more than one thousand dollars or by imprisonment for not more u^t. ill'. 1 1'.
9 than one year.
190G, 204. §§ 1, 3. 5. I90S. 590, §§ 6, 69. 1919. 350. §§ 45, 46, 49.
1 Section 4. Upon written application on oath to the commissioner by Examination
2 five or more officers, trustees, creditors or depositors of a bank setting mJ^Te^to"
3 forth their interest and the reasons for making an examination and issiTi'27!''§ 4.
4 requesting him to examine such bank, he shall forthwith make a full ig,;!' ^92^ f 4
5 investigation of its affairs in the manner provided in the two preceding ^^Q'lil'i?-
6 sections. is94, 317, § 5. r. l. 113, § 5.
1906, 204, §§ 1, 3, 5. 190S, 590, §§ 7, 69. 1919, 350, §§ 45, 46, 49.
1 Section 5. If, in the opinion of the commissioner, a bank or its officers Commissioner
2 or trustees have violated any law relative thereto, he may forthwith re- ."mf prosecute
3 port such violation to the attorney general, who shall forthwith, in behalf ia«
'iolations of
law.
1852
BANKS AND BANKING.
[Chap. 167
Publication of
certain facts.
1838, 14. § 6.
1851, 127, § 10.
G.S. 57, §9.
1866, 192, § 7.
1876, 231, § 3.
1378, 253, I 6.
P.S.I 16, §9.
1894, 317,
R. L. 113,
1906, 204,
§§ 1.3, 5.
1908, 590,
§§ 8, 69.
1910, 622,
1919, 350,
§§45,46,
49, 53.
§9.
of tlie commonwealth, institute a pro.secution therefor. If, in the opinion -i
of the commissioner, such bank is conducting any part of its business in 5
an unsafe or unauthorized manner, he shall direct in -nTiting that such 6
unsafe or unauthorized practice shall be discontinued; and if any such 7
bank refuses or neglects to comply with any such direction of the com- 8
missioner, or if, in the opinion of the commissioner, a trustee or officer of 9
such bank has abused his trust, or has used his official position in a manner 10
contrary to the interests of such bank or its depositors, or has been negli- 11
gent in the performance of his duties, the commissioner may, in case 12
of a sa\-ings bank, forthwith report the facts to the attorney general, who 13
may, after granting a hearing to said savings bank, trustee or oflficer, 14
institute proceedings in the supreme judicial court, wliich shall have 15
jurisdiction in equity of such proceedings, for the removal of one or more 16
of the trustees or officers, or of such other proceedings as the case may 17
require; or the commissioner may, in case of any bank, after giving a 18
hearing to the directors or trustees thereof, either report to the share- 19
holders thereof, or, with the WTitten consent of a board composed of the 20
state treasurer, the attorney general and the commissioner of corporations 21
and taxation, publish such facts relative thereto as in his opinion the 22
public interest may require. • 23
Books and
accounts
Section 6. The commissioner may prescribe the manner and form of
ilso 2^1' 1 1' keeping the books and accounts of a bank, the extent to which they shall
p. s.'iie.'s 39. be audited, and the manner of safeguarding the money and securities.
1894, 317, § 41.
R. L. 113, §46.
1906, 204,
190S, 590,
• 1, 3, 5.
! 12, 69.
1910, 622, <
1919, 350, !
i 45, 46, 49.
Reports of
banks.
Penaltv.
1834, 190, § 11.
R. S. 36, § 83.
1846,49; 86, §2.
G. S. 67, § 149.
1866, 192, § 6.
1867, 203, § 2.
1876, 203, I 24.
1878, 253, I 2.
P.S.I 16, §42.
1894, 317. § 44.
R. L. 113, I 49.
1906, 204,
§§ 1,3,5.
1908, 590,
§§ 13, 69.
Section 7. In addition to the reports required by law, banks shall 1
make such other statements and reports to the commissioner as he may 2
require. The commissioner shall furnish blank forms for all statements 3
or reports required to be made to him. Any bank neglecting to make the 4
returns required by law or by the commissioner, or failing to amend such 5
report within fifteen days after notice from him, shall forfeit to the com- 6
monwealth five dollars for each day during which such neglect continues, 7
to be recovered by an information in equity in the name of the attorney 8
general at the relation of the commissioner, brought in the supreme 9
judicial court for Suffolk county. 1912,97. 1919, 350, §§ 45, 46, 49. 10
Penalty for
failure to make
reports.
1896, 327.
R. L. 113, § 51.
1906, 204,
§§1,3,5.
1908, 590,
§§ 14, 69.
Section 8. An officer, agent, clerk or servant of a bank who refuses 1
or neglects to make a report or statement lawfully required by the com- 2
missioner or his examiners or assistants, shall be punished by a fine of 3
not more than one thousand dollars or by imprisonment in the house 4
of correction for not more than two and one half years, or both. 5
1918,257,5 464. 1919, 5; 350, §§ 45, 46, 49. 1920,2.
Report to
general court.
1834, 190, § 11.
R. S. 36, § 83.
1846,49;
86, § 2.
G. S. 57, § 149.
1866, 192, § 6.
1867, 203, § 2.
1876, 203, § 24.
1878, 253, § 2.
P. S. 116, §42.
1894, 317, § 44.
R. L. 113, §49.
1906, 204,
§§ 1,3, 5.
Section 9. Annually, on or before the third Wednesday in January, 1
the commissioner shall communicate to the general court an abstract of 2
his report and such suggestions as he considers expedient relative to the 3
general conduct and condition of banks, and on or before March fifteenth 4
a statement of the condition of every incorporated bank, including in- 5
corporated banks in the hands of receivers, from which a report has been 6
received for the preceding year, together with such other information 7
relative to the affairs of the said banks, as, in his opinion, the public 8
interest may require. i9os, 590, §§ 15, 69. 1910, 393. i9i9, 350, §§ 45, 40, 49. 9
Ch.\P. 167.] B.tNKS AND B.\NKING. 1853
1 Section 10. Whenever in the opinion of the commissioner an exces- Appraisal of
2 sive loan has been made, or is about to be made upon real estate, by a olfercd'as''
3 trust company or co-operative bank, he may cause an appraisal of such fg^^^s.
■i real estate to be made at the expense of the trust company or bank mak- Jl'|5^4e'49
5 ing the loan. One appraiser shall be named by the commissioner, one
6 by the trust company or bank, and a third by the two thus named. The
7 appraisers shall determine the value of the real estate and certify the
8 same in writing to the commissioner and to the trust company or bank.
9 If it shall appear from the appraisal that the loan is excessive, the com-
10 missioner may make such order in relation thereto as he deems advisable.
1 Section 11. Returns to the commissioner under section twenty-six Returns, etc,
2 of chapter one hundred and seventy-two, records of examinations of banks "tToyed.
3 made under section two of this chapter, reports made under section J^g. 350.
4 twenty-six of chapter one hundred and sixty-eight, and reports made ^^ '*^' ''®' ■*^-
5 under section forty-four of chapter one hundred and seventy, may, after
6 five years from the date of their receipt, be destroyed or disposed of by
7 order of their lawful custodian, and any proceeds received in the course
8 of their disposal shall be paid to the commonwealth.
regulation of business.
1 Section 12. No corporation, domestic or foreign, and no person. Unauthorized
2 partnership or association except savings banks and trust companies in- bfbited^ ^'^°
3 corporated under the laws of this commonwealth, or such foreign bank- ifls.'lfo,' ^ ''
4 ing corporations as were doing business in this commonwealth, and were jf^^' 113, | n"
5 subject to examination or supervision of the commissioner on June first, Ss^i^'l^j:
6 nineteen hundred and six, shall hereafter make use of anv sign at the 377,'§'i. '
. » o 190s 590
7 place where its business is transacted having thereon any name, or other §§ le, 69.'
8 words indicating that such place or office is the place or office of a sav- 1914,' eia
9 ings bank; nor shall such corporation, person, partnership or association §§^45,^4^6,'49.
10 make use of or circulate any written or printed or partly written and op^iJ^Q^'^°°'
11 partly printed paper whatever, having thereon any name or other words, d^^b) ih.
12 indicating that such business is that of a savings bank; nor shall any
13 such corporation, person, partnership or association, or any agent of a
14 foreign corporation not having an established place of business in this
15 commonwealth, solicit or receive deposits or transact business in the way
16 or manner of a savings bank, or in such a way or manner as to lead the
17 public to believe, or as in the opinion of the commissioner might lead the
18 public to believe, that its business is that of a savings bank; nor shall
19 any person, partnership, corporation or association except co-operative
20 banks incorporated under the laws of this commonwealth and corporations
21 described in the first sentence of this section hereafter transact business
22 under any name or title which contains the word " bank " or " banking ",
23 as descriptive of said business, or, if he or it does a banking business or
24 makes a business of receiving money on deposit, under any name or title
25 containing the word "trust", as descriptive of said business.
1 Section 13. The commissioner or his examiners may examine the Penalty
2 accounts, books and papers of any corporation, person, partnership or issjf. 452, § 1.
3 association making a business of receiving money on deposit, or which \lgl] In' 5 52
4 has the word "bank", "banking", "banker", "bankers", or "trust" f906;2MV"'
5 in the name under which its business is conducted, in order to ascertain ||7''5''2^'
1854
BANKS AND B.\NKING.
[Chap. 167.
1908, 590,
§§ 17, 69.
1914, 470.
1918, 44.
1919, 350,
5§ 45,46, 49.
Op. A. G
(1920) 114.
whether such corporation, person, partnership or association has vio- 6
lated or is violating any provision of the preceding section; and any 7
corporation, person, partnership or association refusing to allow such 8
examination or violating any provision of said section shall forfeit to the 9
commonwealth one hundred dollars a day for every day or part thereof 10
during which such refusal or violation continues. Any violation of this 11
or the preceding section shall forthwith be reported by the commissioner 12
to the attorney general. The said forfeiture may be recovered by an 1.3
information or other appropriate proceeding brought in the supreme 14
judicial or superior court in the name of the attorney general. Upon 15
such information or other proceeding the coiut may issue an injunction IG
restraining such corporation, person, partnership or association from 17
furtlier prosecution of its business within the commonwealth during the 18
pendency of such proceeding or for all time, and may make such other 19
orders or decrees as equity and justice may require. 20
Joint deposits
regulated.
1911,228.
Section 14. When a deposit is made in any bank, in the names of 1
two persons, payable to either, or payable to either or the survivor, such 2
deposit, or any part thereof, or interest or dividend thereon, if not then 3
attached at law or in equity in a suit against either of said persons, may 4
be paid to either of said persons, whether the other be living or not, and 5
such payment shall discharge the bank making such payment from its 6
obligation, if any, to such other person or to his legal representatives for 7
or on accomit of such deposit. 8
Joint deposits,
interest on.
1915, 93.
Section 15. The bank may receive deposits on the accounts provided 1
for in the preceding section to the amount of two thousand dollars, and 2
may allow interest upon such deposits and upon the interest accumulated 3
thereon until the principal with the accrued interest amounts to four 4
thou.sand dollars, and thereafter upon no greater amount than four 5
thousand dollars. Persons having a deposit as provided for in the pre- 6
ceding section may also make deposits in their individual names, but the 7
total amount of such deposits, both joint and individual, shall not exceed 8
two thousand dollars, and the bank may allow interest upon such deposits 9
and upon the interest accumulated thereon until the principal with the 10
accrued interest on all said accounts amounts to four thousand dollars, 1 1
and thereafter upon no greater amount than four thousand dollars. 12
Interest on
sums deposited
at intervals.
1919, 37, § 1.
Section 16. Savings banks and trust companies in their savings de- 1
partments may contract, on terms to be agreed upon, for the deposit at 2
intervals within any period of twelve months, of sums of money in the 3
aggregate not in excess of the statutory limit on deposits in savings banks, 4
and for the payment of interest on the same at a rate not more than one 5
per cent less than the rate of their last regular dividend on savings de- 6
posits. A sum thus accumulated, if left in such a depository as a regular 7
savings deposit within fifteen days after the date on which money or- 8
dinarily begins to draw interest, may, if the depository so provides, draw 9
interest from such prior date. 10
Dividends on
deposits.
Computation
thereof when
interest day
falls on Sun-
day or holiday.
Section 17. Dividends or interest on deposits in the savings depart-
ment of trust companies or in savings banks may be declared and paid for
periods of not less than one month or more than six months, as deter-
mined by their by-laws, from income which has been earned and col-
Chap. 1G7.] banks and banking. 1855
5 lected during the next preceding six months but such dividends or in- i9i9, ne, § 2:
6 terest, whenever paid, shall not exceed the average monthly income of 1926. 3S: 311.
7 the preceding six months' period. In the computation of such dividends aoig)' n'5.
8 or interest, when the day on which deposits in any such savings depart- ^'^20) 34',
9 ment or savings bank begin to draw interest, as provided in its by-laws
10 or regulations, falls on a Sunday or a legal holiday, deposits made on
11 the next succeeding business day and remaining on deposit through
12 the balance of the monthly period, may be construed as having been
13 on deposit one full month, within the meaning of this section, section
14 forty-seven of chapter one hundred and sixty-eight and section sixty-
15 seven of chapter one hundred and seventy-two.
1 Section IS. An officer, agent, clerk or servant of a trust company or Payment of
2 savings bank who pays or authorizes the payment of any dividend or in- dh^dends
3 terest unless the same has been earned and collected as provided in the penaity.'^'^'
4 preceding section shall be punished by a fine of not more than one thou- ^^^^- ^~^' ^ -■
5 sand dollars or by imprisonment for not more than six months.
1 Section 19. A depositor's vouchers may be returned by mailing the Return of
2 same to him, at his last known address, postage prepaid, and such de- no*"^ ""
3 positor may, when required to notify the bank, give notice in like manner.
*4otice3.
1912, 27:
1 Section 20. When a pass book issued by a savings bank, a co-operative Lost pass
2 bank or the savings department of a trust company has been lost, stolen iSosf'sgo. 5 40.
3 or destroyed, the person in whose name it was issued or his legal repre- JgJI; 171' ^ '^■
4 sentative, may make written application to such bank, for payment of
5 the amount of the deposit represented by said book or for the issuance of
6 a duplicate book therefor. Thereupon with the written consent of the
7 bank, he may give, or authorize the bank at his expense to give, public
8 notice of such application by advertising the same at least once a week for
9 three successive weeks in a newspaper published in or nearest to the town
10 where such bank is situated. If such book shall not be presented to said
1 1 bank within thirty days after the date of the first advertisement, as af ore-
12 said, the bank shall, upon proof that such notice has been given, pay the
13 amount due on said book or issue a duplicate book therefor; and upon
14 such payment or delivery of a new book, ail liability of the bank on
15 account of the original book shall cease.
liquidation.
1 Section 21. Receivers of insolvent savings banks or trust com- Receivers to
2 panies, at the expiration of one year after the final settlement ordered by cfiimed money.
3 the court, shall report to the court the names and residences, if known, of p* s^'ne, § 44
4 the persons entitled to money or dividends from the estate of such cor- Jfsj'lss
5 porations remaining in their hands uncalled for, with the amount due to i8S4;72
6 each. The court shall thereupon order a notice to be given by the re- R. l'. ns! §50:
7 ceivers, and, upon the expiration of one year after the time of giving such igoii! 204',
8 notice, the receivers shall in like manner report the amounts still uncalled ilos, Iba
9 for. Unless cause shall appear for decreeing otherwise, such amounts 1919%^),
10 shall then be ordered to be paid to the commonwealth, and schedules §§45,46,49.
1 1 signed by the receivers shall at the same time be deposited with the state
12 treasurer and state auditor, setting forth the decree of the court and the
13 names and residences, so far as known, of the persons entitled thereto
14 alphabetically arranged, antl the amount due to each. The auditor shall
1856
BANKS AND B-USTKING.
[Chap. 167.
forthwith cause notice of such deposit to be mailed to such persons, and, 15
upon certification by him that a claimant is entitled to any part of said 16
deposit, it shall be paid in the same manner as other claims against the 17
commonwealth. Upon the payment to the commonwealth of such 18
unclaimed money or dividends, the receivers shall deposit with the com- 19
missioner all books and papers of such insolvent savings banks or trust 20
companies, including those relative to their receivership, which shall be 21
preserved hy him. 22
when commis-
sioner may
take possession
of bank.
Voluntary
dissolution.
1838, 14, § S.
1839, 27, I 2.
1S51, 127, § 5.
G. S. 57, § 7.
1866, 192, § 5.
1876, 231, §3.
P. S. 116, § 6.
1894, 317, § 6.
R. L. 113, § 6.
1906. 204,
§§1,3,5.
1908. 590,
§§ 9. 69.
1910, 399,
§§2,17.
1912.472, §2.
1919, 3.50,
§§45, 46, 49.
211 Mass. 207.
Op. A. G.
(1920) 152, 309.
Sectiox 22. Whenever it shall appear to the commissioner that any 1
bank has violated its charter or any law of the commonwealth, or is con- 2
ducting its business in an unsafe or unauthorized manner, or that its capi- 3
tal is impaired, or if it shall refuse to submit its books, papers and concerns 4
to the inspection of the commissioner or of his duly authorized agents, or 5
if any officer of such bank shall refuse to be examined on oath by the com- 6
missioner or his duly authorized assistants touching its concerns, or if it 7
shall suspend payment of its obligations, or if from an examination or 8
from a report pro^■ided for by law the commissioner shall have reason to 9
conclude that such bank is in an unsound or unsafe condition to transact 10
the business for which it is organized, or that it is unsafe and inexpe- 11
dient for it to continue business, the commissioner may take possession 12
forthwith of the property and business of such bank and may retain 13
possession thereof until the bank shall resume business or until its affairs 14
shall finally be liquidated as herein provided. LS
Subject to the written approval of the commissioner, any bank, at a 16
meeting specially called to consider the subject, may vote to dissolve the 17
corporation and liquidate its affairs; provided, that such a vote is passed 18
by at least two thirds of the trustees or shareholders in a savings bank 10
or co-operative bank or by stockhoklers of a trust company representing 20
at least two thirds of its. outstanding capital stock. A committee of 21
three trustees, shareholders or stockliolders shall thereupon be elected, 22
and, under such regulations as may be prescribed by the commissioner, 23
shall liquidate the assets, and after satisfying all debts of the corporation 24
shall distribute the remaining proceeds among those entitled thereto in 25
proportion to their respective interests therein. 26
Possession of
commissioner;
effect and
subsequent
procedure.
1910, 399, § 3.
1913, 177.
1919, 350,
§§ 45, 46, 49.
Section 23. Upon taking possession of the property and business of 1
a bank, the commissioner shall forthwith give notice thereof to all banks, 2
trust companies, associations and individuals holding or having pos- 3
session of any assets of such bank. No bank, trust company, association 4
or individual, knowing that the commissioner has taken such possession, 5
or having been notified thereof as aforesaid, shall have a lien or charge for 6
any payment, advance or clearance thereafter made, or liability there- 7
after incurred, against any of the assets of the bunk of whose property 8
and business the commissioner shall have taken possession as aforesaid. 9
Such bank may, with the consent of the commissioner, resume business 10
upon such conditions as he may approve; provided, that if, in his judg- 11
ment it is for the public interest so to do, he may retain in behalf of the 12
bank the control, prosecution or defence of any undetermined suits or 13
claims brought in behalf of or against the bank under section twenty -five 14
during the time when the bank was in his charge, and the expense of pros- 15
ecuting or defending such suits or claims shall be paid from the funds of 16
such bank. 17
Chap. 167.] b.\nks astj b.\nking. 1857
1 Section 24. Upon taking possession of the property and business of ^"^''^^'°l
2 such bank, the commissioner may collect moneys due to the bank, and ■" p™|ession.
1 11 ** 1 1 ' • 1 1 11 1 1910' 399. § 4.
3 do all acts necessary to conserve its assets and busmess, and shall proceed laio, sso,
4 to liquidate its affairs as hereinafter provided. He shall collect all debts 6p. a. g'.
5 due and claims belonging to it, and upon the order or decree of the su- '^^"°' ^^*'
6 preme judicial court, or any justice thereof, may sell or compound all bad
7 or doubtful debts, and on like order or decree may sell all, or any part of,
8 the real and personal property of the bank on such terms as the court
9 shall direct; and he may, if necessary to pay the debts of any such trust
10 company, enforce the individual liability of the stockholders.
1 Section 25. To execute and perform the powers and duties conferred ^ndTaV™
2 upon him, the commissioner may, in the name of any such bank, prosecute jgjPQ°R9g''V -
3 and defend all suits and other legal proceedings and may, in the name of i9i9,' aso!
4 the bank, execute, acknowledge and deliver all deeds, assignments, re-
5 leases and other instruments necessary and proper to effectuate any sale
6 of real or personal property or any compromise authorized by the court;
7 and any deed or other instrument, executed pursuant to the authority
8 hereby given, shall be valid and effectual for all purposes to the same
9 extent as though executed by the officers of the bank by authority of its
10 board of directors or of its stockholders, or by the individual banker per-
1 1 sonally. In case any of the real property so sold is located in a county
12 other than that where the application to the court for leave to sell the
13 same is made, the commissioner shall cause a certified copy of the order
14 or decree of the court authorizing or ratifying such sale to be filed in the
15 registry of deeds for the district where the said real property lies.
1 Section 26. The commissioner may, under his liand and official seal, may^potnt"^
2 appoint'agents to assist liim in the duty of liquidation and distribution. ^f^°J%\°
3 The certificates of the appointment of such agents shall be filed in the '9'°' p^' § s.
4 office of the commissioner, and certified copies thereof shall be filed in the §§ 45, 46,' 49.
5 office of the clerk of the supreme judicial court for the county where the
6 principal office of such bank is located. The commissioner may from time
7 to time authorize such agents to perform such duties connected with said
8 liquidation and distribution as he deems proper. The commissioner may
9 procure such expert assistance and advice as he considers necessary in the
10 liquidation and distribution of the assets of such bank, and he may re-
1 1 tain such of the officers or employees of the bank as he deems necessary.
12 The commissioner shall require from a special agent and from such as-
13 sistants such security for the faithful discharge of their duty as he deems
14 proper.
1 Section 27. Upon taking possession of the property and assets of such inventorj-.
2 bank, the commissioner shall make an inventory in dupHcate of the as- r s.'ii6,§7.'
3 sets of the bank, one to be filed in his office and one in the office of the ^^t HI] | ?;
4 clerk of the supreme judicial court for the county where the principal §§°f;|,°^;
5 office of the bank is located. 1908, 590, §§ 10, 09.
1910, 399, §§ 7, 17. 1919, 350, §§ 45, 40, 40. Op. A. G. (1920) 152.
1 Section 28. The commissioner shall publish weekly for three con- Notice and
2 secutive months, in such newspapers as he directs, a notice caUing on all ffims"
3 persons who may have claims against such bank to present the same to mg'.llo, ^"^^
4 the commissioner and to make legal proof thereof at a place and in a time, 2n'*Mas''s'.to7.
5 not earlier tlian the last day of pubUcation, to be therein specified. The ^^^om^s 275
6 commissioner shall mail a similar notice to all persons whose names ap-
1858
B.USTKS AND BANKING.
[Ch.\p. 167.
pear as creditors upon the books of the bank, so far as their addresses 7
are known. If the commissioner doubts the justice and validity of any 8
claim, he may reject the same and serve notice of such rejection upon 9
the claimant either personally or by mail. An affidavit of service of such 10
notice, wliich shall be prima facie evidence thereof, shall be filed with the 11
commissioner. An action upon the claim so rejected shall not be enter- 12
tained unless brought within six months after such service. Claims pre- 13
sented after the expiration of the time specified in the notice to creditors 14
shall be entitled to share in the distribution only to the extent of the 15
assets in the hands of the commissioner equitably apphcable thereto. 16
List of claims.
1910, 399. § 9.
1919, 350,
§§ 45, 46, 49.
Section 29. Upon the expiration of the time fixed for the presenta- 1
tion of claims, the commissioner shall make in duplicate a full and com- 2
plete list of the claims presented, including and specifying such claims 3
as have been rejected by liim. One of said lists shall be filed in his office 4
and the other in the office of the clerk of the supreme judicial court for 5
the county where the principal office of the bank is located. Thereafter 6
the commissioner shall make and file in said offices, at least fifteen days 7
before every application to the court for leave to declare a dividend, a 8
supplementary list of the claims presented since the last preceding list 9
was filed, including and specifying such claims as have been rejected by 10
him, and, in any event, he shall make and file the said list at least once 11
in every six months after the filing of the original list, so long as he re- 12
mains in possession of the property and business of the bank. Said in- 13
ventory and lists shall be open to inspection at all reasonable times. 14
Fees and
expenses.
1910, 399, § 10.
1919, 350,
§§ 45, 46, 49.
Section 30. The compensation of the special agents, counsel, em- 1
ployees and assistants, and all expenses of supervision and liquidation, 2
shall be fixed by the commissioner, subject to the approval of the su- 3
preme judicial court for the county where the principal office of such bank 4
is located, on notice to such bank, and, upon the certificate of the com- 5
missioner, shall be paid out of the funds of the baiak in his hands. 6
Dividends:
objections
to claims.
1910, 399, § 11.
1919, 350,
§§ 45, 46, 49.
Op. A. G.
(1920) 265, 275.
Section 31. At any time after the expiration of the 'date fixed for 1
the presentation of claims, the supreme judicial court, on application 2
of the commissioner, may authorize him to declare out of the funds re- 3
maining in his hands, after the payment of expenses, one or more divi- 4
dends, and, after the expiration of one year from the first publication of 5
notice to creditors, the commissioner may declare a final di\idend, such 6
dividends to be paid to such persons, in such amounts, and upon such 7
notice as may be directed by the supreme judicial court for the county 8
where the principal office of such bank was located, or as may be directed 9
by a justice of said court. Objections to any claim not rejected by the 10
commissioner may be made by any person interested by fifing a copy of 1 1
the objections with the commissioner, who shall present the same to the 12
supreme judicial court at the time of the next application for leave to 13
declare a dividend. The court to which such apphcation is made shall 14
thereupon chspose of said objections, or may refer them to a master, and 15
should the objections to any claim be sustained by the court or by the 16
master no dividend thereon shall be paid by the commissioner until the 17
claimant shall have estabfished liis claim by the judgment of a court IS
of competent jurisdiction. The court may make proper provision for 19
unproved or unclaimed deposits. 20
CbL\P. 167.] B.VNKS Aira B.USTKING. 1859
1 Section 32. Should any bank, at the time when the commissioner Disposition
2 takes possession thereof, have in its possession for safe keeping and deposSed*
3 storage, any jeweh-y, pLate, money, secm-ities, vahiable papers or other rgio.'ssJg!'! 12.
4 valuable personal property, or should it have rented any box, safes, or |slf5^/6'49
5 safe deposit boxes, or any part thereof, for the storage of property of anj^ ?m-4) 51' 2-'3
6 kind, the commissioner maj' at any time after taking possession as afore-
7 said cause to be mailed to the person claiming or appearing upon the
8 books of the bank to be the owner of such property, or to the person in
9 whose name the safe, vault, or box stands, a written notice in a securely
10 closed postpaid, registered letter, directed to such person at his post office
1 1 address as recorded upon the books of the bank, notif\'ing such person to
12 remove, within a period fixed by said notice and not less than sixty days
13 from the date thereof, all such personal property; and upon the date fixed
14 by said notice, the contract, if any, between such persons and the bank
15 for the storage of said property, or for the use of said safe, vault or box,
16 shall cease and determine, and the amount of the unearned rent or
17 charges, if any, paid by such person shall become a debt of the bank to
18 such person. If the property be not removed witliin the time fixed by the
19 notice, the commissioner may make such disposition of said property as
20 the supreme judicial court, upon application thereto, may direct; and
21 thereupon the commissioner may cause any safe, vault or box to be
22 opened in his presence, or in the presence of one of his special agents
23 and of a notary public not an officer or in the employ of the bank, or of
24 the commissioner, and the contents thereof, if any, to be sealed up by
25 such notary public in a package upon which the notary public shall dis-
26 tinctly mark the name and address of the person in whose name such
27 safe, vault or box stands upon the books of the bank, and shall attach
28 thereto a list and description of the property therein. The package so
29 sealed and addressed, together with the list and description, may be
30 kept by the commissioner in one of the general safes for boxes of the
31 bank until delivered to the person whose name it bears, or may other-
32 wise be disposed of as directed by the court.
1 Section 33. Wlienever any bank of whose property and business the Application
2 commissioner has taken possession deems itself aggrieved thereby, it may, enidlTpro-
3 at any time within ten days after such taking possession, apply to the comnSiOTer.
4 supreme judicial court for the county where the principal office of the }^}§' ||^' ^ '^•
5 bank is located to enjoin further proceedings; and said court, after citing §§ *5, 40. 49.
6 the commissioner to show cause why further proceedings should not
7 be enjoined, and after hearing the allegations and proofs of the parties and
8 determining the facts, may, upon the merits, dismiss such application or
9 may enjoin the commissioner from further proceedings and direct lum
10 to surrender the said business and property to the bank.
1 Section 34. ^\^lenever the commissioner has paid to every depositor stockholders'
2 and creditor of such corporation, not including stockholders, whose iqTo.'md. § 14.
3 claims as such creditors or depositors have been duly approved and §§4'5,^«,'49.
4 allowed, the full amount of such claims, and has made proper provision
5 for unclaimed and unpaid deposits or dividends, and has paid all ex-penses
6 of the liquidation, he shall call a meeting of the stockliolders of the cor-
7 poratlon by mailing notice thereof, not less than thirty days prior to the
8 date of the meeting, to each stockliolder of record whose address is known,
9 and also by publisliing notice of the meeting once a week for four succes-
10 sive weeks in some newspaper of general circulation published in the
1860
B.\NKS AND B.VNKING.
[Ch.\p. 167.
county where the principal office of the corporation is located, the first
publication to be not less than tliirty clays before the date appointed
for the meeting. At such meeting the stockliolders shall determine
whether the commissioner shall be continued as liquidator and shall wind
up the affairs of the corporation, or whether an agent or agents shall be
elected therefor, and in so determining the stockliolders shall vote by
ballot, in person or by proxy, each share of stock entitling the holder to
one vote; and a majority of the stock shall be necessary for the deter-
mination. If it is determined to continue the liquidation under the
commissioner, he shall complete the liquidation and, after paying the
expenses thereof, distribute the proceeds remaining among the stock-
holders in proportion to their several holdings of stock, in such manner
and upon such notice as may be directed by the supreme judicial court.
If it is determined to appoint an agent or agents to liquidate, the stock-
holders shall thereupon select such agent or agents by ballot, a majority
of the stock present and voting, in person or by proxy, being necessary
to a choice. Such agent or agents shall execute and file with the com-
missioner a bond to the state treasiuer in such amount, with such sureties
and in such form as shall be approved by the commissioner, conditioned
for the faithful performance of all the duties of his or their trust, and
thereupon the commissioner shall transfer and deliver to such agent or
agents all undivided, uncollected or other assets of the corporation then
remaining in Iiis hands. Upon such transfer and delivery, the commis-
sioner shall be discharged from all fiuther liability to such corporation.
Said agent or agents shall convert into cash the assets coming into his
or their possession and shall account for and make distribution of the
property of the corporation as provided in the case of distribution by
the commissioner, except that the expenses thereof shall be subject to
the direction and control of the supreme judicial com-t. In case of the
death, removal or refusal to act of any such agents, the stockholders, on
the like notice, to be given by the commissioner upon proof of such
death, removal or refusal to act being filed with him, and by the like vote
hereinbefore provided, may elect a successor, who shall have the same
powers and be subject to the same liabilities and duties as the agent
originally elected.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
Disposition
of funds
remaining in
hands of
commissioner.
1910, 399, § 15
1919. 350,
§§45, 46, 49.
Section 35. Dividends and unclaimed deposits remaining unpaid in 1
the possession of the commissioner for six months after the order for final 2
distribution shall be deposited by him in one or more national banks, 3
savings banks or trust companies to the credit of the commissioner in liis 4
official capacity, in trust for the several depositors with, and creditors of, 5
the liquidated bank from which they were received, according to the 6
several interests of the persons entitled thereto. The commissioner shall 7
state annually in his report to the general court the names of banks so 8
taken possession of and liquidated and the amounts of unclaimed and 9
unpaid deposits or dividends with respect to every such bank. The com- 10
missioner may pay over the money so held by him to the persons respec- 1 1
tively entitled thereto upon being furnished satisfactory evidence of their 12
right to the same. In cases of doubt or of conflicting claims, he may 13
require an order of the supreme judicial court authorizing and direct- 14
ing the payment thereof. He may apply the interest earned by the 15
moneys so held or deposited by him toward defraying the expenses in- 16
curred in the payment and distribution of such unclaimed deposits or 17
dividends to the depositors and creditors entitled to receive the same, 18
Ch.\P. 167.] BANKS AND B.ANKING. 1861
19 and he shall include in his annual report to the general court a statement
20 of the interest earned by such unclaimed dividends and deposits.
1 Section 36. The supreme judicial court, or any justice thereof, shall fg\o''39'J''5'i(j
2 have jurisdiction in equity to enforce the provisions of sections twenty-
3 two to tliirty-five, inclusive, and to act uj3on all applications and in all
4 proceedings thereunder.
FOREIGN BANKS.
1 Section 37. No foreign banking association or corporation shall Certain foreign
_ ,. ...^ V, -i-i •! -n banking asso-
2 transact busmess in this commonwealth until it has received a certifacate ciationa not
3 from the board of bank incorporation, authorizing it so to do. The said without per-
4 board may grant such certificate conditioned upon the performance of i9ob,°347, § i.
5 such requirements as to auditing as said board may prescribe. Any \lol] fg?; 1 1
6 foreign banking association or corporation transacting business in this JgJsiHo,
7 commonwealth shall be subject to the supervision of the commissioner, || ^^-j?,
8 and shall annually, witliin thii-ty days after the last .business day of
9 October, and at other times during each year on any past day to be spec-
10 ified by the commissioner, make to him in such form as may be prescribed
11 by him a return, signed and sworn to by the treasurer, or the corre-
12 sponding officer, of the corporation, showing accurately the condition
13 thereof at the close of business on said day. The president and a
14 majority of the directors shall certify on oath that the report is correct
15 according to their best knowledge and belief.
1 Section 38. The commissioner shall annually at least, and as much Annual
2 oftener as he deems expedient, examine, either personally or by a com- i9o™'347!T2.
3. petent examiner appointed by him, every such association or corporation §§ «,^4(?,'49.
4 and thoroughly inspect and examine its affairs to ascertain its financial
5 condition and wliether it has complied with the law. The proper charges
6 incurred by reason of any such examination shall be paid by the associa-
7 tion or corporation examined.
1 Section 39. For the purposes aforesaid, the commissioner or the commisaioner
2 person making the examination shall have free access to the vaults, tovauftsanT
3 books and papers of any such association or corporation, and may sum-
4 mon the directors, officers or agents thereof, and such other witnesses as jl^f |^|
5 he deems necessary, for examination relative to the affairs, transactions ||/'A^=
6 and condition of such association or corporation, and for that purpose ima^sso,
7 is empowered to administer oaths.
1 Section 40. If, upon examination, it appears that such association Proceedings
2 or corporation is insolvent, or that its capital is impaired, or that its con- [nsolvinT'cOT-
3 dition is such as to render the continuance of its business hazardous to So^ng bufi™""
4 the public or to those having funds in its custody, the commissioner Jgg^'pS. 201,
5 shall apply, or, if such association or corporation appears to have exceeded ||i • A ^'
G its powers or failed to comply with any provision of law, may apply to loia. 350,
7 thesupreme judicial court, which shall have jurisdiction in equity on such
8 application, to issue an injunction restraining such association or cor-
9 poration, in whole or in part, from further proceeding with its business,
10 and to make such further orders or decrees as justice and equity may
1 1 require. The court may appoint one or more receivers to take possession
12 of its property and effects, subject to such directions a may from time to
13 time be prescribed by the court.
may summon
witnesses, etc.
y
1862
SAVINGS BANKS.
[Chap. 168.
Savings
department.
1907, 533, § 1.
Funds, etc.,
to be kept
separate.
1907, 533, § 2.
Section 41. Every foreign banking association or corporation which 1
was on June tenth, nineteen hundred and six, transacting business in this 2
commonwealth and which receives any deposits or transacts any business 3
in the manner of a savings bank, or in such a manner as might lead the 4
public to believe that its business is that of a savings bank, shall have a 5
savings department in which all business transacted in such manner in 6
this commonwealth shall be done. All money received in said manner 7
shall be a special deposit and shall be placed in said savings department, 8
and all loans or investments thereof shall be made in accordance with 9
the laws governing the investment of deposits in savings banks. 10
Section 42. Such funds and the investments or loans thereof shall 1
be appropriated solely to the security and payment of such deposits, and 2
shall not be mingled with the investments of the capital stock or other 3
money or property belonging to such association or corporation or be liable 4
for the debts or obligations thereof. The accounts and transactions of 5
said savings department shall be kept separate and distinct from the gen- 6
eral business of the association or corporation. 7
Income.
1907, 633,
Section 43. All income received from the investment of funds in said 1
savings department, over and above the sums paid to depositors in that 2
department as interest or dividends, shall accrue as profits to the associa- 3
tion or corporation and may be transferred to its general funds. 4
Nimnber of
offices
in common-
wealth
limited.
Section 44. No such association or corporation described in section 1
forty-one shall have more than two offices or places of business in the 2
commonwealth. i907, 533, § 5. 3
Application
of sections
41 to 44.
1907, 533,
§§ 4, 6.
Section 45. Sections forty-one to forty-four, inclusive, shall not
apply to any deposit received by any such association or corporation in
exchange for which deposit, or in exchange for the obligation of a de-
positor secured by such deposit, there shall be issued, either at the time
of receiving the deposit, or thereafter, orders for merchandise for the full
amount or any part thereof, and nothing contained in said sections shall
be construed to apply to national banks.
CHAPTER 168,
SAVINGS BANKS.
Sect,
general provisions.
1. Definitions.
2. Application of chapter.
3. May borrow money.
4. May not occupy same office with other
bank.
5. Officers may not be officers of other
banks. Penalty.
6. General court may examine.
INCORPO RATION.
7. Agreement of association.
8. Publication of notice, and public hear-
ing.
Sect.
9. First meeting of subscribers.
10. Issue of certificate of incorporation.
MANAGEMENT.
11. Meetings.
12. Members.
13. Officers.
14. Election of officers.
15. Meetings of trustees.
16. Meetings of tlie board of investment.
17. Auditing committee.
18. Audit by commissioner of banks.
19. Report of audit.
20. Additional assistance for audit.
CUAF. 168.]
SAVINGS BANKS.
1863
Sect.
21. Payment over of fees.
22. Compensation of committees.
23. Office of trustee, when vacated.
24. Treasurer to give bond.
25. Where business may be transacted.
School children.
26. Annual report to commissioner.
27. Return of unclaimed deposits.
28. Books of deposit to be verified.
29. No officer, etc., to borrow funds of cor-
poration or become surety.
30. Savings banks, etc., not to receive
brokerage, etc., on account of a loan.
DEPOSITS.
31. Amount of deposits limited.
32. When depositor is to be notified.
33. Deposit of securities issued by the
United States.
34. If deposit is made in trust, name and
residence of beneficiary to be dis-
closed.
35. Depositor may set off amount of his
deposit in proceedings by the cor-
poration.
36. Interpleader.
37. Special trust fund for parks, shade
trees, etc.
Sect.
38. Probate court may authorize executors
to deposit such funds.
39. Statement of amount of such funds to
be made every third year.
40. When funds are to be transferred.
41. Unclaimed deposits. Deposits by order
of the court.
42. Unclaimed deposits to be paid to state
treasurer.
43. How such deposits may be reclaimed.
44. When reduction of deposits may be
ordered.
45. Guaranty fund to be created and main-
tained.
46. Transfers to guaranty fund.
47. Manner of division of income.
48. Payment of dividends to be author-
ized by trustees.
49. When dividend is not to be paid.
50. When extra dividends shall be paid.
51. Withdrawal of deposits.
52. Payment on order after death of
drawer.
53. Payments to minors.
investments.
54. Investments authorized.
GENERAL PROVISIONS.
1 Section 1. The following word.s when used in this chapter, unless Definitions.
2 the context otherwise requires, shall have the following meanings: igos^sgo!
3 "Commissioner", the commissioner of banks. ilii'.sso,
4 " Such corporation " or "such bank", a savings bank and an institution §§*s, 46.
5 for savings, incorporated as such in the commonwealth.
1 Section 2. Savings banks incorporated or doing business in the com- Application
2 monwealth shall be subject to this chapter so far as is consistent with the °834.''i'9a'§ i.
3 provisions of their respective charters; and any such corporation may, a i.' s?,' 1 135.
4 by vote at its annual meeting or at a meeting called for the purpose, ac- ^~i;iii;^u,
5 cept any provision of this chapter which is inconsistent with its charter, iso*. 3i|' | ^i^'-
1908, 590, §§ IS, 69.
1 Section 3 . If necessary to pay its depositors, such corporation may , by May borrow
2 vote of its board of investment, borrow money, and may pledge, as security "gostMo, § 67.
3 therefor, its bonds, notes or other securities. A copy of the vote of the j5'45,^f°;
4 board of investment shall be sent forthwith to the commissioner.
1 Section 4. No savings bank shall occupy the same office or suite of oecupy°same
2 offices with a national bank, trust companv or other bank of discount, °ffi'=<= r*
^r. T 1 11 PI 1 • • other bank.
3 nor any office directly connected by means 01 doors or other openings in isos. so?,
4 partitions with the office or suite of offices used or occupied by any such r. l'. 11.3, § 21.
5 national bank, trust company or other bank of discount. Any such cor- iocs! 590,'
6 poration violating this section shall be punished by a fine of not more lOp'I'A.^G.seo.
7 than five hundred dollars. 3 Op. a. g. 204.
1 Section 5. No president, vice president or treasurer of such cor- officers may
2 poration shall hold the office or perform the duties of president, vice St'otife^ba'^^ks.
1864
SAVINGS BANKS.
[CH-^P. 168.
Penalty. president, treasurer or cashier of a national bank or trust company or 3
woiisla ^*' any other bank of discount. 'WTioever violates the provisions of this 4
§§ 20, 69. section shall be punished by a fine of not more than five hundred dollars. 5
General court
may exanime.
1828,96. § 17.
1S34, 190, § 12.
R. S. 36, §§40,
41,84.
G. S. 57, §§ 102,
103, 155.
1S76, 203, § 27.
P. S. 116, § 12.
1894, 317, § 12.
R. L. 113, I 13.
1908, 590,
§§21,69.
9 Gush. 604.
Section 6. Sa\'ings baiiks and their officers shall be subject to ex-
amination by a committee of the general court appointed for the purpose,
who may examine their affairs and shall have free access to their books and
vaults. An officer of any such corporation, or other person having charge
of its books and property, who refuses or neglects to exliibit the same to
such committee or obstructs its examination thereof, shall be punished
by a fine of not more than ten thousand dollars or by imprisonment for
not more than three years.
Agreement of
association.
1908, 590, § 2'.
INCORPOR.\TION.
Section 7. Twenty or more persons who associate themseh'es by an 1
agreement in -nTiting for the purpose of forming a sa\-ings bank, may, 2
upon compliance with this and the three following sections, become a 3
corporation with all tlie powers and privileges and subject to all the duties, 4
restrictions and liabihties set forth in all general laws now or hereafter in 5
force relating to such corporations. Said agreement shall set forth that 6
the subscribers thereto associate themselves with the intention of forming 7
a corporation to transact business within the commonwealth, and shall 8
specify: 9
First. The name by which the corporation shall be known. 10
Second. The purpose for which it is to be formed. 1 1
Tliird. The city or town and district thereof where its business is to 12
be transacted. 13
Each associate shall subscribe to the articles his name, occupation, 14
residence and post oflSce address. 15
Publication of SECTION S. The subscribcrs to such agreement shall give notice to the 1
notice, and . . ....^. „ ^, •iir»
public hearing, board of bank incorporation oi their intention to form such sa\ings bank, 2
1919] 350, § 47. and shall apply to said board for a certificate that public convenience and 3
ad'V'antage will be promoted by the establishment thereof, which certificate ' 4
said board may grant. Upon receipt of such application, said board shall 5
furnish the sulsscribers a form of notice specifying the names, occupation 6
and addresses of the proposed incorporators and the name and location 7
of the proposed savings bank, and assigning a date and place for a public 8
hearing on the apphcation. The subscribers sliall publish such notice at 9
least once in each of three successive weeks, in one or more newspapers 10
designated by said board, and published in or nearest to the city or town 11
where it is desired to establish the savings bank. If said board refuses to 12
issue such certificate, no further proceedings shall be had, but the appli- 13
cation may be renewed after one year from the date of such refusal, in 14
which case notice of a public hearing thereon shall be published as herein 15
provided. 16
First meeting
of subscribers.
1908, 590, § 24.
Section 9. The first meeting of the subscribers to the agreement of
association shall be called by a notice signed either by the subscriber to
the agreement who is designated therein for the purpose, or by a majority
of the subscribers; and such notice shall state the time, place and ])urposes
of the meeting. A copy of the notice shall, se\en days at least before
the day appointed for the meeting, be given to each subscriber or left at
Chap. 168.] savings banks. 1865
7 his residence or usual place of business, or deposited in the post office,
8 postage prepaid, and addressed to him at his residence or usual place of
9 business, and another copy thereof and an affidavit by one of the signers
10 that the notice has been duly served shall be recorded with the records of
1 1 the corporation. If all the incorporators shall in wTiting, endorsed upon
12 the agreement of association, waive such notice and fix the time and place
1.3 of the meeting, no notice shall be required. The subscribers to the agree-
14 ment of association shall hold the francliise until the organization has been
15 completed. At such first meeting, or at any adjournment thereof, the
16 incorporators shall organize by the choice by ballot of a temporary clerk,
17 by the adoption of by-laws and by the election, in such manner as the
18 by-laws may provide, of trustees, a president, a clerk, and such other
19 officers as the by-laws may prescribe. All the officers so elected shall be
20 sworn to the faithful performance of their duties. The temporary clerk
21 shall make and attest a record of the proceedings until the clerk has been
22 chosen and sworn, including a record of the choice and qualification of
23 the clerk.
1 Section 10. The president, and a majority of the trustees elected at issue of cert is-
2 such first meeting, shall make, sign and make oath to, articles in duplicate, ration,
o 4.4,- f il " 1908, 690, § 25.
6 setting forth ■ — inog. 491, § 5.
4 (a) A true copy of the agreement of association, the names of the sub- jj'I't,^!".'
5 scribers thereto, and the name, residence and post office address of each
6 of the officers of the company.
7 (b) The date of the first meeting and the successive adjournments
8 thereof, if any.
9 One of such certificates shall be submitted to said board of bank in-
10 corporation, and the other, together with the records of the proposed cor-
1 1 poration, to the commissioner of corporations and taxation, who shall ex-
12 amine the same, and who may require such amendment thereof or such
1.3 additional information as he may consider necessary. If he finds that the
14 articles conform to the three preceding sections, relative to the organiza-
15 tion of the corporation, and that section eight has been comphed with,
16 he shall so certify and endorse his approval thereon. Thereupon the
17 articles shall be filed in the office of the state secretary, who upon pay-
18 ment of a fee of iixe dollars, shall cause the same, with the endorsement
19 thereon, to be recorded, and shall thereupon issue a certificate of incor-
20 poration in the following form:
Commonwealth of Massachusetts.
Be it known that whereas (the names of the subscribers to the agreement of
association) have associated themselves with the intention of forming a cor-
poration under the name of (the name of the corporation) , for the purpose (the
purpose declared in the agreement of association) and have complied OTth the
provisions of the statutes of this commonwealth in such case made and pro-
•vided, as appears from the articles of organization of said corporation, duly
approved by the commissioner of corporations and taxation and recorded in
this office: now, therefore, I (name of the secretary), secretary of the common-
wealth of Massachusetts, do hereby certify that said (the names of the sub-
scribers to the agreement of association), their associates and successors, are
legally organized and established as, and are hereby made, an existing cor-
poration under the name of (name of the corporation), -nith the powers, rights
and privileges, and subject to the limitations, duties and restrictions, which by
law appertain thereto.
Witness my official signature hereunto subscribed, and the great seal of the
commonwealth of Massachusetts hereunto affixed, this day of
in the year (the date of the filing of the articles of organization) .
1866 SAVINGS B.vNKs. [Chap. 168.
The secretary shall sign the certificate of incorporation and cause the 21
great seal of the commonwealth to be thereto affixed, and such certificate 22
shall have the force and efi'ect of a special charter. The existence of 23
every such corporation not created by special law shall begin upon the 24
fihng of the articles of organization in the office of the state secretary. 25
The secretary shall also cause a record of the certificate of incorporation 26
to be made, and such certificate or such record, or a certified copy thereof, 27
shall be conclusive evidence of the existence of the corporation. 28
JI.\NAGEMENT.
isHfifo. §4. Section 11. The annual meeting of such corporation shall be held at 1
g' I' i?' 1 139 ^^^^ time as the by-laws direct. Special meetings may be held by order 2
p%^'nf'lw of its trustees; and its clerk shall give notice of special meetings upon. wTit- 3
is&i, 150. ten request of ten members of the corporation. Notice of all meetings 4
R. l! 113'. § 17! shall be given by advertisement in a newspaper published in the county 5
§§ 26.'69.' where the corporation is located, and by mailing to each incorporator at 6
least seven days before such meeting a ■wTitten or printed notice thereof. 7
The names of those present at meetings shall be entered in the records of 8
the corporation. 9
ila^'fgo; § 5. Section 12. Such corporation may, at a legal meeting, elect by ballot 1
g' i' 57' 1 140 ^^y citizen of the commonwealth to be a member thereof; and any per- 2
p%^'n*6 'In ^°^ ma^yi at an annual meeting, cease to be a member, if, at least three days 3
1SS8, 120. before such meeting, he has filed with the clerk a ^\Titten notice of his 4
1S90 222 • •
1894] 31-; § 17. intention so to do. If a member fails to attend two consecutive annual 5
1908! 59o! ' ' meetings, his membership may, by vote of the corporation at its next 6
§§27,09. annual meeting, be declared forfeited. Such action and vote recorded 7
shall be evidence of forfeiture of membersliip. No person shall continue 8
to be a member after removing from the commonwealth. 9
?j4f790, Section 13. The officers of such corporation shall be a president, 1
R. s. 36, §§ 72, one or more \'ice presidents, a board of investment of not less than three, 2
^3g .^ a board of not less than eleven trustees from which the officers hereinbefore 3
5| 136 137. mentioned shall be chosen, a treasurer, a clerk and such other officers as 4
1876,' 203.' it may find necessary for the management of its affairs. All officers shall 5
p.s!ii6, ' be sworn, and shall hold their several offices until others are elected, and 6
im'iM'. qualified in their stead; and a record of e^•ery such cjualification shall be 7
§U*3,W' fil^d and preserved by the clerk of the corporation. The trustees shall 8
§5 14 2^' ^^ elected from the incorporators, and no person shall hold an office in 9
iB08.'s9o. two such corporations at the same time. Only one of the persons holding 10
i9ib,'fi22'. § 4. the offices of president, treasiu-er or clerk shall at the same time be a 11
220 Mass! 3oo! member of the board of investment. The treasiu-er, vice treasurer or 12
assistant treasurer shall not be clerk either of the corporation or of the 13
trustees. Not more than tliree fifths of the members of any such cor- 14
poration shall be officers thereof at any one time. L5
officera°°^ Section 14. The officers of such corporation, except the boanl of 1
i^^'^K^kiP' investment, treasurer, vice treasurer and assistant treasurer, shall be 2
K. o, Jo. s 74. ; ' ^ , . . . , ,
?8M m^ '^*' ^'scted at its annual meeting, anything in its charter to the contrary 3
1868! 49. ■ notwithstanding. The board of investment, treasurer, ^ice treasurer 4
p. s.' 116,' § 15. and assistant treasurer shall be elected by the trustees and shall hold 5
1894! 317! I fs. office during their pleasure. If any office becomes vacant during the 6
1902! im! 1 1^' year, the trustees may elect a person to fill it until the next annual 7
Chap. 168.] savings b.vnks. 1867
8 meeting; and if a person elected does not, within thirty days there- i90s. 590,
9 after, take the oath, his office shall thereupon become vacant. The i9io.'622, § 5.
10 clerk of the corporation shaO, witliin ten days after the meeting, notify ~'° ^^^'^^' ^"^^
11 all persons elected to office; and within tliirty days thereafter shall
12 publish in a newspaper published in the county where the corporation
13 is established a list of all persons who have taken the oath of office to
14 which they were elected and a list of the members of the corporation.
15 Said lists shall be included in the annual report of the corporation to
16 the commissioner, and shall be kept on file in his office for inspection
17 by the public. A clerk who neglects to give such notice or make such
18 publication, or who makes a false publication, and a person who know-
19 ingly publishes or circulates, or knowingly causes to be published or
20 circulated, a printed notice containing the name of a person as an officer
21 of such corporation who has not taken the oath of office, shall be liable
22 to a penalty of fifty dollars. The clerk shall transmit to the commis-
23 sioner a copy of all by-laws adopted and all amendments thereof. Upon
24 the election as trustee of any such bank of a person who has not been
25 theretofore a trustee thereof, the clerk shall send forthwith to the com-
26 missioner the name and address of such person, and the commissioner
27 shall thereupon transmit to such person a copy of the laws relating to
28 savings banks.
1 Section 15. A regular meeting of the board of trustees of such Meetings of
2 corporation shallbe held at least once in three months, for the piu-pose 1876^203, § 7.
3 of receivmg the report of its treasurer and for the transaction of other isli sa' ^ '^"
4 business. Special meetings may be called by the president, and the }|||; 1^^ ^ j^
5 clerk shall give notice of special meetings upon WTitten request of tliree k^jL. 113, § 19.
6 trustees. A quorum shall consist of not less than seven trustees, but || 3„°'g^?,- , g
7 less than a quorum may adjourn from time to time or until the next 1912! 357.'
8 regular meeting. At each regular meeting the trustees shall cause to
9 be prepared a statement showing the condition of the corporation as
10 it appears upon its books, in the form of a trial balance of its accounts.
11 Such statement shall be entered in a book which shall form a part of
12 the records of the bank and a copy of such statement shall be posted
13 in a conspicuous place in its banking room, where it may easily be read
14 by the public, and shall there remain mitil the next regular meeting of
15 said board. At each regular meeting of the trustees the board of in-
16 vestment shall submit a detailed WTitten statement of all loans made
17 by the corporation, all changes in the property or seciuity pledged or
18 the rate of interest charged therefor, all purchases or sales of bonds,
19 stocks and notes, all payments by the bank of taxes or insurance on
20 mortgaged property since the last regular meeting of the trustees, and
21 all loans on which interest is more than three months overdue. This
22 statement, or such part thereof as the meeting may determine, sh^ll
23 be read to the trustees present and then shall be filed and preserved
24 with the records of the bank. A record shall be made at each meeting
25 of the transactions of the trustees and of the names of those present.
26 The trustees shall cause to be published semi-annually in a newspaper
27 published in the county where the corporation is located the names of
28 the president, treasurer, members of the board of investment and other
29 officers of the corporation charged with the duty of investing its funds.
30 The first publication thereof shall be within tliirty days after the elec-
31 tion of said officers, and the second publication at the expiration of six
32 months therefrom.
1868
SAVINGS B.VNKS.
[Chap. 168.
Meetings of
the board of
investment.
190S, 590, § 31.
Section 16. IMeetings of the board of investment of such corpora- 1
tion shall be held at least once in each month. The board shall approve 2
all loans made by the corporation, all changes in the property or se- 3
curity pledged or the rates of interest charged therefor, and all pur- 4
chases or sales of bonds, stocks and notes, and shall perform such other 5
duties as the by-laws may prescribe. A record shall be made at each 6
meeting of the transactions of the board and the names of those present. 7
The members of said board may approve changes of collateral on loans 8
made under subdi\ision (e) of clause ninth of section fifty-four either 9
by a vote of said board or by signing a statement setting forth all such 10
changes. 11
Auditing
committee.
1908, 590, J
1910. 622, §
1919, 350,
§§ 45, 46.
Section 17. At the first meeting after their election, the trustees 1
^2- shall appoint an auditing committee of not less tlian three trustees, of 2
wliich committee neither the treasurer nor more than one member of 3
the board of investment shall be members, who shall at least once 4
during the twelve months following their appointment, and oftener 5
if required by the commissioner, cause to be made at such time as the 6
commissioner may determine, in such form and manner and by such 7
certified public accountant not connected with said bank as shall first 8
be approved by the commissioner, a thorough examination and audit 9
of the books, securities, cash, assets, liabilities, income and expendi- 10
tures of the corporation, including an accurate trial balance of the 11
depositors' ledger, for the period elapsed since the preceding examina- 12
tion and audit, or for such other period as the commissioner may pre- 13
scribe. The said accountant shall personally direct and supervise the 14
making of said examination and audit, except that, with the consent 15
of the commissioner, he may verify a trial balance of the depositors' 16
ledger made by the bank witliin six months, and, with the consent of 17
the commissioner, such assistance as shall be necessary may be furnished 18
by the bank. The accountant shall report to the auditing committee 19
the result of his examination and audit, and at the next meeting of the 20
trustees thereafter the committee shall render a report, which shall be 21
read, stating in detail the nature, extent and result of the examina- 22
tion and audit, and their report and the accountant's report shall be 23
filed and preserved with the records of the corporation. The committee 24
shall file with the commissioner a copy of the report of the accoimtant 25
within ten days after its completion. The certified public accountant 26
and the auditing committee shall certify and make oath that the re- 27
ports made by them under this section are correct according to their 28
best knowledge and belief. If the committee fails to cause to be made 29
an examination and audit, including an accurate trial balance of the 30
depositors' ledger as herein provided, the commissioner shall cause them 31
to be made by a certified public accountant in such form and man- 32
ner as he may prescribe, and the expense thereof shall be paid by the 33
bank. 34
Audit by
commissioner
of banks.
1912, 629, § 1.
Section 18. The commissioner may, when so requested by the 1
auditing committee of any such bank, make a thorough examination 2
and audit of the books, securities, cash, assets, liabilities, income and 3
expenditures of such bank, including an accurate trial balance of the 4
depositors' ledgers, for the period elapsed since the preceding examina- 5
tion and audit, or for such other period as the commissioner may pre- 6
scribe, or he may verify a trial balance of the depositors' ledgers made 7
CH-^P. 168.] SAVINGS BANKS. 1869
S by the bank within six months, and may avail himself of such assist-
9 ance from the officers and employees as he may deem proper. The
10 expense of the audit only shall be borne by the bank, and such examina-
11 tion and audit shall be in place of the one required to be made by a
12 certified public accountant as provided by the preceding section.
lOrt of
1 Section 19. The person in charge of the examination shall render to Reno.
2 the commissioner a report of his findings, in such form as the commissioner i9i2,'629, § 2.
3 may prescribe, and a copy thereof shall be rendered to the auditing com-
4 mittee within ten days after the original has been submitted to the com-
5 missioner, together with a notice of the amount of the fee to be paid,
6 which shall be due and payable within thirty days after the date of
7 notice. Upon failure of any such corporation to pay the required fee
S within the time prescribed herein, the commissioner shall report the facts
9 to the attorney general, who shall immediately bring an action for the
10 recovery of the fee.
1 Section 20. The commissioner, in order to carry into effect the two Additional
2 preceding sections may employ such additional assistance, subject to the foraudu.'^
3 approval of the governor and council, as he deems necessary. ^®^^' ''^^' ^ ^'
1 Section 21. All moneys collected and received by the commissioner Payment over
2 under section nineteen shall be paid to the commonwealth. I9i2r629, § 4.
1 Section 22. The board of trustees shall authorize the compensation. Compensation
2 if any, to be paid to committees of said board. At each regular meeting is7b!°203?'§ u.
3 of the board the treasurer shall report in detail all amounts paid by the fsg^i, '31*7,^^13.
4 corporation since the last regular meeting for services, fees or otherwise, fg,^- H^- ^ ^*-
5 to a member of the board of trustees or to any attorney of the corporation. 5§ 33, 09.
1 Section 23. If a trustee fails both to attend the regular meetings of °r?s™e°^vhen
2 the board and to perform any of the duties devolving upon him as such jlSg'li,
3 trustee for six consecutive months, his office may be declared by the board p- s.' iie,' § is.
. ISS'' 50
4 at the next regular meeting to be vacant. A record of such vacancy shall isss! ge!
5 be entered upon the books of the corporation, and a transcript of such r.^l. us, § w-
6 record shall be sent by mail to the person whose office is thus made H^lj, m?'
7 vacant. The office of any trustee who takes the benefit of any law of JlJg' 3?5' ^ ^■
8 bankruptcy or insolvency, or of the oath for the relief of poor debtors, §§ *^- 4'"'-
9 shall thereby be vacated. The commissioner may recommend the re-
10 moval of any trustee, officer or employee who in his opinion has abused
1 1 his trust, or has been negligent in the performance of his duties, and upon
12 such recommendation the trustees may remove or discharge such trustee,
13 officer or employee. The trustees shall act upon such recommendation
14 within thirty days after receiving the same.
1 Section 24. Every treasurer, vice treasurer and assistant treasurer Treasurer to
2 shall give bond to the satisfaction of the trustees in such form as the com- fsT-e.'^los,' § 3.
3 missioner may prescribe, for the faithful performance of his duties and p**£' \%\ § 14
4 shall file with the commissioner an attested copy thereof, with a certificate }^|^' ^|g
5 of its custodian that the original is in his possession. Such officer shall Jfgl'lit' |V.
6 notify the commissioner of any change thereafter made therein. If he R. l'. 113', 5 is!
• • *< o ^ 190S 590
7 fails, within ten daj-s after the date thereof, to file a copy of his bond, or §§ 35. eg.'
8 to notify the commissioner of any change therein, he shall be liable to a HI u^l'. sob.
1870 SAVINGS BANKS. [Chap. 1G8.
penalty of fifty dollars. The commissioner shall keep a record showing 9
when such bonds expire, and the changes so notified, and, when in his 10
judgment it is necessary for the security of the depositors, he shall require 1 1
a new bond in such amount and with such sureties as he may approve. 12
Said officers shall give new bonds at least once in five years. The trustees 13
shall require bonds of such other officers or employees, and in such 14
amounts, as they deem necessary. 15
neL^ma^"be SECTION 25. Such Corporation shall carry on its usual business at its 1
School'^"'''' banking house only, and a deposit shall not be received or payment on 2
children account of dcposits be made by the corporation or by a person on its ac- 3
1889: 91. '§ 1. count in any other place than at its banking house, which shall be in the 4
E. l! 113, § 20. town where the corporation is established ; except that the corporation 5
ll'se.^e'g'' may, with the written permission of and under regulations approved by 6
1918' 11^" ^1^^ commissioner, maintain and establish one or more branch offices or 7
ll^^iT depots in the town where its banking house is located, or in towns not 8
more than fifteen miles distant therefrom where there is no savings bank 9
at the time when such permission is given; but, in order to encoiu-age 10
sa\ang among school children, the corporation may, with the MTitten 11
consent of and under regulations appro^^ed by the commissioner and, 12
in the case of public schools, by the commissioner, and the school com- 13
mittee in the town where the school is situated, arrange for the collection 14
of savings from the school children by the principal or teachers of such 15
schools or by collectors. All moneys so collected shall be entered on 16
an indiA'idual deposit card furnished by the corporation, but the total 17
collections received by the corporation from any one principal or teacher 18
may be entered in the name of such principal or teacher as trustee. When 19
the amount deposited by any one pupil and credited on the deposit card 20
equals the minimum amount upon which interest is allowed the corpora- 21
tion shall issue a pass book to such pupil and thereafter, when the amount 22
deposited by the pupil and credited on the deposit card equals the sum 23
of one dollar, it shall be transferred to the deposit book by the corpora- 24
tion. The principal, teacher or person authorized by the corporation 25
to make collections from school children shall be deemed to be the agent 26
of the corporation and the corporation shall be liable to the pupil for all 27
deposits made with such principal, teacher or other person and entered 28
upon the deposit card, the same as if the deposit were made by the pupil 29
directly with the corporation. The annual meeting, and meetings of 30
the trustees or board of investment of such corporation, may be held at 31
any place in the town where its banking house is located. 32
to^TO^^s^"' Section 26. The treasurer of such corporation shall, annually within 1
183 "'i9o ^ 11 t'^'^nty days after the last business day of October, make a report to the 2
R-S-'36, §82. commissioner in such form as he may prescribe, showing accurately the 3
G. s.'s?,' § 148. condition of such corporation at close of business on that day, specifying 4
§§8,'9. ' "" ' the following particulars: name of corporation and names of incorpora- 5
1867, 203! 1 1°' tors and officers; place where located; amount of deposits; amount of 6
1875; Res. 68 cacli Item of Other liabilities ; pubfic funds, including all United States, 7
1877' 159' ^ " '■ ^^^'^^' county, city, town and district bonds ; railroad bonds, street railway 8
P- s.'iie, |40. bonds, telephone bonds, and stock in banks and trust companies, stating 9
1894) 317', § 42. each particular kind, and the par value, estimated market value and 10
1902, 169,' § 2. ■ amount invested in each; loans to counties, cities, towns or districts; 11
§fT.'3,°5." loans on mortgages of real estate; loans on personal security, stating 12
§|°37,69°' amount of each class separately; estimated value of real estate, and 13
Chap. 168.] savings banks. 1871
14 amount invested therein; cash on deposit in banks and trust companies, i?i9, 330.
15 with the names of such banks and trust companies and the amount de-
16 posited in each; cash on hand; the whole amount of interest or profits
17 received, and tlie rate and amount of eacli semi-annual and extra dividend
18 for the previous year; the times for the dividends fixed by the by-laws;
19 the rates of interest received on loans; the total amount of loans bearing
20 each specified rate of interest; the number of outstanding loans of an
21 amount not exceeding three thousand dollars each, and the aggregate
22 amount of the same; the number of open accounts; the number and
23 amount of deposits received; the number and amount of withdrawals;
24 the number of accounts opened and the number of accounts closed,
25 severally, during the previous year; and the annual expenses of the cor-
26 poration, together with such other information as the commissioner may
27 require. The president, treasurer and auditing committee shall certify
28 on oath that such reports are correct according to their best knowledge
29 and belief.
1 Section 27. The treasurer of such corporation shall, within twenty Return of
2 days after the last business day of October in the year nineteen hundred depo'sits.
3 and twenty-two and in every fifth year thereafter, return to the com- \lgl] l\j\ 5 45
4 missioner a sworn statement of the name, the amount standing to his fg^g- 1^' ^ ^°-
5 credit, the last known residence or post office address, and the fact of |§ i^' |'g5-
6 death, if known to him, of each depositor who shall not have made §§39,69.'
7 a deposit therein or withdrawn therefrom any part of his deposit, or §§45,46.'
8 any part of the interest thereon, diu-ing the twenty years last preceding
9 such last business day of October; he shall also give notice of such
10 deposits in one or more newspapers published in or nearest to the town
11 where such corporation is located, and in one or more newspapers pub-
12 lished in or nearest to the town where the depositor was last known to
13 reside, at least once in each of tliree successive weeks; but tliis section
14 shall not apply to a deposit made by or in the name of a person known
15 to an officer of the corporation to be living, to a deposit the deposit
16 book of which has diu-ing such period been brought into the bank to
17 be verified or to have interest added, or to a deposit which, with the
18 accumulations thereon, shall be less than twenty-five dollars. The
19 treasurer of a savings bank who neglects or refuses to make the sworn
20 return required by this section shall be punished by a fine of one hun-
21 dred dollars. The commissioner shall incorporate in his annual report,
22 or in a supplementary report, each return made to him as provided
23 in this section.
1 Section 28. During one or more of the first ten months of the year Books of
2 nineteen hundred and twenty-two and of each third year thereafter venfied. °
3 such corporations shall call in the books of deposit of their depositors Htl', ti7. § 47.
4 for verification, under rules to be prescribed by their respective boards ^^l] ^^l ^ 53
5 of investment, duly approved by the commissioner.
1906, 204, §§ 1, 3, 5. 1908, 590, §§ 43, 69. 1919, 350, §§ 45, 46.
1 Section 29. No president, treasurer, member of a board of invest- no officer, etc.,
2 ment, or officer of such corporation charged with the duty of investing fSnd°s'^o'f'cor-
3 its funds, shall borrow or use any portion thereof, be surety for loans g°''^''°" °''
become
4 to others or, directly or indirectly, whether acting individually or as i834',^i9o, § 9,
5 trustee holding property in trust for another person, be an obligor for ^^^ ||' § ^■
6 money borrowed of the corporation ; and if such member or officer, g. s.' 57 § i46.
7 either individually or as trustee holding property in trust for another p. s.' uc,' § 21!
1872
SAVINGS B.\NKS.
[Ch.\p. 168.
1889, 161.
1894. 317, I
R. L. 113. f
1908, 590,
§§ 44, 69.
4 Op. A. G.
297.
person, becomes the owner of real estate upon which a mortgage is 8
held by the corporation, his office shall become vacant at the expiration 9
of sixty days thereafter unless he has ceased to be the owner of the real 10
estate or has caused said mortgage to be discharged or assigned. This 11
section shall not apply to loans held by such corporation on June eighth, 12
nineteen hundred and eight, or to renewals thereof, or to the deposit of 13
money, as provided in section fifty-four, in banks or trust companies of 14
which one or more trustees or officers of such corporation are directors. 15
Savings banks,
etc.. not to
receive
brokerage, etc.,
on account
of a loan.
1872, 293,
§H,5.
1876, 203, § U.
P. S. 116, § 22.
1894, 317, § 23.
R. L. 113, § 28.
1908, 590,
§§ 43, 69.
Amount of
deposits
limited.
1834, 190, § 6.
R. S. 36, § 77.
G. S. 57, § 141.
1874, 393.
1875, 100.
1876, 203, § 8.
P. S. 116. § 19.
1889, 86;
449, § 1.
1894, 317, § 20.
R. L. 113. § 25.
1908. 590,
H 46, 09.
1909. 491, I 7.
1917, 144.
When depos-
itor is to be
notified.
1871.262. § 1.
1876,203.5 21.
P. S. 116, §33.
1894. 317, 5 3,5.
R. L. 113, § 40.
1908. 590,
|§ 47, 69.
Section 30. Such corporation, or a person acting in its behalf, shall 1
not directly or indirectly negotiate, take or receive a fee, brokerage, 2
commission, gift or other consideration for or on account of a loan 3
made by or on behalf of such corporation, other than appears on the 4
face of the note by which such loan purports to be made; but this 5
section shall not prohibit a reasonable charge for services in the ex- 6
amination of real estate or titles, and the preparation of conveyances 7
to such corporation as security for its loans. AYhoever violates any 8
provision of this section shall be punished by a fine of not more than 9
one thousand dollars or by imprisonment for not more than one year, 10
or both. 11
DEPOSITS.
Section 31. Such corporation may receive on deposit from any 1
person not more than two thousand dollars; and may allow interest 2
upon such deposits, and upon the interest accumulated thereon, until 3
the principal, with the accrued interest, amounts to four thousand 4
dollars; and thereafter upon no greater amount than four thousand 5
dollars; but this section shall not apply to deposits by a religious or 6
charitable corporation or labor union, or credit union, or in the name 7
of a judge of probate, or by order of any court, or on account of a sink- 8
ing fund of a town in the commonwealth or of any trust fund held by 9
a town for public uses. 1919, ll. 231 Mass. 367. 4 Op. A. G. 437. 10
Section 32. The treasurer of such corporation, at least once in 1
each year, shall .send notice by mail to each depositor who for the six 2
months last preceding has not been entitled to a dividend on the whole 3
amount standing to his credit because the same exceeds the amount 4
on which interest is allowed, specifying the amount not entitled to 5
dividend. 6
Deposit of
securities
issued by
the United
States.
1919, 60.
Section 33. Savings banks may, with the written permission of 1
and under regulations approved by the commissioner, receive and 2
hold for their depositors any securities issued by the United States. 3
Op. A. G. (1920) 247.
If deposit is
made in trust,
name and
residence of
beneficiary
to be dis-
closed.
1876. 203. § 20.
P. S. 116, 5 32.
1894, 317, I 34.
R. L. 113, I 39.
1908. 590,
§§ 48. 69.
142 .Mass. 1.
146 Mass. 418.
164 Mass. 583.
Section 34. If a deposit is made with such corporation by one 1
person in trust for another, the name and residence of the person for 2
whom it is made shall be disclosed, and it shall be credited to the de- 3
positor as trustee for such person; and if no other notice of the existence 4
and terms of a trust has been given in writing to the corporation, the 5
deposit, with the interest thereon, may in case of the death of the 6
trustee be paid to the person for whom such deposit was made, or to 7
his legal representative; or if such deposit does not exceed fifty dollars, 8
it may be paid to a minor or to either of the parents of such minor, 9
and the same shall be a valid payment. 10
Ch.\p. 168.] SAvmcs b.vnks. 1873
1 Section 35. A person indebted to such corporation, whether his Depositor
2 indebtedness is secured or not, may, in a proceeding for the collection amoJnt of his
.3 thereof or for the enforcement of any security therefor, recoup or set off proceedings
4 the amount of a deposit held and owned by him at the time of the porati^oS"""
5 commencement of such proceeding, and of the interest due thereon, p* §*■ ff^; 1 35
6 except a deposit purchased or acquired from another after the com- isoi, sir, 1 32.
7 mencement of proceedings in equity to restrain the corporation from la'os.'sgo,'
8 doing its actual business, and section three of chapter two hundred and i2s Mass. 512.
9 thirty-two shall not apply to such set-off; but a judgment shall not be op^Alc^cwa))
10 rendered against such corporation in favor of the defendant or defendants '^''^■
11 for any balance found due from the plaintiff if the commissioner has
12 taken possession of such corporation, as provided in section twenty-two
13 of chapter one hundred and sixty-seven.
1 Section 36. If, in an action against such corporation for money on interpleader.
2 deposit therewith, it appears that the same fund is claimed by another inn', 179!
3 party than the plaintiff, whether by the husband or wife of the plaintiff", fsM, an, § 33.
4 or otherwise, the court in which such action is pending, on the petition of fgog'; 590' ^ ^^■
5 the corporation and on such notice to the plaintiff and to such claimants fl/^^^g 593
6 as the court considers proper, may order the proceedings to be amended wo Mass. 260.
7 by making such claimants defendants thereto; and thereupon the rights ih2 M'ass! 4.5.5!
8 and interests of the several parties in and to said funds shall be heard and '
9 determined. Such deposits may remain with the corporation until final
10 judgment, and shall be paid as the coiu-t orders, or may be paid into court
11 to await final judgment; and when so paid into court, the action shall
12 be discontinued as to such corporation and its Uability for such deposit
13 shall cease. The taxable costs of the corporation in such actions shall
14 be in the discretion of the court, and may be charged upon the fund.
1 Section 37. Such corporation may receive on deposit to any amount Special trust
2 funds in trust for the purpose of setting out shade trees in sti'eets and shade trees,
3 parks and improving the same, purchasing land for parks or playgrounds !875, 174, § 1.
4 and imp^o^■ing the same, maintaining cemeteries or cemetery lots or ^sm, ^17,1^3^7.
5 erecting and maintaining drinking fountains in public places. Such funds ^jg^- 1 13, § 42.
6 shall be placed on interest in such corporation, and the interest and divi-
7 dends arising therefrom shall be paid semi-annually to such town or
8 cemetery authorities as may be designated by the donors of said funds or
9 by the will of the person bequeathing the same, and shall be ex-pended
10 by such authorities within their respective towns or cemeteries for any or
11 all of said purposes, as may be specified by such donors or such will. No
12 part of the principal of such funds shall be withdrawn or expended, and
13 the same shall be exempt from attachment or levy on execution.
1 Section 38. A judge of probate, after notice and a hearing, may au- Probate court
2 thorize an executor, administrator or trustee holding money or other per- eie^utors t"^"
3 sonal property for any of the purposes mentioned in the preceding section, f3l." ^"'''
4 to deposit such money, or the aA'ails arising from such personal property, j?"'no;§ 30.
5 in any such corporation designated by the judge, to be held by it in the )^^^- sj^, 1 3s.
6 manner and for the uses and purposes mentioned in said section and upon i9o|, 590',
7 the trusts upon which the executor, administrator or trustee held the 139 iiiass. 3.5.3.
8 same; and upon the deposit of such money and its receipt and acceptance
9 by such corporation the executor, administrator or trustee shall be dis-
10 charged from further care and responsibility tlierefor.
51,69.
163 Mass. 402.
1874
SAVINGS B.\XKS.
[Caxp. IGS.
f mount o*f such SECTION 39. The f unds held in accordance with the two preceding sec- 1
^dl ev-e^ *^°^^ ^^^^ '^^ known as the " Shade Tree and Cemetery Fund ", and the 2
1875 i?"'? 2 treasurer of the corporation with which they are deposited shall gi\-e a 3
p. s.'ii6,'5 37. receipt therefor to the depositor, and shall send by mail or deliver, in Jan- 4
E. l! lis! 1 44.' uary in each third year after the first deposit to the mayor of a city or the 5
Hfi^lo*' chairman of the selectmen of a town M-itliin the hmits of which the in- 6
terest and di^'idends of such fund are to be expended, a WTitten statement, 7
signed by such treasiuer, of the amount of funds on deposit for the piu-- 8
poses aforesaid, which shall be recorded in the office of the city or town 9
clerk. ^ 10
when funds
are to be
transferred.
1875, 174, § 3.
P. S. 116, § 38.
1894,317, §40.
R. L. 113, §45.
1908, 590,
§§ 54, eg.
Section 40. If a corporation holding such fimd surrenders its charter
or ceases to do business, the supreme judicial coiu-t may order said fund
to be transferred and deposited in another such corporation, upon the
same trusts; and if the laws authorizing such corporations are repealed,
the court may order such fund to be transferred and deposited in such
banking institutions as it may find proper, to be held upon the trusts
aforesaid.
Unclaimed
deposits.
Deposits by
order of the
court.
1889, 449, § 2.
1894, 317, § 50.
R. L. 113, §55.
1908, 590,
§§ 55, 69.
1918, 257,
§369.
1919, 5.
1920, 2.
Section 41. Subject to section twenty-eight of chapter two hundred 1
and si.x, the probate court, court of insolvency or other court, respec- 2
ti\'ely, shall, upon the application of a person interested or of the attorney 3
general, and after public notice, order and decree that all amounts of 4
money deposited with such corporation, by authority of any of said courts 5
or of any judge thereof, and which shall have remained unclaimed for 6
more than twenty years from the date of such deposit, with the increase 7
and proceeds thereof, shall be paid to the state treasiu-er, to be held and 8
used by him according to law, subject to be repaid to the person ha\'ing 9
and establisliing a lawful right thereto, with interest at the rate of three 10
per cent per annum from the time when it is so paid to said treasurer to 1 1
the time when it is paid over by him to such person, as provided in the 12
following section. 13
Unclaimed
deposits to be
paid to state
treasurer.
1907, 340, § 1.
1908, 590,
§§ 56, 69.
1916, 198.
201 Mass. 23.
How Buch
deposits may
be reclaimed.
1907, 340, § 2.
Section 42. The probate court shall, upon the application of the at- 1
torney general and after public notice, order and decree that all amounts 2
of money deposited with any such bank which shall have remained un- 3
claimed for more than thirty years and which are credited to depositors 4
who cannot be found and who have not made a deposit on account of the 5
same and have not withdrawn any part of the principal or interest thereof, 6
and on whose pass book the interest has not been added for a period of 7
thirty years, and for wliich no claimant is known, shall, with the increase 8
and proceeds thereof, be paid to the state treasurer to be held subject to 9
be paid to the person establishing a la\\'fid right thereto, in accordance 10
with the following section, with interest at the rate of tliree per cent per 1 1
annum from the time when it was so paid to the said treasm-er to the time 12
wlien it is paid by him to such person. After six years from the date 13
when such proceeds were paid to the said treasurer the same may be 14
used as a part of the ordinary re^^enue of the commonwealth. Any 15
person may, however, establish his claim at any time after the expiration 16
of the six years above mentioned, and any claim so estabhshed shall be 17
paid from the ordinary revenue of the commonwealth. IS
Section 43. Any person claiming a right to money deposited with 1
the state treasurer under either of the two preceding sections, or section 2
Ch.^J. 168.] SAVINGS B.VNKS. 1875
3 fifty of chapter one hundred and seventy-two, may establish the same laos. 590,
4 by a petition to the probate court in which the decree was entered; pro- unf.'TO.'
5 \'ided, tliat in cases where claims amount to less than fifty dollars, 2oiVa^i'. 23.
6 the claims may be presented to the state auditor, who shall examine the
7 same and allow and certify for pajinent such as may be proved to his
8 satisfaction.
1 Section 44. The supreme judicial coiut or any justice thereof sitting when reduction
2 in equity may, on petition of a savings bank or the trustees of a sa^•ings Cl orS???!™"^
3 bank, approved by the commissioner, approve or order a reduction of the \l\g] 3I5; ^ ^^'
4 deposit account of each depositor therein, whenever the value of its as- ^^ *^- **"■
5 sets is less than the total amomit of its deposits so as to divide the loss
6 equitably among said depositors. If thereafter the bank shall realize from
7 said assets a greater sum than was fixed by said order of reduction, such
8 excess shall be divided among the depositors whose accounts have been
9 reduced, but to the extent of such reduction only.
1 Section 4.5. The trustees shall, immediately before making each Guaranty fund
2 semi-annual dividend, set apart as a guaranty fund from the net profits andmaTn"-''
3 which ha^■e accumulated during the six months last preceding not less IsTe.'^ios. § 13.
4 than one eighth nor more than one foiuth of one per cent of the whole fsg^l; 3V7. II5
5 amount of deposits, until such fund amounts to Hve per cent thereof, and f^^- J.^^' ^ so.
6 no additions shall be made to it when it amounts to fi^•e per cent, or more, ^if^' ?">,
7 thereof. Such fund shall thereafter be held to meet contingencies or sos, 53s.
8 losses in its business from depreciation of its securities, or otherwise.
9 When such fund amounts to less than fi\'e per cent of the whole amount
10 of deposits, no losses shall be met therefrom except upon ■UTitten approval
1 1 of the commissioner.
1 Section 46. Said trustees, subject to the ^xitten approval of the Transfers to
2 commissioner, may transfer from the profit and loss account to the f9i2!'i22.^"" '
3 guaranty fund such amounts, and at such times, as they deem for the
4 best interests of the depositors if thereby such guaranty fund is not
5 increased beyond the hmit fixed by the preceding section.
1 Section 47. The income of such corporation, after deducting the Manner of
2 reasonable expenses incurred in the management thereof, the taxes in™i°e° °
3 paid, and the amounts set apart for the guaranty fund, shall be divided r.^s.'3o.''§ si"'
4 among its depositors, or their legal representatives, at times fixed by its q *|' Jf H \lj
5 by-laws, in the following manner: an ordinary dividend shall be de- j?"!'??,?!,;-
6 clared every six months from income which has been earned, and which is94, 3i7,§2'g.
7 has been collected during the six months next preceding the date of the r. l! us. i 31.
8 dividend, except that there may be appropriated from the earnings re- §§ eo.^g.'
9 maining undivided after declaration of the preceding semi-annual divi- jfl.'i/^'
10 dend an amount sufficient to declare an ordinary dividend at a rate not ^-*'' ^ '•
11 in excess thereof; but the total dividends declared during any twelve
12 months shall not exceed the net income of the corporation actually col-
13 lected during such period, except upon written approval of the com-
14 missioner. Dividends may be declared oftener than every six months
15 as pro\'ided in section seventeen of chapter one hundred and sixty-seven.
16 Dividends shall be treated as deposits, and if not withdrawn shall be
17 considered, in computing the dividend next following, as having been on
18 deposit for the preceding interest period. Ordinary dividends shall not
1876 SAVIXGS B.tNKS. [CsAP. 168.
exceed the rate of five per cent a year. Xo ordinary dividend shall 19
be declared or paid except as above pro\ided, nor, except as otherwise 20
provided by section seventeen of chapter one hundred and sixty-seven, 21
upon a deposit of less than three months' standing; but, if the by-laws 22
so proAide, ordinary dividends may be declared and paid upon deposits 23
of one, two, four or fi^'e months' standing, computed as provided in said 24
section. The corporation may, by its by-laws, pro\ide that a dividend 25
shall not be declared or paid on less than three dollars, or on the frac- 26
tional part of a dollar. 27
dfviS's^o Section 48. Immediately before a meeting of the trustees called 1
by tri^te^."^ to consider the declaration of a dividend, the auditing committee shall 2
sf^l's*^' make or cause to be made an examination of the income, profits and ex- 3
?s-6 2o''?^«''*7 P^'is^^ ^°r t^^^ ^^^ months' period last preceding the date of the declara- 4
PS.' 116,' §28.' tion of the dividend, and shall report to the trustees the estimated net 5
R. l!ii3!§34! earnings of said period. No dividend shall be paid unless declared and 6
§§fi,*69.' authorized by the trustees after said examination, and a copy of said 7
1920.' Ih! ^ '■ report shall be filed and preserved with the records of the corporation. 8
Op. A. G. (1919) 115.
Stote""^ Section 49. If, at the time provided by the by-laws for making 1
1876 203 ordinary dividends, the net income for the interest period last preceding, 2
§ 15-' ' over and above the amount to be set apart for the guaranty fund, does 3
p. s.'iie.i 26. not amount to one and one half per cent of the deposits, if said period is 4
R. l! 113," § 32! six months, or a proportional percentage thereof, if the period is less than 5
Is^f.'l.'s.' six months, no dividend of the profits shall be declared or paid, except 6
ifli.^c^.' such as shall be approved in writing by the commissioner. 7
1919, 326, § 1; 350, §§45, 46.
divid°nS"s\aii SECTION 50. '^ATienevcr the guaranty fund and undivided net profits 1
il76?203, 1 16. together amount to ten and one quarter per cent of the deposits after an 2
^sii 355 ^ ^^' ordinary dividend is declared, an extra dividend of not less than one quar- 3
ilge'lsi' ^^^' ^^^ o^ ^^^ P^^ ^^^^ shall be declared on all amounts which have been on 4
R. L.' usi § 33. deposit for the six months, or not less than one eighth of one per cent on 5
§§ 63, 69." all amounts %Ahich ha^-e been on deposit for the three months, preced- 6
2^. ■ " ing the date of such di\idend, and such extra diA^dend shall be paid on 7
the day on which the ordinary di\-idend is paid; but in no case shall 8
the payment of an extra dividend as herein provided reduce the guar- 9
anty fund and undivided profits together to less than ten per cent of the 10
deposits. ■ 1 1
9
otdeposiTs' Section 51. The principal deposits in such corporation may be 1
J?^'oc°ii!°- withdrawn at such time and in such manner as the bv-laws direct, but
R. b. 3b, § 81. . *. 1 . . ^ ■ 1 • ,.,
•^^-l' S'- ^ ^ ' '^; the treasurer oi such corporation may at any time require a depositor 3
p. s.'ii6,'§"29.' to give a notice not exceeding ninety days of his intention to withdraw 4
R. l'. 113, §35; the whole or any part of his deposit. Deposits so withdrawn shall be 5
ll'M.'eg.' deducted in each case from the amounts last deposited. 6
127 Mass. 183. 141 Mass. 33.
onieTafter" Section 52. Such Corporation may pay an order, drawn by a per- 1
dra^xr"^ .son who has funds on deposit to meet the same, notwithstanding the 2
1894' 317' 1 31 ^l^^th of the drawer, if presentation is made within thirty days after the 3
R. l'. 113', 1 36. date of such order; and at anv time if the corporation has not received 4
1908, 590. . • p 1 ,,,.', , r
l§65, 69. written notice 01 the death of the drawer. 211 Mass. 532. 5
Chap. 168.] savings b.anks. 1877
1 Section 53. Money deposited in the name of a minor may, at the Payments
2 discretion of the board of investment, or of the treasurer if authorized isssl'sei!
3 by said board, be paid to such minor or to the person making such ^sye.losfut;
4 deposit ; and the same shall be a valid payment. p. s. lie, § 29.
1S94, 317. § 30. R. L. 113, § 35. 1908, 590. §§ 66. 69. 152 Mass. 49.
INVESTMENTS.
1 Section 54. Deposits and the income derived therefrom shall be investments
2 invested only as follows : p. sue, §20. authorized.
1S94, 317, § 21. R. L. 113, § 26. 190S. 590, §§ 68, 69. 134 Mass. 177.
3 First. In first mortgages of real estate located in the commonwealth First mort-
4 not exceeding sixty per cent of the value of such real estate; but not lsfaTe.°^ '^'"''
5 more than seventy per cent of the whole amount of deposits shall be so jf ^|' 3^|°; ig"-
6 invested. If a loan is made on unimproved and unproductive real estate, P^ fil'^ijQ
7 the amount loaned thereon shall not exceed forty per cent of the value i8''2, 293, §3.
1876 203
8 of such real estate. No loan on mortgage shall be made except upon § 9, ci.i, § 12.
9 written application showing the date, name of applicant, amount asked §'2o,d.\§23.
10 for and security offered, nor except upon the report of not less than two §*2^i%1' 1'. § 24.
11 members of the board of investment who shall certify on said application, ?26"cVl' § 29
12 according to their best judgment, the value of the premises to be mort- P^|' J'*9' gg
13 gaged; and such application shall be filed and preserved with the records isio, 622,' § lo!
14 of the corporation. §§ 45, 46.'
15 At the expiration of every such loan made for a period of five or more 202 Mas3:2i4!
16 years not less than two members of the board of investment shall certify f op^A^G.^434.
17 in writing, according to their best judgment, the value of the premises fg^"' ^' °' "^'
18 mortgaged; and the premises shall be revalued in the same manner at 3 0p.A.G.2.'i6.
19 intervals of not more than five years so long as they are mortgaged to
20 such corporation. Such report shall be filed and preserved with the
21 records of the corporation. If such loan is made on demand or for a
22 shorter period than five years, a revaluation in the manner above pre-
23 scribed shall be made of the premises mortgaged not later than five years
24 after the date of such loan and at least every fifth year thereafter. If at
25 the time a revaluation is made the amount loaned is in excess of sixty
26 per cent, or in the case of unimproved and unproductive real estate in
27 excess of forty per cent, of the value of the premises mortgaged, a suffi-
28 cient reduction in the amount of the loan shall be required, as promptly
29 as may be practicable, to bring the loan within sixty per cent, or in the
30 case of unimproved and unproductive real estate, -witliin forty per cent,
31 of the value of said premises.
32 Whenever the commissioner deems an excessive loan has been made,
33 or is about to be made upon real estate, he may cause an appraisal of
34 said real estate to be made at the expense of the bank making the loan.
35 One appraiser shall be named by the commissioner, one by the bank
36 making the loan, and a third by the two thus named. Said appraisers
37 shall determine the value of said real estate and certify the same in UTit-
38 ing to the commissioner and to the bank. If it shall appear from said
39 appraisal that said loan is in excess of the amount allowetl by this clause,
40 the commissioner may make such order in relation thereto as he deems
41 ad\'isable.
42 Second, (a) In the public funds of the United States, or of any of f^'j'igo^'l'v.
43 the New England states.
R. S. 36, §78. 1876, 203. I 9, cl. 2. P. S. 116, § 20, cl. 2.
G. S. 57, § 142. 1880,177. R. L. 113, § 26, cl. 2 Ca).
1863, 175, § 1. 1881, 214, § 2. 190S. 590, § OS, cl. 2 (a), § 69.
1878 SAVINGS BANKS. [CH-U". 168.
ISM, 317, § 21, ^^^ j^ ^j^g bonds or notes of a county, city or to-n-n of this common- 44
S' 2 '(6/.^' ^ ^*'' wealth. 1908, 590, § es, ci. 2 (6), § 69. 45
1885, 111. (c) In the bonds or notes of an incorporated district in this common- 46
d'.2\c)'.^' ^^' wealth whose net indebtedness does not exceed five per cent of the last 47
a'2'(^)!''§ 69.*' preceding valuation of the property therein for the assessment of taxes. 48
R. L. 113, § 26, (d) In the bonds or notes of any city of INIaine, New Hampshire, 49
1904, 208. Vermont, Rhode Island or Connecticut, whose net indebtedness does 50
jL°2*'(d?.°5 69.*' not exceed five per cent of the last preceding valuation of the property 51
2^0^'. 1^0.^3. therein for the assessment of taxes; or of any county or town of said 52
states whose net indebtedness does not exceed three per cent of such 53
valuation ; or of any incorporated water district of said states wliich has 54
within its limits more than five thousand inliabitants, and whose bonds 55
or notes are a direct obligation on all the taxable property of such dis- 56
trict, and whose net indebtedness does not exceed three per cent of such 57
valuation: provided, that there is not included within the limits of such 58
water district, either wholly or in part, any city or town the bonds or 59
notes of which are not a legal investment. 60
ills' 124' (^) ^^ ^^^® legally authorized bonds of the states of New York, Penn- 61
i||7;423: sylvania, Ohio, Indiana, Illinois, IMicliigan, Wisconsin, INIinnesota, 62
i89o! 389. Missouri and Iowa, and of the District of Columbia, and in the legally 63
li2'(.f). ' ^'' authorized bonds for municipal purposes, and in the refunding bonds 64
R.^L. US, § 26, issued to take up at maturity bonds which have been issued for other 65
i90s,'59b, § 68, th3,n municipal purposes, but on wliich the interest has been fully paid, 66
1912 ^580^ Ti °^ ^^y ^^^y °^ *'^^ aforesaid states wliich has at the date of such invest- 67
I'op'. A. G. 190. nient more than thirty thousand inhabitants, as established by the last 68
''' ' " ' national or state census, or city census certified to by the city clerk or 69
treasurer of said city and taken in the same manner as a national or 70
state census, preceding such investment, and whose net indebtedness 71
does not exceed five per cent of the valuation of the taxable property 72
therein, to be ascertained by the last preceding valuation of property 73
therein for the assessment of taxes. 74
m2, ^8a ^^^ ^y^ jjj ^j^g legally authorized bonds of the states of California, Delaware, 75
' Nebraska, New Jersey, Oregon and Washington, and in the legally au- 76
thorized bonds for municipal purposes or in refunding bonds wliich have 77
been issued for other than municipal purposes, but on which the interest 78
has been fully paid, of any city of the states of California, Connecti- 79
cut, Delaware, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, 80
Massachusetts; Michigan, Minnesota, Missouri, Nebraska, New Hamp- 81
shire. New Jersey, New York, Ohio, Oregon, Pennsyh'ania, Rhode Island, 82
Vermont, Washington and Wisconsin, which has at the date of such in- 83
vestment more than one hundred thousand inliabitants, established in 84
the same manner as is provided in subdivision (e) of this clause, and whose 85
net indebtedness does not exceed seven per cent of the valuation of the 86
taxable property therein, established and ascertained as provided in sub- 87
division (e) of this clause. 88
jr2(A^'^"'' (^^ I" subdivisions (d), (c) and (/) of tliis clause the words "net in- 89
jt't'crt"' ^"^^ debtedness" mean the indebtedness of a county, city, town or district, 90
19^2,580 omitting debts created for supplying the inliabitants with water and 91
4 Op! A. g! 220; debts created in anticipation of taxes to be paid within one year, and 92
deducting the amount of sinking funds av'ailable for the pajTnent of 93
the indebtedness included. 94
KsMhi^etti^' Tliird. (a) In the bonds or notes, issued in accordance with the laws 95
S°'i96 '^^ t^^'s commonwealth, of a railroad corporation incorporated therein 96
1894,317, §21,
Chap. 168.] savings banks. 1879
97 the railroad of which is located wholly or in part therein, which has paid J| 3 ('/^' ^ ^^•
98 in dividends in cash an amount equal to not less than foiu* per cent per i?os, 590 § es,
99 annum on all its outstanding issues or capital stock in each fascal year Op.A.c.
100 for the five years preceding such investment, or in the first mortgage
101 bonds of a terminal corporation incorporated in this commonwealth
102 and whose property is located therein, which is owned and operated, or
103 the bonds of which are guaranteed as to principal and interest, or as-
104 sumed, by such railroad corporation. Any shares of the capital stock
105 of a railroad corporation leased to such railroad corporation, which are
106 owned by said lessee corporation, shall not be considered as outstanding
107 witliin the meaning of this subdivision.
108 (b) In the bonds or assumed bonds of a railroad corporation incor- New England
109 porated in any of the New England states, at least one half of the mL^""'
110 railroad of which is located in said states, whether such corporation is iIto] 203,' | yj
111 in possession of and is operating its own road or is leased to another f^^^ ^u 51
112 railroad corporation: provided, either that such bonds shall be secured psiie, §20,
11.3 by a first mortgage of the whole or a part of the railroad and railroad issti, i76.
114 property of such corporation, or by a refunding mortgage as described in issoisos!
115 paragraph (3) or (4) of subdivision (g), or that if the railroad and rail- If^s!
116 road property of such corporation are unencumbered by mortgage such ci?*iMrf)^ ^'
117 bonds shall be issued under the authority of one of said states which ^' 3 (ij'^' ^ ^*''
lis provides by law that no such railroad corporation which has issued bonds J^os, 590,
1 n 1 * 1 • 1 • 1 S "^' Ci- o (6),
119 shall subsequently execute a mortgage upon its road, eqiupment and §R9-
120 franchise or upon any of its real or personal property, without including 1 op'. a.g.
121 in and securing by such mortgage all bonds previously issued and all 2 Op. a.g. 257.
122 its pre-existing debts and liabilities, which provision, so enacted in such
123 state, shall have been accepted by the stockholders of such corporation;
124 and provided, tliat such corporation has paid in dividends in cash an
125 amount equal to not less than four per cent per annum on all its out-
126 standing issues of capital stock in each fiscal year for the five years
127 preceding such investment.
128 (c) In the first mortgage bonds or assumed first mortgage bonds or in Guaranteed
129 the bonds secured by a refunding mortgage as described in paragraph i8S7?'i96.°° ^'
130 (3) or (4) of subdivision {g), of a railroad corporation incorporated in any cul').^*^' ^ ''
131 of the New England states, the railroad of which is located wholly or f2o,cV3(6).
132 in part therein, which have been guaranteed as to principal and interest Jflvf?"; I9®*'
133 by a railroad corporation described in subdivision (a) or (6) which is in 1909, 491, §«.
134 possession of and is operating its own road. a Op. a.g. 43, 462.
135 (d) No bond shall be made a legal investment by subdivision (b) unless Dividends
136 the corporation which issued or assumed such bond has, during its fiscal JSiroads.
137 year preceding the date of such investment, paid in di\ndends on its J|'°3*''(i)',°' ^ "*'
138 capital stock an amount equal to one third of the total amount of inter- i^os. 49i. § s.
139 est paid on all its direct and assumed funded indebtedness.
140 No bond shall be made a legal in^'estment by subdivision (c) unless the
141 corporation which guaranteed such bond has, during its fiscal year pre-
142 ceding such investment, paid in dividends on its capital stock an amount
143 equal to one third of the total amount of interest paid on all its direct,
144 assumed and guaranteed funded indebtedness.
145 (e) In the mortgage bonds, as described in any of the following sub- other railroads.
146 divisions of tliis clause, of any railroad corjjoration incorporated under rorpom'tion."
147 the laws of any of the United States: Tscl"' ^^*'
148 ProA-ided, that during each of tlie ten fiscal years of such railroad cor- Jop^a'g^iss.
149 poration preceding the date of such investment —
1880
SAVINGS BANKS.
[Ch.^p. 16S.
(1) Such railroad corporation o^-ned in fee not less than fi\e hundred
miles of standard gauge railroad, exclusive of sidings, within the United
States, or if such corporation o\\'ned in fee less than five hundred niiles
of such railroad, the gross earnings of such corporation, reckoned as
hereinafter proA'ided, shall have been not less than fifteen million dollars;
(2) Such railroad corporation shall have paid the matiu-ed principal
and interest of all its mortgage indebtedness ;
(3) Such railroad corporation shaD ha^■e paid in dividends in cash to
its stockholders an amount equal to at least four per cent upon all its
outstanding capital stock;
(4) The gross earnings from the operation of the property of such rail-
road corporation, including therein the gross earnings of all railroads
leased and operated or controlled and operated by said corporation, and
the gross earnings from the sale of coal from mines owned or controlled
by it, shall not have been less in amount than five times the amount
necessary to pay the interest payable upon its entire outstanding in-
debtedness, the rentals of all leased lines, and the interest on all the out-
standing indebtedness of railroads controlled and operated which are
not owned by said corporation after deducting from said interest and
rentals interest and di^-idends received from the stocks, bonds or notes
of railroad corporations not operated by said corporation, wliich have
been deposited with a trustee as the only security to secure the pay-
ment of bonds or notes issued by said corporation, but not in excess of
the interest on said last named bonds or notes;
And further provided that —
(5) No bonds shall be made a legal investment by subdivision (g) in
case the mortgage securing the same shall authorize a total issue of
bonds which, together with all outstanding prior debts of the issuing
or assuming corporation, including all bonds not issued that may
legally be issued under any of its prior mortgages or of its assumed
prior mortgages, after deducting therefrom, in case of a refunding mort-
gage, the bonds reserved under the provisions of said mortgage to re-
tire prior lien debts at maturity, shall exceed three times the outstand-
ing capital stock of said corporation at the date of such investment ;
(6) No bonds shall be made a legal investment by subdivision (i)
or (j) in case the mortgage securing the same shall authorize a total
issue of bonds which, added to the total debt of the guaranteeing cor-
poration as defined in paragraph (5), including therein the authorized
amount of all previously guaranteed bond issues, shall exceed three
times the capital stock of such guaranteeing corporation outstanding
at the date of such investment; nor in case at said date the total debt
of the corporation wliich issued said bonds shall exceed three times its
outstanding capital stock;
In the case of a mortgage executed prior to June eighth, nineteen
hundred and eight, under which the total amount of bonds which may
be issued is not specifically stated, the amount of bonds outstanding
thereunder at the date of such investment shall be considered, for the
purposes of paragraph (5) and of this paragraph, as the total authorized
issue.
(/) ^^^lenever the term "first mortgage" is used in the following
subdivisions, it shall mean, unless otherwise qualified, a first mortgage
is^. 59o°§ 68, on not less than seventy-five per cent of the railroad owned in fee at the
date of tlie mortgage by the railroad corporation on the railroad of
which said mortgage is a lien, but in no case on less than one hundred
Description
of bonds.
Definition of
first mortgage.
78
79
SO
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
200
201
202
203
Caxv. 16S.] SAVINGS b.\nks. 1881
204 continuous miles of standard gauge railroad, exclusive of sidings: pro-
205 videdthat —
206 Seventy-five per cent of the railroad subject to the lien of said luort-
207 gage is connected;
208 For five years prior to the date of investment therein all the railroad
209 subject to the lien of said mortgage at the date of execution thereof
210 has been operated by, and its operations included in, the operations of
211 the railroad corporation which issues, assumes or guarantees said bonds;
212 The date of said mortgage is at least five years prior to the date of
213 such investment; except that a first mortgage given in substitution
214 for and not greater in amount than such a first mortgage, and covering
215 the same railroad property, shall be considered to be in accordance
216 with this requirement.
217 (g) Bonds issued or assumed by a railroad corporation described in Railroad
218 subdi^-ision (e) which are seemed by a mortgage which was at the date "on"!!'^''
219 thereof or is at the date of such investment — JlT tof' ^ *^*'
220 (1) A first mortgage on a railroad owned in fee by the corporation
221 issuing or assmning said bonds, except that, if it is not a first mortgage
222 on se\'enty-five per cent of all such railroad o\\aied in fee by said corpo-
223 ration, it shall be a first mortgage on at least seventy-five per cent of the
224 railroad subject to the lien of said mortgage at the date thereof; but
225 if any stocks or bonds are deposited with the trustee of said mortgage
226 as part security therefor, representing or covering railroad mileage not
227 owned in fee, the bonds secured by said mortgage shall not become legal
228 investments unless said corporation ownis in fee at least seventy-five
229 per cent of the total mileage which is subject to the lien of said mortgage
230 and which is represented or covered by said stocks or bonds;
231 (2) A first mortgage, or a mortgage or trust indenture wliich is in
232 effect a first mortgage upon all the railroad subject to the hen of said
233 mortgage or trust indentiu-e by virtue of the irrevocable pledge with
234 the trustee thereof of an entire issue or issues of bonds which are a first
235 lien, upon the railroad of a railroad corporation which is owned and
236 operated, controlled and operated or leased and operated by the corpo-
237 ration issuing or assuming said bonds;
238 (3) A refunding mortgage which covers at least seventy-five per i909, 491. § s.
239 cent of the railroad owned in fee by said corporation at the date of
240 said mortgage and provides for the retirement of all outstanding mort-
241 gage debts which are a prior lien upon said railroad owned in fee and
242 covered by said refunding mortgage at the date thereof; but if any
243 of the bonds which said refunding mortgage is given to refund are se-
244 cured on a railroad not owmed in fee by the corporation executing said
245 refunding mortgage, there shall be conveyed and assigned to the trustee
246 of said refunding mortgage either ■ —
247 At least seventy-five per cent of the railroad on which each issue of
248 bonds to be refunded is secured, free from any mortgage hen except
249 that of the mortgage or mortgages securing the bonds to be refunded;
250 or
251 At least seventy-five per cent of the outstanding bonds of each issue
252 •^\liich is secured by a mortgage hen upon such railroad; and all of
253 said railroad not owned in fee which is so subjected to the hen of said
254 refunding mortgage shall be the railroad of one or more railroad cor-
255 porations which are owned and operated, controlled and operated, or
256 leased and operated by the corporation issuing or assuming said re-
257 funding mortgage bonds;
1882 SAVINGS BANKS. [Ch,4.P. 1G8.
But in no case shall the bonds secured by said refunding mortgage 258
become a legal investment unless they mature at a later date than any 259
bonds M'liich said refunding mortgage is given to refmid, nor unless the 260
total mileage subjected to the lien of said refimding mortgage in ac- 261
cordance with the requirements of this paragraph is at least twenty- 262
five per cent greater than the mileage covered by any one of the mort- 263
gages securing bonds which said refunding mortgage is given to refund; 264
(4) A mortgage upon not less than ten per cent of the railroad, ex- 265
elusive of sidings, owned in fee at the date of said mortgage by the 266
corporation issuing or assuming said bonds, but in no case on less than 267
five hundred continuous miles of standard gauge railroad: p^o^■ided 268
that — 269
Said mortgage is a first or second lien upon not less than seventy- 270
five per cent of the total railroad covered by said mortgage at the date 271
thereof, and which provides for the retirement of all mortgage debts 272
which are a prior lien upon said railroad owned in fee and covered by 273
said mortgage, at the date of the execution tliereof; 274
The bonds secured by said mortgage mature at a later date than, 275
and cover a mileage at least twenty-five per cent greater than is covered 276
by, any of the bonds secured by a prior lien mortgage so to be retired ; 277
Tlie date of said mortgage shall be at least five years prior to the 278
date of such investment. 279
^°ng refunding (A) Mortgage bonds or bonds secured by mortgage bonds which are 280
i908,^59a § 68, a direct obligation of, or wliich have been assumed, or which have been 281
ci. 3 (A). guaranteed by endorsement as to both principal and interest, by a 282
railroad corporation whose refunding mortgage bonds are made a legal 283
investment under paragraph (3) or (4) of subdivision (g) : provided that — • 284
Said bonds are prior to and are to be refunded by such refunding 285
mortgage; 286
Said refunding mortgage covers all the real property upon which the 287
mortgage securing said underlying bonds is a lien; 288
In the case of bonds so guaranteed or assumed, the corporation issuing 289
said bonds is owned and operated, controlled and operated, or leased and 290
operated, by said railroad corporation. 291
owf^aSonf (^) Bonds which have been guaranteed by endorsement as to both 292
d-*f'(ff°' ^'^*' principal and interest by a railroad corporation which has comphed with 293
2bp.A".G.257. all the provisions of subdivision (e): provided that — 294
Said bonds are seciu-ed by a first mortgage on the railroad of a rail- 295
road corporation which is owned and operated, controlled and operated, 296
or leased and operated, by the corporation guaranteeing said bonds; 297
In the case of a leased railroad, the entire capital stock of which, 298
except shares qualifying directors, is not owned by the lessee, the rental 299
includes an amount to be paid to the stockliolders of said leased rail- 300
road equal to at least four per cent per annum upon that portion of 301
tlie entire capital stock thereof outstanding which is not owned by the 302
lessee. 303
bondsM*"''' ^^^ First mortgage bonds of a railroad corporation wliich diu-ing 304
railroads not each of its ten fiscal years preceding the date of such investment has 305
1908, 590, § OS, complied with all the requirements of paragraphs (2), (3) and (4) of 306
1909,491,18. subdivision (e), provided that said bonds are guaranteed by endorse- 307
ment as to both principal and interest by a railroad corporation which 308
has complied with all the requirements of subdivision (e) preceding 309
paragraph (5), notwithstanding that the railroad of said issuing corpo- 310
ration is not operated by said guaranteeing corporation. 311
Chap. 168.] SAvmcs b.vntks. 1883
312 (/r) Bonds which have been or shall become legal investments under Corporation
313 any of the provisions of this section shall not be rendered illegal al- ?r°edit by^"
314 though the corporation issuing, assuming or guaranteeing such bonds aTtSSIZce of
315 shall fail for a period not exceeding two successive fiscal years to com- grlfssearn^ings
316 ply M'ith the requirements of paragraph (4) of subdivision (e); but no Jg^^^^g
317 fiu-ther investment in the bonds issued, assumed or guaranteed by said ^?°?',??°' ^''*'
318 corporation shall be made during said period. If after the expiration
319 of said period said corporation complies for the following fiscal year
320 with all the requirements of subdivision (e), it shall be regarded as
321 having complied therewith during said period.
322 (/) Bonds wliich have been or shall become legal investments under Bonds not to
323 any of the pro\isions of this section shall not be rendered illegal, al- on™™ount wt
324 though the property upon which they are seciu-ed has been or shall be igSI?^^'! es,
325 conveyed to or legally acquired by another railroad corporation, and "='• ^ "'•
326 although the corporation which issued or assumed said bonds has been
327 or shall be consolidated with another railroad corporation if the con-
328 solidated or pm-chasing corporation shall assume the pajTuent of said
329 bonds and so long as it shall continue to pay regularly interest or di\i-
330 dends, or both, upon the securities issued against, in exchange for, or
331 to acquire the stock of the corporation consolidated, or the property
332 purchased, or upon securities subsequently issued in exchange or substi-
333 tution therefor, to an amount at least equal to foiu" per cent per annum
334 upon the capital stock outstanding at the time of such consohdation
335 or pm-chase of said corporation which issued or assumed said bonds.
336 (m) If a railroad corporation which has complied with all the re- Credit of a
337 quirements of subdi\T[sion (e) preceding paragraph (5), except that the no7tobe°iost
338 period of compliance is less than ten, but not less than five successive uon™^"'"^""
339 years, shall be, or shall have been, thereupon consolidated or merged ^il's^cm^)"' ^ '^^'
340 with, or its railroad purchased and all of the debts of such corporation
341 assumed by, another railroad corporation incorporated under the laws
342 of any of the United States, such corporation so succeeding shall be
343 considered as having complied with all the provisions of subdivision (e)
344 preceding paragraph (5) during those successive years preceding the
345 date of such consolidation, merger or purchase in which all said con-
346 solidated, merged or purchased corporations, if considered as one contin-
347 uous corporation in ownership and possession, would have so complied;
348 provided, that said succeeding corporation shall continue so to com-
349 ply for a further period which shall make such compliance ecjuivalent
350 to at least ten successive years, but wliich shall be in no case less
351 than the two fiscal years next following said consolidation, merger or
352 piu-chase.
353 (n) In this clause, unless the context otherwise requires, "railroad foS^orat^ons^'''
354 corporation" means a corporation which owns or is in possession of and "■■« not railroad
.,, ., I'll 11 11 corporations.
355 operating a railroad or railway or the class usually operated by steam isos 590, § es,
356 power. Street railway corporations are not raihoad corporations within
357 the meaning of this clause.
358 (o) Railroad bonds, wluch were legal investments for savings banks Operation of
359 at the time when the government of the United States, under the act of United states.
360 congress approved March twenty-first, nineteen hundred and eighteen, 1920! 420.
361 took over the operation of the railroads issuing such bonds, shall not
362 become illegal investments by reason of the operation of the railroads
363 by the federal government. The time during which any such railroad
364 is operated by the federal government shall be excluded, including the
365 year in which the government operation ends, in determining the com-
1884 SAVINGS B.«rKs. [Ch.\p. 168.
pliance of any such railroad with this clause; proA-ided, that in case a 366
raiboad corporation the mortgage bonds of which would become legal 367
for investment under subdivision (e) of this clause upon its compliance 368
with the requirements of said subdi\'ision shall have complied with the 369
requirements of said subdivision during the two years or more preced- 370
ing January first, nineteen hundred and eighteen, such railroad cor- 371
poration shall be deemed to have complied with the requirements of 372
said subdivision during the period of the government operation of its 373
raOroad, including the year in which such government operation ends, 374
in computing the time of compliance with the requirements of said 375
subdivision. 376
The time during which any railroad is operated by the government 377
of the United States under the pro\asions of an act of congress approved 378
August twenty-ninth, nineteen hundred and sixteen, of an act of con- 379
gress approved ]March twenty-first, nineteen hundred and eighteen, or of 380
any other act or acts of the congress of the United States, and for two 381
years thereafter, and the earnings made and di\'idends paid during said 382
time and for said two years thereafter shall not be taken into considera- 383
tion in determining whether the bonds of the raihoad corporation comply 384
with any provision of this section. Any railroad corporation, which, 385
at the time when the operation of its railroad by the government of the 386
United States under the provisions of the said act or acts began, had 387
complied with subdivision (e) of this clause, for one or more years next 388
preceding the commencement of such government operation and control 389
shall be entitled to include, in computing the period of ten years pre- 390
scribed by said subdivision e\ery year during any part of which its rail- 391
road shall have been operated by the government of the United States 392
under the provisions of said act or acts, and the two years succeeding 393
the termination of such operation, in determining whether such corpora- 394
tion has complied \\-ith said subdivision (e) each year for ten years. Except 395
as pro\'ided in tliis subdi\'ision, whenever a reference is made in said 396
subdivision (e) to a period of ten years preceding the date of an invest- 397
ment in the bonds of any railroad corporation, such period shall be 398
deemed exclusive of any time during wliich the property of such rail- 399
road corporation has been operated by the govenmaent of the United 400
States under the pro\'isions of the said acts and of the two years sue- 401
ceeding tlie termination of such operation. 402
Any bonds acquired by sa\ings banks or institutions for sa\'ings prior 403
to May se^'enth, nineteen hundred and twenty, or at any time there- 404
after, wliich comply v^ith this clause may, so long as they continue to 405
comply therewith, be retained as investments authorized by law. 406
IS/^''''''' Fourth. In tlie bonds of any street railway company incorporated in 407
1906; 204'. this commonwealth, the railway of which is located wholly or in part 408
iiVss'uV^^^' therein, and wliich has earned and paid in dividends in cash an amount 409
i|S- 158- ' equal to at least five per cent upon all its outstanding capital stock in 410
§ 68.'ci. s". § 69. each of the five years last preceding the certification hereinafter pro- 411
i9i5!273; § L \ided for by the department of public utilities or its predecessors except 412
§§'2%';^^' the six months' period beginning July first and ending December thirty- 413
§5 «.^46.' 117. ^''^t, nineteen hundred and sixteen. No such investment shall be made 414
3 Op. A. G. 338. unless Said company appears from returns made by it to the said depart- 415
ment to have properly paid said dividends without imp;iirnient of assets 416
or capital stock, and said department shall annually on or before June 417
fifteenth certify and transmit to the commissioner a list of such street 418
railway companies. 419
Ch.\P. 168.] SAVINGS BANKS. 1885
420 Dividends paid by way of rental to stockholders of a leased street
421 railway company shall be deemed to ha^'e been earned and paid by said
422 company within the meaning of this clause, provided that said com-
423 pany shall have annually earned, and properly paid in dividends in cash,
424 without impairment of assets or capital stock, an amount equal to at
425 least five per cent upon all its outstanding capital stock in each of the
426 five fiscal years preceding the date of the lease thereof.
427 If two or more street railway companies have been consolidated by
428 piu-chase or otherwise diuing the five years prior to said certification,
429 the payment severally from the earnings of each year of di\ddends
430 equivalent in the aggregate to a dividend of five per cent on the ag-
431 gregate capital stocks of the se\'eral companies during the years pre-
432 ceding such consolidation shall be sufficient for the piu-pose of this
433 clause.
434 Bonds which have been or shall become legal investments under i9i5, 273, § 1.
435 this clause shall not, except as hereinafter provided, be deemed to be
436 an illegal in\-estment by reason of the fact that the corporation issuing
437 such bonds shall fail or has heretofore failed for a period not exceeding
438 two successive fiscal years to earn and pay dividends in accordance M-ith
439 the requirements of this clause, but no further investment in the bonds
440 issued by the corporation shall be made during said period. If after the
441 expiration of said period the corporation earns and pays or has earned
442 and paid di\'idends during the following fiscal year in accordance with
443 the requirements of this clause, it shall be regarded as ha^'ing complied
444 therewith during said period: provided, that it shall not have so failed
445 to comply dm-ing any other period within the preceding five years; and
446 pro^'ided, that diu-ing said period of non-compliance its annual earnings
447 shall have been at least sufficient to provide for the paj-ment of the in-
448 terest upon its outstanding indebtedness and all other fixed charges in
449 addition to its operating expenses. The said department shall certify
450 and transmit to the commissioner a fist of any street railway companies
451 whose bonds become legal investments by \artue of this paragraph.
452 Fifth. In the bonds of any telephone company subject to section Telephone
453 fifty-three of chapter sixty-three and of which a majority of the directors bo™(S'°*
454 are residents of the commonwealth: Jf°|' ^^°- ^ ®*'
455 Provided, that during each of the five fiscal years of such telephone
456 company preceding the date of such investment —
457 (1) The gross income of such telephone company shall have been
458 not less than ten million dollars per annum.
459 (2) Such telephone company shall have paid the matiued principal
460 and interest of all its indebtedness.
461 (3) Such telephone company shall have paid in dividends in cash an
462 amoimt equal to not less than six per cent per annum on all its out-
463 standing issues of capital stock.
464 (4) The di\'idendspaid on the capital stock of such telephone company
465 shall not have been less than the total amount necessary to pay the
466 interest upon its entire outstanding indebtedness.
467 And further provided, that such bonds shall be secured either (a) by
468 a first mortgage upon at least seventy-five per cent of the property of
469 such telephone company, or (6) by the deposit with a trust company
470 incorporated under the laws of tliis commonwealth of bonds and shares
471 of stock of other telephone corporations, under an indenture of trust
472 which limits the amount of bonds so secured to seventy-five per cent of
473 the value of the securities deposited as stated and determined in said
1886
SAVINGS B.USTKS.
[Ch.u>. 168.
Gaa, electric or
water com-
pany bonds.
1919, 104, J 2.
Bank stocks
and deposits
in banks.
1834, 190. § 7.
R. S. 36, § 78.
1855, 294.
G. S. 57,
§§ 142-144.
1863, 175,
§§ 2, 3; 234.
1S&4. 2.
1868, 227.
1876, 203, 5 9,
cl. 4.
1881,214, I 3.
P. S. 116, § 20,
cl.4.
1882, 224.
1883, 202.
1886, 95.
1890, 168.
1894, 317,
§ 21, cl. 5.
R. L. 113.
§ 26, cl. 5.
1908, 590,
§ 68. cl. 7.
131 Mass. 103.
Bankers'
acceptances.
191S, 210.
Loans on per-
sonal security.
1834, 190. § 8.
R. S. 36, S 79.
G. S. 57, i Mo.
1876, 203, § 9,
cl.5.
indenture, and provided that during each of the five years preceding
such investment the annual interest and di^^dends paid in cash on the
securities deposited have amounted to not less than fifty per cent in ex-
cess of the annual interest on the bonds outstanding and secured by said
deposit. Not more than two per cent of the deposits of any such bank
shall be invested in the bonds of telephone companies.
Si.vth. In the bonds of a gas, electric or water company seciu-ed by
a first mortgage of the franchise and property of the company : pro\T[ded,
that the net earnings of the company, after paj-ment of all operating
expenses, taxes and interest, as reported to, and according to the require-
ments of, the proper authorities of the commonwealth, have been in
each of the three fiscal years preceding the making or renewing of such
loan equal to not less than fom- per cent on all its capital stock out-
standing in each of said years; and, provided, that the gross earnings
of the company in the fiscal year preceding the making or renewing of
the loan have been not less than one hundred thousand dollars.
Seventh. In the stock of a banking association located in the New
England states and incorporated under the authority of the United
States, or in the stock of a trust company incorporated under the laws
of and doing business within this commonwealth, but such corporation
shall not hold, both by way of investment and as security for loans,
more than twenty per cent of its deposits in the stock of such associations
or companies, nor in any one such association or company more than
three per cent of its deposits in, nor more than one hundred thousand
dollars nor more than one quarter of the capital stock of, such association
or company.
Such corporation may deposit not more than two and one half pei".
cent of its deposits in any banking association incorporated under the
authority of the United States and located in tliis commonwealth, and
in any trust company incorporated in this commonwealth; but such
deposit shall not in any case exceed fi^'e hundred thousand dollars
nor twenty-five per cent of the capital stock and surplus fund of such
depositary.
Eighth. In bankers' acceptances and bills of exchange of the kinds
and maturities made eligible by law for rediscount ^\ith federal reserve
banks, pro\'ided that the same are accepted by a bank, banking associ-
ation or trust company incorporated under the laws of the United States
or of tills commonwealth, and having its principal place of business
within the commonwealth. Not more than ten per cent of the deposits
and of the income derived therefrom shall be invested by any sa-vings
bank in bankers' acceptances or bills of exchange, nor shall any sa\'ings
bank invest in the acceptances and bills of exchange ehgible by law for
rediscount with federal reserve banks of any one accepting bank or
trust company' to an amount in excess of {ire per cent of its deposits and
of the income derived therefrom. The aggregate amount of bankers'
acceptances and bills of exchange of any bank, banking association or
trust company held by any sa\'ings bank shall not exceed twenty-five per
cent of the paid-up capital and surplus of such bank, banking association
or trust company.
Ninth. In loans of the classes hereinafter described, payable and to be
paid or renewed at a time not exceeding one year from the date thereof;
but not more than one third of the deposits and income shall so be in-
vested, nor shall the total liabilities to such corporation of a person, part-
474
475
476
477
478
479
480
481
482
483
484
48.5
486
487
488
489
490
491
492
493
494
495
496
497
498
499
500
501
502
503
504
505
506
507
508
509
510
511
512
513
514
515
516
517
518
519
520
521
522
523
524
525
526
Chap. 16S.] savings b.ustks. 1887
527 nersliip, association or corporation for money borrowed upon personal ps. iic, §20,
528 security, including in the liabilities of a partnership or company not in- i8S4, 50; 10s.
529 corporated the liabilities of the several members thereof , exceed five per ism! 317,
530 cent of such deposits and income; but said limitations, except as to time r"l'. na, § 20,
531 in wliich said loans shall be paid or renewed, shall not apply to loans I'go^s.sgo, §U8,
532 made under paragraph (2) subdivision (e) of this clause. 1009,491, §8. ci. s, §69.
533 (a) A note which is tlie joint and se^'eral obligation of three or more Note of three
534 responsible citizens of this commonwealth ; pro^■ided, that the total lia- igos^MO, § es,
535 bilities to such corporation of a person, partnership or association, for "' ® ^"*-
536 money borrowed under this subdivision, including in the liabilities of a
537 partnership or company not incorporated the liabilities of the several
538 members thereof, shall not exceed one per cent of the deposits of such
539 corporation.
540 (6) A note, with one or more substantial sureties or endorsers: (1) of not?""^^''""
541 a corporation incorporated in this commonwealth ; or (2) of a manu- '{"^Vj?"' ^ ^*'
542 facturing corporation with a comnussion house as surety or endorser, i909, 491, § s.
543 pro\-ided that such commission house is incorporated in this common- §§45,46.'
544 wealth, or has an established place of business and a partner resident
545 therein; or (3) of an association or corporation at least one half of
546 the real and personal property of which is located within the New Eng-
547 land states, if at least one such surety or endorser is a citizen of or cor-
548 poration incorporated in this commonwealth; provided, that no such
549 loan shall be made or renewed imless within eighteen months preceding
550 the making or renewing of such loan an examination of the affairs, assets
551 and liabilities of the borrowing corporation or association has been
552 made, at the expense of such borrowing corporation or association, by
553 an accountant approved by the commissioner. The report of such ex-
554 amination shall be made in such form as the commissioner may pre-
555 scribe. A copy of the report certified to by the accountant shall be
556 delivered by the borrowing corporation or association to the savings
557 bank before such loan or a renewal thereof is made, and a copy so cer-
558 tified shall be delivered by the accountant to the commissioner witliin
559 tliirty days after the completion of said examination.
560 (c) A bond or note of a gas, electric light, telephone or street railway Nptes of cer-
561 corporation incorporated or doing business in tliis commonwealth and service
562 subject to the control and supervision thereof: provided, that the net i908^'5!!o!'§ os,
563 earnings of said corporation, after payment of all operating ex]3enses, 59o*9,'49i, § s.
564 taxes and interest as reported to, and according to the requirements of,
565 tlie proper authorities of the commonwealth, have been in each of the
566 three fiscal years preceding the making or renewing of such loan equal
567 to not less than four per cent on all its capital stock outstanding in each
568 of said years; and provided, that the gross earnings of said corporation
569 in the fiscal year preceding the making or renewing of such loan have
570 been not less than one hundred thousand dollars.
571 (d) A bond or note issued, assumed, or guaranteed by endorsement as Notes issued or
572 to both principal and interest, by a railroad corporation which complies Skoad" ^
573 with all the requirements of subdi\-ision (b) or of subdivision (e) pre- i908^m)0,''§ r.s,
574 ceding paragraph (5) of clause Third; provided, tliat the principal of Jgo^g.^lgi, §8.
575 such bond or note described in either this or the preceding subdivision is
576 payable at a time not exceeding one year after the date of investment
577 therein.
578 (e) A note of a responsible borrower in such form as the commissioner Notes seeured
579 may approve, with a pledge as collateral of— i^Tg^'iTu:
1888
SAYINGS B.\NKS.
[Ch.\p. 168.
P. P. IIB, § 20,
cl. 5.
1SS7, 196.
1S88, 213.
1891,317, §21,
cl. 6.
1896, 178.
1899, 269.
R. L. 113, § 26,
els. 2 (e), 3
(k. I, m),4 (e).
1904, 210.
1903, 250.
1906, 463,
III, §§ 150,
158.
1908, 590,
§ 68, cl. 8 (e),
5 69.
1909, 491, § 8.
1919, 350,
§§45,46.
1910, 358.
"Association"
defined.
1908, 590,
§ 68, cl. 8 (/),
§69.
Farm loan
bonds,
1918, 67.
Bank building.
1870, 226.
1876, 203, § 9,
cl.6.
P. S. 116, § 20,
cl. 7.
1893, 174.
1894, 317, § 21,
cl. 8.
R.L. 113, § 26,
cl. 8.
1908, 590, § 68,
cl. 9, § 69.
1910,281.
1919, 350,
§§45, 46.
149 Mass. 1.
151 Mass. 103.
Real estate ac-
quired by fore-
closure.
1870. 226.
(1) One or more first mortgages of real estate situated in tliis com- 580
monwealth: pro\'ided, that the amount of such note is not in excess of 581
sixty per cent, or in the case of unimproved or uiiproducti\'e real estate 582
in excess of forty per cent, of the value of the property or properties 583
mortgaged; that the value of each of said properties has been certified 584
in accordance with the provisions of clause First; and that the assign- 585
ment of each of said mortgages has been recorded in the proper registry 586
of deeds; or 587
(2) Bonds or notes authorized for investment by clause Second, 588
Third, Fourth, Fifth or Seventeenth at no more than ninety per cent of 589
the market \alue thereof, at any time while such note is held by such 590
corporation; or 591
(3) Deposit books of depositors in savings banks at no more tlian 592
ninety per cent of the amount of deposits shown therein; or 593
(4) Shares of railroad corporations described in subdivision (a), (b) 594
or (e) of clause Tliird at no more than eiglity per cent of the market \'alue 595
thereof, at any time while such note is held by such corporation; or 596
(5) Such other bonds, notes or shares of corporations or associations 597
and at such percentages of their market values as the board of investment 598
shall approve; provided, that, if the commissioner shall disapprove any 599
such bonds, notes or shares, he shall make such written recommendations 600
to the board of investment of such corporation as the case may require, 601
and shall include in his annual report a statement of the facts in each 602
case in which such board of investment has not complied with his recom- 603
mendations in a manner satisfactory to him; or 604
(6) Policies issued by life insurance companies approved by the com- 605
missioner and properly assigned to the bank, but not exceeding ninety 606
percent of the cash surrender value of such policies; but the aggregate 607
of such loans made by any savings bank shall not exceed one per cent of 608
its deposits. 609
(J) Whenever used in this clause, the word "association" means an 610
association the business of which is conducted or transacted by trustees 611
under a written instrument or declaration of trust. 612
Tenth. In farm loan bonds lawfully issued by federal land banks 613
incorporated under the act of congress approved July seventeen, nine- 614
teen hundred and sixteen, entitled " An act to provide capital for agri- 615
cultural development, to create standard forms of investment based 616
upon farm mortgage, to equalize rates of interest upon farm loans, to 617
furnish a market for United States bonds, to create go\'ernment deposi- 618
taries and financial agents for the United States, and for other purposes". 619
Eleventh. A sum not exceeding the guaranty fund and undivided 620
earnings of such corporation, nor in any case exceeding five per cent 621
of its deposits or two hundred thousand dollars, may, subject to tlie 622
approval of the commissioner, be invested in the purchase of a suitable 623
site and the erection or preparation of a suitable building for the con- 624
venient transaction of its business. Extraordinary alterations in, or 625
additions to, a bank building owned by a savings bank, inv-olving an 626
expense exceeding ten thousand dollars, shall not be made without 627
the approval of the commissioner, and the cost of such alterations or 628
additions shall not exceed the sum specified in this clause. 629
1 Op. A. G. 420.
Twelfth. Such corporation may hold real estate acquired by the 630
foreclosure of a mortgage owned by it, or by purchase at sales made 631
Chap. 168.] savings banks. 1889
6.32 under the provisions of such mortgages or upon judgments for debts isre, 203, § 26.
6.33 due to it, or in settlements effected to seciu-e such debts. Such cor- d'. si ^^^' ^°'
634 poration shall sell all such real estate within Qxe years after the title }||3;5^'24s.
635 thereof is vested in it, and notwithstanding the provisions of clause [Hf H^ j 21
636 First may take a mortgage thereon from a bona fide purchaser to secure f^^g j^g
637 the whole or a part of the purchase price; but the commissioner may, R. l'iis, § 26,
638 on petition of the board of investment of such corporation, and for lode, 204,
639 cause, grant an additional time for the sale of the same or of the securi- ^' ' *'
640 ties mentioned in the following clause.
1908, 590, § 08, cl. 10, § 69. 1919, 350, §§ 45, 46. 149 Mass. 1.
641 Thirteenth. Such corporation may hold stocks, bonds, notes or other Securities
642 securities acquired in settlements eft'ected to secure loans or indebted- eet'uement'of
643 ness; but unless the time during which such securities may be held is isg^us!^^^'
644 extended as provided in the preceding clause, they sliall be sold within fi }'o,^^^' ^ ~^'
645 five years after being acquired. i908, 590, § es, ci. 11.
646 Fourteenth. The provisions of this chapter shall not invalidate or Pledges of
647 impair the title of a corporation to securities which have been or may conaterai to
648 be held by it in pledge or as security for a loan or indebtedness; and "876'203!T30
649 the same shall be held for the purposes for which they were pledged. p*!s'u6 V20
1894, 317, § 21, cl. 10. R. L. 113, § 26, cl. 11. 1908. 590, § 68, cl. 12, § 69. cL 9^
650 Fifteenth. Annually, not later than February first, the commis- List of bonds
651 sioner shall prepare a list of all the bonds and notes which are then 190^2", KfYs^'
652 legal investments under the provisions of clause Third, Foiu-th, Fifth §§°i%"%'
653 or Seventeenth. Said list shall at all times be open to public inspection tss''^^' ^^^'*^'
654 and a copy thereof shall be sent to every savings bank.
190S, 590, § 68, cl. 13, § 69. 1919, 350, §§ 45, 46.
655 Sixteenth. Bonds which at any time have been for ten successive Bonds not to
656 years legal investments under the provisions of subdivision (a), (6), by^^e'Ssono't'''
657 (c), or {d) of clause Third or clause Fifth of this section shall not be fSrureto^
658 rendered illegal although the corporation issuing, assuming or guaran- '^'"^\ ^"^^^
659 teeing such bonds shall fail for a period not exceeding two successive 1913,291.
660 years to comply as to dividends on its capital stock, with the require-
661 ments of the clauses specified above; but no further investment in the
662 bonds issued, assumed or guaranteed by such corporation shall be made
663 during said period. If after the expiration of said period, such corpo-
664 ration complies for the following fiscal year with the requirements of
665 the clauses specified above, it shall be regarded as having complied
666 therewith during said period; provided, that it shall not have so failed
667 to comply during any other period ^\ithin the next preceding ten years.
668 Seventeenth. This section shall not render illegal the investment in cert.iin invest-
669 any mortgages of real estate held by such corporation on June eighth, viousfy"""
670 nineteen hundred and eight, nor the investment before or after said date i9os°59o''« 68
671 in any issue of bonds or notes dated before said date in which such cor- <!i.4.'
672 poration might then invest, so long as such bonds or notes continue to
673 comply with the laws then in force.
REFERENCE.
Savings departments of foreign banking associations or corporations, Chap. 167,
§§ 41-45.
1890
DEPOSITS WITH OTHERS THAN B.VNiKS.
[Chap. 169.
CHAPTER 169.
DEPOSITS WITH OTHERS TH.\N BANKS.
Sect.
application op chapter.
1. Application of chapter.
BONDS AND LICENSES.
2. Bond required.
3. Requirements of bond. Issue of license,
and revocation. Trust fund for
depositors.
4. Record of bonds.
5. -Actions on bonds.
SUPERVISION BT prBLIC AUTHORITY.
6. Super\'ision of commissioner. Returns.
7. Books and accounts. Bond by cus-
todian of deposits.
8. Examination by commissioner.
9. Powers of commissioner relative to
examination.
Sect.
10. Persons subject to examination.
11. When commissioner is to apply for in-
junction or receiver.
DISPOSITION OF FUNDS DEPOSITED.
Investment of funds held on deposit.
Notes and collateral not to be pledged,
etc.
Money to be forwarded.
Form of receipt regulated.
GENERAL PRO%'ISIONS.
16. Penalties.
17. Police to notify commissioner of persons
to whom this chapter applies and
prosecute offenders.
18. Revocation of license, etc.
Applit
of cha
^ ^nication
' chapter.
1905, 42S, § 1.
1906,408, § 1.
1907, 377, § 1.
1910,3.38, I 1.
1913, 17S; 179.
APPLICATION OF CILAPTER.
Section 1. This chapter shall apply to — 1
First. All persons engaged in the selling of steamship or railroad 2
tickets for transportation to or from foreign countries, or in the supply- ,3
ing of laborers, who, in conjunction with said business, carry on the 4
business of receiving deposits of money for safe keeping, or for the pur- 5
pose of transmitting the same, or equivalents thereof, to foreign coun- G
tries, or for any other purpose. 7
Second. All persons who carry on the business, or make a practice, S
of recei-ving deposits of money for the purpose of transmitting the same 9
or equivalents thereof to foreign countries, e.xcept banks or trust com- 10
panics or express companies having contracts with railroad or steam- 11
ship companies for the operation of an express service upon the lines 12
of such companies, or persons engaged in the banking or brokerage 13
business. 1-4
Third. Any person engaged or financially interested in the selling 15
of tickets or supplying of laborers as aforesaid who is also engaged or 16
financially interested in the business of receiving deposits of money 17
as aforesaid, and any person engaged or financially interested in the 18
business of receiving deposits of money as aforesaid who is also engaged 19
or financially interested in the selling of tickets or supplying of laborers 20
as aforesaid, under whatever name or by whatever persons the said 21
business of selling tickets or supplying laborers or the said business 22
of receiving deposits is carried on. 23
BONDS AND LICENSES.
Section 2. All persons subject to this chapter shall, before en-
Bond required.
190.5, 428. I 1. . . ... , . , ., , .
j-J0^'|5S' I \- tering into or continumg in any business described in section one, make,
liiii^sos! |i'. execute and deliver a bond to the state treasurer in such sum as the
Chap. 169.] deposits with others th.u^ b.\nks. 1891
4 commissioner of banks, in this chapter called the commissioner, may 1912,3.35.
5 deem necessary to cover money or deposits received for the purposes mm. 350',
6 mentioned in said section by such persons, the bond to be conditioned i97*Mai64.
7 upon the faithful holding and repayment of the money deposited, and
8 upon the faithful holding and transmission of any money, or equivalent
9 thereof, which shall be delivered to them for transmission to a foreign
10 country, and in the event of the insolvency or bankruptcy of the prin-
1 1 cipal upon the payment of the full amount of such bond to the assignee,
12 receiver or trustee of the principal, as the case may require, for the
13 benefit of such persons as shall deliver money to said principal for safe
14 keeping or for the purpose of transmitting the same to a foreign country.
15 Whenever a person shall be granted a license to carry on only the
16 business of receiving deposits of money for safe keeping or only that of
17 receiving deposits of money for the purpose of transmitting the same
18 or equivalents thereof to foreign countries, the condition of the bond
19 required by this section may be the faithful holding or repayment of
20 the money deposited or the faithful holding and transmission of the
21 money or equivalents thereof, respectively, instead of the condition
22 above described. The sum of the bond may at any time be increased
23 in such amounts as shall be shown by examination to be necessary.
1 Section 3. Said bond shall be executed by said person as princi- Requirements
^^ 01 bond XssuG
2 pal, with at least two good and sufficient sureties who shall be residents of license, and
3 and owners of real estate within the commonwealth, or by said person TrusUund for
4 as principal and a siu-ety company, approved by the commissioner. i905f428^§2.
5 In lieu of the aforesaid sureties, the person may deposit, and the state H^l] lgl[ 1 1;
6 treasurer shall accept as security for the fulfilment of the provisions j^}i' ^^f ^ ^■
7 of the bond, money, bonds of the United States, of this commonwealth |?i9;350,
8 or of any municipality thereof, or, if approved by the commissioner,
9 other bonds, certificates of deposit issued by a national bank or trust
10 company, or deposit books of depositors in savings banks or trust
11 companies. The money or securities so deposited shall be held on the
12 conditions specified in the bond. If securities be deposited in lieu of
13 sureties and be accepted, the state treasurer shall require the depositor
14 to maintain such deposit at a value equal to the amount fixed as the
15 penalty of the bond, and he may in his discretion permit the substitu-
16 tion of securities for money, or of money for securities, in whole or in
17 part, or of money or securities for any sureties, or of a bond for money
18 or securities deposited, or the withdrawal of securities deposited and
19 the substitution of others of equal value in their place, and, if the total
20 value of the securities becomes substantially impaired, he shall require
21 the deposit of money or additional secm-ities sufficient to cover the
22 impairment in value. No bond required by this section shall be ac-
23 cepted until it has been first examined and approved by the commis-
24 sioner and unless also approved by the state treasurer, . and upon such
25 approval by him it shall be filed in his office. Upon notice of such
26 approval by the state treasurer, the commissioner shall issue a license
27 authorizing said person to carry on the aforesaid business for a period
28 of one year from the date of the issuance of the license, at a place to
29 be specified therein, and no person shall enter into or continue in the
30 aforesaid business without such authority. The license shall state the
31 kind of business which the licensee is authorized to carry on, either
32 that of receiving deposits of money for safe keeping, or that of receiving
33 money for the purpose of transmitting the same or equivalents thereof
1892
DEPOSITS WITH OTHERS TH.\N B.VNKS.
[CH.A.P. 169.
to foreign countries, or that of receiving deposits of money for safe 34
keeping and transmission to foreign countries. If authority is therein 35
given the licensee to carry on the business of receiving deposits of money 36
for the purpose of transmitting the same or equivalents thereof to 37
foreign countries, he shall pay for such license an annual fee of twenty- 38
five dollars, but, if authority is given to receive deposits of money for 39
safe keeping, or for the purpose of safe keeping and transmission abroad, 40
then an annual fee of fifty dollars shall be paid. The license shall not 41
be transferred or assigned. It shall not authorize the transaction of 42
business at any place other than that described in the license, except 43
with the written approval of the commissioner. Immediately upon the 44
receipt of the license issued by the commissioner, the licensee named 45
therein shall cause the license to be posted and at all times conspicu- 46
ously displayed in the place of business for which it is issued, so that 47
all persons visiting such place may readily see the same. It shall be 48
unlawful for any licensee to post the license or to permit the license to 49
be posted upon premises other than those designated therein or those 50
to which it has been transferred with the written approval of the com- 51
missioner, or knowingly to deface or destroy any such license. The 52
money and securities deposited with the state treasurer as herein pro- 53
vided, and the money which in case of default shall be paid on the afore- 54
said bond by any licensee or the surety thereof, shall constitute a trust 55
fund for the benefit of such persons as shall deliver money to the 56
licensee for safe keeping or for the purpose of transmitting the same to 57
foreign countries, and such beneficiaries shall be entitled to an absolute 58
preference as to such money or secm-ities over all general creditors of 59
the licensee. The license shall be revocable at all times by the com- 60
missioner for cause shown, and in the event of such revocation or of 61
a surrender of the license, no refund shall be made in respect of any 62
license fee paid. Every license shall be surrendered to the commis- 63
sioner within twenty-four hom-s after written notice to the holder that 64
the license has been revoked. In case of the revocation of the license, 65
the money and securities and the bond, if there be one, shall continue 66
to be held by the state treasurer for a period of one year from the date 67
of the revocation of the license unless otherwise directed by the order 68
or judgment of a court of competent jurisdiction. 69
Record of
bonds.
1905, 4:28, § 3.
Section 4. The state treasurer shall keep a record open to public in- 1
spection, of such bonds filed with him, with the names, places of resi- 2
dence and of business of the principals and sureties, and the name of the 3
officer before whom the bond was executed or acknowledged. 4
Actions on
bond;
Section 5. Suit to recover on such bond may be brought by or upon 1
1909' 2S7' 1 2- *'^^ relation of any party aggrieved, in a court of competent jurisdiction. 2
450.
1913, 245.
Supervision of
commissioner.
Returns.
1907, 377, § 2.
1919, 3,50,
§§ 45, 49.
SUPERVISION BY PUBLIC AUTHORITY.
Section 6. Any person transacting any business described in section
one shall be subject to the supervision of the commissioner, and shall
annually, within thirty days after the last business day in October, and at
such other times as he may specify, make to him in such form as he may
prescribe a return signed and sworn to by such officers or persons as he
Chap. 169.] deposits with others th.\n b.us^ks. 1893
6 may designate, showing accurately the condition thereof at the close of
7 business on said last business day of October or such other day as he
8 may specify.
1 Section 7. The books and accounts of every such person shall be Books and
2 kept and audited in such manner and form, and the persons charged with by'^^ustodian'"'
3 the custody of the fimds and investments thereof shall give a bond in liorfsrr^'^ 3.
4 such manner and amount and to such person as the commissioner may 58'45^49'
5 prescribe.
1 Section 8. The commissioner shall, at such times as he deems ex- Examination
2 pedient, examine, either personally or by a competent examiner whom he sioner"™'^
3 shall appoint, every such person, and thorouglily inspect and examine his igil; Isg, | a!
4 affairs to ascertain his financial condition and whether he has complied 55 'Ij.^^g.'
5 with all laws applicable thereto.
1 Section 9. For the purposes aforesaid the commissioner or the person Powers of
2 making the examination shall have free access to the vaults, books and reS'tivfto'"^'^
3 papers of every such person, and may summon the directors, officers or fgS^'sTy™^.
4 agents thereof, and such other -nitnesses as may be deemed necessary, Jsi^j^fa'
5 for examination relative to the affairs, transactions and condition of such
6 person, and for that purpose the commissioner or the person making the
7 examination may administer oaths. Whoever, without justifiable cause,
8 refuses to appear and testify when so reciuired, or obstructs the com-
9 missioner or the person making the examination in the performance of
10 his duty, shall be punished by a fine of not more than one thousand
11 dollars or by imprisonment for not more than one year.
1 Section 10. The commissioner shall have the powers conferred by Persons sub-
2 the three preceding sections, for the purpose of determining whether a ixam'ination.
3 person is engaged in a business subject to section one. ^^°^- ^^'^^ ^ ^•
1919,350, §§45,49.
1 Section 11. If, upon examiination, it appears that such person is Whencom-
2 insolvent, or that his capital is impaired, or that his condition is such as tolpXte
3 to render the continuance of his business hazardous to the public or to o'J.'recdver.
4 those having funds in his custody, the commissioner shall apply, or, if J^°^' |I^' 5 6.
5 such person appears to have exceeded his powers or failed to comply with §§ -Js. 49.
6 any provision of law, he may apply, to the supreme judicial court, which
7 shall have jurisdiction in equity on such application to issue an injunction
8 restraining such person, in whole or in part, from further proceeding with
9 his business, and to make such further order or decree as justice and
10 equity may require. The court may appoint one or more receivers to
11 take possession of the property and effects of such person, subject to
12 such directions as may from time to time be prescribed by the court.
disposition of funds deposited.
1 Section 12. Of the money held for safe keeping by persons, subject investment
n 1 • 1 1 1 1 11 • 1 I 1 I 1 1 of funds held
2 to this chapter, not less than twenty per cent shall either be held as cash on deposit.
3 on hand, which may include foreign money, the value of wliich shall be 1919! 350',
4 computed at the current rate of exchange, or shall be deposited in savings ^^ *"' '*"■
5 banks, trust companies or national banks. The remaining eighty per cent
6 of the money so held for safe keeping shall be invested only as follows:
1894 DEPOSITS WITH OTHERS TH.tN B.tNKS. [C1LA.P. 169.
First. As required by section fifty-four of chapter one hundred and 7
sixty-eight so far as the same may be applicable and except in so far as 8
may otherwise be provided herein. 9
Second. In real estate; but the amount invested in any one property 10
plus the total amount of the mortgages thereon shall .not exceed the 11
assessed valuation thereof, except that a valuation made at the expense of 12
the depositary by a board or committee of investment of a savings bank 13
or of a trust company, or by the security committee of a co-operative 14
bank, may be taken as the value of the property for the purposes of 15
investment as set forth in this section. 16
Third. In notes secm-ed by mortgages of real estate; but the amount 17
so invested in any one note shall not exceed eighty per cent of the valu- 18
ation of the real estate described in the mortgage deed seciu-ing the note, 19
such valuation to be determined in the manner prescribed in the second 20
subdivision of this section; nor shall such investment be made if the total 21
of any prior mortgage on the real estate so described, plus the amount 22
to be so invested, exceeds eighty per cent of the valuation, as aforesaid, 23
of that real estate. 24
Fourth. In notes which are the joint and several obligations of two 25
or more responsible persons, provided that the total amount so invested 26
shall not exceed twenty per cent of the total amount held for safe keeping. 27
Fifth. In notes of responsible borrowers with a pledge as collateral 28
of (a) one or more chattel mortgages, {b) jewelry, (c) deposit books of 29
depositors in savings banks or in the savings departments of trust com- 30
panics or national banks, (J) accounts receivable against actual values 31
properly secm-ed. 32
Sixth. In notes secured by mortgages of real estate where tlie amount 33
named in the note is to be advanced in instalments for the construction 34
of buildings; but the total amount so invested on the security of any one 35
note shall never exceed eighty per cent of the assessed valuation of the 36
land plus the total amount of money actually paid out for materials fur- 37
nished and for work performed in the construction of the buildings on 38
said land: and the tax bill showing the last assessment, and proper evi- 39
dence to the satisfaction of the commissioner that the money advanced 40
is for actual work performed or materials supplied, shall be kept on file 41
in the ofiice of the depositary where they may be inspected at any time 42
by the commissioner or his assistant. 43
Seventh. In notes of persons who are depositors with the depositary; 44
but the total amount so loaned to any one person shall never exceed 45
twice the amount due from the depositary to the borro\\er. 46
Eighth. In notes which are the joint and several obligations of two 47
or more persons, each of whom is a depositor with the depositary; but 48
the amount so loaned on any one note shall not exceed twice the amount 49
of the total due by the depositary to the borrowers, and in computing this 50
total there shall be deducted from it the balance of any outstanding 51
financial obligations of such persons to the depositary. 52
Ninth. In the bonds or other obligations of foreign governments; 53
but such investments must first receive the approval of the commissioner. 54
SuateraUiot SECTION 13. The uotcs evidencing indebtedness to the depositary, 1
to^be pledged, mortgage deeds given as secm-ity for the notes, and other collateral secur- 2
1919' 350 ^ ^' ^"S ^^^ same, shall not, except with the approval of the commissioner, 3
§§ 45, 49.' be pledged as security either for money borrowed by the depositary or 4
Chap. 170.]
CO-OPEKATIVE B.USTKS.
1895
5 for any other obligation incurred by him, and they shall be at all times
6 accessible to the commissioner and his assistants.
1 Section 14. All money received for transmission to a foreign country Money to be
2 bj' any person subject to this chapter shall be forwarded to the persons igTefns.i 3.
3 to whom the same is directed to be transmitted within seven days after
4 the receipt thereof.
1 Section 15. The receipts given by any person subject to this chap- Form of
2 ter for deposits of money received for transmission to a foreign country feguiated.
3 shall be on forms approved by the commissioner, and the use of any form \l\g] 350; ^ "
4 for this purpose which has not so been approved shall be sufficient cause ^^ ■*^' *^-
5 for revocation of the license granted under this chapter.
GENERAL PROVISIONS.
Section 16. Any person entering into or continuing in business con- Penalties.
trary to any provision of this chapter, shall be punished by a fine of not ^^ ^' *^*' *'
less than fifty nor more than one thousand dollars, or by imprisonment
for not less than one month nor more than one year, or both.
1 Section 17. Police departments of towns shall notify the commis- PoUceto
2 sioner of any persons in their respective towns to whom this chapter missiorerof
3 applies, and the police of the town where any violation of this chapter w^om this
4 occurs shall prosecute the offender.
1906, 408, § 4. 1910, 338, § 2. 1919, 350, §§ 45, 49.
persons to
ciiapter applies
and prosecute
offenders.
1 Section 18. Any violation of sections twelve to fifteen, inclusive. Revocation of
2 shall be sufficient cause for the revocation of the license granted under 1916, 175, § s.
3 this chapter and shall be a violation of the condition of the bond re-
4 quired by section two.
CHAPTER 170.
CO-OPERATIVE BANKS.
Sect.
INCORPORATION.
1. Definitions.
2. Agreement of association.
3. Notice and hearing.
4. First meeting.
5. Articles and certificate of incorporation.
MANAGEMENT.
6. By-laws.
7. Officers, election, etc.
8. Security committee.
9. Duties of treasurer.
10. Assistant treasurer.
11. Meetings, place of business.
CAPITAL.
12. Issue of shares.
13. Payment of dues.
14. Shares issued to minors or trustees.
Sect.
15. Joint accounts.
16. Withdrawal of shares.
17. Forfeiture of shares.
18. Retirement of shares.
19. Maturity of shares.
20. Payment of deferred withdrawals and
matured shares.
LO.^NS AND INVESTMENTS.
21. Methods of loaning funds.
22. Limitation of loans.
23. Loans and investments of unsold funds.
24. Interest payments.
25. Applications for loans on real estate.
26. Loans on real estate.
27. Loans on shares.
28. Agreement for reduction of interest or
premium.
29. Repayment of loans.
1896
CO-OPERATIVE B.U^KS.
[ClL\P. 170.
Sect.
30. Real estate acquired. Common form
mortgages.
31. May hold real estate used as place of
business.
32. Recovery of loan.
33. Borrowers engaged in war service;
payments may be suspended.
34. Resumption of such payments.
35. Junior encumbrancers not affected.
36. Assignment of loans to insurance com-
panies.
GENER.\L PROVISIONS.
37. Fines.
38. Bank or officers not to take certain
fees, etc. Penalty.
Sect.
39. Transfer of shares. Fee.
40. Distribution of earnings.
41. Guaranty fund.
42. Surplus account.
43. General accounts.
44. Annual reports.
45. Consolidation of banks.
46. Powers and duties of bank commis-
sioner.
47. Fees for examination and audit.
48. Co-operative banking to be done only
under this chapter. Exception.
Penalty.
49. Foreign corporations and associations
regulated.
Definitions.
INCORPORATION.
Section 1. The following words as used in this chapter, unless the 1
context otherwise requires, shall have the following meanings : 2
"Commissioner", the commissioner of banks. 3
"Corporation", a co-operative bank incorporated as such in this 4
commonwealth. 5
Agreement of
association.
1854, 454.
G. S. 68.
1877, 224,
§§ 1-4.
P. S. 117,
§§ 1-4.
1883. 98, § 1.
1890, 243.
R. L. 110, § 10;
114. §§ 2, 3.
1912, 623,
§§ 1, 45.
3 Op. A. G.
250.
Section 2. Twenty or more persons vho associate themselves by a
written agreement to form a co-operative bank for the purpose of ac-
cumulating the savings of its members in fixed periodical instalments
and loaning such accumulations to them may, upon compliance with
sections two, three, four and five, become a corporation with all the
powers and privileges and subject to all the duties, restrictions and lia-
bilities set forth in all general laws relating to such corporations. Said
agreement shall set forth that the subscribers thereto associate themselves
with the intention of forming a corporation to transact business within
the commonwealth, and shall specify
1
2
3
4
5
6
7
8
9
10
First. The name by which the corporation shall be known, the words 11
"co-operative bank" to form a part thereof. 12
Second. The purpose for which it is to be formed. 13
Third. The town where its business is to be transacted. 14
Each associate shall subscribe to the articles his name, residence and 1.5
post office address. 16
Notice and
hearing.
1912, 623, §
Section 3. The subscribers to said agreement shall give notice to 1
the board of bank incorporation of their intention to form a co-operative 2
bank and shall apply to said board for a certificate that public convenience 3
and advantage will be promoted by the establishment thereof. Said 4
board may grant such certificate, ■«iiich shall be deemed revoked if the 5
applicants therefor do not become incorporated and begin business within 6
six months after its date of issue. Upon receipt of such application, said 7
board shall furnish the subscribers a form of notice, specifying the names S
of the proposed incorporators and the name and location of the proposed 9
co-operative bank and assigning a date and place for a public hearing on 10
the application. The subscribers shall publish the notice at least once all
week for tliree successive weeks, in one or more newspapers designated 12
by said board, and published in the to\\n ^\liere it is desired to establish 13
the bank, or, if there is no newspaper in such town, in the town where a 14
Chap. 170.] co-operative banks. 1897
15 newspaper is published, which is nearest to the location of the bank. If
16 said board refuses to issue such certificate, no fiu-ther proceedings shall
17 be had, but the application may be renewed after one year from the
18 date of the refusal, in which case notice of a public hearing thereon shall
19 be published as herein provided.
1 Section 4. The first meeting of the subscribers to the agreement of ^^-fj ^ll''"'^-
2 association shall be called by a notice signed either by that subscriber to |,5 2, 4.^^
3 the agreement who is designated therein for the purpose, or by a majority §§ 2, 4.
4 of the subscribers; and the notice shall state the time, place and purpose 1912! 623^
5 of the meeting. A copy of the notice shall, seven days at least before the ibi Mass. 3S5.
6 day appointed for the meeting, be given to each subscriber, or left at his
7 residence or usual place of business, or deposited in the post office, postage
8 prepaid, and addressed to him at his residence or usual place of business,
9 and another copy thereof and an affidavit by one of the signers that the
10 notice has been duly served shall be recorded with the records of the
11 corporation. If all the incorporators shall in writing, endorsed upon the
12 agreement of association, waive such notice and fix the time and place
13 of the meeting, no notice shall be required. The subscribers to the agree-
14 ment of association shall hold the franchise until the organization has
15 been completed. At the first meeting, or at any adjoiu-nment thereof, the
16 incorporators shall organize by the choice by ballot of a temporary clerk,
17 by the adoption of by-laws and by the election, in such manner as the
18 by-laws may determine, of a president, a clerk of the corporation, a treas-
19 m-er, a board of not less than five directors, and such other officers as the
20 by-laws may prescribe. All the officers so elected shall be sworn to the
21 faithful performance of their duties. The temporary clerk shall make
22 and attest a record of the proceedings until the clerk has been chosen and
23 sworn, including a record of the choice and qualification of the clerk.
1 Section 5. The president and a majority of the directors who are Articles and
2 elected at the first meeting shall make, sign and make oath to, articles incorpMaUon.
3 in duplicate setting forth — §§'2^,'4.^*'
4 (a) A true copy of the agreement of association, the names of the sub- ^^ f l^^'
5 scribers thereto, and the name, residence and post office address of each f^^- 1]|' 5 s.
6 of the officers of the corporation. §§ 4,'45. '
7 (b) The date of the first meeting and the successive adjournments 149 Mass! 430.'
8.1 p •!» 151 Mass. 558.
thereof, it any.
9 One duplicate original of the articles so signed and sworn to shall be
10 submitted to said board, and the other, together with the records of the
11 proposed corporation, to the commissioner of corporations and taxation,
12 who shall examine the same and may require such amendment thereof
13 or such additional information as he considers necessary. If he finds
14 that the articles conform to the three preceding sections, and that section
15 three has been complied with, he shall so certify and endorse his approval
16 thereon. Thereupon the articles shall be filed in the office of the state
17 secretary, who upon receipt of fi^e dollars, shall cause the same, with the
18 endorsement thereon, to be recorded, and shall thereupon issue a certifi-
19 cate of incorporation in the following form:
Commonwealth of Massachusetts.
Be it known that whereas (the names of the subscribers to the agreement of
association) have associated themselves with the intention of forming a corpora-
tion under the name of (the name of the corporation), for the purpose (the pur-
1898 CO-OPERATIVE BANKS. [ChAP. 170.
pose declared in the agreemeBt of association), and have complied with the pro-
visions of the statutes of this commonwealth in such case made and provided,
as appears from the articles of organization of said corporation, duly approved
by the commissioner of corporations and taxation and recorded in this office:
Now, therefore, I (the name of the state secretary), secretary of the common-
wealth of Massachusetts, do hereby certify that said (the names of the subscribers
to the agreement of association), their associates and successors, are legally or-
ganized and established as, and are hereby made, an existing corporation under
the name of (name of the corporation), with the powers, rights and privileges,
and subject to the limitations, duties and restrictions, which by law appertain
thereto.
Witness my official signature hereunto subscribed, and the great seal of the
commonwealth of Massachusetts hereunto affixed, this
day of in the year (the date of the filing of the articles of
organization).
The state secretary shall sign the certificate of incorporation and 20
cause the great seal of the commonwealth to be thereto affixed, and 21
such certificate shall have the force and effect of a special charter. The 22
existence of every such corporation which is not created by special law- 23
shall begin upon the filing of the articles of organization in the office of 24
the state secretary, who shall also cause a record of the certificate of 25
incorporation to be made, and such certificate or such record, or a certi- 2G
fied copy thereof, shall be conclusive evidence of the existence of the 27
corporation. 28
MANAGEMENT.
i877"224 Section 6. The shareholders of every such corporation shall make 1
p^I'^^t's r ^^^^ adopt the necessary by-laws consistent with law for the government 2
1901, 123. ' of its affairs, and a copy thereof shall be filed in the office of the com- 3
R. L. 114, §6. • • fU 1 (
1912, 623, missioner oi banks. 4
1919, *350, § 45. The by-laws shall provide for and determine — 5
(a) The time for holding the annual meeting of the shareholders and 6
the montlily meetings of the board of directors, and for the receipt of 7
moneys. 8
(b) The manner of calling either regular or special meetings. 9
(c) The number necessary to constitute a quorum at all meetings. 10
{d) The qualifications of electors. 1 1
(e) The number, title and duties of officers and standing committees, 12
their terms of office and the manner of their election or appointment. 13
(/) The care and custody of money, securities and property of the 14
bank. 15
(g) The method of loaning the funds of the bank. 16
{h) The proportion of profits, if any, to be reserved upon voluntary 17
withdrawals. 18
(i) The time within which satisfactory security for real estate loans 19
shall be offered. 20
(j) Whether partial pajinents of less than fifty dollars may be received 21
upon loans. 22
(k) The rate of fines to be charged upon delinquent payments. 23
(l) The manner of transferring shares and the fee therefor. 24
(m) The manner and conditions under wliich the by-laws may be 25
amended. 26
eiSon etc SECTION 7. The busiuess and affairs of every such corporation shall 1
1877, 224, i)Q managed by a board of not less than five dkectors to be elected by the 2
p. s. 117, § 0. shareholders. Directors may be elected for terms of not less than one 3
Chap. 170.] co-oper-vtwe banks. 1899
4 nor more than three years, and, in case the term is more than one year, isss, 121, 1 1.
5 they shall be divided into classes and an equal number, as nearly as may u^t iit § 6.
6 be, elected each year. All vacancies in the board or in any office may be §§'|;45.^'
7 filled by the board of directors for the unexpired term. Every officer and i^^*- ^^' 5 1-
8 director when appointed or elected shall take an oath that he will faith-
9 fully and impartially discharge the duties devolving upon him, and the
10 fact that the oath has been taken shall be entered in the records of the
11 corporation. The president, vice president and treasurer may be chosen
12 either by the shareholders or by the board of directors as the by-laws
13 may determine. No shareholder shall be entitled to more than one vote
14 at any meeting, and no shareholder shall vote by proxy. All officers shall
15 be elected by ballot, shall be shareholders when nominated and shall con-
IG tinue to hold their offices until their successors have been chosen and
17 shall have assumed their duties, and no such corporation shall expire
18 from neglect to elect officers at the time prescribed in its by-laws. If
19 an officer ceases to be a shareholder his office shall thereupon become
20 vacant.
1 Section 8. At the first meeting of the board of directors after the Security
2 annual meeting for the election of officers, the board shall elect from its igiaTo"?! 7.
3 own number a security committee of at least three members, whose duty
4 shall be to examine real estate offered as security for loans and to report
5 thereon as required by section twenty-five.
6 The personal examination of any parcel of real estate by the security
7 committee may be omitted by special vote of the board of directors.
8 No member of the security committee shall make an official report
9 upon property offered as security for a loan in which he has a personal
10 interest.
1 Section 9. The treasurer shall keep the accounts and have charge Duties ot
■ 2 of all books and papers necessary therefor, and dispose of and secure the is77,"224, § u.
3 safe keeping of all money, seciu-ities and property of the corporation, in f89^^,247,| r'
4 the manner designated by the by-laws, and the treasurer and all other fg^^' lit' ^ "'
5 permanent employees having access at all times to the cash or negotiable §§ *■ '^^■
6 secm-ities, shall each give, subject to section twenty-four of chapter one
7 hundred and sixty-eight, a bond for the faithful performance of their
8 respective duties in such amount as the board of directors may require.
1 Section 10. Subject to the approval of the commissioner, such cor- Assistant
2 poration may provide in its by-laws for an assistant treasurer, and for his i9Tfi,"2"'
3 election by either the shareholders or the board of directors. He may ^'^^^' ^°'^' ^ '^^'
4 perform all of the duties of the treasurer as provided in the preceding
5 section.
1 Section 11. The board of directors shall hold stated monthly meet- Meetings, place
2 ings at any place in the town where the bank is located, and its usual is??, 224," '
3 business shall be transacted at its office only, which shall be in the town issi'. 2'7i',
4 named in its agreement of association; but moneys due the bank may p/s.^iiy, § 7.
5 be collected by the treasm-er, or other person duly empowered by the R''L'n4;
6 directors, upon such days and in such other places as may be designated ||q^; |^g^
7 by vote of the directors and approved by the commissioner, and the bank ^1,1' I',?'
8 may advertise its branch in such manner as the commissioner may §§9,'4o. '
9 prescribe. 191s, ss. 1919, 3r,o, § 45.
1900
CO-OPERATIVE B.USTKS.
[Chap. 170.
Issue of shares.
1877, 224, § 5.
P. S. 117, § 5.
1887, 216, § 1.
R. L. 114, §4.
1903, 147, § 1.
1912, 623,
§§ 10, 45.
1914. 643, § 2.
1915, 77.
1918, 83, § 1.
1920, 429.
2 Op. A. G. 484.
CAPITAL.
Section 12. The capital to be accumulated shall be unlimited and 1
shall be divided into shares of the ultimate value of two hundred dollars 2
each. The shares may be issued in quarterly, half yearly or yearly series, 3
in such amounts and at such times as the board of directors may deter- 4
mine. Shares of a prior series may be issued after a new series, subject 5
to the approval of the board of directors. Paid-up shares may be is- 6
sued, subject to such approval, each share to have a value of two hun- 7
dred dollars, which shall be paid by the purchaser when the shares are 8
issued, together with interest from the last distribution of profits at a 9
rate fixed by the directors, but not in excess of the rate distributed to 10
unmatured shares. Paid-up shares shall participate in each distribu- 11
tion of profits in the same manner and to the same extent as matured 12
shares, as provided in section forty, but at a rate not to exceed five per 1.3
cent. No person shall hold more than forty unmatured shares or more 14
than ten matured and ten paid-up shares in any one bank at the same 15
time. Paid-up shares may be withdrawn or retired in the manner 16
provided in sections sixteen and eighteen for matured shares. 17
Payment
of dues.
1877, 224,
§§ 5, 7, 9.
1881, 271,
§ 1, cl. 3.
P.S.I 17, §7.
R. L. 114, § 8.
1912, 623,
§§ 11,45.
1914, 643, § 3.
Section 13. On or before the regular montlily meeting for the re-
ceipt of moneys, as fixed by the by-laws, every shareholder shall pay to
the corporation, as a contribution to its capital, one dollar as dues upon
each unmatured share held by him until it is withdrawn, forfeited, re-
tired or matured. Payment of dues on each series shall begin with its
issue.
Shares issued
to minors or
trustees.
1SS7, 216, § 3.
R. L. 114, I 5.
1912, 623,
§§ 12, 45.
Section 14. Shares may be issued in the name of a minor, and may, 1
in the discretion of the directors, be withdrawn, as provided in section 2
sixteen, by the minor or by his parent or guardian, and in either case pay- 3
ments made on such withdrawals shall be valid. A minor under the age 4'
of eighteen shall not have the right to vote. If shares are held in trust, 5
the name and residence of the beneficiary shall be disclosed and the ac- 6
count shall be kept in the name of the holder as trustee for such person. 7
If no other notice of the existence and terms of the trust has been given in S
writing to the corporation, such shares may, upon the death of the trustee, 9
be withdrawn by the person for whom such deposit was made or by his 10
legal representatives. 11
Joint accounts.
1912, 623, § 13.
Section 15. Shares may be issued to, or in the name of, two persons 1
or the survivor; and in the event of the death of either, the corporation 2
shall be liable thereon only to the survivor, and while both are living 3
payment to either shall discharge the liability to both. The joint owner- 4
ship of shares shall not confer the right to vote to a greater extent than 5
if they were held by an individual. 6
Withdrawal
of shares.
1877, 224, § 10.
1881,271,
§ 1, cl. 3.
P. S. 117, § 8.
1882, 251, 5 1.
1887. 216, § 2.
R. L. 114, I 9.
1903, 95, I 1.
1912, 623,
S§ 14, 45.
Section 16. Upon gi\ing thirty days' WTitten notice to the treasurer
of his intention so to do, a shareholder may withdraw unpledged shares,
but the board of directors of such corporation may at any time require
a member holding unpledged matured shares to give ninety daj's' WTitten
notice of his intention so to do. He shall be paid the balance remaining
after deducting from the amount then standing to the credit of the shares
all fines, any other charges legally inciu-red, and such part of the profits
Chap. 170.] co-operative banks. 1901
8 credited thereto, as the by-laws may prescribe; but at no time shall Jgjg'lto It's
9 more than one half of the funds in the treasiu"y be applicable to the de- J?n''i/'°- jg,
10 mands of withdrawins; shareholders without the consent of the directors. Op. a. g.'
11 All withdrawals shall be paid in the order in which notices thereof are
12 given, and the treasurer may waive such notices, in his discretion, under
13 such restrictions as may be imposed by the board of directors. On any
14 occasion when there is an unusual demand by shareholders for real
15 estate loans or for withdrawal from the funds of any such corporation, it
16 may, by a vote of at least three fifths of its directors and with the con-
17 sent of the commissioner, borrow from any national bank, savings bank,
IS co-operative bank or trust company for a period of not more than six
19 months. As security for such loans, it may pledge any portion of its
20 securities or resources.
1 Section 17. The shares of a non-borrower who continues in arrears Forfeiture
2 more than six months shall, at the option of the directors, if he fails to isyrrm, § is.
3 pay the arrears within thirty days after notice, be declared forfeited, and is9^6,2S5'.^ ^^'
4 the withdrawal value of the shares at the time of forefeitiu-e shall be as- J^,^- m- ^ ^^■
5 certained, and, after deducting all fines and other legal charges, the bal- §§ is. 45.
6 ance remaining shall be transferred to an account to be designated the
7 "Forfeited Share Account", to the credit of the defaulting shareholder,
8 who shall be entitled, upon giving tliirty days' notice, to receive out of
9 the funds appropriated for the payment of withdrawals the balance so
10 transferred without interest from the time of the transfer, all defaulting
11 shareholders being entitled to recei\'e their balance so transferred in the
12 order in which their respective notices are given. All shares forfeited
13 shall cease to participate in any profits accruing after the adjustment and
14 valuation of shares last preceding said forfeiture.
1 Section 18. The directors may retire the unpledged shares of any Retirement
2 series after four years from the date of their issue, by enforcing the with- 1877,^224, § 10.
3 drawal of the same in the following manner: the treasurer shall season- §*f/cL3''
4 ably send to every shareholder in the series in which shares are to be fss|,25i',| l
5 retired a notice in the following form, and the shares shall be retired in iss^, 216, 1 2.
6 accordance with its provisions: inos. fls § 1.
The board of directors have voted to retire on the day iyi2', 023;
of , 19 , shares in series No. , §5 18, 45.
in which you are a shareholder. luio', 350, § '45.
i^liould you desire to have your shares, or any number of them, retired and to
receive the full value thereof, you will please notify the treasurer in writing on
or before , 19 .
If the shares voluntarily offered exceed the number desired, the shares to be
retired will be determined by lot from those offered.
If the number so offered is less than the number desired, the number offered
shall be retired and the balance determined by lot from the remaining shares
in the series.
The directors may, under rules made by them, retire matured shares at any
time and in such order and manner as they may provide.
7 The shareholders whose shares are retired shall be paid the full value
8 thereof, less all fines and any other charges legally inciu"red. Shares
9 pledged for share loans shall be treated as unpledged shares. Whenever
10 shares are retired between the dates of adjustment of profits, interest
1 1 shall be paid upon the f idl value of the shares from the date of the prc-
12 ceding adjustment to the date of retirement, at the rate at which profits
13 were distributed at said preceding adjustment.
1902
CO-OPER.^.TIVE BANKS.
[Chap. 170.
The commissioner, whenever he deems it necessary for the welfare of 14
the shareholders in any such corporation, may order the retirement of 15
matured shares, or of unmatured shares in any series after four years 16
from the date of issue, and the board of directors shall, in the manner here-' 17
inbefore provided, comply with the order of the commissioner. 18
Maturity
of shares.
1551, 271,
§ 1, cl. 3.
P. S. 117, §9.
1552, 251, § 1.
1887, 21B, § 5.
1898. 247, § 3.
R. L. 114, § 10.
1903, 95, § 2.
1912, 623,
§§ 17,45.
1914, 643, § 6.
4 0p. A. G. 388.
Op. A. G.
(1919) 39.
Section 19. Whenever shares of a given series reach the value of 1
two hundred dollars, either by the payment of dues, the addition of a 2
regular dividend or the addition of interest as hereinafter proA'idefl, they 3
shall be deemed matured and all payments of dues thereon shall cease, 4
and the owner of each unpledged share shall be paid out of the funds of 5
the corporation the matured value thereof; or if he shall so elect, and at 6
the option of the directors, there may be entered on his pass book any 7
number of shares that have matured, not exceeding ten, and such shares 8
shall continue as matured shares in said corporation, subject to be with- 9
drawn or retired as provided in sections sixteen and eighteen, but at no 10
time, except as provided in section twenty, shall more than one half of 1 1
the funds in the treasury be applicable to payment of shares, either 12
matured or unmatured or both, without the consent of the directors. 1.3
For the purpose of determining the maturity of shares between the dates 14
of adjustment of profits, there shall be added to the value of the shares 1.5
interest for all full months from the date of the preceding adjustment to 16
the date when the addition thereof will mature the shares. The interest 17
to be added shall be at the same rate at which profits were distributed at 18
the last preceding adjustment; but before the payment of matured shares 19
all arrears and fines shall be deducted. In the event of a dissolution and 20
winding up of such corporation, by process of law or otherwise, any mem- 21
ber holding matured shares of such corporation shall not thereby be 22
entitled to any preference over any holder of unmatured shares, and all 23
shares, whether matured or unmatured, shall be held and treated as be- 24
longing to one general class of liability. 25
I
deS^ed*i(fth- Section 20. Whenever a notice of withdrawal of either matured or 1
drawaisand unmatured shares has been filed, or shares have reached maturity, and 2
shares. either shall have remained unpaid for a period of six months from the 3
1914', 643! § t'_ date when payment thereof is due, all the receipts of the bank from any 4
■ ^ ^' source whatever shall, after the payment of the legitimate expenses of 5
conducting business, be applied to the payment of such withdrawals 6
and matured shares; and the board of directors or the commissioner, at 7
his discretion, may direct that such payments shall be made upon a 8
ratable and proportionate basis. This section shall not apply to a bank 9
which may become subject to sections twenty-two to thirty-six, in- 10
elusive, of chapter one hundred and sixty-seven. 1 1
Methods of
loaning funds.
1877, 224,
§§ 7, 12.
1881. 271.
§ l.cl. 4.
P. S. 117,
§§ 10,11.
1882, 2.'->l, § 2.
1890, 78.
1896, 277.
R. L. 114,
§§ 11, 12.
LO.ANS AND INVESTMENTS.
Section 21. The funds accumulated, after due allowance for all 1
necessary expenses and the payment of shares, shall, at each stated 2
monthly meeting, be offered to applicants according to the premium bid 3
by them for priority of right to a real estate or share loan, \\hich shall 4
consist of a percentage charged on the amount loaned in addition to 5
interest, at a rate not less than five per cent per annum, payable in 0
monthly instalments. If the corporation so provides in its by-laws, the 7
Chap. 170.] co-operative banks. 1903
8 bid for loans shall, instead of a premium, be a rate of annual interest not i^io. ass.
9 less than five per cent per annum payable in monthly instalments upon §§ is, 45.'
10 the amount desired. Any such corporation may, when so authorized by p- • ■
1 1 its by-laws, dispense with the offering of its money for bids, and in lieu
12 thereof may loan its money at such rate of interest not less than five per
13 cent per annum or interest and premium as may be fixed, from time to
14 time, by the board of directors, in which case the priority of right to a
15 loan shall be decided by the priority of the approved applications there-
16 for. Such bids or rates shall include the whole interest to be paid and
17 may be at any rate not less than five per cent per annum.
1 Section 22. Any person whose application is accepted shall be en- Limitation
2 titled, upon giving proper security, to receive a real estate loan of a sum isyzf^l^, § 7.
3 not exceeding two hundred dollars for each unpledged share held by him, fsMi, Va' ^ ^°'
4 or a share loan within the limitations hereinafter provided. J^^^^' ill' § 11
1910,288. 1912, 623, §§20, 45.
1 Section 23. The directors may invest any unsold or surplus funds Loans and
2 in any of the securities named in the second clause of section fifty-four of u"n3i"funds°*
3 chapter one hundred and sLxty-eight, or may loan such funds upon first |*i*, ^^4'"
4 mortgages of real estate situated in this commonwealth, or upon the Pj^^ ^^^- ^ 'O-
5 shares of the bank, upon the conditions imposed by section twenty-five, iso", 277. ^
6 twenty-six or twentv-seven of this chapter; but in either case the loans 1910^ ass!
7 shall be at the highest rate obtained on a real estate loan at the last ssal, 45.'
8 preceding monthly sale of money or at the prevailing rate when fixed by
9 the board of directors.
1 Section 24. A borrowing shareholder shall, in addition to the dues interest
2 on his shares, pay interest, and the premium, if any, monthly on his loan, iss™!?!^,'
3 at the determined rate, until his shares reach their matured value, or p/g.^in, § 12.
4 until the loan has been repaid. Interest may be computed from the f^l^ g!,|' ^ '^'
5 date on which the money is advanced; and when the said matm-ed value || 22, 45.'
6 is reached, the shares shall be cancelled, the loan discharged, and the 4 Op! a?g. 3S8.
7 balance, if any, due upon the shares shall be paid to the member.
1 Section 25. No loan shall be made upon real estate unless a written Applications
2 application is made therefor, showing the date, name of applicant, reai'estate."
3 amount of loan desired, description of property offered and other informa- ^^'^' ^'^^' ^ ^^•
4 tion deemed necessary. A written report thereon shall be made by at
5 least two members of the security committee, signed by them, approv-
6 ing the security offered and certifying to the value of the property ac-
7 cording to their best judgment. The application and report shall be
8 filed and preserved with all other papers relating to the loan, and when
9 a loan is made the equity of the borrower slmll be at least twenty per
10 cent above all encumbrances when the security is improved real estate,
11 and at least fifty per cent when the security is vacant land, less the with-
12 drawal value, at the time when the loan is made, of any shares that are
13 pledged as security therefor.
1 Section 26. For every loan made upon real estate a note shall be Loans on
2 given, accompanied by a transfer and pledge of the requisite number of iwVfj'Mrs 8.
3 shares standing in the name of the borrower, and secured by a mortgage Jf*/- -'^' ^ '•
4 of real estate situated in the commonwealth, the title to which is in the p^|j ijVJ; |i3.
1904
CO-OPERATIVE B.^JSTKS.
[Chap. 170.
1894,
342,
5 1.
R. L.
114,
I 14.
1904,
292.
1912,
623,
§§24
.45.
1918,
83, § 2.
2 Op.
A. &
.462
o
G
7
8
9
10
11
name of the borrower and which is unencumbered by any mortgage or
lien other than municipal liens or such as may be held by the bank making
the loan. No loan upon one parcel of real estaje shall exceed eight thou-
sand dollars. The shares so pledged shall beTield by the corporation as
collateral security for the performance of the conditions of the note and
mortgage. The note and mortgage shall recite the number of shares
and the series to which the shares belong and the amount of money ad-
vanced thereon, and shall be conditioned upon the payment at or before 12
the stated meetings of the corporation of the monthly dues on said shares, 13
and the interest and premium, if any, upon the loan, with all fines on 14
payments in arrears, until said shares reach theii- matured value, or said 15
loan is otherwise cancelled and discharged. 16
If the borrower fails to offer secm-ity satisfactory to the directors within 17
the time prescribed by the by-laws, his right to the loan shall be forfeited 18
and he may be charged with one month's interest and one month's 19
premium, if any, at the determined rate, and with such part of the ex- 20
penses incurred as may be determined by the board of duectors; and the 21
money appropriated for such loan may subsecjuently be reloaned. 22
shares."" SECTION 27. Loaus may be made upon unpledged shares to an amount 1
i9is! loi'. ^ ^^' ^ot exceeding ninety per cent of their withdrawal value at the time of 2
4 Op. A. G. 3SS. the loan, and for every such loan a note shall be given, accompanied by a 3
transfer and pledge of the shares borrowed upon. Loans may be made 4
upon matured shares to an amount not exceeding ninety per cent of 5
their face value, as represented by the certificate. For every such loan 6
a note shall be given accompanied by a transfer of the certificate as col- 7
lateral for the loan. 8
Agreement for
reduction of
interest or
premium.
1894, 342, § 2.
R. L. 114, § 15.
1912, 623,
§§ 26, 45.
4 Op. A. G. 335.
Section 28. If a borrower purchases money at a lower rate than 1
that paid by him on an existing loan, secured by a mortgage, for the 2
purpose by him declared of reducing the premium or rate of interest 3
upon said loan, a new mortgage shall not be required, but a written 4
agreement for the reduction of said premium or rate of interest, signed 5
by the borrower and the treasurer of the bank, with the written approval 6
of the president, shall be valid, and shall not impair or otherwise affect 7
the existing mortgage; and thereafter the borrower shall make the 8
monthly payments on the loan in accordance with the terms of said agree- 9
ment, and the amount of money previously so purchased by him may be 10
re-sold by the bank at the same meeting. 11
Repayment
of loans.
1877,224,5 11.
P. S. 117, § 14.
1887, 216, § 4.
R. h. 114,
5§ 16, 17.
1906, 280.
1912, 623,
§§ 27, 45.
Section 29. A borrower or one of several joint borrowers or his heirs 1
or assigns may repay a loan at any time, whereupon his account shall be 2
charged with the full amount of the loan, all monthly instalments of 3
interest, premium and fines in arrears and any other legal charges, and 4
shall be given credit for the withdrawal value of his shares pledged and 5'
transferred as security; the pass book shall be surrendered to the cor- t>
poration and the balance shall be received by the corporation in full sat- 7
isfaction of said loan. All settlements made between stated meetings of 8
the directors shall be made as of the date of the stated meeting next sue- 9
ceeding such settlement. A borrower desiring to retain his shares and 10
membership may repay his loan without claiming credit for his shares, 11
whereupon the shares shall be transferred to him free from any claim on 12
account of the repaid loan. 13
CbJlV. 170.] CO-OPERATIVE B.\NKS. 1905
14 Partial payments of loans shall be received in amounts of fifty dollars
15 or a multiple thereof, or in such less amount as may be fixed by the by-
16 laws. For each two hundred dollars so repaid upon a real estate loan
17 one share of stock shall be released from pledge.
18 With the approval of the board of directors, any borrower upon real
19 estate secm-ity, unless the property is encumbered by a mortgage other
20 than that held by the bank and dated prior to November first, nineteen
21 hundred and twelve, may have the full value of the shares upon which
22 the loan is predicated, less such sum as will leave the amount of the loan
23 a multiple of fifty dollars, applied as a credit to the amount of the loan
24 as hereinafter provided, whereupon such shares shall become cancelled,
25 andnew shares in the current series shall be issued to the borrower in the
26 proportion of one share to each two hundred dollars of the loan remaining
27 unpaid after the application of the value as aforesaid. The new shares
28 issued shall be transferred and pledged to the bank as security for the
29 balance of the loan, and the fact thereof shall be endorsed upon or at-
30 tached to the note in the following form:
,19 .
The value of the shares herein pledged, less such sum as will leave the amount
of the loan a multiple of fifty dollars, amounting to $ has this day been
applied as a credit upon this note, leaving a balance due and unpaid of $ ,
to secure wliich shares of series have been issued, and
are hereby transferred and pledged. For value received, 1 promise to pay to said
corporation or to its order dollars at or before its montljy meeting
on the of each month hereafter, being the amount of the monthly
dues on the shares hereby substituted, and of the montlily interest upon said bal-
ance of $ , together with all fines chargeable by the by-laws of said cor-
poration upon arrears of such pa\anents untU said substituted shares shall reach
maturity, or otherwise sooner to pay to said corporation or its order the said bal-
ance of $ , with interest and fines as aforesaid.
Witness,
Treasurer.
31 Neither the note evidencing the loan nor the mortgage seciu-ing the
32 same shall be prejudiced by the application of the value and the change
33 of shares, notwithstanding the fact that a provision for such application
34 and change was not originally made in the note or mortgage, and both
35 note and mortgage shall continue to be held by the bank as good and
36 sufficient seciuity for the balance remaining unpaid. After the applica-
37 tion of the value as a credit, the amount of the loan shall forthwith be
38 reduced to an equal extent, and the borrower shall thereafter be liable
39 for only the reduced amount and any arrearages or penalties occasioned
40 by his own default.
1 Section 30. Any such corporation may piuchase at public or private Real estate
2 sale real estate upon which it may have a mortgage, judgment, lien or coimnon form
3 other encumbrance, or in which it may have an interest, and may sell, i8°77f224r§ 17
4 convey or lease the real estiite acquired by it and, on the sale thereof, ^siii,247',V2!
5 may take a mortgage thereon in common form to seciue the payment of J*"^' -J''^- 5 ^^
6 the purchase price or of a part thereof. All real estate shall be sold within m\~; ''-s.'
7 five years after the acquisition of the title thereto; but the commissioner ioui/aso, 1 45.
8 may, on petition of the security committee of the corporation and for ''
9 cause, grant additional time for the sale of the same.
1906
CO-OPERATIVE BANKS.
[Ch.^. 170.
May hold real
estate used as
place of
business.
1906
204
§11,
3,5.
1913
2fi4.
1919
350,
§45
Recovery
of loan.
1877,
224,
§§8,
13.
P. S.
117,
§ 16.
1882,
251,
§ 1.
1885,
121,
§ 4.
R. L
114,
I 19.
1912,
623,
M29
,45.
2 Op.
A. G
.286.
Section 31. Any such corporation may, with the approval of the 1
commissioner, invest a sum not exceeding its surplus account in the 2
purchase of a suitable site and the erection or preparation of a suitable 3
building for the convenient transaction of its business, but in no case 4
exceeding two per cent of its dues capital. 5
Section 32. If a borrower is in arrears for dues, interest, premium or 1
fines for more than four months, or commits any other breach of the 2
conditions of a mortgage, the directors may, after twenty-one days' 3
notice, mailed to the last known address of tlie borrower, declare the 4
shares forfeited if the arrears then remain unpaid or such breach con- 5
tinues. The account of such borrower shall then be debited with the 6
arrears of interest, premium and fines to the date of forfeiture, and the 7
shares shall be credited upon the loan at their withdrawal value. The 8
balance of the accomit shall immediately become due and payable, and 9
may, and after six months shall, be enforced against the security, and be 10
recovered, together with interest thereon, as all debts are recovered at 11
law. If the shares of a borrower are in arrears at the maturity of the 12
series, his account shall be charged with the amount of the loan and all 13
arrears at the date of maturity, and shall be credited with the value of 14
the shares; the balance of the account shall immediately become due 15
and payable and may, and after sLx months shall, be enforced against the 16
security, and be recovered, together with interest thereon, as all debts 17
are recovered at law. 18
Borrowers en-
gaged in war
service; pay-
ments may be
suspended.
1918,47, § 1,
Section 33. For the accommodation of any borrower who is actually 1
engaged in the military or naval service of the United States, or who is 2
the wife or a dependent member of the family of a person so engaged, 3
the directors of such corporation may, at their option, endorse on the 4
mortgage note of such borrower held by the bank, the full value of the 5
shares pledged to secure the same, and thereupon such shares shall be 6
cancelled and further payments and fines thereon waived, provided that 7
the person seeking such accommodation, or any person in his behalf, 8
shall sign a \\Titten request therefor, agreeing in consideration thereof, 9
to abide fully by the terms of this and the following section. Interest, 10
however, shall continue to be paid monthly on the balance at the orig- 1 1
inal rate, subject to such fine as may be prescribed by the by-laws of the 12
bank for default by shareholders in payment of interest and to foreclosure 13
or other remedy provided by law, in case of default. 14
^cll^rymente. Section 34. At ally time after the ex-piration of the said military or 1
1918, 47. § 2. naval service, or upon the alienation of the mortgaged estate, the person 2
thus accommodated, or his successors in title, shall, at the request of the 3
directors, subscribe to and pledge as security for said balance, one new 4
share in the current series issued by the bank, for each two hundred dol- 5
lars or fraction thereof of said balance. Failm-e to subscribe to and 6
pledge such shares, when so requested, or to make payments thereon in 7
accordance with law or the by-laws of the bank, shall render said balance 8
immediately due and payable, and payment thereof may be enforced 9
against the security by foreclosure proceedings or by any other remedy 10
provided by law for the collection of debts. 1 1
cumbrancers Section 35. The two preceding sections shall not affect the rights 1
im^^Ts. °^ junior encumbrancers. 2
Chap. 170.] co-oper.\tive b.vnks. 1907
1 Section 36. Any such corporation may insert in its form of real ^nj*^™'
2 estate mortgage a clause providing that in case of any loss by fire on insurance
3 the mortgaged property in respect to which the fare insurance companies laoy. 351.
4 shall deny liability as to the insured the bank may at its option assign "' " '
5 the debt and note for which the mortgage was given, and also the mort-
6 gage, to the insurance companies, upon payment to the bank by such
7 companies of the amount due upon the mortgage loan at the time of the
8 fire, together with the unpaid interest, premium and fines, if any, accrued
9 thereon at the date of the assignment less the value of the forfeited shares
10 as hereinafter provided, whereupon the note and mortgage shall forth-
11 with become a note and mortgage for such total balance due, payable
12 upon demand with interest semi-annually at the same rate, including
13 premium, if any, as therein stated, the first payment of interest to be
14 due six months after the date of the assignment, and any shares of the
15 bank pledged as security for the note and mortgage loan shall be for-
16 feited by the bank immediately before the execution and delivery to the
17 insurance companies of such assignment, and the withdrawal value of
18 shares so forfeited shall, at the time of the assignment, be credited as
19 a part payment on said mortgage loan, the balance thereof being the
20 balance of the loan due at the time of the assignment to the insurance
21 companies as aforesaid. Any mortgage note taken under tliis section
22 shall contain proper reference thereto.
GENERAL PROVISIONS.
1 Section 37. A shareholder making default in the pajTnent of his Fines.
2 monthly dues, interest and premiums, shall be charged such a fine, not p. s.'ii7,'§ is.'
3 exceeding two per cent a month on each dollar in arrears, as may be i896[2S5!
4 fixed by the by-laws. No fines shall be charged after the ex-piration of 55 }"g "q/
5 six taonths from the first lapse in any such payment, nor upon a fine in ^^31 ^H'
6 arrears.
7 No shareholder whose shares are withdrawn, forfeited or retired, shall
8 be charged M'ith fines upon such shares in excess of the profits distributed
9 thereto, and if no profits shall have been distributed to such shares no
10 fines shall be charged thereon. Tliis section shall not prevent a borrower
11 from being charged with fines according to law upon interest and pre-
12 miums in arrears.
1 Section 38. No such corporation, and no person acting in its behalf, offi^j°not ,„
2 shall ask for, take or receive a fee, brokerage, commission, gift or other ta^^e certain
3 consideration for or on account of a loan made by or on behalf of such Penalty.
4 corporation, other than appears on the face of the note or contract by r. l'. 114, § 21.
5 wliich the loan purports to be made; but tliis section shall not apply to §§32,45.'
6 a reasonable charge for services in the examination of property and
7 titles, and for the preparation and recording of conveyances to the cor-
8 poration as secinity for its loans. 'Whoever violates any provision of
9 this section shall be punished by a fine of not less than one hundred nor
10 more than one thousand dollars.
1 Section 39. Any such corporation may charge a fee for the transfer Transfer of
2 of shares not exceeding twenty-five cents. The amount of such fee shall moTMsfTM.
3 be fixed by the by-laws. Shares, both unmatured and matured, may be i^'*' ^^- ' ®-
4 transferred only on the books of the corporation, in such manner as its
5 by-laws may provide.
1908
CO-OPERATIVE B-ANKS.
[Chap. 170.
Distribution
of earnings.
1877, 224, § 15.
1881, 271, § 1,
cl. 2.
P. S. 117, § IS.
R. L. 114, § 23.
1912, 623,
§§ 34, 45.
1914, 643, § 9.
Section 40. The board of directors shall distribute the profits and 1
losses annually, semi-annually or quarterly to the shares then existing, 2
and whenever a new series of shares is to be issued. Profits and losses 3
shall be distributed to the various shares existing at the time of such dis- 4
tribution, in proportion to their value at that time, and shall be computed 5
upon the basis of a single share fully paid to the date of distribution. 6
Losses shall be apportioned immediately after their occurrence. At each 7
distribution of profits on unmatiu-ed shares there shall also be distributed 8
profits on outstanding matured shares at a rate per cent fixed by the 9
directors but not in excess of the rate distributed to unmatured shares. 10
Profits distributed on outstanding matured shares shall be credited to 11
the owner thereof and shall be payable on demand at any time thereafter, 12
out of the funds of such corporation, and upon such profits not with- 13
dra^^^^ no interest or profits shall accrue or be distributed. The board 14
of directors shall cause to be recorded in the minutes of its meetings the 15
distribution of all profits and losses. 16
Guaranty
fund.
1885, 121,
R. L. 114,
1003, 203.
1912, 623,
§S 35, 45.
S24.
Section 41. At each distribution of profits the board of directors 1
shall reserve as a guaranty fund not less than one nor more than five per 2
cent of the net profits accrued since the last preceding adjustment, until 3
such fund amounts to five per cent of the dues capital and profits capital, 4
and the fund shall thereafter be maintained and held, and shall at all 5
times be available to meet losses in the business of the corporation from 6
depreciation of its securities or otherwise. The board of directors may 7
at any time, by vote duly recorded, transfer to the guaranty fund such 8
part of the surplus account as they deem wise. 9
Surplus
account.
1900, 273.
R. L. 114, § 25.
1912, 623.
§§ 30, 45.
Section 42. At each distribution of profits not more than one per 1
cent of the net profits accrued since the last preceding adjustment shall 2
be credited to the surplus account unless there shall have been reserved 3
and credited to the guaranty fund the maximum per cent of the net profits 4
under the preceding section. Any such corporation may hold in its 5
surplus account such sum as the board of directors may, from time to 6
time, deem wise; but whenever the guaranty fund and surplus account 7
together exceed five and one fourth per cent of the dues capital and 8
profits capital, the board of directors shall declare an extra dividend at 9
such rate as may be necessary to apportion to the shareholders the ac- 10
cumulation in excess of five per cent of dues capital and profits capital. 1 1
General
accounts.
1877, 224,
P. S. 117,
R. L. 114,
1912, 623,
§1 37, 45.
173 Mass.
54.
Section 43. The general accounts of every such corporation shall be 1
jl*- kept by double entry and the treasurer shall, at least monthly, make a 2
22. trial balance of such accounts, to be recorded in a book provided for that 3
purpose. All money received from each shareholder shall be received by 4
persons designated by the directors, and entered in a pass book provided 5
for the use of, and to be held by, the shareholder. The pass book shall 6
be plainly marked with the name and address of the shareholder, the 7
number of shares held by him and the number or designation and date 8
of issue of each series or issue to which said shares, respectively, belong. 9
All payments from the funds of every such corporation shall be made 10
by the treasm-er, and the record of such payments shall show the date, 1 1
name of payee, amount, purpose for whic'h made, and the signature of 12
the payee acknowledging receipt of the funds. i;5
Chap. 170.] co-oper.\tive b.\nks. 1909
1 Section 44. Every such corporation shall annually, within thirty Annual
2 days after the last business day of October, make to the commissioner, ilsg^fss, § 2.
3 in such form as he prescribes, a report, signed and sworn to by the treas- ^^l[ \\\\ § 30.
4 urer of the corporation, showing accurately the condition thereof at il^f'fs'
5 close of business on that day. The president and tliree or more directors J^JO' |||-
6 shall certify and make oath that the report is correct, according to their Ǥ ss, 45.'
7 best knowledge and belief. If a report is defective or appears to be
8 erroneous, the commissioner shall notify the bank to amend the same
9 within fifteen days. A bank neglecting to make the report required by
10 this section on or before the time named therein, or to amend the same
1 1 within fifteen days, if notified by the commissioner so to do, shall forfeit
12 five dollars for each day during which such neglect continues.
1 Section 45. If two or more such banks doing business in the same Consolidation
2 town desire to consolidate, a special meeting of the shareholders of each 1904T392.
3 of said banks shall be called, and notice of such special meeting and of §|°i','3,°5.'
4 the business to come before it shall be sent by the clerk of each bank to }g}|; gig; | If
5 each member thereof by mail, postage prepaid, at least seven daj's before
6 the date of the meeting. Notice of the meeting shall also be advertised
7 three times in one or more newspapers published in that town, and if there
8 be none such, then in a newspaper published in the county where the town
9 is located, the last publication to be at least one day before the meeting;
10 and if two tliirds or more of the shareholders of each of the banks intend-
1 1 ing to consolidate signify in writing their approval of the consolidation,
12 and if two tliirds or more of the shareholders of each of said banks, pres-
13 ent and voting at such special meeting, vote in favor of the consolidation,
14 then the board of directors of each bank shall forthwith petition the
15 commissioner for authority to consolidate in accordance with the fol-
16 lowing provisions:
17 (a) The said petition shall be in \\Titing, signed for and in behalf of the
18 board of directors of each bank by the president and treasurer thereof,
19 and shall have annexed thereto an affidavit signed and sworn to by the
20 clerk stating that the notices of the special meeting were duly given and
21 that the preceding requirements of this section were complied with, and
22 the affidavit shall be prima facie evidence that such requirements were
23 complied with. There shall also be annexed to the petition a duly at-
24 tested copy of the records of the meeting of the shareholders of each
25 bank authorizing such action, signed by the clerk, and a duly attested
26 copy of the balance sheet of each bank at the close of business on the
27 last day of the month previous to the date of the petition, signed by the
28 treasurer.
29 (b) The commissioner shall at once select a competent auditor, who
30 shall make a thorough audit of the books and assets of each bank, which
31 shall include a verification of the pass books of the shareholders with
32 the ledgers of each bank. The auditor shall submit a written report of
33 liis findings to the commissioner; and the expenses of such audit, pro-
34 vided that the consolidation is not finally approved by the commissioner,
35 shall be borne by the petitioning banks in proportion to their dues cap-
36 ital, but if the consolidation is approved and carried out the continuing
37 bank shall bear the expense of the audit, legal services and other charges,
38 authorized and incident to the proposed consolidation.
39 (c) If the said reports disclose to the commissioner a condition favor-
40 able to consolidation, the order for consolidation may be issued with in-
41 structions in detail as follows:
1910 CO-OPERATIVE B.USTKS. [ChAP. 170.
(1) The assets of each bank shall be turned over to the continuing 42
bank as soon as the order for consolidation is issued by the commissioner, 43
and the continuing bank shall thereupon assume all liabilities accrued 44
on account of the outstanding shares issued by the banks the assets of 45
which are so taken over, and shall be subject to all the liabilities of such 46
banks except as otherwise specifically provided herein, and thereafter 47
all business shall be done under the title of the continuing bank except 48
as otherwise provided in subdivision (/). 49
(2) No more shares shall be sold by the banks taken over, but during 50
the life of the series of shares already issued by such banks, and out- 51
standing, separate accounts shall be kept, and the montldy payments 52
shall be due and payable as if said banks had not been taken over. 53
(d) All liabilities of the consolidated banks for current ex-penses shall 54
be adjusted and paid by each bank before the consolidation is finally ap- 55
proved by the commissioner, and a certificate to that effect from each 56
bank, signed and sworn to by its president, treasiu-er and a majority of its 57
directors, shall be filed with the commissioner and shall be prima facie 58
evidence that the said liabilities have been discharged in full. 59
(e) At the time of, and upon final approval of, the consolidation, all 60
the offices of the banks whose assets and business are taken over by the 61
continuing bank shall forthwith become vacant and be abolished, and 62
the continuing bank, its officers, by-laws and rules for doing business, 63
shall govern and control in all matters relating to the banks consolidated. 64
(/) A new name or the name of any one of the petitioning banks may be 65
adopted as the name of the continuing bank at the special meeting called 66
as herein provided ; and if such proposed name is set forth in the petition 67
to the commissioner and is approved by liim, it shall become the name of 68
the continuing bank, upon the final approval of the consolidation, without 69
further action under the laws of the commonwealth as to change or adop- 70
tion of a new name on the part of the continuing bank. 71
Powers and SECTION 46. The commissiouer shall have the same duties and powers 1
commissioner, in rcspcct to cvcry such corporation which he has in respect to savings 2
p. s.'n7,§20. banks. In the examination of every co-operative bank inquiry shall be 3
fgoe,' 20*! ^ ^^' made as to the nature and resources of the corporation in general, the 4
1912. 623; methods of conducting and managing its affairs, the actions of its officers, 5
flilf'sM) ^^^ investment of its funds, and whether the administration of its affairs 6
§ 45.' ' is in compliance with its by-laws and with statutory requirements. At 7
' each visitation, a thorough examination and audit shall be made of the 8
books, securities, cash, assets, liabilities, income and expenditures, includ- 9
ing a trial balance of the shareholders' ledgers, for the period elapsed since 10
the preceding examination. The person in charge of the examination 11
shall render to the commissioner a report of his findings, in such form as 12
the commissioner prescribes, and a copy thereof shall be rendered to the 13
board of directors within ten days after the original has been submitted 14
to the commissioner, together with a notice of the amount of the fee to 15
be paid as provided in the following section, which shall be due and pay- 16
able within thirty days after the date of the notice. Upon the failure of 17
any such corporation to pay the required fee within the time prescribed 18
herein, the commissioner shall report the facts to the attorney general, 19
who shall immediately bring an action to recover the fee. The com- 20
missioner shall annually make a report to the general coiut of such facts 21
and statements relative to such corporations, and in such form, as he 22
considers that the public interest requires. The officers of every such 23
CiL^p. 171.]
CREDIT UNIONS.
1911
24 corporation shall answer truly all inquiries made, and shall make all
25 returns required by the commissioner.
To defray in part the expense of the examination and Fees for
*■ examination
1 Section 47
2 audit provided for by the preceding section, every such corporation so and"audi
3 examined and audited shall, upon notice from the commissioner, pay isiq! sso] | 45!
4 to him a fee of ten cents for each one thousand dollars of assets as shown
5 by the statement of condition of the bank at the date of the examina-
6 tion and audit.
1 Section 48. No person, and no association or corporation, except Co-operative
2 foreign associations and corporations duly licensed by the commissioner done oniymLr
3 prior to April fourteenth, eighteen huiadred and ninety-six, to transact EKe^ptim!'^'
4 business in this commonwealth, shall transact tJie business of accumulat- issq, 452
5 ing the savings of its members and loaning to them such accumulations f|g{,' |jg
6 in the manner of a co-operative bank, unless incorporated in this com- f|„l' 1,„r'
7 monwealth for such piu-pose. Whoever violates any provision of this R- l' ih, § i-
8 section shall be punished by a fine of not more than one thousand dollars, §§ i.'s, 5.'
9 and the supreme judicial or superior court shall have jurisdiction in If'h.^it
10 equity to enforce this section.
1919, 350, § 45.
183 Mass. 513.
3 Op. A. G. 372
1 Section 49. If, in the opinion of the commissioner, any foreign Foreign cor-
2 association or corporation authorized to carry on the business of a co- ^"sMMons"'^
3 operative bank in this commonwealth is transacting such business in a iUg'^'lM", § 1.
4 manner hazardous to the public, or its condition is such as to render J|^°' |^^' ^ ^■
5 further proceedings by it hazardous to the public, he shall revoke or Rj^^l'. 114, § 29.
6 suspend the authority given to such association or corporation. If §§ i.'s, 5.'
7 it is not authorized to carry on business in this commonwealth, he shall §§ 43, 4"'5.'
8 notify it to cease the transaction of business. This chapter shall not ^^^^' ^*°' *^'
9 prevent a foreign co-operati\e bank from loaning money upon mortgages
10 of real estate located within this commonwealth.
REFERENCE.
Provisions applicable to aU banks, including co-operative banks, Chap. 167.
CHAPTER 171.
CREDIT UNIONS.
Sect.
1. Name. Definitions.
2. Incorporation, etc.
3. Law applicable to credit unions.
4. Use of words "credit union" restricted.
5. Deposits and loans.
6. By-laws.
7. Approval by commissioner.
8. Capital.
9. Shares may be issued to minors, etc.
10. Fiscal year.
11. Meetings.
12. Directors. Committees.
13. Election of officers. Powers and duties
of directors.
14. Powers and duties of supervisory com-
mittee.
Sect.
15. Directors not to receive compensation,
etc. Compensation of officers.
IG. Guaranty fund.
17. Investment of funds.
IS. Applications for loans.
19. Purposes of loans, etc.
20. Farm land mortgages.
21. Farm land bonds.
22. Report of supervisory committee.
23. Dividends.
24. Lost pass books, etc.
25. Report to commissioner.
26. Expulsion of members.
27. Dissolution of corporation.
1912
CREDIT UNIONS.
[Chap. 171.
Name.
Definitions.
1909, 419, § 1.
1915, 2fi8,
§§1,20.
1919, 350,
§§45,46.
Section 1. A corporation organized under this chapter shall include 1
in the corporate name the words "credit union", to which may be added 2
the word " bank". Other distinguishing words may be used. The words 3
"credit union" shall mean a corporation organized under this chapter 4
or corresponding provisions of earlier laws, and, unless the context other- 5
wise requires, the word "commissioner" shall mean the commissioner of 6
banks. 7
Incorporation,
1909. 419, § 3.
1915, 268,
§§ 2, 26.
Op. A. G.
(1918) 99.
Op. A. G.
(1920) 250.
Section 2. Seven or more persons, resident in the commonwealth, 1
who have associated themselves by a wTitten agreement with the inten- 2
tion of forming a corporation for the purpose of accumulating and invest- 3
ing the savings of its members and making loans to members for provident 4
purposes, may, with the consent of the board of bank incorporation, 5
become a corporation upon complying with the following section. The 6
board of bank incorporation may grant such consent when satisfied that 7
the proposed field of operation is favorable to the success of such corpora- 8
tion, and that the standing of the proposed incorporators is such as to 9
give assurance that its affairs will be administered in accordance with 10
the spirit of this chapter. 11
Law applicable
to credit
unions.
1909, 419, § 5.
1915, 26S,
§§ 3, 26.
3 Op, A. G, 411.
Section 3. Credit unions shall be organized under the provisions, 1
so far as applicable, of sections seven to eleven, inclusive, of chapter one 2
hundred and seventy-two, except that the fee for filing and recording 3
the articles of organization, including the issuing by the state secretary 4
of the certificate of incorporation, shall be five dollars. So much of 5
chapter one hundred and sixty-eight as relates to supervision by the com- 6
missioner shall apply to credit unions so far as applicable. 7
Use of words
"credit union"
restricted.
1909,419, § 4.
1915, 268,
§§4,26.
Section 4. No person, partnership or association, and no corpora- 1
tion, except one incorporated under this chapter or corresponding pro- 2
visions of earlier laws, shall hereafter transact business under any name 3
or title containing the words "credit union". Section thirteen of chap- 4
ter one hundred and sixty-seven shall apply to all cases of violation of 5
this section so far as applicable. 6
Deposits and
loans.
1909, 419, § 2.
1915, 268,
§§ 5, 26.
Section 5. A credit union may receive the savings of its members 1
in payment for shares or on deposit; may lend to its members at reason- 2
able rates, or invest, as hereinafter provided, the funds so accumulated; 3
and may undertake such other activities relating to the purpose of the 4
association as its by-laws may authorize. Section forty-eight of chapter 5
one hundred and seventy shall not apply to credit unions. 6
By-laws.
1909,419, § (
1915, 268,
§§ 6, 26.
Op. A. G.
(1918) 99,
Section 6. The by-laws shall prescribe the name of the corporation, 1
the purposes for which it is formed, the conditions of residence or occu- 2
jiation which qualify persons for membership, the par value of the shares 3
of capital stock and the maximum number of shares which may be held 4
by any one member, the conditions on which shares may be paid in, 5
transferred and withdrawn, the conditions on which deposits may be 6
received and withdrawn, the method of receipting for money paid on 7
account of shares or deposited, the number of directors and number of 8
members of the credit committee, the duties of the several officers, the 9
fines, if any, to be charged for failure to meet obligations to the corpo- 10
ration punctually, the date of the annual meeting, the manner in which 11
CeLVP. 171.] CREDIT ITSTIONS. 1913
12 members shall be notified of meetings, the number of members which
13 shall constitute a quorum at meetings, and such otlier regulations as
14 may seem necessary.
1 Section 7. No credit union shall receive deposits or payments on Approval by
2 account of shares, or make any loans, until its by-laws have been approved i9o<nT9?'§'^7.
3 in writing by the commissioner, nor shall any amendments to its by-laws jlY.'le.*'
4 become operative until they have so been approved.
1 Section 8. The capital of a credit union shall be unlimited in amount. Capital.
• • . 1909 419 5 13
2 Shares of capital stock may be subscribed for and paid in such manner isis! 208!
3 as the by-laws shall prescribe, except that the par value of shares shall
4 not exceed ten dollars.
1 Section 9. Shares may be issued and deposits received in the name shares may
2 of a minor, and such shares and deposits may, in the discretion of the nSnm^tetc"
3 directors, be withdrawn by such minor, or by his parent or guardian, Jg?!; 1^1; ^ ^*"
4 and in either case payments made on such withdrawals shall be valid ^^ ^°' ^"^
5 and shall release the corporation from any and all liability to the minor,
6 parent or guardian. A minor under eighteen shall not have the right to
7 vote. If shares are held or deposits made in trust, the name and resi-
8 dence of the beneficiary shall be disclosed, and the account shall be
9 kept in the name of such holder as trustee for such person. If no other
10 notice of the existence and terms of such trust has been given in wTiting
11 to the corporation, such shares or deposits may, upon the death of the
12 trustee, be transferred to or withdrawn by the person who was named
13 by the trustee as the beneficiary or by his legal representatives, and
14 such transfer or withdrawal shall release the corporation from liability
15 to any other claimant upon such stock or deposit.
1 Section 10. The fiscal year of every credit union shall end at the Fiscal year.
2 close of business on the last business day of October. lo?!' tlf ^ ^'
l§ 12, 26."
1 Section 11. The annual meeting of the corporation shall be held at ?Js^''°^?
2 such time and place as the by-laws prescribe, but must be held within 1915! 203!
3 thirty days after the close of the fiscal year. Special meetings may be
4 called by a majority of the directors or of the supervisory committee, and
5 shall be called by the clerk upon wTitten application of ten or more mem-
6 bers entitled to vote. Notice of all meetings of the corporation and of
7 all meetings of the board of directors and of committees shall be given
8 in the manner prescribed by the by-laws. No member shall be entitled
9 to vote by proxy or to have more than one vote, and, after a credit union
10 has been incorporated one year, no member thereof shall be entitled to
11 vote until he has been a member for more than three months.
12 The members at each annual meeting shall fix the amount of the en-
13 trance fee for the ensuing year, which may be made proportional to the
14 number of shares issued to a member, the maximum amount to be loaned
15 any one member, and, upon recommendation of the board of directors,
16 may declare dividends in accordance with section twenty-three.
17 At any annual or special meeting the members may review the acts of
18 the credit committee or of the board of directors, and may reverse any
19 decision of the credit committee or of the board of directors bv a three
1914
CREDIT UNIONS.
[CILA.P. 171.
fourths vote of the members present and entitled to vote; provided, that 20
such three fourths vote comprises a majority of all the members of the 21
credit union. 22
In the event of the death, resignation or removal from office of the 23
board of directors or of any member thereof, or of the credit committee 24
or of any member thereof, the members of the credit union, at a special 25
meeting called for the purpose, may elect other members to fill the 26
vacancies until the next annual meeting. 27
At any annual or special meeting the members of a credit union may 28
amend the by-laws by a three fourths vote of the members present and 29
entitled to vote; provided, that a copy of the proposed amendment has 30
been sent to each member with the notice of the meeting. 31
Directors.
Committees.
1909, 419. § 9.
1915, 268,
55 14, 26.
Section 12. The business and affairs of a credit union shall be man- 1
aged by a board of not less than five directors, a credit committee of not 2
less than tliree members, and a supervisory committee of three members 3
to be elected at the annual meeting. Unless the number of members of 4
the credit union is less than eleven, no member of said board shall be a 5
member of either of said committees, nor shall one person be a member 6
of more than one committee, and all the members of said board and of 7
said committees, as well as all officers whom they may elect, shall be 8
sworn to the faithfid performance of their duties and shall hold their 9
several offices until others are qualified in their stead. A record of every 10
such qualification shall be filed and preserved with the records of the 11
corporation. Members of the supervisory committee shall be elected 12
annually for one year. Directors and members of the credit committee 13
shall be elected for not less than one nor more than three years, as the 14
by-laws shall pro\^ide. If the term is more than one year, they shall be 15
divided into classes, and an equal number, as nearly as may be, elected 16
each year. If a director or a member of any of these committees ceases 17
to be a member of the credit union, his office shall thereupon become 18
vacant. 19
Election of
officers.
Powers and
duties of
directors.
1909,419, § 10.
1915, 268,
§§ 15, 20.
Section 13. The directors, at their first meeting after the annual
meeting, shall elect from their own number a president, a vice president,
a clerk and a treasurer, who shall be the executive officers of the corpora-
tion, and who shall hold office until their successors have qualified. The
offices of clerk and treasurer may be held by the same person.
The board of directors shall have the general direction of the affairs
of the corporation, and shall meet as often as may be necessary. They
shall act upon all applications for membership and upon the expulsion of
members, fix the amount of the surety bond required of any officer haA'ing
custody of funds, determine the rate of interest on loans and deposits,
fill vacancies in the board of directors untO new members have qualified,
make recommendations to the members of the credit union relative to
the amount of entrance fee to be charged new members, the maximum
amount to be loaned any one member, the advisability of declaring a 14
dividend and the amount to be declared, the need of amendments to the 15
by-laws, and any other matters upon which, in their opinion, the members 16
should act at any annual or special meeting. When authorized so to do 17
by the members at any annual meeting or at a special meeting called for 18
the purpose, the board of directors, with the approval of the commis- 19
sioner, may borrow money for the purpose of lending to members. 20
1
2
3
4
5
6
7
8
9
10
11
12
13
Chap. 171.] credit unions. 1915
1 Section 14. The supervisory committee shall inspect from time to Powers and
2 time the securities, cash and accounts of the corporation and shall keep sui^rtn^ory
3 fully informed of its financial condition and shall supervise the acts of ^gog™"!!"'
4 its board of directors, credit committee and officers. At any time the \^^^ ges
5 supervisory committee, by a unanimous vote, may suspend any officer of §5 1"^, 26.'
6 the corporation or any member of the credit committee or of the board
7 of directors, and, by a majority vote, may call a meeting of the share-
8 holders to consider any violation of this chapter or of the by-laws, or any
9 practice of the corporation which, in the opinion of the committee, is
10 unsafe or unauthorized. Within seven days after the suspension of any
1 1 officer, or any member of the credit committee or of the board of directors,
12 the supervisory committee shall cause notice to be given of a special
13 meeting of the members of the credit union to take such action rela-
14 tive to such suspension as may seem necessary. The supervisory com-
15 mittee may make temporary appointments to fill vacancies caused by
16 the absence, illness or suspension of any officer, director, or member of
17 any committee, and shall fill any vacancies in its own number until new
18 members have qualified. The board of directors and the supervisory
19 committee, acting jointly, shall make appointments to fill vacancies in
20 the credit committee until new members of the committee have qualified.
1 Section 15. No member of the board of directors or of either the Directors not
2 credit or supervisory committee shall receive any compensation for his Jomp"nsation,
3 services as a member of the said board or of such committee, nor shall pensat?o"of
4 any member of the credit or supervisory committee, directly or indirectly, J^^ljg « j^
5 borrow from the corporation or become surety for any loan or advance J?'^,'-,S'
6 made by it.
7 No member of the board of directors shall, directly or indirectly, borrow
8 from the corporation or become surety for any loan or advance made by
9 it, unless such loan or advance has been approved at a meeting of the
10 members of the credit union by a majority vote of those present, and
11 the notice of such meeting stated that the question of loans to directors /
12 would be considered at such meeting.
13 The officers elected by the board of directors may receive such com-
14 pensation as the board shall authorize.
1 Section 16. Before the pajinent of an annual dividend, there shall fj,""""'^
2 be set apart as a guaranty fund twenty per cent of the net income which J90|- |i|' 5 22.
3 has accumulated during the fiscal year, except as hereinafter provided. §§ 26, 26.'
4 Said fund and the investments thereof shall be held to meet contingencies i 376. '
5 or losses in its business. All entrance fees shall be added at once to the 1920! 2!
6 guaranty fund. Upon recommendation of the board of directors, the
7 members at any annual meeting may increase, and, whenever said fund
8 equals or exceeds the amount of capital stock actually paid in, may de-
9 crease, the proportion of profits required by this section to be set apart
10 as a guaranty fund; provided, that, if the corporation holds stock in
11 other credit unions, the percentage of profits to be set apart as a guaranty
12 fund shall not be decreased until the amount of the fund equals or exceeds
13 the amount of capital stock of the corporation actually paid in and in
14 addition thereto the amount actually paid for the shares of stock in such
15 credit unions.
1 Section 17. The capital, deposits and surplus funds of a credit investment
2 imion shall be invested in loans to members, with the approval of the i9oy,"4i9, § is.
1916
CREDIT UNIONS.
[Chap. 171.
1914, 437,
§U.2.
1915, 268,
§§11. 2U.
191S. 257,
§370.
1919. 5.
1920, 2.
Applications
for loans.
1909,419, §11.
1915,268,
§§ 17. 26.
Op. A. G.
(1917) 33.
credit committee as provided in the following section; and any capital, .3
deposits or surplus funds in excess of the amount for which loans shall 4
be approved by the credit committee may be deposited in savings banks 5
or trust companies incorporated under the laws of the commonwealth, 6
or in national banks located therein, or may be invested in the bonds 7
of any other credit union, or in any securities which are at the time 8
of their purchase legal investments for savings banks in the common- 9
wealth, or, with the approval of the commissioner, may be deposited in 10
other credit unions or may be in^'ested in the shares of other credit 11
unions or co-operative banks incorporated in the commonwealth; pro- 12
vided, that the total amount invested in the shares of other credit unions 13
or co-operative banks shall not exceed thirty per cent of the capital 14
and surplus, and that not more than twenty per cent shall be invested 15
in the shares of other credit unions, nor more than twenty per cent in 16
co-operative bank shares. 17
Section IS. The credit committee shall hold meetings, of which 1
due notice shall be gi\'en to its members, to consider applications for 2
loans, and no loan shall be made unless all members of the committee 3
who are present when the application is considered, and at least two 4
thirds of all the members of the committee, approve the loan and are 5
satisfied that it promises to benefit the borrower. All applications for 6
loans shall be made in writing, and shall state the purpose for wliich 7
the loan is desired and the security offered. 8
Purposes of
loans, etc.
1914, 437,
§§ 1,2,4.
1916, 268,
§§ 18, 26.
Op. A. G.
(1917) 33.
Farm land
mortgages.
1914,437,
§§1.3.
1915,231,
§ 19; 208,
§5 IS, 20.
Section 19. Loans upon the security of first mortgages upon farm 1
lands shall in no case exceed in amount fifty per cent of the value of the 2
property pledged as security, and shall be for the following purposes 3
only: (a) clearing, draining or otherwise reclaiming and permanently 4
improving agricultural lands; (6) providing of facilities for irrigation; 5
(c) plantingandearly care of orchards; {d) erection of silos, cold storage 6
plants, greenhouses and permanent farm buildings; (e) purchase of 7
farms and farm lands for personal occupation and management; (/) dis- 8
charge of existing farm mortgages; and, (g) subject to the approval of 9
the commissioner, such other improvements of a permanent nature as, 10
in the opinion of the directors, tend to develop agricultural resources. 11
Mortgages securing such loans shall contain a provision for immediate 12
foreclosure if the money lent is applied in whole or in part to purposes not 13
hereby authorized, or if, in the opinion of the directors, it is being spent 14
unwisely or wastefully. 15
A credit union may, with the approval of the commissioner, by vote of 16
its board of directors, issue, sell and trade in its own collateral trust bonds, 17
which shall be known and described as farm land bonds and shall be se- 18
cured as hereinafter provided by the deposit of first mortgage notes on 19
farm lands and the mortgages securing the same. In case of failure of a 20
credit union to pay the interest upon its bonds or the principal when due, 21
the bonds shall be an underlying lien on all its assets, and the commis- 22
sioner shall forthwith take possession of the assets and wind up the 23
affairs of the corporation. 24
Section 20. Loans upon farm lands shall be made only upon security 1
of first mortgages. The rate of interest upon such loans shall not exceed 2
six per cent, but an additional charge to the borrower may be made, to be 3
applied to the cost of administering the affairs of the corporation, which 4
Chap. 171.] credit unions. 1917
5 shall not exceed one per cent of the amount unpaid on the loan and shall JgJH^'^' ^^™-
6 be paid in annual, semi-annual or quarterly pajTnents at the same time i92oi 2-
7 that the interest is paid. The rate of interest upon such loans for a period
8 longer than five years shall not exceed the rate of interest upon the bonds
9 secured thereby by more than one per cent annually upon the amount
10 unpaid on the loan.
11 Upon such loans for a period longer than five years amortization pay-
12 ments shall be made in such amounts as shall be stated in the mortgage
13 note and mortgage, which shall be sufficient to pay the principal in full at
14 maturity and shall be payable in equal annual, semi-annual or quarterly
15 payments at the same time that the interest is paid. A borrower may pay
16 the amount of his mortgage loan or any part thereof on any interest day
17 by surrendering at par and accrued interest bonds of the series for which
18 his mortgage is pledged as security.
1 Section 21. Farm land bonds in a form approved by the commis- Farmland
2 sioner may be issued by a credit union by vote of its board of directors ign.^s?.
3 whenever the corporation holds as mortgagee farm land mortgages of a His, Isi.
4 term longer than fi\-e years in amount sufficient to secure such issue, f/i^.^fl:
5 Each issue of bonds shall constitute a separate series and shall be so des- l^jf^^^"'
6 ignated, the first series being designated as "Series One of Farm Land HH'^-
7 Bonds of the Credit Union" and subsequent series
8 accordingly. No series shall be issued for less than an aggregate sum of
9 ten thousand dollars nor for more than ninety-five per cent of the amount
10 of the mortgages against which it is issued. Bonds may be issued in
11 denominations of fifty dollars or any multiple thereof, but no bond shall
12 be for a larger amount than one thousand dollars. Bonds may bear
13 such rate of interest as may be determined by the directors, but not ex-
14 ceeding fi\'e per cent per annum. They shall be payable on a date speci-
15 fied and shall be subject to call by the corporation at two per cent above
16 par with accrued interest at any interest period after the date of issue, or
17 after a date specified in the bond, after such notice and advertisement as
18 may be provided in the by-laws, or, if no provision is made in the by-
19 laws, as shall be approved by the commissioner. Mortgages pledged as
20 collateral seciuity for bonds of any series shall be kept at all times in the
21 possession and under the control of the corporation, or, upon direction of
22 the commissioner, shall be deposited with a trustee to be appointed by
23 the corporation with the appro\'al of the commissioner, who shall hold the
24 mortgage notes and mortgages for the bondholders. As the amortization
25 pajonents are received and credited upon the mortgage notes so deposited
26 as seciuity, the bonds issued by the corporation and secured thereby shall
27 be called and paid, or purchased in the open market and retired, to the
28 extent of the pa^iTnents received, and credited upon the mortgage notes
29 held as security therefor, under rules and regulations adopted by the cor-
30 poration with the approval of the commissioner, or the payments so re-
31 ceived may be deposited by the corporation, or, if a trustee has been ap-
32 pointed, shall be paid over to the trustee, to be deposited at interest
33 as an amortization fund to meet the payment of the notes at maturity.
34 Only mortgages for a period longer than five years shall be pledged as
35 collateral for farm land bonds.
1 Section 22. Immediately before a meeting of the directors called ^™^'s°1.y
2 to consider the recommendation of a dividend, the supervisory com- Jgoo^iYg'^j 20
3 mittee shall make a thorough audit of the receipts, disbursements, 1915! 268]
» f > ' §§ 21. 26.
1918
CREDIT tTNIONS.
[Chap. 171.
income, assets and liabilities of the corporation for the fiscal year, and 4
shall make a full report thereon to the directors. Said report shall be 5
read at the annual meeting and shall be filed and preserved with the 6
records of the corporation. 7
Dividends.
1909. 419, § 21.
1915. 21)8.
§§ 22, 26.
Section 23. At the annual meeting a dividend may be declared 1
from income which has actually been collected during the fiscal year 2
next preceding, and which remains after the deduction of all expenses, 3
losses, interest on deposits, and the amount required to be set apart as 4
a guaranty fund, or such dividend may be declared in whole or in part 5
from undivided earnings of preceding years, not to exceed twenty per 6
cent thereof in any one year, provided such earnings are a part of the 7
surplus of the corporation in excess of all requirements of the guaranty 8
fund. 9
Such dividends shall be paid on all fully paid shares outstanding at 10
the close of the fiscal year, but shares which become fully paid during 11
the year shall be entitled only to a proportional part of said dividend, 12
calculated from the first day of the month following such payment in 13
full. Dividends due to a member shall be paid to him in cash or cred- 14
ited to the account of partly paid shares for which he has subscribed. 15
Lost pass
books, etc.
1917,33.
Section 24. Section twenty of chapter one hundred and sixty-seven 1
shall apply to the pass books and certificates of shares of credit unions. 2
Report to
commissioner.
1909, 419, § 24.
1915,268,
§§ 23, 26.
Section 25. Within twenty days after the last business day of 1
October in each year, every credit union shall make to the commissioner 2
a report in such form as he may prescribe, signed by the president, 3
treasurer and a majority of the supervisory committee, who shall make 4
oath that the report is correct according to their best knowledge and 5
belief. Any credit union neglecting to make the said report within 6
the time herein prescribed shall forfeit to the commonwealth fi\'e dollars 7
for each day during which such neglect continues. 8
Expulsion of
members.
1909,419,
§§ 18, 19.
1915,268,
§§ 24, 26.
Section 26. The board of directors may expel from a credit union 1
any member who has not carried out his engagements with the credit 2
union, or who has been convicted of a criminal offence, or who neglects 3
or refuses to comply with the provisions of this chapter or of the by- 4
laws, or whose private life is a source of scandal, or who habitually 5
neglects to pay his debts, or who becomes insolvent or bankrupt, or 6
who has deceived the corporation or any committee thereof with regard 7
to the use of borrowed money; but no member shall so be expelled 8
until he has been informed in writing of the charges against him, and 9
an opportunity has been given him, after reasonable notice, to be heard 10
thereon. 11
The amounts paid in on shares or deposited by members who have 12
withdrawn or have been expelled shall be paid to them, in the order 13
of withdrawal or expulsion, but only as funds therefor become available 14
and after deducting any amounts due from such members to the credit 15
union. Such expulsion shall not operate to relieve a member from 16
any remaining liability to the credit union. 17
Dissolution of
corporation.
1009,419, § 23.
Section 27. At any meeting specially called for the purpose the 1
members, upon recommendation of not less than two thirds of the 2
Chap.
TRUST COMPANIES.
1919
3 board of directors, may dissolve the corporation by the vote of two 1915,268,
4 thirds of the members of the credit union entitled to vote. A committee
5 of three shall thereupon be elected to liquidate the assets of the cor-
6 poration under the direction of the commissioner, and each share of
7 the capital stock, according to the amount paid thereon, shall be en-
8 titled to its proportional part of the assets in liquidation after all
9 deposits and debts have been paid.
REFERENCE.
Exemption of credit unions and their stock from taxation, Chap. 59, § 5, cl. 15.
CHAPTER 172
TRUST COMPANIES.
Sect.
general provisions.
1. Definitions.
2. Corporations subject to this chapter.
3. Adoption of chapter.
4. Use of words "Trust Company" as
name.
5. Limit of time for organization.
INCORPORATION UNDER GENERAL LAW.
6. Who may incorporate.
7. Agreement of association.
8. Notice of intention to form trust com-
pany.
9. First meeting.
10. Certificates of organization and incor-
poration.
11. Certificate permitting business.
OFFICERS AND BY-LAWS.
12. Officers.
13. Choice of officers.
14. Directors.
15. By-laws. Quorum.
16. Certain fees, etc., to officers, employees
and attorneys prohibited.
17. Penalty.
STOCK AND STOCKHOLDERS.
18. Capital stock; amount, issue, increase.
19. Books open for inspection.
20. Stockholders to elect examining com-
mittee.
21. Committee to examine corporation.
22. Report.
23. Further examination.
24. Liability of stockholders.
25. Enforcement of liability.
PUBLIC SUPERVISION.
26. Returns to commissioner.
27. Examination by commissioner.
Sect.
28. Audit by commissioner.
29. Report of audit.
30. Assistance in making audit.
POWERS.
31. Deposits.
32. Time deposits.
33. Investment of funds.
34. Loans on farm property, etc.
35. Agent to buy, etc.
36. May accept drafts and issue letters of
credit.
37. May accept or rediscount certain drafts,
etc.
38. May act as agent, trustee, etc.
39. Loans on shares of capital stock, etc.
40. Liabilities of any one person to corpora-
tion limited.
41. May hold real estate suitable for ita
business.
42. Real estate held by corporation which
is successor to national bank.
43. Holding of stock in other trust company
limited.
44. Consohdation of trust companies regu-
lated.
45. Branch office.
46. Office of merged company maintained
as branch office.
47. Establishment of foreign branches.
48. Additional powers, if member of fed-
eral reserve bank.
trust DEPARTMENT.
49. Trust department.
50. Deposit by authority of court, etc.
51. Investment of such funds.
52. Appointment as trustee, executor, etc.
53. Investment of funds held as executor,
etc.
1920
TRUST COMP.VNIES.
[Ch.\p. 172.
Sect.
54. Trust funds to be kept as special
deposit.
55. Capital stock as security.
56. Not to exercise powers, etc., unless
authorized.
57. Signing of returns, etc. Examination
of officers.
58. Surety on bonds.
59. Disposition of trust funds, etc.
SAVINGS DEPARTMENT.
60. Sa-i-ings department. Investment com-
mittee.
61. Investments of deposits in savings de-
partment.
62. Such deposits to be kept separate.
63. Capital stock as security for such de-
posits.
64. Guaranty fund in sa\-ings department.
65. Income.
66. Notice of intention to withdraw such
deposits.
67. Deposits may go on interest monthly.
Sect.
68. PajTnent of diWdends to be authorized
by directors after examination by in-
vestment committee.
69. Interest.
70. Pass books to be verified.
71. No officer, etc., to borrow funds of sav-
ings department or become surety.
72. Trust companies, etc., not to receive
brokerage, etc., on account of loan
by sa'vings department.
RESERVES AND GUARANTY FUNDS.
73. Reseri'e.
74. Composition of reserve.
75. Corporation may act as reserve agent.
76. Proceedings if reser\-e less than required.
77. Trust guaranty fund.
78. Trust guaranty fund pledged, etc.
79. Trust guaranty fund not to be trans-
ferred, etc.
80. Guaranty fund.
81. Reserve requirements, if member of
federal reserve bank.
GENERAL PROVISIONS.
m9°3M)I°§ 46. Section 1. Whenever used in this chapter, unless the context other-
4 Op. A. G. 190. -jvise requires, the words "trust company " or " such corporation " mean a
trust company incorporated as such in the commonwealth, and the " com-
missioner" means the commissioner of banks.
Corporations
subject to this
chapter.
1888,413, § 1.
1890. 315, § 2.
1899, 348, § 1.
R. L. 116, § 1
165 Mass. 384.
Section 2. All trust companies shall be subject to tliis chapter; ex- 1
cept that any such corporation chartered prior to IMay twentj'-eighth, 2
eighteen hundred and eighty-eight, shall not be subject, in the perform- 3
ance of its duties as trustee, to any pro^nsion of section fif ty-f om* wliich 4
is inconsistent with its charter and shall be subject to the following pro- 5
Nisions, or anj' of them, only if, and according as, it adopts them under 6
section three, or has adopted corresponding provisions of earlier laws: 7
sections twelve to fifteen, inclusive, eighteen, nineteen, twentj'-four to S
twenty-six, inclusive, so much of section twenty-seven as does not apply 9
to corporations exercising the powers conferred by section fifty-two, sec- 10
tions thirty-one, thirty-tliree, thirty-eight to forty-one, inclusive, fifty, 11
fifty-one, fifty-nine and seventy-seven to eighty, inclusive. 12
Adoption o(
chapter.
1890, 315, f 2.
R. L. 116, 5 2.
Section 3. A trust company chartered before INIay twenty^ighth,
eighteen hundred and eighty-eight, transacting business in the common-
wealth may adopt as a part of its charter this chapter, or any provision
thereof which under the preceding section it may adopt, by a majority
vote of the stock represented at a special meeting called for the purpose
and by filing, within ten days from the date of such meeting, with the
state secretarj' and with the commissioner a certificate sworn to by the
clerk of such corporation and stating such adoption.
Use of words
"Trust Com-
Section 4. No person or association and no bank or corporation, ex-
imw."^""' cept trust companies, shall use in the name or title under which his or
fgog' 49i' 1 1 ^^^ business is transacted the words " Trust Company " even though said
words may be separated in such name or title by one or more other words.
ClIAP. 172.] TRUST COMP.USriES. 1921
5 or advertise or put forth a sign as a trust company or in any way solicit
6 or receive deposits as such. Whoever violates this section shall forfeit
7 one hundred dollars for each day during which such violation continues.
8 But this section shall not prohibit an insurance company authorized
9 prior to October first, eighteen hundred and ninety-nine, to do business
10 in the commonwealth nor a company authorized prior to said date to
11 transact a foreign mortgage business in the commonwealth from using
12 the words "Trust Company" as a part of its corporate name.
1 Section 5. A trust company shall organize and commence business Limit of time
2 within two years from the date of its incorporation, otherwise its charter zation^"""
3 shall become void. i893, ih, § i. r. l. iie, i-i.
INCORPORATION UNDER GENERAL LAW.
1 Section 6. Fifteen or more persons who associate themselves by a who may
2 written agreement for the purpose of forming a trust company may, i9M?374,'§ i.
3 upon compliance with sections six to eleven, inclusive, become a corpo-
4 ration, with all the powers and privileges and subject to all the duties,
5 restrictions and liabilities set forth in all general laws relating to such
6 corporations.
1 Section 7. Said agreement shall set forth that the subscribers Agreement of
2 thereto associate themselves with the intention of forming a corpora- igoT.'sT™? 2.
3 tion, and shall specifically state —
4 First, The name by which the corporation shall be known.
5 Second, The purpose for which it is formed.
6 Third, The city or town, which shall be within the commonwealth,
7 where its business is to be transacted.
8 Fourth, The amount of its capital stock, and the number of shares
9 into which it is to be divided.
10 Each associate shall subscribe to the articles his name, residence, post
1 1 office address and the number of shares of stock which he agrees to take.
1 Section 8. A notice of the intention of the subscribers to form such Notice of
2 a trust company shall be given to the board of bank incorporation.^ Srm t?"s'°
3 A notice in such form as said board shall approve shall be published at 5904^''3"74, 5 3
4 least once a week, for three successive weeks, in one or more newspapers J^[Jg' 1"^' I *■
5 designated by said board, and published in the city or town in which w^; 491! § 2
6 it is proposed to establish the company. Such notice shall specify the
7 names of the proposed incorporators, the name of the corporation and
8 the location of the same, as set forth in the above mentioned agreement
9 of association. Within thirty days after the first publication of said
10 notice the subscribers to said agreement shall apply to said board for a
11 certificate that public convenience and advantage will be promoted by
12 the establishment of such trust company. If the board refuses to issue
13 such certificate, no further proceedings shall be had, but the application
14 may be renewed after one year from the date of such refusal, without
15 further notice or publication unless the board shall order it.
1 Section 9. The first meeting of the subscribers to the agreement of ^^J^' SvT's'f
2 association shall be called by a notice signed either by that subscriber
3 to the agreement who is designated therein for the purpose, or by a ma-
4 jority of the subscribers; and such notice shall state the time, place and
1922 TRUST COMP.\NIES. [Ch.\p. 172.
purposes of the meeting. A copy of the notice shall, seven clays at least 5
before the day appointed for the meeting, be given to each subscriber 6
or left at his residence or usual place of business, or deposited in the post 7
office, postage prepaid, and addressed to him at his residence or usual 8
place of business, and another copy thereof and an affidavit of one of 9
the signers that the notice has been duly served shall be recorded with 10
the records of the corporation. If all the incorporators shall in ■writing, 1 1
endorsed upon the agreement of association, waive such notice and fix 12
the time and place of the meeting, no notice shall be required. The 1.3
subscribers to the agreement of association shall hold the franchise until 14
the organization has been completed. At such first meeting, or at any 15
adjom-nment thereof, the incorporators shall organize by the choice by 16
ballot of a temporary clerk, by the adoption of by-laws and by the elec- 17
tion in such manner as the by-laws may determine, of directors, a presi- 1<S
dent, a clerk, and such other officers as the by-laws may prescribe. All 19
the officers so elected shall be sworn to the faithful performance of their 20
duties. The temporary clerk shall make and attest a record of the pro- 21
ceedings until the clerk has been chosen and sworn, including a record of 22
such choice and qualification. 23
org?Szlti?n°' Section 10. The president, and a majority of the directors elected 1
and incorpo- at such first meetinsT, shall make, sign and make oath to, articles in 2
ration. , ,. • i> , ' o
1904, 374, § 5. duplicate, setting forth — 3
§"§i.'3, 5.' (a) A true copy of the agreement of association, the names of the sub- 4
1919! 35o' § 46. scribers thereto, and the name, residence and post office address of each 5
1920,598.17. of the oSicers of the company; _ 6
(b) The date of the first meeting and the successive adjournments 7
thereof, if any. 8
One of such certificates shall be submitted to the commissioner, and 9
the other, together with the recortls of the proposed corporation, to 10
the commissioner of corporations and taxation, who shall examine the 11
same, and who may require such amendment thereof or such additional 12
information as he may consider necessary. If he finds that the articles 13
conform to the four preceding sections relative to the organization of the 14
corporation and tliat section eight has been complied with, he shall so 15
certify and endorse his approval thereon. Thereupon the articles shall 16
be filed in the office of the state secretary, who, upon pajTuent of a fee 17
equal to one twentieth of one per cent of the capital stock of said cor- 18
poration as set forth in said articles, shall cause the same, with the en- 19
dorsement thereon, to be recorded, and shall thereupon issue a certificate 20
of incorporation in the following form: 21
Commonwealth of Massachusetts.
Be it known that whereas (the names of the subscribers to the agreement
of association) have associated themselves with the intention of forming a cor-
poration under the name of (the name of the corporation), for the purpose (the
purpose declared in the agreement of association), with a capital stock of (the
amount fixed in the agreement of association), and have complied with the
statutes of the commonwealth in such case made and provided, as appears from
the articles of organization of said corporation, duly approved by the commis-
sioner of corporations and taxation and recorded in this office: Now, therefore, I
(the name of the state secretary), secretary of the commonwealth of Massachu-
setts, do hereby certify that said (the names of the subscribers to the agreement
of association), their associates and successors, are legally organized and estab-
lished as, and are hereby made, an existing corporation under the name of (name
Chap. 172.] trust companies. 1923
of the corporation), with the powers, rights and pri\'ileges, and subject to the
limitations, duties and restrictions, which by law appertain thereto.
Witness my official signature hereinito subscribed, and the great seal of the
commonwealth of Massachusetts hereunto affixed, this day of
in the year (the date of the filing of the articles of organization).
22 The state secretary shall sign the certificate of incorporation and cause
2.3 the great seal of the commonwealth to be thereto affixed, and such cer-
24 tificate shall have the force and effect of a special charter. The existence
25 of every corporation not created by special law shall begin upon the
26 filing of the articles of organization in the office of the state secretary.
27 He shall also cause a record of the certificate of incorporation to be
28 made, and such certificate, or such record, or a certified copy thereof,
29 shall be conclusive evidence of the existence of such corporation.
1 Section 11. When the whole capital stock has been issued, a com- Certificate
2 plete list of the stockholders, with the name, residence and post office bushwM^^
3 address of each, and the number of shares held by each, shall be filed n^l', ut] § l[
4 with the board of bank incorporation, which list shall be verified by the \?)qI\ Hf | 4-
5 two principal officers of the corporation. Upon receipt of such statement }^°*' f^°' | *■
6 said board shall cause an examination to be made, and if, after such ex- i^is. ^^0', § 47.
7 amination, it appears that the whole capital stock has been paid in in
8 cash, and that all requirements of law have been complied with, said
9 board shall issue a certificate authorizing such corporation to begin the
10 transaction of business. It shall be unlawful for any such corporation to
1 1 begin the transaction of business until such a certificate has been granted.
OFFICERS AND BY-LAWS.
1 Section 12. The officers of such corporation shall be a president, PJlSTio
2 clerk or secretary, a board of not less than seven directors, a treasurer or iss"'. soi! § 2.
3 actuary or both, and such other officers as may be prescribed by its by- ■•''•■
4 laws and they shall be sworn to the faithful performance of their duties.
1 Section 13. The officers of such corporation, except the treasurer, choice of
2 actuary, and the members of the investment committee, if one is required isssTI'is. § 4.
3 by section sixty, shall be chosen at its annual meeting. The treasurer fiin.'sV.'^' * *'
4 and actuary shall be appointed by the directors, shall hold their respec- •''■'"°' ^°^' ^ ^■
5 tive offices during the pleasure of the board of directors and shall gi\-e
6 bond to the satisfaction of said board for the faithful performance of
7 their duties. The board of directors may fill, until the next annual
8 meeting, any vacancies in offices that may occur.
1 Section 14. No person shall be a director in any such corporation Dircctora.
2 unless he is a stockliolder holding not less than ten shares of unpledged r*l. 110, | a!*'
3 stock therein. A majority of the directors shall be citizens of and resi-
4 dent in the commonwealth and not more than one third of the directors
5 shall be directors in any other such corporation.
1 Section 15. The corporation may adopt by-laws for the proper man- ny-iaws.
2 agement of its affairs, may establish regulations controlling the assign- isss^Ts. § s.
3 ment and transfer of its shares and may determine what number of shares ^' ^' ""' ^ '"•
4 shall be represented at any meeting to constitute a quorum. If the
5 quorum is not so determined, a majority in interest of the stockliolders
6 shall be a quorum.
1924
TRUST COMP.YNIES.
[CiLlP. 172.
et"!to°offfcers, Section 16. Xo officep, director, employee or attorney of a trust
employees and company sliall be a beneficiary of or receive, directive or indirectly, anv
attorneys .'•.. .» . ^ .. .« *. .^^
prohibited fee, commissioo, gilt or other consideration lor or in connection with
any business of such corporation. This section shall not prohibit any
such officer, director, employee or attorney from receiving interest on
a deposit made by him or his usual salary or director's fee or a reason-
able fee for services rendered to such corporation or from borrowing
from such corporation in accordance with law.
ms.'zw, §2. Section 17. Whoever violates any provision of the preceding sec- 1
tion shall be punished by a fine not exceeding five thousand dollars or 2
by imprisonment for not more than one year, or both. 3
Capital stock:
amount, issue,
increase.
1888, 413, § 2.
1897, 304, § 1.
R. L. 116, § 5.
1904, 374, § G.
1905, 189.
lOOG, 204,
§§ 1, 3, 5.
1907, 487.
1909, 491,
1913, 20U.
1916,37.
1919, 350, § 46.
231 Mass. 42.
: 3.
STOCK .\XD STOCKHOLDERS.
Section IS. The capital stock of such corporation shall be not less 1
than two hundred thousand dollars, except that in a city or town whose 2
population numbers not more than one hundred thousand the capital 3
stock may be not less than one hundred thousand dollars, divided into 4
shares of the par value of one hundred dollars each; and except also 5
that in towns whose population is not more than ten thousand the 6
capital stock may be not less than fifty thousand dollars divided into 7
shares of the par value of one hundred dollars each; and no business 8
shall be transacted by the corporation until the whole amount of its 9
capital stock is subscribed for and actually paid in. Any such cor- 10
poration may, subject to the approval of the commissioner, increase 11
its capital stock in the mamier pro^■ided by sections forty-one and forty- 12
four of chapter one hundred and fifty-six. No stock shall be issued by 13
any such corporation until the par value thereof shall be fully paid in in 14
cash. Any such corporation may, subject to the approval of the com- 1.5
missioner, decrease its capital stock in the manner provided by said sec- 16
tion forty-one and the first sentence of section forty-five of said chapter; 17
provided, that the capital stock as so reduced shall not be less than the 18
amount required by this section. 19
Section 19. The books of such corporation shall at all reasonable
Books open
for inspection.
1888, 413, 1 25. tlmcs bc opcu for inspection to the stockholders and to beneficiaries
K. ij. lib, S 11. ^ ^ 1117 1
under any trust held by such corporation.
Stockholders
to elect
examining
committee.
1907,319. § 1.
1908, 620, § 14.
Section 20. The stockholders of every such corporation shall elect
at their annual meeting an examining committee for the ensuing year
of not less than three stockholders, of which neither the president, vice
president, secretary, treasurer, actuary nor any member of the execu-
tive or finance committee of the board of directors shall be a member.
Committee
to examine
corporation.
1907, 319, § 2.
1912, 73. I 1.
1919, 350, § 46.
Section 21. At least once in each year the committee, without 1
previous notice to the officers or directors of such corporation, shall 2
make or cause to be made a thorough examination of the assets and 3
liabilities of the corporation, including those of its trust department. 4
Within ten days after the completion of such examination the com- 5
mittee shall file in the office of the commissioner a written report 6
thereof, sworn to by each member of the committee making the ex- 7
amination, and a duplicate of the report, or such part thereof as the 8
Ch.\P. 172.] TRUST COMP.VNIES. 1925
9 meeting may determine, shall be read to the directors and to the stock-
10 holders at their meetings immediately following the completion of the
11 report.
1 Section 22. Such report shall be made on forms furnished by the Heport.
2 commissioner and shall contain a statement of the assets and liabilities luig,' 336! § Vs.
3 of such corporation, including those of its trust department, together
4 with such other information as the commissioner requires. It shall
5 also specify in detail any loans or discounts which, in the opinion of
G the committee, are worthless or of doubtful value, and any loans made
7 on collateral security which in their opinion is of doubtful value or not
8 readily marketable, together with their reasons for so regarding them.
1 Section 23. If upon receipt of the report or if upon examination of ^"a^n^tion
2 anv such corporation a further examination or audit of its books and J-!?!' ^is. § ■*•
.^ , ^ , . . Ill 1919, 3o0, § 46.
3 anairs appears necessary, the commissioner may cause to be made by
4 an expert, at the expense of the corporation, such further examination
5 or audit as he considers necessary.
1 Section 24. The stockholders of such corporation shall be person- Liability of
2 ally liable, equally and ratably and not one for another, for all con- isst^'s.Tu.
3 tracts, debts and engagements of the corporation, to the amount of fgos. Ms! Vi°'
4 their stock therein at the par value thereof, in addition to the amount 203 Mass. soi.
.5 invested in such shares. Sections forty-six, forty-seven and forty-nine 216 Mass. i56.
6 to fifty-four, inclusive, of chapter one hundred and fifty-eight shall
7 apply to and regulate the enforcement of such liability, and receivers of
8 insolvent trust companies may, with the approval of the supreme judi-
9 cial court, enforce such liability.
1 Section 25. Any such corporation whose stockholders are liable Enfort-ement
2 under the preceding section and whose capital stock has, in the opin- is9'2!'327^'
3 ion of the commissioner, become impaired by losses or otherwise, shall, fg^^; l}^-_ § ^i-
4 within three months after receiving notice from the commissioner, pay f|g'g' ^^g\- ^ 3
5 the deficiency in the capital stock by assessment upon the stockholders 5^^;^/°'
6 pro rata to the shares held by each. If such corporation shall fail to pay
7 such deficiency in its capital stock for three months after receiving such
8 notice, the commissioner may apply to the supreme judicial court for an
9 injunction; and if a stockholder of such corporation neglects or refuses,
10 after three months' notice, to pay the assessment as provided in this
1 1 section, the board of directors shall cau.se an amount of his stock sufficient
12 to make good his assessment to be sold by public auction, after thirty
13 days' notice given by posting such notice in the office of the corporation
14 and by publishing it in a newspaper of the city or town where the corpo-
15 ration is located or in a newspaper published nearest thereto; and the
16 balance, if any, shall be retiu-ned to such delinquent stockholder. This
17 section shall not take away the right of creditors to enforce the liabiUty
18 of stockholders in such corporations, as provided in the preceding section,
19 nor increase the general habiUty of such stockholders.
PUBLIC supervision.
1 Section 26. Such corporation shall at such times as the commis- Hetumsto
2 sioner orders, but not exceeding five times within any calendai* year, I'sss.Via. § 20.
3 and within ten days after a day designated in the order, make a return ino!;; 204.' ^'''
4 to the commissioner, signed and sworn to by its president and secretary, fuoV, sVo, 5 1.
1926
TRUST COMPANIES.
[Chap. 172.
1908. 520, § 13. treasurer or actuary and not less than four of its board of directors, show- 5
1919! 35o! § 4'6. ing accurately the condition of such corporation at the close of business on 6
the day designated, and said return shall specify: capital stock; amount 7
of all money and property in detail in the possession or charge of said
corporation as deposits; amount of deposits payable on demand or
within ten days; amount of trust guaranty fund; trust funds and funds
for purposes of investment; number of depositors; investments in au-
thorized loans of the United States or any of the New England states,
counties, cities or towns; investments in bank stock, railroad stock and
railroad bonds, stating amount in each; loans on notes of corporations; 14
loans on notes of individuals; loans on mortgages of real estate; cash on 15
hand; rate, amomit and date of dividends since last return; and such 16
other information as the commissioner orders. Such return shall be
in the form of a trial balance of its books and shall specify the different
kinds of its liabilities and assets, with the amount of each kind, in ac-
cordance with a blank form furnished by the commissioner and shall be 20
published by and at the expense of such corporation in a newspaper of 21
the city or town where such corporation is located, at such times and in 22
such manner as may be directed by the commissioner, and in the annual 23
report of the commissioner. 24
Examination
by com-
missioner.
1888, 413, § 26.
1899, 34S, § 6.
R. L. 116, § 37.
1906. 204,
§§ 1, 3. .5.
1908, 590, § 1.
1909, 491, §3.
1919, 350,
§§ 45, 46.
9
10
11
12
13
17
IS
19
Section 27. The commissioner shall have access to the vaults, 1
books and papers of such corporation, and shall inspect, examine and 2
inquire into its affairs and take proceedings in regard to it in the same 3
manner and to the same extent as if it were a savings bank; and may 4
make, or cause to be made by an expert at the expense of the corpo- 5
ration, such further examination of a corporation exercising the powers 6
conferred by section fifty-two as he may consider necessary, and shall, 7
when ordered by any court of competent jurisdiction, make an examina- S
tion or cause it to be made. 9
Audit by
commissioner.
1913, 409, I 1.
1919, 350, § 46.
Section 28. The commissioner may, when so requested by vote of a 1
majority of the directors or by the stockliolders' examining committee 2
of any such corporation, make a thorough examination and audit of the 3
books, securities, cash, assets, liabihties, income and expenditures of the 4
corporation, for such period as the directors or committee may request 5
or as the commissioner may prescribe. The commissioner may avail him- 6
self of such assistance from the officers and employees as he may deem 7
proper. The expense of the audit shall be borne by the corporation. 8
Sr£"'°^ Section 29. The person in charge of the examination shall render 1
1919' 35o' 1 46 to the commissioner a report of his findings, in such form as the com- 2
missioner may prescribe, and a copy thereof shall be furnished to the 3
directors or to the stockholders' examining committee of the corporation 4
within ten days after the original has been submitted to the commis- 5
sioner, together with a notice of the amount of the fee to be paid, wliicli 6
shall be due and payable within thirty days after the date of the notice. 7
Upon failure of any such corporation to pay the required fee within the 8
time prescribed herein the commissioner shall report the facts to the 9
attorney general, who shall immediately bring action to recover it. 10
niXnTaudrt. Section 30. The commissiouer, in order to carry out the provisions of 1
1919! 350, §46. the two preceding sections, may employ such additional assistance, sub- 2
ject to the approval of the governor and council, as he deems necessary. 3
ClL-VP. 172.] TRUST COMPANIES. 1927
POWERS.
1 Section 31. Such corporation may receive on deposit, storage or Deposits.
2 otherwise, money, government secm-ities, stocks, bonds, coin, jewelry, HH] IH] | ?;
3 plate, valuable papers and documents, evidences of debt, and other fcii2; 54.®' ^ '^'
4 property of any kind, upon terms or conditions to be agreed upon, and i^^*' ^^^' 5 3.
5 at the request of the depositor may collect and disburse the interest or
6 income, if any, upon said property received on deposit and collect and
7 disbiu-se the principal of such of said property as produces interest or
8 income when it becomes due, upon terms to be prescribed by the cor-
9 poration. Such deposits shall be general deposits, and may be made by
10 corporations and persons acting indixndually or in any fiduciary capacity.
11 Such corporation shall not gi\'e collateral or other seciuity for a deposit
12 of money recei^'cd under this section, except that the corporation may
13 make such a deposit of securities as may be required by the law§ of the
14 United States or the rules and regulations of the trustees of the postal
15 savings system as secm'ity for deposits of postal sa^'ings funds made
16 with such corporation and may give such collateral or other security for
17 deposits of public or other funds as may be required by any public au-
18 thority making such deposits or controlling the terms upon which they
19 may be made.
1 Section 32. No such corporation shall allow a time deposit repre- Time deposits.
2 sented by a certificate or WTitten agreement to be ^^^thdra^^l before the 1919I 350", § 46.
3 time specified therein, and where such certificate or agreement does not
4 specify any definite date for withdrawal no such corporation shall allow
5 such deposit to be TN-ithdra^Ti without receiving WTitten notice of at least
6 thirty days. Originals or duplicates of all agreements in reference to time
7 deposits shall be kept on file by such corporations and submitted to the
8 commissioner at his request. Any such corporation violating this section
9 shall be punished by a fine of not more than one thousand dollars.
1 Section 33. Such corporation may, subject to the limitations of the investment
2 following section, advance money or credits, whether capital or general isssl'^s, § o.
3 deposits, on real estate situated in the commonwealth and on personal IcI'l; no; 1 13.
4 security, on terms to be agreed upon, and also invest its money or credits, ^^^'^^ ^~'^' ^ ^■
5 whether capital or general deposits, in the stocks, bonds or other evi-
G dences of indebtedness of corporations or of governments, both foreign
7 and domestic.
1 Section 34. No such corporation shall advance money or credits Loans on
2 upon notes secured by deed of trust or by mortgage upon farms or agri- etc"' '"''"'"*''•
3 cultural or unimproved land outside of the commonwealth, except upon JUgisJo! ^ ''
4 land situated in the New England states or the state of New York, or ''• ^- !'"• ^ "•
5 invest in or make loans on the bonds or other securities of a company
6 negotiating or dealing in such notes so secured or in such mortgages.
1 Section 35. No such corporation shall as agent, buy, sell or negotiate Agent to buy,
2 securities or evidences of debt on which such corporation may not law- isiio, .315. § 1.
3 fully advance money or credits, nor as such agent buy, sell or negotiate ^^' ^' ^'*'' '^'
4 evidences of debts secured exclusively by real estate under mortgage
5 or deed of trust.
1928
TRUST COMPANIES.
[Chap. 172.
May accept
"drafts ana
issue letters
of credit.
1916, 129. § 1.
1919, 350, § 46.
Section 36. Any such corporation may, subject to such restrictions 1
as may be imposed by the commissioner, accept for payment at a future 2
date drafts and bills of exchange drawn upon it, and issue letters of credit 3
authorizing holders thereof to draw drafts upon it, or its correspondents, 4
at sight or on time; provided, that such acceptances or drafts be based 5
upon actual values, but no such corporation shall accept such bills or 6
drafts to an aggregate amount exceeding at any one time one half of its 7
paid-up capital and surplus, except with the approval of the commissioner, 8
and in no case to an aggregate amount in excess of its capital and surplus. 9
May accept
or rediscount
certain drafts,
1914, 537. § 3.
Section 37. Such corporation may accept drafts or bills of exchange
drawn upon it and growing out of transactions involving the import or
export of goods, having not more than six months' sight to run, but no
such corporation shall accept such bills to an amount equal at any time
in the aggregate to more than one half of its paid-up capital stock and
surplus. Such corporation may rediscount notes, drafts and bills of
exchange arising out of actual commercial transactions.
ageut?tru/tee, SECTION 38. Such Corporation may act as agent for the purpose of
1888 413 5 15 issuing, registering or countersigning the certificates of stock, bonds or
R. L. 116, § 32. other evidences of indebtedness of a corporation, association, municipal
corporation, state or national government, on such terms as may be
agreed upon, and may also act as trustee or financial or other agent for
a person, association, municipal corporation or government, and in their
behalf may negotiate loans and sell and negotiate the sale of securities,
and may also act as trustee for the bondholders of a corporation, and for
such purpose may receive transfers of real and personal property upon
such terms as may be agreed upon.
1
2
3
4
5
6
7
8
9
10
Loans on
shares of
capital stock,
etc.
Section 39. No such corporation shall make a loan or discount on the
security of the shares of its own capital stock, nor be the purchaser or
1888. 413, 1 16. holder of such shares, unless such security or purchase shall be necessary
to prevent loss upon a debt previously contracted in good faith; and
stock so purchased or acquired shall, within six months after its pur-
chase, be sold or disposed of at public or private sale.
Liabilities of
any one person
to corporation
limited.
1888, 413, § 17.
1901, 255.
R. L. 116, §34.
1916, 129. § 2.
1917, 172, § 2.
2 0p.A.G. 190.
3 Op. A. G. 69.
4 Op. A. c;. 8.
Op. A.G.
(1918) 52.
Section 40. The total liabilities of a person, other than cities or 1
towns, including in the liabilities of a firm the liabilities of its several 2
members, for money borrowed from and drafts drawn on any such cor- 3
poration having a capital stock of five hundred thousand dollars or more 4
shall at no time exceed one fifth part of the surplus account and of such 5
amount of the capital stock of such corporation as is actually paid up. 6
Such total liabilities to any such corporation having a capital stock of less 7
than five hundred thousand dollars shall at no time exceed one fifth of 8
such amount of the capital stock of the corporation as is actually paid 9
up; but the discount of bills of exchange drawn in good faith against 10
actually existing values, and the discount of commercial or business paper 1 1
actually owned by the person negotiating it, shall not be considered as 12
money borrowed. The total liabilities to any one such corporation of 13
any government, either foreign or domestic, other than the government 14
of the United States of America or of this commonwealth, shall not exceed 15
one tenth part of the surplus account and of such amount of the capital Ifi
stock of such corporation as is actually paid up, and no trust company 17
Chap. 172.] trust comp.vnies. 1929
18 shall invest or advance an aggregate amount exceeding at any one
19 time twenty per cent of its surplus account and paid-up capital stock
20 in such securities and evidences of indebtedness.
1 Section' 41. Such corporation may hold real estate unencumbered es'mi'suftabte
2 by mortgage suitable for the transaction of its business to an amount in- (gss "^r's'if '
3 eluding the cost of alterations and additions in the nature of permanent i894,'2r4!
4 fixtures, not exceeding twenty-five per cent of its capital actually paid in 1912! 53. '
5 and its surplus account, and in no case to exceed two hundred and fifty ^^p-*^- -^^ •
6 thousand dollars; but this section shall not require such corporation to
7 change an investment legally made prior to April eighteenth, eighteen
S hundred and ninety-four.
1 Section 42. Such corporations which succeed or have succeeded to Real estate
2 the business of national banks may continue to hold the real estate owned ration wESTs
3 by such national banks and used in the transaction of their business. nationaTba°iik.
1912. 90.
1 Section 43. No trust company shall hold more than ten per cent of ^J,t'?n Sther
2 the capital stock of any other trust company. b^ted""'''"'^
1914. 504, § 1. 231 Mass. 42.
1 Section 44. No trust company shall be merged in or consolidated ofTr^'fTOm-"
2 with another trust company except under the provisions of sections forty- P^^^Jf^t^^j
3 two and forty-six of chapter one hundred and fifty-six, which are hereby isi*. 504, § 2.
4 made applicable to the sale or exchange of all the property and assets,
5 including the good will and corporate franchise, of a trust company.
1 Section 45. The board of bank incorporation may authorize in Branchoffice.
2 wTiting any such corporation to maintain not more than one branch §§°i",'2.'^'''
3 office which shall be in the town where its main office is located. §§°i','3,°5.'
4 No such corporation shall maintain a branch office except as pro- 590*5*1°' ^ ^''
5 A-ided in this and the two following sections, but the restrictions of this J|°^' *^- 1 1-
6 section shall not extend to branch offices authorized prior to April twenty- isis! sso! § 47.
9 On A C 11 "
7 ninth, nineteen himdred and two. aop. a. g. isi.
1 Section 46. Any office of a trust company the business of which office of
2 has been taken over under section forty-four by another trust company "a"y maS^
3 located in the same town, may be maintained as a branch office of such brlTncli'^ffice.
4 corporation, if in the opinion of the commissioner public convenience will Jg Jg' 3?J' | ^g
5 be ser^•ed thereby.
1 Section 47. Any such corporation ha-ving a capital and surplus of oUo^ign™^"'
2 one million dollars or more may file application with the commissioner, j^j^^^fy . ,
3 upon such conchtions and under such regulations as may be prescribed isisi sso', 1 46.
4 by him, for the purpose of securing authority to establish branches in
5 foreign countries or dependencies of the United States. Such applica-
6 tion shall specify, in addition to the name and capital of the trust com-
7 pany filing it, the places where the banking operations proposed are
8 to be carried on and the amount of capital set aside for the conduct
9 of its foreign business. The commissioner may approve any such appli-
10 cation, or reject it if, in his judgment, the amount of capital proposed to
1 1 be set aside for the conduct of foreign business is inadequate, or if for
12 other reasons the granting of the application is deemed inexpedient.
1930
TRUST COMPANIES.
[Ch.\p. i:
Every such corporation which shall receive authority to establish foreign 13
branches shall be required at all times to furnish information concerning 14
the condition of such branches to the commissioner upon demand, and 15
he may order special examinations of such foreign branches at such 16
times as he deems best. Every such corporation shall conduct the ac- 17
counts of each foreign branch independently of the accounts of other 18
foreign branches established by it and of its home office, and shall at the 19
end of each fiscal period transfer to its general ledger profit or loss accru- 20
ing at each branch, as a separate item. 21
Additional
powers, if mem-
ber of federal
reserve hank.
1914, 537, § 1.
Section 48. A trust company wliich becomes a stockholder in a 1
federal reserve bank within the federal reserve district where such trust 2
company is situated, and while such trust company continues as a mem- 3
ber bank under the United States "Federal Reserve Act" approved 4
December twenty-third, nineteen hundred and thirteen, or any acts in 5
amendment thereof, may have and exercise any and all of the corporate 6
powers and privileges which may be exercised by member banks under 7
said "Federal Reserve Act" or any acts in amendment thereof or in 8
addition thereto. 9
Trust depart-
ment.
1S88, 413, I 7.
R. L. 116, I 24.
TRUST DEPARTMENT.
Section 49. Every such corporation acting under any provision of 1
the following section or section fifty-two shall have a trust department 2
in which all business authorized by said sections shall be kept separate 3
and distinct from its general business. 4
Deposit by
autnority of
court, etc,
18SS, 413, § 7.
R. L. 116, § 16.
1907,417, § 1,
1915, 23, § 1.
Section 50. A court of law or equity, or a court of probate and in-
solvency of the commonwealth, may direct that money or property under
its control, or which may be paid into court by parties to any legal pro-
ceedings, or which may be brought into court by reason of an order or
judgment, be deposited with such corporation, upon such terms and
subject to such instructions as the court may prescribe. \Mien money
so deposited has remained unclaimed for more than ten years, the court
may upon motion of the attorney general order and decree that it shall
be paid over to the state treasurer to be held by him under the terms of 9
said order or decree, and upon the entry of such order or decree the cor- 10
poration shall pay over money so deposited and specified in the order to 1 1
the state treasurer, to be held by him as aforesaid; and if any person 12
shall establish a lawful right thereto the said treasurer shall repay the 13
same to such person, with interest at the rate of three per cent per annum 14
from the time when paid to said treasurer to the time when it is paid over 15
by him to such person. Sections forty-two and forty-three of chapter 16
one hundred and sixty-eight shall be applicable to trust companies. 17
Such corporation may also hold money or property in trust or on deposit 18
from executors, administrators, assignees, guardians, conservators and 19
trustees, upon such terms and conditions as may be agreed upon. 20
Investment of
such funds.
1888, 413, § 7.
R. L. 116, § 17.
1 Op. A. G. 334.
Section 51. Money or property received under the preceding section
shall be loaned on or invested only in the authorized loans of the United
States, or any of the New England states, comities, cities or towns thereof,
or of the states of Illinois, Iowa, Michigan, IMimiesota, Wisconsin, or the
counties or cities thereof, or stocks of state or national banks situated
within this commonwealth, or in the fii-st mortgage bonds of a railroad
corporation incorporated in any of the New England states whose road
Chap. 172.] trust companies. 1931
8 is located wholly or in part in the same and which has earned and paid
9 regular dividends on all its issues of capital stock for two years last pre-
10 ceding such loan or investment, or in the bonds of any such railroad com-
1 1 pany unencumbered by mortgage, or in first mortgages on real estate in
12 this commonwealth, or in any securities in which sa\'ings banks may
13 invest, or upon notes with two sm-eties of domestic manufacturing cor-
14 porations or of indiNaduals with a sufficient pledge as collateral of any of
15 the aforesaid securities; but all real estate acquired by foreclosure of
16 mortgage or by le^'y of execution shall be sold at public auction within
17 two years after such foreclosure or leAy.
1 Section 52. Such corporation may be appointed executor of a will, as^frustee,^"*
2 codicil or -wTiting testamentary, administrator with the will annexed, jg|™4°3^*"'-
3 administrator of the estate of any person, receiver, assignee, guardian, §§ 7,'8. '
4 conservator or trustee under a will or instrument creating a trust for §§ i.'2.
5 the care and management of property, under the same circumstances, loos.' iiei sos!
G in the same manner, and subject to the same control by the coiut hav- ^^^ ^'''^''' ^^''"
7 ing jurisdiction of the same, as a legally qualified individual. Any such
8 appointment as guardian shall apply to the estate and not to the person
9 of the ward. Such corporation shall not be required to receive or hold
10 property or money or assume or execute a trust under this section or of
1 1 section fifty without its assent.
1 Section 53. Every such corporation maj- invest the funds or assets investment of
2 which it may receive and hold under the preceding section in the same executor, etc'
3 way, to the same extent, and under the same restrictions as an indi- i^i'^sss-
4 vidual holding a similar position may invest such funds or assets.
1 Section 54. INIoney, property or securities received, invested or Tmst funds
2 loaned under the pro\'isions of sections fifty to fifty-two, inclusive, shall specfai Xpo'it.
3 be a special deposit in such corporation, and the accomits thereof shall If^T'.'o.^'*'
4 be kept separate. Such funds and the investment or loans thereof J^^^l' no' § li
5 shall be specially appropriated to the security and paj-ment of such
6 deposits, shall not be mingled with the investments of the capital stock
7 or other money or property belonging to such corporation, or be hable
8 for the debts or obligations thereof.
1 Section 55. The capital stock of such corporations, ^ith the Ha- Capita! stock
2 bilities of the stockholders thereunder, shall be held as security for the isls^isfj 8.
3 faithful performance of the duties undertaken by Aurtue of sections fifty \f^l[ HI] | %_
4 to fifty-two, inclusive, or of any similar provision of law.
1 Section 56. No such corporation shall commence to exercise the Not to exercise
2 powers and duties described in sections fifty to fifty-two, inclusive, Sniesr' " ° '
3 until it has received written authority therefor from the board of bank isflr,°42,^'s 3.
4 incorporation, and said board may grant or refuse such authority after Jf^; ji^; I |o
5 such investigation of the affairs of the corporation as it deems expedient. J^Jj^' |{JJ' | *■
1909, 491, § 2. 1919, 350, § 47.
1 Section 57. In all proceedings in the probate court or elsewhere, signinKof
2 connected with any authority exercised under section fifty or fifty-two, Kx^mina'tion
3 or under any similar provisions of law, all accounts, returns and other isss.T/l,' § s.
4 papers may be signed and sworn to, in behalf of the corporation, by R^^L.iiGllfi.
5 any officer thereof duly authorized by it, and the answers and exami-
1932
TRUST COMPANIES.
[Chap. 172.
nations under oath of said officer shall be received as the answers and 6
examinations of the corporation. Tlie court may order and compel an 7
officer of such corporation to answer and attend said examination in 8
the same manner as if he, instead of the corporation, were a party to 9
the proceeding. 10
Surety on
bonds.
1888, 413. § ,S.
1899, 348,
§§2,4.
E. L. 116,
§§ 19, 22.
Section 58. No surety shall be required upon the bonds filed by 1
such corporation as fiduciary under section fifty-two except that the 2
court making an appointment under said section, other than of a trus- 3
tee, may, upon application by an interested person, require the corpo- 4
ration so appointed to give such security, in addition to that provided 5
by section fifty-five, as the court may consider proper, and upon fail- 6
m-e of such corporation to give the security required, may revoke such 7
appointment and remore such corporation. 8
trus't7und" °' SECTION 59. A pcrson Creating a trust may direct whether money
1S88 413 5 s ^^ property deposited under it shall be held and invested separately or
R. l'. no', § 23. invested in the general trust fund of the corporation; and such cor-
poration acting as trustee shall be governed by directions contained in
the will or instrument under which it acts.
Savings
department.
Investment
committee.
1908, 520, § 1.
1920.563, § 1.
231 Mass. 367.
SAVINGS DEPARTMENT.
Section 60. Every such corporation soliciting or receiving deposits 1
(a) wliich may be withdrawn only on presentation of the pass book or 2
other similar form of receipt which permits successive deposits or with- 3
drawals to be entered thereon, or (b) which at the option of such cor- 4
poration may be withdrawn only at the expiration of a stated period 5
after notice of intention to withdraw has been given, or (c) in any 6
other way wliich might lead the public to believe that such deposits are 7
received or invested under the same conditions or in the same manner 8
as deposits in savings banks, shall have a savings department in which 9
all business relating to such deposits shall be transacted. Every such 10
corporation subject to this section shall have an investment committee 11
of not less than three members, elected by and from the board of directors, 12
and such committee shall hold meetings at least once in each month. 13
Investments
of deposits
in savings
department.
1908, 520, § 2.
1918, 67.
1920,563, I 1.
3 Op. A. G. 454.
4 Op. A. G. 8.
Op. A. G.
(1920) 265.
Such deposits
to be kept
separate.
1908, 520, 5 3.
220 Mass. 409.
3 Op. A. G. 574.
Section 61. All such deposits shall be special deposits and shall 1
be placed in said savings department, and all loans or investments 2
thereof shall be made in accordance with the law governing the invest- 3
ment of deposits in savings banks. The investment committee shall 4
approve all loans and all purchases or sales of bonds, stocks and notes 5
made by or for the savings department, and shall perform such other 6
duties as the by-laws or board of directors may prescribe. A record 7
shall be made at each meeting of the tran,sactions of the committee 8
and of the names of those present. The committee may, by vote or bj- 9
a statement signed by a majority of its meniljers, approve changes 10
of collateral security made by or for said department, and the vote or 11
statement, and the record thereof, shall set forth all such changes. 12
Section 62. Such deposits and the investments or loans thereof 1
shall be appropriated solely to the security and pa^Tnent of such de- 2
posits, shall not be mingled with the investments of the capital stock 3
or other money or property belonging to or controlled by such cor- 4
Chap. 172.] trust companies. 1933
5 poration, or be liable for the debts or obligations thereof until after
6 the deposits in said savings department have been paid in full. The
7 accounts and transactions of said savings department shall be kept
S separate and distinct from the general business of the corporation.
1 Section 63. The capital stock of such corporation with the lia- Capital stock
2 bilities of the stockliolders thereunder shall be held as secm-ity for the sS/h "deposits!^
3 pa^Tuent of such deposits, and the persons making such deposits or op!*A^a ^ *'
4 entitled thereto shall have an equal claim with other creditors upon ^^^^'" ^'^^•
5 the capital and other property of the corporation in addition to the
6 security provided for by sections seventy-three and seventy-four or sec-
7 tion eighty-one.
1 Section 64. Every such trust company shall, immediately before Guaranty fund
2 making a semi-annual dividend on deposits in its savings department, d°partmrat.
3 set apart as a guaranty fund from the net profits of such department Qp.'a^g.' ^ ^'
4 which have accumulated during the six months last preceding, a sum 'i^^o) 2m.
5 equal to one eighth of one per cent of the deposits in the savings depart-
6 ment on the date of said dividend. If the said payments by way of divi-
7 dends are made to cover periods of less than six months, then the amount
8 so set apart for the particular period covered shall bear the same pro-
9 portion to the said one eighth of one per cent which the length of the
10 period covered bears to the period of six months. The said sums shall
11 continue to be set apart until the guaranty fund amounts to five per
12 cent of the savings deposits. The guaranty fund shall be kept in the
13 savings department and shall be invested in securities legal for the invest-
14 ment of deposits in savings departments. Further additions to the
15 guaranty fund shall be at the discretion of the investment committee
16 or board of directors of the trust company. When the fund amounts
17 to less than five per cent of the whole amount of the said deposits no
18 losses shall be met therefrom except upon the written approval of the
19 commissioner.
1 Section 65. All income received from the investment of funds in income.
2 said savings department, after deducting the expenses and losses in- ^^°*' ^~°' ^ '"'•
3 curred in the management thereof and such sums as may be paid to
4 depositors therein as interest or dividends, shall accrue as profits to
5 such corporation and may be transferred to its general funds.
1 Section 66. Such corporation may at any time require a depositor Notice of
2 in said savings department to give a notice not exceeding ninety days '^*thdr°w such
3 of his intention to withdraw the whole or any part of liis deposit. loosrsab, § 7.
1 Section 67. Such corporations having savings departments may Deposits may
2 place deposits on interest once a month and not oftener, on such day moutiiiy.'"^''''
3 in each month as may be determined by their by-laws. ssofi^ti.'^ ^'
1 Section 68. Immediately before a meeting of the directors called to Payment of
2 consider the declaration of a dividend by the savings department of auYho'Hz^ hy^
3 every such trust company, the investment committee shall make or cause exLm'iSatron'"^
4 to be made an examination of the income, profits and expenses for the J?onimittc'"^°'
5 six months' period next preceding the date of the proposed dividend, ipO'S"?. § G-
6 and shall report to the directors the estimated net earnings of the said (1920)' 254.
1934 TRUST COMPANIES. [ChAP. 172.
department for the said period. No dividend shall be paid unless it is 7
declared and authorized by the directors after the said examination, 8
and a copy of the said report shall be filed and preserved with the records 9
of the corporation. Ordinary dividends in such a department shall not 10
exceed the rate of five per cent a year, and extra dividends may be paid 1 1
as by savings banks, under and in accordance with section fifty of chap- 12
ter one hundred and sixty-eight. 13
i9i"^ih § 3- Section 69. Except as otherwise provided by section seventeen of 1
350, '§46. chapter one hundred and sixty-seven, no such corporation shall allow 2
interest on any savings deposit from a date prior to that on which the 3
deposit is made, nor shall a deposit which is withdrawn between its divi- 4
dend days be entitled to interest after the prior dividend day except 5
with the written permission of, and under regulations prescribed by, the 6
commissioner. 7
be verified! *° Section 70. During one or more of the first ten months of the year 1
1920, 563, § 2. nineteen hundred and twenty -two, and of each third ^-ear thereafter, every 2
such trust company shall cause a verification of the pass books of the 3
savings department to be made under such rules and in such manner 4
as may be approved by the commissioner. 5
to'bo^ow'funds Section 71. No president, treasurer, member of the investment 1
departnfent or committcc, or officcr of such a trust company charged with the duty of 2
iPoTer^s ' investing the funds of its savings department shall borrow or use any 3
part thereof, be surety on loans of said department to others, or, di- 4
rectly or indirectly, whether acting individually or as trustee be an 5
obligor for money borrowed from such savings department, and if such 6
member or any such officer, either individually or as trustee, becomes 7
the owner of real estate upon which a mortgage is held by such trust 8
company in its savings department, his office and membership on such 9
investment committee shall become vacant at the expiration of sixty 10
days thereafter, unless he has then ceased to be the owner of the real 11
estate or has in good faith caused the mortgage thereon to be discharged 12
or assigned. This section shall not apply to any loans or mortgages 13
held by such company in its savings department on May twenty-eighth, 14
nineteen hundred and twenty, or to renewals thereof, or to the deposit 15
of money in any bank or trust company of which one or more members 16
of the investment committee or officers of such trust company are di- 17
rectors. For the purposes of this section, no director who is neither 18
on such investment committee nor charged with the investment of the 19
funds of such a department shall be considered an officer. 20
panfeVetJ". Section 72. No sucli trust compauy, and no person actmg in its 1
b?oke°Igretc behalf, shall, directly or indirectly, negotiate, take or receive a fee, 2
on account of brokerage commission, gift or other consideration for or on account of 3
loan by savings , ° iiii-ci -i -i
department. a loan made by or on behali of such trust company in the savings depart- 4
ment, other than appears on the face of the note or instrument evidenc- 5
ing the same, or upon the records of the savings department, but this 6
section shall not prohibit a reasonable charge for services in the exam- 7
ination of the property that may be offered or accepted as security for 8
the loan, or of the title to the property, or in the preparation of con- 9
veyances to such company of the security so offered or accepted. Viola- 10
1920, 563, § 4.
Chap. 172.] trust comp.vnies. 1935
11 tion of this section shall be punished by a fine of not more than one
12 tliousand dollars, or by imprisonment for not more than one year, or
13 both.
RESERVES AND GUARANTY FUNDS.
1 Section 7.3. Every such corporation shall at all times have on hand Pg''||"'^-, .
2 as a reser\'e an amoimt equal to at least fifteen per cent of the aggregate isoo! 237!
3 amount of its deposits, exclusive of savings deposits and all time deposits iqw! 374! § 7.
4 represented by certificates or WTitten agreements; but Mhenever such Hoi] Ho] § s.
5 time deposits may be withdrawn within thirty days, they shall be sub- \l\°[ fgp
6 ject to the reserve requirements of this chapter; and every trust company ^ °p- ^- ^ -^^■
7 doing business in Boston shall at all times have on hand as a reserve an
8 amount equal to at least twenty per cent of the aggregate amount of its
9 deposits, computed in the same manner, but tliis provision shall not afi'ect
10 such corporations doing business in Boston and located at a distance of
1 1 not less than three miles from the state house.
1 Section 74. Not less than two fifths of such reserve shall consist of Composition
2 lawful money of the United States, gold certificates, silver certificates, or isss, 4i3,'§ 13.
3 notes and bills issued by any lawfully organized national banking associ- r. l! iiei §28.
4 ation or federal reserve bank, or bonds of the United States or of this \l^', Uf, 1 1'.
5 commonwealth computed at their fair market value which are the abso- ll°f 2I3' ^'
6 lute property and in the possession of such corporation, or of certificates q '®^®q
7 of indebtedness of the United States; and at least one half of the said (i9i7)49.
8 two fifths of such reserve shall consist of lawfid money of the United
9 States, gold certificates, silver certificates, or notes and bills issued by any
10 lawfully organized national banking association or federal reserve bank.
11 The remainder of such reserve may consist of balances, payable on de-
12 mand, due from any trust company in Boston authorized to act as re-
13 serve agent as pro\ided in the following section, or from any national
14 banking association doing business either in this commonwealth or in
1.5 the cities of New York, Philadelphia, Chicago or Albany, or from the
16 federal reser^-e bank of Boston. A portion of such remainder, not ex-
17 ceeding one third, may consist of bonds of the United States or of this
18 commonwealth computed at their fair market value, which are the abso-
19 lute property and in possession of such corporation; provided, that the
20 aggregate amount of lawfid money, bonds and certificates of indebtedness
21 of the United States, bonds of tliis commonwealth, and gold certificates,
22 sih'er certificates and notes and bills issued by any laT\-fidly organized
23 national banking association or federal reserve bank held by such cor-
24 poration shall at all times be equal to at least five per cent of the aggregate
25 amount of all its time and demand deposits, exclusive of deposits in its
26 sa\'ings department.
1 Section 75. The commissioner may authorize any trust company Corporation
2 in Boston to act as reserve agent for trust companies doing business in "serve agent.
3 the commonwealth; pro^^ded, that a trust company shall not keep any igooils?.' ^ '"*■
4 part of its reserve in a trust company so authorized to act as reserve fofn's^M?*
5 agent without first obtaining the written consent of the commissioner. Joos' s'>o' 1 16
6 Not less than one half of the reserve of such trust company acting as
7 reser\-e agent shall consist of lawful money of the United States, gold
8 certificates, silver certificates or notes and bills issued by any lawfully
9 organized national banking association, and the remainder of such reserve
10 may consist of balances, payable on demand, due from any trust company
8.
1936
TRUST COMPANIES.
[Chap. 172.
in Boston authorized to act as reserve agent as herein provided, or from 1 1
any national banking association doing business either in this common- 12
wealth, or in the cities of New York, Philadelphia, Chicago or Albany. 13
Proceedings if
reserve less
than required.
1888,413. § 13.
R. L. 116. §28.
1904, 374. I 7.
1005, 331. § 1.
1906. 204,
H 1,3, 5.
1908.620, § 11.
1909, 491, § 3.
Section 76. If the reserve of any trust company is at any time less 1
than the amount which it is required to keep on hand, such corporation 2
shall not make any new loans or investments until the required propor- 3
tion between the aggregate amount of its deposits and reserve shall be 4
restored. The commissioner may notify such corporation to make good 5
such reserve, and if such corporation fails for sixty days thereafter so 6
to make good such reserve, he may apply to a justice of the supreme 7
judicial court to appoint one or more recei^^ers to take possession of the 8
property and effects of such corporation and to close up its business, 9
subject to such directions as may from time to time be prescribed by the 10
coiu-t or by a justice thereof. If the reserve of any such corporation 11
which has been authorized to act as reserve agent is at any time less than 12
the amount wliich it is required to keep on hand, the commissioner may 13
notify such corporation to make good such reserve, and if such corpo- 14
ration fails for ten days thereafter so to make good such reser-\-e, the 15
commissioner may revoke the authority of such corporation to act as a 16
reserve agent. 17
Trust guar-
anty fund.
1888,413, § 10.
R. L. 116, §25.
Section 77. The directors may from time to time set apart as a trust
guaranty fund such portion of the profits as they may consider expedient.
Such fund shall be invested in such securities only as the trust deposits
may be in-\'ested in. The accounts of its investment and management,
and the secm-ities in which it is invested, shall be kept in the trust
department.
Trust guaranty
fund pledged,
1888.413, § 11.
R. L. 116, § 26.
Section 78. The trust guaranty fund shall be absolutely pledged for 1
the faithful performance by the corporation of all its duties and under- 2
takings under sections fifty to fifty-two, inclusi\e, and shall be apphed 3
to make good any default in such performance, and such pledge and lia- 4
bility shall not in any way reheve the capital stock and general funds of 5
the corporation, but creditors under said sections shall ha\e an equal 6
claim with other creditors upon the capital and other property of the 7
corporation, in addition to the security hereby given. 8
Trust guaranty
fund not to be
transferred,
etc.
1888,413, § 12.
R. L. IKi, §27.
Section 79. No portion of such trust guaranty fund shall be trans- 1
ferred to the general capital while the corporation has imdertakings of 2
the kind mentioned in sections fifty and fifty-two for whose performance 3
bonds are required from individuals, outstanding uncompleted; but its 4
income, if not required at any di\idend time to make good such deposits 5
or undertakings, may be added to and disposed of with the general income 6
of the corporation. 7
?896?423, §"2'*' Section 80. Every such corporation chartered subsequent to JNIay
R. L. 118, §29. twenty-first, eighteen hundred and ninety-six, after a deduction of all
reasonable expenses and losses incurred during the year in the man-
agement thereof, shall annually set aside not less than ten per cent of
its remaining earnings as a guaranty fund, until such fund amounts to
twenty-five per cent of its capital, which fund shall be in\ested in the
same manner as deposits in savings banks may be invested.
Ch.\p. 173.]
MORTGAGE LO.AN IX\'ESTMENT COMP.'iNIES.
1937
1 Section 81. A trust company wliich becomes a stockliolder in a Heserve
2 federal reserve bank within the federal reserve district where such trust » memberof'
3 company is situated, and while such trust company continues as a member balfk!' reserve
4 bank under the United States " Federal Reserve Act " appro\ed December i'-*"' ^^v, § i.
5 twenty-third, nineteen liundred and thirteen, or any acts in amendment
6 thereof, shall be subject to the pro\'isions of said "Federal Reserve Act"
7 and any amendments thereof relative to bank reserves, in substitution
8 for the requirements of sections seventy-three to seventy-five, inclusive.
REFERENCES.
Other provisions of law relative to trust companies will be found in Chap. 167.
§ 4. Use of word "trust" by persons doing a banking business or receiving money
on deposit forbidden. Chap. 167, § 12.
§ 52. As to the authority of national banks to perform fiduciary acts, § lit of
the Federal reserve act, approved December 23, 1913 (38 Stat. 251, 262, c. 6), as
amended September 26, 1918; also First National Bank v. Union Trust Company,
244 U. S. 417.
CHAPTER 173.
MORTGAGE LOAN INVESTMENT COMPANIES.
Sect.
1. Powers and duties.
2. Loans.
3. May purchase, sell and assign notes,
etc.
4. Receipt of money for investment, etc.
5. Foreclosure of mortgages, etc.
6. Issue of debentures or bonds.
7. Amount guaranteed limited.
8. Bonds, notes, etc., where payable.
Sect.
9. May hold real estate.
10. Holding its own capital stock.
11. Liability of shareholders.
12. Guaranty fund.
13. Books to be open for inspection.
14. Commissioner of banks to have super-
vision.
15. Returns.
IG. Annual report as to such corporations.
1 Section 1. Every corporation chartered in the commonwealth for Powers and
2 the special purpose of negotiating or making loans of money secured by fsssTssv, § i.
3 deed of trust or mortgage of real estate situated outside of the common- ^^- ^- '^^' ^ ^•
4 wealth shall be subject to this chapter. Any such corporation chartered
5 prior to May twenty-second, eighteen hundred and eighty-eight, shall,
6 except where inconsistent with this chapter, continue to exercise the
7 powers and be subject to the duties set forth in its charter.
1 Section 2. Such corporation may loan money secured by deed of ^P^P^^^
2 trust or mortgage of real estate not subject to a prior mortgage or en- R. l! m', § 2'.
3 cumbrance and situated in any state, other than this commonwealth, or
4 territory of the United States, to an amount not exceeding fifty per cent
5 of the appraised value of said property. It may also hold, sell and assign
G the bonds, notes, mortgages and securities taken for such loans, may
7 guarantee the payment of the interest and principal of bonds, notes or
8 other evidences of debt secured as aforesaid, and may guarantee title
9 to the property securing such evidences of debt for the time such debt
10 remains unpaid; but this chapter shall not authorize such corporations
1 1 to engage in the business of title insurance.
1938
MORTGAGE LO.VN INVESTMENT COMPANIES.
[CiL\P. 173.
^Kcd'as'^sign' Section 3. It may purchase, hold, guarantee, sell and assign notes 1
issl^'ss'? ■ 5 3 °'' bonds, and the mortgages or deeds of trust securing the same, or other 2
R. l! 117! 1 3. papers securing a loan made in accordance with the preceding section. 3
mone'v*for Section 4. It may receive money for investment in securities which 1
'^Zf^Sl'-^h^}"' it is by this chapter authorized to sell or issue, and may allow interest 2
R. L. 117, § 4. on such money from the time or its receipt to the time 01 its investment, 3
at such rate as may be agreed upon; may receive, care for, manage and 4
sell stocks, bonds and evidences of debt, the avails of which are intended 5
for investment as aforesaid. No such corporation shall receive money 6
on deposit, except as herein provided, or engage in any form of banldng 7
or trust business except that permitted by this chapter. 8
Foreclosure
of mortgages,
etc.
1888, 387, § 5.
R. L. 117, I 5.
Section 5. It may act as agent for foreclosing mortgages and col-
lecting claims arising by reason of any evidence of debt depositetl with it
under the preceding section. It may purchase real estate at public auc-
tion sale thereof made by virtue of the power contained in any deed of
trust or mortgage owned, held or guaranteed by it, or at private sale
thereof made to cancel the debt secured by such deed of trust or mort-
gage, and may hold, sell, transfer and convey said property; but real
estate so purchased or accjuired shall be sold within five years thereafter.
Issue of de-
bentures or
bonds.
1888, 387, § 6.
R. L. 117, § 6.
Section 6. It may issue debentures or bonds, to secure the payment 1
of which it shall from time to time assign and transfer to trustees, none 2
of whom shall be officers of the corporation, or to a domestic trust com- 3
pany, deeds of trust or mortgages of real estate on which loans have been 4
made in accordance with this chapter, to be held by such trustees or 5
company in trust for the benefit of the holders of said debentures or 6
bonds, whereupon such trustees or company shall endorse their or its 7
certificate of such fact upon debentures or bonds not exceeding in amount S
the face value of securities so transferred to them or it. 9
giSrant'eed Section 7. The total amount of mortgages guaranteed and of de- 1
1^*387 s 7 bentures or bonds issued by such corporation shall at no time exceed ten 2
R. l! 117] § 7. times the amount of its capital stock actually paid in and its surplus. 3
Bonds, notes,
etc., where
payable.
1888, 387, § 8.
R. L. 117, 5 8,
Section S. Bonds, notes and other evidences of debt taken by such 1
corporation for money loaned shall be payable to it at its principal place 2
of business in the commonwealth, and shall pass by delivery, by transfer 3
on the books of such corporation at said place of business, or by cer- 4
tificate of its transfer agent at such other place as it may appoint. No 5
transfer, except on the books of the corporation or by certificate of its 6
transfer agent, shall be valid unless tlie last transfer shall have been to 7
bearer. A complete record of such transfer by said transfer agents shall 8
be forwarded to and kept at said place of business of such corporation. 9
^t''a'te^°''^ '^°''' Section 9. Such corporation may hold real estate in tlie common- 1
rT'iu'Io' wealth suitable for the transaction of its business to an amount not 2
exceeding twenty-five per cent of its capital actually paid in. 3
SpitS^stock."" Section 10. No such corporation shall purchase or hold shares of 1
R**L.' ii?; § lo! its own capital stock unless necessary to prevent loss upon a debt pre- 2
Chap. 173.] mortgage loan ina'estment comp.\nies. 1939
3 viously contracted in good faith, and stock so purchased shall within six
4 months thereafter be sold or disposed of at public or private sale.
1 Section 11. The shareholders of such corporation shall be personally LiabUity of
2 liable in the same manner and to the same extent as stockholders of isssiasTrrh.
3 business corporations are liable under the laws of this commonwealth. ^" ^' ^^'^' ^ ^^'
4 Sections thirty-eight to forty, inclusive, of chapter one hundred and fifty-
5 six shall apply to and regulate the enforcement of such liability.
1 Section 12. Such corporation shall set apart as a guaranty fund ^gs^'ss? §""■?■
2 not less than five per cent of its paid-in capital, and shall thereafter R- ^'- H''! § 12.
3 annually add thereto not less than ten per cent of its net earnings, until
4 such fund, with the accumulated interest thereon, shall be equal to not
5 less than twenty-five per cent of its paid-in capital. Said fund shall
6 be invested in United States bonds, English consols, first mortgage bonds
7 of any railroad corporation which has paid a dividend on its stock for at
S least three j'ears last preceding the date of said investment, the legally
9 authorized bonds for municipal purposes of any city of the United States
10 of not less than thirty thousand inhabitants whose whole indebtedness
11 does not exceed five per cent of its last assessed valuation, or in any
12 seciu-ities in which savings banks may invest their deposits.
1 Section 13. The books of such corporation shall at all reasonable Books to be
2 times be open for inspection to the stockliolders and to holders of bonds spection.'°'
3 and debentures issued by such corporation, or of notes and other evidences ^^l\ l\y\ | Jl;
4 of debt guaranteed by it.
1 Section 14. The commissioner of banks and his assistants shall "-i°?"^[^^t°°"
2 have access to the vaults, books and papers of such corporation, shall havesuper-
3 inspect, examine and inquire into its affairs, and take proceedings in isss, 3S7, § 11.
4 regard to it at such times as the commissioner shall consider necessary, imi 204',
5 in the same manner and to the same extent as if such corporation were fnog, 4'gt, § 3.
6 a savings bank, and he may cause an examination to be made by an expert §|'|5^''46 '49
7 under his direction but at the expense of the corporation.
1 Section 15. Such corporation shall annually, within ten days after Returns.
2 the last business day of October, make a return to said commissioner r. l. m'. 1 15!
3 which shall be in the form of a trial balance of its books, and shall specify jj^f;!,"!'
4 the different kinds of its liabilities and assets, stating the amount of each JgjD' gt'^' 5 3-
5 kind in accordance with a blank form to be furnished by him; and such 5§ 45, 46, 49.
6 returns shall be published in a newspaper of the town where such cor-
7 poration is located, at the expense of such corporation, at such times
8 and in such manner as may be directed by him.
1 Section 16. The department of banking and insurance shall include Annua! report
2 in its annual report such facts and statements relative to such corpora- corporations.
3 tions as the public interest requires. isss, 3S7, 1 14.
R. L. 117, § 15. 190G, 204, §§ 1, 3, 5. 1909, 491, § 3. 1919, 350, §§ S, 45, 46.
1940
BOND ANT) INVESTMENT COMPANIES.
[Chap. 174.
CHAPTER 174.
BOND AND INVESTMENT COMPANIES.
Suit in equity
relative to
deposit.
1904, 427, § 1.
1906. 204,
§§ 1,3,6.
1908, 690, § 2.
Sect.
1. Corporations to sell bonds, etc., on
instalment plan, organization, etc.
2. Suit in equity relative to deposit.
3. Certificate of authority from commis-
sioner of banks required.
4. E.xamination of corporation.
5. Annual statement.
6. Penalties for failure to file and for
false statement.
7. Suspension of business of foreign cor-
poration.
Sect.
8. Same of domestic corporation.
9. Penalty on agent of unauthorized cor-
poration.
10. No forfeiture after one fourth of in-
stalments paid. No unearned divi-
dends.
11. Chapter not to apply to insurance and
fraternal corporations.
12. Penalty where not otherwise provided.
Corporations
to sell bonds,
etc., on in-
stalment plan,
organization,
etc.
1904,427, I 1.
1906, 204.
§§ 1, 3, 5.
1908. 590, § 2.
1909,491, § 3.
1919, 350, § 46.
Section 1. The business of issuing, negotiating or selling any
bonds, certificates or obligations of any kind on the partial payment
or instalment plan, unless such bond, certificate or obligation shall at
the time of issuance, negotiation or sale be secured by adequate prop-
erty, real or personal, shall be transacted in the commonwealth only
by corporations subject to the requirements of this chapter. Every such
corporation before doing business in the commonwealth shall have at
least one hundred thousand dollars of capital stock fully paid in, which,
for the benefit and protection of all its investors equally, shall be deposited
in trust with the state treasurer or with the duly authorized officer of
some other state, which deposits shall consist of cash or of securities in
which sa^•ings banks in this commonwealth are permitted to invest their
deposits or of securities approved by the commissioner of banks, and
worth at least one hundred thousand dollars. Such corporation, if the
deposit is made with the officer of any other state, shall furnish to the
commissioner a certificate from said officer under his official seal, show-
ing that he, as such officer, holds said deposit in trust for the benefit and
protection of all the investors in said corporation. The certificate shall
embrace the items of securities so held, and show that such officer is
satisfied that said securities are worth one hundred thousand dollars,
but such certificate shall in no manner impair the right of said commis-
sioner to examine the securities so held. A corporation making such
deposit with the treasurer of this commonwealth shall be entitled to the
income thereof, and may from time to time, with the consent of the
treasurer, change, in whole or in part, the deposited securities for other
securities of equal value, approved as aforesaid. The treasurer may re-
turn to the corporation any such deposit if it shall appear that the cor-
poration has ceased to do business in this commonwealth, and is under
no obligation to its contract holders or other persons in this common-
wealth or elsewhere for whose benefit such deposit was made.
Section 2. A corporation that has made such deposit, the commis-
sioner of banks or any creditor may bring in the supreme judicial court
for Suffolk county a suit in equity against the commonwealth to en-
force, administer or terminate the trust created by such deposit.
1909, 491, § 3. 1919, 3.50, § 46.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
1
2
3
4
Ch.\P. 174.] BOND AXD IX\^ESTMENT COMP.INIES. 1941
1 Section 3. No corporation shall transact the business described in Certificate of
2 section one without receiving a certificate of authority from the com- commissTonTr'"
3 missioner of banks. Upon the making of the deposit with the state treas- rc,,u'ire'd.
4 urer or the filing with the commissioner of the certificate required by jpo,'; |qJ' ^ -■
5 section one, and upon an examination or exliibition of the assets and jf^J^ l^^- ^
6 liabilities of the corporation showing that it is in a sound financial con- laoo, 491' § 3
7 dition, and if it is otherwise duly qualified under the laws of the com-
8 monwealth to transact business therein, the commissioner shall issue
9 to it a certificate of authority to do business in the commonwealth.
1 Section 4. Upon the filing of such certificate, or whenever he deems Examination
2 it to be prudent for the protection of in\'estors in the commonwealth, igw.'^w?! Ta^
3 the commissioner may visit personally, or by a competent examiner, is^f/l^s;
4 any corporation engaged in said business, and thoroughly inspect and j9o|;i9i;||;
5 examine its affairs, and ascertain its financial condition and whether isw. sso, § 4g.
6 it has complied with law. The proper charges incurred in the examina-
7 tion of a foreign corporation, including the expenses of the commissioner
8 and the expenses and compensation of his assistants employed therein,
9 shall be paid by such corporation. For the purposes aforesaid, the com-
10 missioner or the person making the examination shall have free access
11 to all the books and papers of a corporation which relate to its business,
12 and to the books and papers kept by any of its agents; and may examine
13 and administer oath to, and examine as witnesses, the directors, officers
14 and agents of said corporation, and any other person, relative to its
15 affairs, transactions and condition.
1 Section 5. Every corporation transacting said business shall annu- .Annual
2 ally, on or before January fifteenth, file with the commissioner a state- igol^a?. § 3.
3 ment of its financial condition on December thirty-first of the previous §§*'f;3°5;
4 year, and its business of that year. For cause, the commissioner may J909;t9°'|3
5 extend the time for filing said statement to a date not later than February i^^^' ^^'>- ^ ■"'•
6 fifteenth. The statement shall be in the form required by the commis-
7 sioner, and shall be sworn to by the president and secretary, or, in their
8 absence, by two of the principal officers of the corporation. The fee for
9 filing such annual statement shall be twenty dollars.
1 Section 6. A corporation neglecting to file its annual statement Penalties for
2 within the time required shall forfeit one hundred dollars for each day and"for'°aise
3 during which such neglect continues; and, upon notice by the commis- fgw™!"!'! 3.
4 sioner to that effect, its authority to do any business shall cease while |s°[''3''5'
5 such default continues. For wilfully making a false annual statement J^o|' |-jO' | '^■
6 the corporation and the person making oath to or subscribing to the isw! sm. § 4(i.
7 same shall be punished by a fine of not less than five hundred nor more
8 than five thousand dollars.
1 Section 7. If the commissioner is of opinion, upon examination suspension of
2 or other evidence, that a foreign corporation subject to this chapter is tore'ign^cor-
3 in an unsound financial condition, that it has failed to comply with K4''427, § 4.
4 law, or if its officers or agents refuse to submit to examination or to r^*'',^'".5'
5 perform any legal obligation relative thereto, he shall suspend all certifi- JjJJj^' -^^^ 1 1-
6 cates of authority granted to said foreign corporation, its officers or ioi9,'3io,'§46.
7 agents, and shall cause notices thereof to be published in such news-
8 papers as the commissioner may deem advisable; and no new busi-
1942
BOND AND INVESTMENT COMPANIES.
[Chap. 174.
ness shall thereafter be done by it in this commonwealth while such 9
default or disability continues, nor until its authority to do business is 10
restored by the commissioner or by the supreme judicial court as herein- 1 1
after provided. He shall forthwith notify the corporation of such 12
suspension and shall specify in the notice the cause thereof and the 13
particulars of any alleged violation of law. The supreme judicial court, 14
upon petition of said corporation brought within thirty days after 15
receipt of said notice, shall summarily hear and determine the question 16
whether such cause for suspension exists, and shall make any appro- 17
priate order or decree therein. Questions of law may be taken to the 18
full court, as in other cases. 19
Same of
domestic
corporation.
1004, 427, § 4.
IflOO, 204.
§§ 1.3.6.
130S. 500. § 2.
1909, 491, § 3.
1919,350, §4t>.
Section S. If upon examination the commissioner is of opinion that 1
any domestic corporation subject to the requirements of this chapter 2
is in an unsound financial condition or has exceeded its powers, or has 3
failed to comply with any provision of law, he shall apply to the supreme 4
judicial court in equity for an injunction restraining the corporation 5
from further proceeding with its business in whole or in part. The 6
court may issue an injunction forthwith, and may, after a full hearing, 7
make the injunction permanent, and may appoint a receiver or receivers 8
to take possession of the property and effects of the corporation and 9
to settle its affairs, subject to the order of the court. 10
Penalty on
agent of un-
authorized
corporation.
1904, 427. § 5.
IflOB. 201.
§§ 1.3.5.
1905. 590, ? 2.
1909, 491, § 3.
1919, 350, § 46.
Section 9. Whoever sells or attempts to sell any bond, certificate 1
or obligation issued by a corporation subject to this chapter, or transacts 2
any business in behalf of said corporation, unless said corporation is 3
thereto authorized under this chapter by the commissioner of banks, 4
shall be punished by a fine of not less than one hundred nor more than 5
one thousand dollars or by imprisonment for not more than six months, 6
or both. 7
.No forfeiture
after one
fourth of in-
stalments paid.
No unearned
dividends.
1904.427, § 0.
Section 10. Every corporation subject to this chapter shall provide 1
in every bond, certificate or contract issued by it that, after one fourth 2
of the total amount of instalments therein required has been paid and in 3
any event after instalments for two full years have been paid thereon, in 4
case of default in the payment of any subsequent instalment a paid-up 5
bond shall be given to the holder of said bond, certificate or contract 6
of not less than the full amount paid thereon less any amount paid by 7
said corporation on account thereof, said paid-up bond to mature at the 8
same date as the original bond, certificate or contract; and no such cor- 9
poration shall provide for the payment of profits in the form of dividends 10
or otherwise, except from earnings, nor pay any part of the payments 11
made by the holder of any bond, certificate or contract in force to the 12
holder of any other bond, certificate or contract; provided, that nothing 13
herein contained shall be construed to prohibit the payment of accumu- 14
lations by such corporation on its contracts at their final matiu'ity. 15
Chapter not
to appl.v to
insurance and
fraternal
corporations.
Penalty where
not otherwise
provided.
1904, 427, § S.
Section 11. This chapter shall not apply to corporations subject 1
to chapter one hundred and seventy-five, one hundred and seventy-six 2
or one hundred and seventy-seven. i904, 427. § 7. 3
Section 12. Any person or corporation violating any provision of
this chapter for which no penalty is specifically provided shall be pun-
ished by a fine of not more than fi\e hundred dollars.
1
Chap. 175.]
INSURANCE.
1943
CHAPTER 175.
INSURANCE.
Sect.
general provisions.
1. Definitions.
2. Definition of insurance.
3. Insurance contracts contrary to this
chapter or chapter 176 or 177 for-
bidden.
POWERS AND DUTIES OF COMMISSIONER OF
INSURANCE.
4. Examination of companies and financ-
ing corporations. Investigation of
sales of companies' stock.
5. Revocation of authority of foreign
companies.
6. Domestic companies to make good
impaired capital. Receivership and
injunction proceedings, when au-
thorized.
7. Domestic life companies to cease busi-
ness if in unsound condition.
8. Commissioner to report violations of
law.
9. Computation of reserves of life com-
panies.
10. Computation of reserves of companies
other than life.
11. Computation of assets and liabilities.
12. Computation of reserves of liability
companies.
13. Examination for increase or reduction
of capital.
14. Collection of charges and fees.
1.5. Blanks for annual statements.
16. Record of proceedings. Certificates for
use in court.
17. Annual report.
PROVISIONS COMMON TO FOREIGN AND
DOMESTIC COMPANIES.
15. Companies to act in corporate name.
Liabilities to be published with as-
sets.
19. Returns for assessment of taxes.
20. Reinsurance.
21. Limit of single risk.
22. Certain provisions in policies void.
23. Life company to cease business after
notice from commissioner that funds
are insufficient.
24. Policies of life companies may provide
for total, etc., disability and acci-
dental death benefits.
Annual Statements.
25. .Annual statements.
26. Penalty for neglect to make annual
statement.
Sect.
27. Companies to report suits.
28. Special report in cases of delay, etc.
PROVISIONS RESPECTING DOMESTIC COM-
P.INIES.
General.
29. Companies subject to this chapter.
30. Companies subject to general corpora-
tion laws.
31. Continuation of certain companies.
32. Domestic company to obtain certifi-
cate before issuing policies.
33. Signatures on policies.
34. Location of office and designation.
35. Salaries to be authorized by directors.
36. Pensions to employees.
37. Vouchers for disbursements.
38. Mortgages may be sold on execution.
39. Sale of real estate on execution.
40. Adjournment of sale.
41. Debt due company to pass to pur-
chaser. Action thereon.
42. Secretary, etc., to furnish copies of
notes, etc., to officer, etc.
43. No transfer of such note, etc., after
notice, etc., to be valid, except, etc.
44. Powers of company to cease if it does
no business for a year, etc,
45. Unauthorized foreign agencies.
46. Preferred claims of insolvent fire com-
panies.
Organization.
47. Purposes of incorporation. Kinds of
business.
48. Capital of stock companies.
49. Formation of corporation.
50. Change of business, etc.
51. Kinds of business which may be com-
bined by stock companies.
52. Contracts for different classes of in-
surance to be in separate policies,
except, etc.
53. Fonns of certain policies to be filed
with commissioner.
54. Kinds of business which may be com-
bined by certain mutual companies.
55. Powers of certain mutual companies.
50. Reincorporation of company subject to
chapters 176 and 177.
Stock Companies.
57. Directors; election, number, quorum,
term, classes. Vacancies.
58. Directors, duties.
59. Duties of president and secretary.
Records. Penalty for false record.
1944
INSURANCE.
[Chap. 175.
Sect.
60. Qualification of officers.
61. Rights of stockholders. Proxies.
62. Liability of officers.
63.
64.
65.
66.
Investments of All Companies.
Pajinent and investment of capital
and reserve.
Investments.
Loans on mortgages.
Investments of life companies.
67. Same subject.
68. Prohibited investments to be sold.
Provisions as to Capital Stock.
69. Assessment if capital impaired.
70. Increase of capital.
71. Reduction of capitaL
72. Dividends.
Mutual Companies.
7.3. Mutual fire companies. Issue of pol-
icies.
74. Certain mutual fire companies not to
make further insurance without a
certificate.
75. Compensation of person determining
risks.
76. Members of mutual fire companies.
77. Mutual fire companies to elect direc-
tors. Duties. Vacancies, how filled.
78. Mutual fire companies subject to cer-
tain sections.
79. Guaranty capital. Div-idends. Re-
tirement.
80. Dividends, accumulated profits, etc.
81. Premium. Contingent liability.
82. Certain companies may t^ke deposit
notes.
S3. Assessments.
84. Supreme judicial court may review or
order assessment.
85. Penalty for guaranty against assess-
ment. Personal liability of officers.
86. Mutual marine companies. Liability
fund, etc.
87. Certain mutual companies subject to
Pubhc Statutes.
88. Mutual marine companies subject to
certain sections.
89. Liability of subscriber and officer.
90. Certain mutual companies subject to
law as to mutual fire companies.
91. Mutual automobile companies. For-
mation.
92. Mutual boiler companies. Issue of
policies.
93. Mutual liability companies. Issue of
policies.
94. Mutual life companies. Members.
Proxies authorized. Directors.
Guaranty capital. Dividends.
Redemption.
Se^ct.
fire insurance.
95. Over-insurance prohibited. Term of
fire policy.
90. Liability for fire loss limited.
97. PajTiient of mortgagees.
9S. Statement in application not part of
contract, etc.
99. Standard form of fire policy.
100. Appointment of referees. Referees to
determine sound value, when.
Meetings of referees.
Lack of sworn statement of loss not to
be taken advantage of by the com-
pany, etc.
Companies may cancel certain fire
policies.
Complaint by person aggrieved by
fire rates.
101
102
103.
1U4.
FIDELITY INSURANCE AND CORPORATE
SURETY.
105. Powers of fidelity and corporate surety
companies.
106. Deposit required of foreign company.
107. Status of surety bonds.
ACCIDENT, HEALTH AND LIABILITY IN-
SURANCE.
108. Accident or health policies to be ap-
proved by commissioner and to con-
tain certain provisions.
109. Certain conditions prohibited.
110. Sections 108 and 109 not applicable to
certain policies.
111. Beneficiary under accident, etc., poli-
cies may sue.
112. PajTnent of losses under liability con-
tract regulated.
113. Effect of judgment.
TITLE INSUR.tNCE.
114. Title insurance companies exempted
from this chapter.
115. Provisions relating to title insurance
companies.
116. Guaranty fund.
STEAM BOILER INSURANCE.
117. Term of boiler policies.
LIFE INSUR.ANCE.
lis. Definition of life company.
119. Life companies may grant annuities,
etc.
120. Discrimination- prohibited.
121. Certain agreements prohibited.
122. Discrimination on account of color
prohibited.
123. Medical examination required, except,
etc.
124. Statements as to age, health, etc.. bind-
ing if policy issued without medical
examination, etc., except, etc.
125. Rights of creditor and beneficiarj-.
CH.A.P. 175.]
mSUEANCE.
1945
Sect.
126. Policies payable to married woman
enure to her benefit.
127. Penalties for false statements, ete.
12S. Infant cannot avoid contract for in-
surance.
129. Description of life, etc., policies.
I'M. Dating of life, etc., policies.
131. Application referred to in life policy
must be attached thereto.
132. Life, annuity, etc., policies to be ap-
proved by conimissioner. Life poli-
cies to contain certain provisions.
13.3. Group life insurance defined.
134. Group life policies to be approved by
commissioner and to contain certain
provisions.
135. Group life policies not subject to
attachment.
136. Such policies exempt from loan pro-
vision, etc.
137. Employer only to be member of a
mutual company issuing such poli-
cies.
138. Effect of sections 133 to 137.
139. Exchange of certain life policies.
140. Annual dividends.
141. Safety fund.
142. Loans.
143. Certain policies subject to earlier laws
limiting forfeiture.
144. Policies issued after December 3 1,1907.
Cash surrender value, extended term
insurance or paid-up policy after
three annual premiums have been
paid.
145. Cash surrender value of industrial
policies issued before December 31,
1911.
14C. Industrial policies issued after De-
cember 31, 1911, extended term in-
surance after three years' premiums
have been paid.
147. Same subject. Paid-up policy or cash
surrender value after five years'
premiums have been paid.
148. Notice of lapse of such policy, etc.
149. Company not to issue participating
and non-participating policies.
FOREIGN COMPANIES.
150. Admission.
151. Conditions of admission.
152. Kinds of business which may be com-
bined by foreign companies.
153. Conditions of admission of foreign life
companies.
154. Service of process on commissioner.
155. Conditions of admission of companies
of a foreign country.
150. Company of a foreign country may
appoint trustees.
157. Foreign companies to act through
resident agents.
158. Policy not invalidated by war.
Sect.
159. Conditions of laws of other states.
100. Penalty for unlawful contracts, etc.
LLOYDS ASSOCIATIONS.
101. Lloyds associations.
AGENTS, BROKERS AND ADJUSTERS.
102. Definitions.
163. Licenses of agents.
164. License not necessary for collector.
165. Authority of officer of domestic com-
pany.
166. Licenses of brokers.
167. Limited licenses of brokers.
168. Special brokers' licenses. Insurance
by unauthorized companies.
169. Effect of payment to agent or broker.
170. False pretence by agent or broker.
171. Liability on illegal contract.
172. Licenses of adjusters of fire losses.
173. Partnership licenses.
174. Corporation licenses.
175. Penalty for pretending to be a broker,
etc.
176. Larceny of premium by agent or
broker.
177. Compensation to unlicensed persons
forbidden.
RECEIVERS.
178. Compensation and accounts of re-
ceivers.
179. Commissioner or deputy, etc., may be
appointed receiver.
180. Examinations of accounts of receivers.
MISREPRESENTATIONS AND REHATES.
181. Misrepresentations to insured prohib-
ited.
182. Rebates, etc., forbidden.
1S3. Acceptance of such rebates, etc., for-
bidden.
184. Application of two preceding sections.
MISCELLANEOUS PROVISIONS.
185. Deposits of companies.
186. Misrepresentation by insured. Effect.
1S7. Companies may insert conditions re-
quired by foreign laws.
188. Penalty for unlawful use of proxy.
189. Penalty for making, etc., policies in
violation of this chapter.
190. Penalty for making, etc., policies con-
trary to sections 99, 108, 109, 132,
134.
191. Companies to file policies, circulars,
etc., on request.
192. Riders, etc., subject to approval of
commissioner.
193. Policies valid though issued contrary
to this chapter.
GENERAL PENALTY.
194. General penalty.
1946 iNSUKANCE. [Cbajp. 175.
GENERAL PROVISIONS.
?SM?453°|30. Section 1. The following words, as used in this chapter, unless 1
i?5|.|52. i_55. ^}^g context otherwise requu-es or a different meaning is specifically pre- 2
1873, if'i.| l*' scribed, shall have the following meanings: 3
lo78, I.JO, § 7. ,, ^~^ •.«ai ..y. .
p. s. 119, § 1. Commissioner , the commissioner oi insurance. 4
1SS7, 214, fl. R. L. 118, §1. 1917.10,5 2.
1891,522,11. 1907, 576, §§ 1, 122. 1919, 350, S§ 45, 46.
3 Op. A. G. 222. "Company", all corporations, associations, partnerships or Individ- 5
uals engaged as principals in the business of insurance. 6
"Compensation", as used in section twelve, relates to all insurance 7
effected under statut;es pro\uding compensation to employees for per- 8
sonal injuries regardless of the fault of the employer. 9
"Domestic company", a company incorporated or formed in the 10
commonwealth. 1 1
"Earned premiums", as used in section twelve, includes gross pre- 12
miums charged in all policies T.\Titten, including all determined excess 13
and additional premiums less return premiums, other than premiums 14
returned to policy holders as dividends, and less reinsurance premiums 15
and premiums on policies cancelled, and less unearned premiums on 16
policies in force. But any participating company which has charged 17
in its premiums a loading solely for di\idends shall not be required to 18
include such loading in its earned premiums; provided, that a state- 19
meiit of the amount of such loading has been filed with and approved 20
by the commissioner. 21
"Foreign company", a company formed by authority of any state or 22
government other than this commonwealth. 23
"Insurance company" or "insurer", the same meaning as 24
"company". 25
"Liability", as used in section twelve, relates to all insurance, except 26
compensation insurance, against loss or damage from accident to or 27
injuries suffered by an employee or other person, for which the insured 28
is liable. ' 29
"Loss pajTaents" and "loss expense pajTuents", as used in said .30
section, include all pajTnents to claimants, including pajTaents for 31
medical and surgical attendance, legal expenses, salaries and expenses 32
of investigators, adjusters and field men, rents, stationery, telegraph 33
and telephone charges, postage, salaries and expenses of office employees, 34
home office expenses, and all other payments made on account of 35
claims, whether such pajinents shall be allocated to specific claims or 36
unallocated. 37
'05 Mass' 303' "Net asscts", the funds of a company available for the payment of 38
its obligations in the commonwealth, including, in the case of a mutual 39
fire company, its deposit notes or other contingent funds, and, in the 40
case of a mutual marine company, its subscription fund and premium 41
notes absolutely due, and also including uncollected and deferred premi- 42
ums not more than tliree months due on policies actually in force, after 43
deducting from such funds all unpaid losses and claims, and claims for 44
losses, and all other debts and liabilities inclusi^•e of net value of policies 45
and exclusive of capital. 46
"Net value of policies", the liability of a company upon its insurance 47
contracts, other than accrued claims, computed by rules of ^■aluation 48
established bv sections nine to twelve, inclusive. 49
Ch,\P. 175.] INSUB-4NCE. 1947
50 "Profits" of a mutual company, that portion of its cash funds not
51 required for payment of losses and expenses nor set apart for any purpose
52 allowed by law.
53 "Unearned premiums", the same meaning as "net value of policies".
1 Section 2. A contract of insurance is an agreement by which one Definition
p . , . . ^ . • 1 j_ i of insurance.
2 party tor a consideration promises to pay money or its equivalent, or to issr, 2u, § 3.
3 do an act valuable to the insured, upon the destruction, loss or injury of issTieEr'
4 something in which the other party has an interest. 1907, 576, §§ 3, 122. ^- ^- "*• ^ ^•
105 Mass. 149. 227 Mass. 63. 3 Op. A. G. 222.
166 Mass. 501. 1 Op. A. G. 33, 77, 153, Op. A. G. (191S) 40.
217 Mass. 47. 164, 345. 544.
226 Mass. 281. 2 Op. A. G. 123, 226, 251. 419. See § 107 as to surety bonds.
1 Section 3. No company shall make a contract of insurance upon insurame con-
2 or relative to any property or interests or lives in the commonwealth, to'^thisThap'ter
3 or T\ith any resident thereof, and no person shall negotiate, solicit, or in ^ uTlol-^'"^
4 any manner aid in the transaction of such insurance or of its continu- j^gy'^^k § 3.
5 ance or renewal, except as authorized by this chapter or chapters one i|9*. 522. § 3.
6 hundred and seventy-six and one hundred and seventy-seven. All R. l.'ii^s, §3.
7 contracts of insurance on property, lives or interests in the common- §'§3,' 122'.'
8 wealth shall be deemed to be made therein. lois. 112, § 7. ^'•'^^' """*• ^ *•
182 Mass. 3S9. 212 Jlass. 459. 226 Mass. 281. 2 Op. A. G. 471.
POWERS AND Dt'TIES OF COMMISSIONER OF INSUR.UCCE.
1 Section 4. Before granting licenses or certificates of authority to a Examination
_ .,..«. . . of companies
2 company to issue pohcies or insurance or annuity or pure endowment ami financing
3 contracts, the commissioner shall be satisfied, by such examination as li'/vSga'tlonof
4 he may make and such e\-idence as he may require, that such company p^nfes-'sfJck.
5 is otherwise duly qualified under the law of the commonwealth to trans- ||5^5^,i2^'
6 act business therein. He shall require e\-ery domestic company to keep 231^ §^5^ ^^
7 its books, records, accounts and vouchers in such manner that he or his isss', i-7, §2.-'
8 authorized representatives may readily verifv its annual statements and §§2,'3.5.
9 ascertain whether the company has complied with the law. §§ 1-3,'s.'
10 At least once in three years, and whenever he determines it to be j'jl-ljib.
11 prudent, he shall personally, or by his deputy or examiner, visit each do- ll^e^'jog*'
12 mestic company, and thoroughly inspect and examine its aft'airs to ascer- jf'y'™'
18 tain its financial condition, its ability to fulfil its obligations, whether 1S97', 67V11.
14 it has complied with the law, and any other facts relating to its busi- §§6,ios.'
15 ness methods and. management, and the equity of its dealings with §§6,'iiV,'i22.
16 its policy holders. He shall also make such examination upon the re- Jg}G',4o!''
17 quest of five or more of the stockholders, creditors, policy holders or isiMass. 261.
18 persons pecuniarily interested therein ^\•ho shall make affidavit of their
19 belief, with specifications of their reasons therefor, that such company
20 is in an unsound condition. Whenever he deems it advisable he shall
21 cause a complete audit of the books of the company to be made by a
22 disinterested expert accountant.
23 Whenever he determines it to be prudent, for the protection of policy
24 holders in the commonwealth, he shall in like manner visit and examine,
25 or cause to be \isited and examined by some competent persons whom
2G he may appoint therefor, any foreign company applying for admission
27 or already admitted to do business in the commonwealth; and such
28 company shall pay the proper charges incurred in such examination,
29 including the expenses of the commissioner or his deputy or examiners
1948
INSX.TE.UyCE.
[CH.4.P. 175.
and the expenses and compensation of his appointees employed 30
therein. 31
If it shall appear upon examination that any company has entered 32
into an agreement with a corporation, domestic or foreign, or other 33
organization whereby such corporation or organization has undertaken, 34
except by reinsurance, to be responsible for the whole or any part of 35
the expenses, liabilities or other obligations appertaining to the trans- 36
action of business by such company for the consideration that such 37
company shall become liable to such corporation or organization for a 38
part of said company's income, assets or profits, the commissioner may 39
examine or cause to be examined such corporation or organization, and 40
may thoroughly investigate its affairs to ascertain its financial condition, 41
its ability to fulfil its obligation to the company, and any other facts 42
relating to its business methods and management, and shall set forth 43
his findings, so far as they affect the financial condition of the company, 44
in a report which shall be a public record. 45
If it shall appear to the commissioner, from charges filed with him 46
setting forth the facts on oath, that unwarranted and misleading state- 47
ments, estimates and promises are being made and excessive compen- 48
sation allowed for promoting the sale in the commonwealth of stock 49
for establishing a new company, domestic or foreign, the commissioner 50
shall investigate said charges, or may act on his own initiative in making 51
such investigations, and shall make a record in his department of his 52
findings in relation thereto. 53
The commissioner or the person authorized by him to make exami- 54
nations or investigations provided for by this section shall have free 55
access to all the assets of the company, corporation or other organization 56
for the purpose of verification and to all the books and papers relating 57
to its business and to the books and papers of its representatives. He 58
or the person authorized by him may summon and examine under oath 59
any person who, he believes, has knowledge of the affairs, transactions 60
or circumstances being examined or investigated; and whoever with- 61
out justifiable cause neglects upon due summons to appear and testify 62
before the commissioner or his authorized representative, and whoever 63
obstructs said commissioner or said representative in making exami- 64
nations or investigations hereunder, shall be punished by a fine of not 65
more than one thousand dollars or by imprisonment for not more than 66
one year. 67
, §1.
Revocation of
authority of
foreign com-
panies.
1871,297, §4.
P. S. 119, § 13.
1887,214,
§§ 7, 82.
1890, 304.
1894,522,
§1 7, 82.
1898, 53;
R. L. lis.
§§ 7, 20. 82.
1903,421.
1907, 57C.
§§ 7, 20, 61,
87, 122.
1910,493, §7.
1912,330.
1913,474, § 3.
1914, 448, I 1.
1919,114, § 1.
1920, 147, § 4.
155 Mass. 404.
Section 5. If the commissioner is of opinion, upon examination or 1
other e\idence, that a foreign company is in an unsound condition, that 2
it has failed to comply with any provision of law or with its charter, or 3
that its condition is such as to render its further transaction of bi^siness 4
hazardous to the public or Its policy holders, or that its actual funds 5
exclusive of Its capital, if it Is a life company, are.less than its habilltles, 6
or if its officers or agents refuse to submit to examination or to perform 7
any legal obligation relative thereto, he shall revoke or suspend all 8
licenses granted to said foreign company, or its agents, and shall cause 9
notices thereof to be published in such manner as he may deem neces- 10
sary for the protection of the public. No new insurance shall thereafter 1 1
be WTitten by it or its agents in the commonwealth until its authority 12
to do business is restored by the commissioner. Unless the ground 13
for revocation or suspension relates onh- to the financial condition or 14
Ch.\P. 175.] INSUE.\NCE. 1949
15 soundness of the company or to a deficiency in its assets, he shall op a^g'^^*'
16 notify the company not less than ten days before revoking or suspend- d^i^) 37.
17 ing its license; and he shall specify in the notice the particulars of
18 the alleged \aolation of law or of its charter or grounds for revocation
19 or suspension. The supreme judicial court, upon petition of said com-
20 pany brought within ten days, shall summarily hear and determine
21 the question whether such %aolation has been committed, or whether it
22 is insoh'cnt or in an unsound condition or has exceeded its powei-s or
23 has failed to comply ^Aith any pro\'ision of law or of its charter, or
24 whether its condition is such as to render its further transaction of
25 business hazardous to the public or to its policy holders, and shall make
2G any appropriate order or decree therein. If the order or decree is ad-
27 veree to the petitioning company, an appeal therefrom may be taken
28 to the full court; and in case of such appeal the commissioner may
29 revoke or suspend the right of said petitioning company to do business
30 in the commonwealth until the final determination of the question by
31 the full court.
1 Section 6. If it appears to the commissioner that the capital of ^n^anlesto
2 a domestic company is impaired to the extent of one quarter or more pake good
iniD£iir€ci
3 on the basis fixed in sections nine, ten, eleven or twelve, and that the capital.
4 company can, with safety to the public and its policy holders, be allowed andlnfunctfon
5 to continue in business, he shall notify the company that its capital is when'jfu-^'''
6 legally subject to be made good as provided by section sixty-nine; and 1853,^124, § g.
7 if such company shall not within three months after such notice satisfy f^^^- ili^^^^
8 him that it has fully made good its capital or reduced it as provided in J?S|' ^ss.' 1 2.^
9 section se\'enty-one, or if he is of opinion that any domestic company p. s.'uq,"
10 has exceeded its powers or has failed to comply with any provision of iss7,'2i4,
11 law, or that its condition or management is such as to render its further is94',l22,
12 transaction of business hazardous to the pubHc or to its policy holders r^l.i'is,
13 or to its creditors, or that it has attempted or is attempting to com- f^Jj |,,g
14 promise ^\^th its creditors on the ground that it is financially unable to |^.,*;.^J;|g j3j
15 pay its claims in full, or if, when its assets are less than its liabilities, iis Mass! 278!
16 inclusive of unearned premiums, but exclusive of capital, if any, it at- 197 Mass! isi.
17 tempts, to the disadvantage of policy holders who ha^-e sustained losses,
18 to prefer or has preferred by reinsiu"ance policy holders who have sus-
19 tained no loss, or if it is insolvent, he shall apply to the supreme judicial
20 court for an injunction restraining it, in whole or in part, from fui'ther
21 proceeding with its business. The court may issue a temporary injunc-
22 tion fortln\ith, and may after a full hearing make the injunction per-
23 manent, and may appoint receivers to take possession of the property
24 and effects of the company and to settle its affairs, subject to such rules
25 and orders as the court may prescribe.
1 Section 7. If the actual funds of a domestic life company, exclusive Domestic life
2 of its capital, are not of a net cash value equal to its liabilities, including ceasebuSness
3 the net value of its policies, computed by the rules of valuation estab- condition!"'''
4 lished by sections nine and eleven, he shall notify such company, its i^t^'iVg^ 155.
5 officers and agents to issue no new policies until its funds become equal j|^^' 21*. | o-
6 to its habilities. r.l. iis, §9. 1907. 570, §§ 9, 122.
1 Section 8. If upon examination or other evidence exhibited to him Commissioner
2 the commissioner is of opinion that a company, or an officer or agent fat[m'i's°onaw.
1950 INSURANCE. [Chap. 175.
§§^l'/o"*' thereof, has violated any provision of this chapter, he shall report the 3
G.s. 5s. § s facts to the attorney general, who shall cause such company, officer or 4
p. s.'ii9,'§i6. agent to be prosecuted therefor. isst, 214, § 10. 5
1894, 522, § 10. R. L. lis, §10. 1907, 576, §§ 10, 122.
Computation SECTION 9. He shall each vear compute the reserve liability on 1
oi reserves . * . n .
of life com- December thirty-first of the preceding year of e\'ery cornpany authorized 2
1858, 177, § 2. to make insurance on li\'es in the commomvealth, in accordance with 3
p.'s.'ii'j, § 17. the following rules: 4
1894! 522! I 111 First, The net value on the last day of December of the preceding 5
1899,229, j.g^j. p£ ^ji outstanding policies of life insurance in the company issued 6
R "l 1 18 1 11 f^efore January first, nineteen hundred and one, shall be computed 7
JnS?'?-?- upon the basis of the "Combined Experience" or "Actuaries' Table" of 8
1907.5^6. ^ .. . , . „ ^ -
§§ 11, 122. mortalitv, with interest at tour per cent per annum. 9
i9i2i74; Second, The net value on the last day of December of the preceding 10
1920.' 3.33. year of all outstanding policies of life insurance issued after the last day 11
220 Mass! 52'' of December, nineteen hundred, shall be computed upon the basis of 12
lOp.A. G. 269. ^j^g "American Experience Table" of mortality, with interest at three 13
and one half per cent per annum; but any life company may at any 14
time elect to reserve upon a three per cent basis, and thereupon its 15
policies issued upon such reserve shall be computed upon the basis of 16
the "American Experience Table" of mortality, with interest at three 17
per cent per annum, and any life company receiving premiums by weekly 18
payments may elect for such weekly payment business or any portion 19
thereof to reserve upon any table showing a higher rate of mortality ap- 20
proA'ed by the commissioner. 21
Third, In every case in which the actual premium charged for an in- 22
surance is less than the net premium for such insurance, computed ac- 23
cording to its respective tables of mortality and rate of interest specified 24
in this section, the company shall also be charged with the value of an 25
annuity, the amount of which shall equal the difference between the 26
premium charged and that required by the rules set forth in this section, 27
and the term of which in years shall equal the number of futiue annual 28
payments due on the insurance at the date of the valuation. 29
Fourth, Wien, from reports filed with him or from other e\idence, 30
the commissioner is satisfied that a company is assuming risks that 31
cannot be properly measured by the mortality tables specified in this 32
section, he may compute such extra reserve as in his judgment is war- 33
ranted by the extra hazard assumed, and he may further in his discretion 34
prescribe such table or tables of mortality, other than those specified 35
by this section, as he may deem necessary properly to measure such 36
additional risks, with interest at not less than tliree per cent per annum, 37
for the computation of the net value upon any special class or classes of 38
risks. 39
Fifth, The reserve liability for the total and permanent disability pro- 40
vision incorporated in policies under section twenty-four sliall be com- 41
puted on the basis of "Hunter's Disability Table", or any similar table 42
appro\'ed by the commissioner, with interest not exceeding tlu-ee and 43
one half per cent per annum; pro\ided, that in no case shall said liability 44
be less than one half of the net annual premium computed by such table 45
for the disability benefit. The commissioner may accept a certificate of 46
valuation from the' company for the reserve liability for the total and 47
permanent disability proAision if he is satisfied by the use of general 48
Chap. 175.] insurance. 1951
49 a\'erages and percentages that such reserve has been computed in ac-
50 cordance with the foregoing rule.
51 Sixth, The value on the last day of December of the preceding year of
52 all outstanding annuities shall be computed on the basis of "McClintock's
53 Tables of Mortality among Annuitants" or on such higher table as the
54 commissioner may prescribe, with interest at not more than foiu- per
55 cent per annum; provided, that annuities issued prior to January first,
56 nineteen hundred and seven, and annuities deferred ten or more years
57 and written in connection with life, endowment or term insurance shall
5S be valued on the same mortality table from which the consideration or
69 premiums were computed. This basis of valuation shall be used in con-
60 nection with the valuation as of December thirty-first, nineteen hundred
61 and twenty, and all valuations thereafter.
62 Se\'enth, The reserve liability for group insurance written as yearly
63 renewable term insurance shall be computed on a basis not lower than
64 the "American IMen Mortality Table", with interest at not more than
65 three and one half per cent per annum.
66 The aggregate net value so ascertained of all the policies of any such
67 company shall be deemed its reserve liability, to pro\'ide for which it
68 shall hold funds of an amount equal to such net value above all its other
69 liabilities.
70 All policies of life insurance issued before July first, eighteen hundred
71 and ninety-nine, by corporations formerly transacting a life insurance
72 business on the assessment plan under chapter four hundred and twenty-
73 one of the acts of eighteen hundred and ninety and acts in amendment
74 thereof, and now ha\ang authority to do business in the commonwealth
75 under this chapter, which policies are in force on December thirty-first
76 of any year, and which contain a provision for a payment other than
77 the premiinn stipulated therein, and under which the duration of the
78 premium payment is the same as the duration of the contract, except
79 in endowment policies, shall be valued and shall have a reserve main-
80 tained thereon on the basis of renewable terra insurance as fixed by
81 attained age in accordance with this chapter. To the reserve liability
82 determined as above the coimuissioner shall add the determinate con-
83 tract reserve under any other policies issued by said corporations before
84 said July first and remaining in force on December tliirty-first of any
85 year, and in the absence of such contract reser\e sliall value them as
8() contracts proxiding similar benefits are to be valued under this chapter.
87 But under no policy shall a greater aggregate reserve liability be cliarged
88 than is otherwise required by this section. All policies of life insurance
89 issued by any such corporation subsequent to July first, eighteen hundred
90 and ninety-nine, including those which contain a provision for a pay-
91 ment other than the premiums specified therein, shall be valued and
92 a reserve maintained thereon according to this section; but all such
93 policies issued by said corporations prior to January first, nineteen
91 hundred and six, shall be valued taking the first year as one year
95 term insurance.
1 Section 10. To determine the liability upon its contracts of in- Computation
2 surance of a company, other than life, and the amount such company conip,inie3
3 shall hold as a reserve for reinsurance, the commissioner may, except as lifp.'"'^
4 provided in section twelve, take fifty per cent of the premiums written {Isuiir,^'
5 in its policies, or the actual unearned portions of said premiums; but in igs3\'2o^'^"
1952
INSUR.USrCE.
[Chap. 175.
1884,178.
1887,214. !
1894, 522, i
1900, 363. i
R. L. 118, i
1903, 223.
1907,576,
§§11,122.
respect to marine risks he shall compute the liability thereon by charging 6
ii! fifty per cent of the amount of premiums written in its policies upon 7
li. yearly risks, and upon risks covering more than one passage not ter- S
minated, and the full amount of premiums written in policies upon all 9
other marine risks not terminated; but in the case of foreign fire and 10
marine companies with less than three hundred thousand dollars capital, 11
admitted to transact fire insurance only, the full amount of premiums 12
written in their marine and inland navigation and transportation in- 13
surance policies shall be charged as liabilitj'. 14
Computation
of assets and
liabilities.
1S72, 325, § 3.
P. S. 119, § 64.
1887, 214, § 11.
1894, 522, § 11.
1900, 363, § 1.
R. L. 118, § 11.
1903, 223.
1907, 576,
5§ 11,122.
1914,505.
1920, 11)8.
Computation
of reserves of
liability
companies.
1905, 287.
1907, 576.
§§ H. 122.
1911.315.
1917, 10.
S§ 1, 3-5.
3 Op. A. G. i
i Op. A. G. 2
Section 1 1 . Beside the reserve provided for in the two preceding sec-
tions he shall, except as provided in the following section, charge to each
company as a liability all unpaid losses and claims for losses, and all other
debts and liabilities, including in the case of a stock company its capital
stock. He shall allow to the credit of a company in the account of its
financial condition only such assets as are available for the payment of
losses in this commonwealth, including all assets deposited with officers
of other states or countries for the security of the policy holders of such
company; but no holding or parcel of real estate shall be given a higher
value than would be adequate to yield at three per cent annual interest
the average amount of its net rental for three years next preceding, ex-
cept that if a company shows to his satisfaction that the actual value of
any of its real estate is greater than the value so ascertained, then the
actual value of the said real estate as determined by the commissioner
shall be allowed.
He shall not allow stockholders' obligations of any description as
part of the assets or capital of any stock company, unless secured by
sufficient approved collateral.
He may value all bonds or other evidences of debt having a fixed
term and rate held by a life company, if amply secured and not in de-
fault as to principal or interest, as follows: if purchased at par, at
the par value; if purchased above or below par, on the basis of the
purchase price adjusted so as to bring the value to par at maturity and
so as to yield meantime the effective rate of interest at which the pur-
chase was made; provided, that the purchase price shall in no case
be taken at a higher figure than the actual market value when pur-
chased; and provided, further, that the commissioner shall have full
discretion in determining the method of calculating values according
to the foregoing rule, and the values found by him in accordance with
such method shall be final and binding; provided, also, that any such
company may return such bonds or other evidences of debt at their
market value or their book value, but in no event at an aggregate value
exceeding the aggregate of the values calculated according to the fore-
going rule.
Section 12. The commissioner shall each j'ear compute the reserve
required of liability companies for outstanding losses under insurance
against loss or damage from accident to or injuries suffered by an em-
ployee or other person, for which the insured is liable, as follows:
1. For all liability suits being defended untler policies written more
than —
(a) Ten years prior to the date as of which the financial statement
required by section twenty-five is made, fifteen hundred dollars for each
suit.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
1
2
3
4
5
6
7
8
9
Chap. 175.] insur-USTce. 1953
10 (6) Five and less than ten years prior to said date, one thousand
11 dollars for each suit.
12 (c) Three and less than five years prior to said date, eight hundred
13 and fifty dollars for each suit.
14 2. For all Hability policies written during the three years immedi-
15 ately preceding said date, such reserve shall be sixty per cent of the
16 earned liability premiums of each of the said three years, less all loss
17 and loss expense pajiuents made under liability policies written in the
18 corresponding years; but in any event the reserve shall, for the first
19 of the said three years, be not less than seven hundred and fifty dollars
20 for each outstanding liability suit on said year's policies.
21 3. For all compensation claims under policies wTitten more than three
22 years prior to said date, the present values at four per cent interest of the
23 determined and the estimated future payments.
24 4. For all compensation claims under policies \sTitten in the three
25 years immediately preceding said date, the said reserve shall be sixty-
26 five per cent of the earned compensation premiums of each of the said
27 three years, less all loss and loss expense pajTnents made in connection
28 with such claims under policies written in the corresponding years; but
29 in any event in the case of the first year of any such three year period
30 the reserve shall be not less than the present value at four per cent
31 interest of the determined and the estimated unpaid compensation
32 claims under policies written during that year.
33 All unallocated liability loss expense pa>^nents made in a given cal-
34 endar year subsequent to the first four years in which an insurer has
35 been issuing liability policies shall be distributed as follows: thirty-
36 five per cent shall be charged to the policies written in that year, forty
37 per cent to the policies MTitten in the preceding year, ten per cent to
38 the policies written in the second year preceding, ten per cent to the
39 policies written in the third year preceding, and five per cent to the
40 policies written in the fourth year preceding; and such payments made
41 in each of the first four calendar years in which an insurer issues liability
42 policies shall be distributed as follows: in the first calendar year one
43 hundred per cent shall be charged to the policies WTitten in that year,
44 in the second calendar year fifty per cent shall be charged to the poli-
45 cies written in that year, and fifty per cent to the policies written in
46 the preceding year; in the third calendar year forty per cent shall be
47 charged to the policies written in that year, forty per cent to the
48 policies written in the preceding year, and twenty per cent to the poli-
49 cies written in the second year preceding; and in the fourth calendar
50 year thirty-five per cent shall be charged to the policies wTitten in that
51 year, forty per cent to the policies written in the preceding year, fif-
52 teen per cent to the policies written in the second year preceding, and
53 ten per cent to the policies written in the third year preceding, and a
54 schedule showing such distribution shall be included in the annual
55 statement.
56 All unallocated compensation loss expense payments made in a given
57 calendar year subsequent to the first three years in which an insurer
58 has been issuing compensation policies shall be distributed as follows:
59 forty per cent shall be charged to the policies written in that year,
60 forty-five per cent to the policies written in the preceding year, ten
61 per cent to the policies written in the second year preceding, and five
62 per cent to the policies written in the third year preceding; and such
63 payments made in each of the first three calendar years in which an
1954
INSUE.«sTCE.
[Cli-\P. 175.
insurer issues compensation policies shall be distributed as follows: 64
in the first calendar year one hundred per cent shall be charged to the 65
policies ■RTitten in that year; in the second calendar year fifty per cent 66
shall be charged to the policies written in that year and fifty per cent 67
to the policies written in the preceding year; in the third calendar 68
year forty-five per cent shall be charged to the policies -ttTitten in that 69
year, forty-fi\'e per cent to the policies wTitten in the preceding year, 70
and ten per cent to the policies written in the second 5'ear preceding; 71
and a schedule showing such distribution shall be included in the annual 72
statement. 73
Whenever, in the judgment of the commissioner, the liability or com- 74
pensation loss reserves of any insurer calculated in accordance with the 75
foregoing provisions are inadequate, he may require such insurer to 76
maintain additional reserves based upon estimated individual claims 77
or otherwise. 78
Every company writing liability or compensation policies shall in- 79
elude in the annual statement recjuired by section twenty-fi\-e a schedule 80
of its experience thereunder in such form as the commissioner may 81
prescribe. . 82
Examination
for increase
or reduction
of capital.
1875, 27, § 3.
1878, 35, § 3.
P. S. 119,
§§67,71.
1887, 214. § 12.
1894. 522, § 12.
R. L. 118, § 12.
Section 13. The commissioner shall, upon application, examine the 1
proceedings of domestic companies to increase or reduce their capital 2
stock, and, if found conformable to law, shall endorse certificates thereof, 3
and shall issue certificates of authority to such companies to transact 4
business upon such increased or reduced capital as provided by sections 5
seventy and seventy-one. i907, 576, §§ 12, 122. 6
Collection of
charges and
fees.
G. S. 58, § 64,
1867, 267,
§§ 4-6.
1870, 349, § 8.
1871.297, § 5.
1878,35, I 4;
36, § 2.
P. S. 119, §§S
18, 71, 157. 20:
209.
1884, 55.
1887. 214,
§§ 15,24,71,
91,96.
1894, 19: 522,
§§ 15, 24, 71,
91,96.
1897, 67, § 2.
R. L. 118.
§§ 15,88,96.
1902. 106.
1906,271, § 7.
1907, 57U.
§§ 15,93, 101.
122
1908, 170.
1911,429,
§§ 1,4.
1917, 164, § 1.
1918,71.
1919,38,
§ 1;46.
1920, 326.
Section 14. He shall collect and pay to the commonwealth charges 1
and fees as follows: for valuation of life policies of a domestic company, 2
two and one half mills for each thousand dollars of insurance; for each 3
examination prior to granting a license or a certificate of authority to 4
issue policies of insurance or annuity or pure endo\\Tnent contracts as 5
pro\'ided in sections four and thirty-two, thirty dollars; for filing copy 6
of charter or deed of settlement of each foreign company under section 7
one hundred and fifty-one, thirty dollars; and for filing financial state- 8
ment with application for admission under section one hundred and 9
fifty-one and for each annual statement under section twenty-five, 10
twenty dollars ; for each license or renewal thereof to a special insurance 1 1
broker under section one hundred and sixty-eight, twenty dollars; for 12
each license or renewal thereof to an insurance broker under section one 13
hundred and sixty-six, ten dollars; for each license or renewal thereof 14
to an insurance agent of a foreign company under section one hundred 15
and sixty-tliree, two dollars; for each license or renewal thereof to an 16
adjuster of fire losses under section one hundred and seventy-two, two 17
dollars; for each certificate of the valuation of the policies of any life 18
company and for each certificate of the examination, condition or quali- 19
fication of a company, two dollai-s; for each certificate issued under sec- 20
tion sixteen, two dollars; for each service of lawful process upon him as 21
attorney, under section one huntlred and fifty-one, two dollars; for each 22
copy of any paper on file in his office, twelve cents a page and one dollar 23
for certifying the same; and all other fees and charges due and payable 24
to the commonwealth for am- official act or service of the commissioner. 25
Chap. 175.] instjr.wjce. 1955
1 Section 15. He shall annually, in December, furnish each company Blanks for
2 two or more blanks in form adapted for its annual statement. men"s.
1S37, 192, § 4. G. S. 58. § 7. 1889, 451, § 8.
1838. 178, §3. P. S. 119, §19. 1S94, 522, § 16.
1849, 104, I 6. 1883, 33, § 3. 1897, 65.
1856, 252, § 8. 1887, 214, § 16. R. L. 118, § 16.
1858, 170, § 2. 1888, 199, § 3. 1907, 576, §| 16, 122.
1 Section 16. He shall preserve in a permanent form a record of his Record of
2 proceedings, including a concise statement of the result of official ex- certflcatS'
3 aminations of companies. coun ° '"
4 He shall furnish, when required for evidence in court, certificates, ^^^' H^',^^-
5 under seal of the division of insurance, relative to the authority of an p.'s.ini, §20^
6 insurance agent, broker or company, or an adjuster of fire losses, or a 1894! 522! § 17!
7 fraternal benefit society, to transact business in the commonwealth on 1007; lie'. ^ '
8 any particular date or for any specified period, and such certificates shall iIui'm^'soo,
9 be received by the courts in lieu of the testimony of the commissioner or ^^ *^' *"■
10 his representative.
1 Section 17. He shall annually, and as early as is consistent with Annual report.
2 full and accurate preparation, make a report to the general court of iIm', 227, 1 4';
3 his official transactions, and shall include therein a report of the condi- f^/j^^'^'^'
4 tion of the receiverships of insolvent companies; an exhibit of the finan- }|?|' ^^4' | g"'
5 cial condition and business transactions of the several companies as dis- 5f^j?'?^^'
6 closed by official examinations of the same or by their annual statements, is.57', 40._§ s.
7 abstracts of which statements, with his valuation of life policies, shall g.^s.'5s,''§ 10.
8 appear therein; and such other information and comments relative to ^sii,^2u.\^i7.
9 insurance and the public interest therein as he thinks proper. ^ ''l! iil] 1 17!
10 The annual report of the commissioner on fire and marine insurance l\°^j^lfi
11 matters shall contain the laws enacted on those subjects in the year of ion. '51.
12 the report, and his annual report on life and miscellaneous insurance
13 matters shall contain the laws enacted on those subjects in the year of
14 the report.
provisions common to foreign and domestic companies.
1 Section 18. Every company shall conduct its business in the com- Companies to
2 monwealth in its corporate name, and all policies and contracts, other porai'e™ame.
3 than contracts of corporate suretyship, issued by it, shall, except as to^'be'pX
4 pro\'ided in section fifty-six of chapter one hundred and fifty-two, be ^^^^^ ^""^
5 headed or entitled only by such name. 1853,3.33, § 1.
6 When any such company publishes its assets it shall in the same 1856! 252] § '5'.
7 connection and with equal conspicuousness publish its liabilities, both 1S7V.87;
8 computed on the basis allowed for its annual statements, and any publi- R.s.'iin.
9 cation purporting to show its capital shall exliibit only the amount of iss7!2i4;°'
10 such capital as has been actually paid in cash. Such publications shall flg^^'g',""-
11 be held to include all policies, renewals, signs, circulars, cards or other f.MV^'i°-
12 means by which public announcements are made. §§' is, 106.
13 A company or an officer or agent thereof who issues or circulates ad- §§ is.'^ioo, 122.
14 vertisements in violation of this section shall be punished by a fine of ''■"-• ^3"-
15 not less than fiftv nor more than five hundred dollars.
1 Section 19. Every company shall be liable to taxation by any gen- Returns for
2 eral law taxing insurance companies, and it shall by its proper officers of ta"s°"
3 make to the commissioner of corporations and taxation the returns and l^U', I'lvf §^13.
1956
INSURANCE.
[Chap. 175.
R s^ 37, statements of its business and affairs required by law for the assessment 4
is3iT'28i. § 21. of such taxes, and thereupon its officers and agents may be examined on 5
1856, 252,' 1 7. ' Oath by the officer to whom such returns are to be made. g. s. ss, § 19. 6
1871,297. §7. p. .S. 119, §45. 1894,522,119. 1907, 576. §§ 19, 122.
1872, 325. §5. 1887, 214, § 19. R. L. 118, § 19. 1919, 350, §§ 52, S3.
Reinsurance.
1854, 453, § 7.
1874, 109.
P. S. 119.
§ 152.
1883,33, 5 1.
1884, 120, s 1.
1887,214,
§§ 20, 72, 84.
1891,368.
1892.47.
1894, 137. § 1 :
522, II 20, 72,
84.
1895, 59, § 1.
1898, 537.
R. L. 118,
|§ 20, 72, 78,
S4.
1907, 576,
§§ 20. 72, 84,
89, 122.
1909, 345.
1914,448,
H 1. 2.
1915, 178, § 3.
1919,114.
1920, 288.
1 Op. A. G. 25,
504. 573.
2 Op. A. G.
521.
Op.A. G.
(1917) 13.
1884, 120, § 2.
1887,214,5102.
1894,522,1102.
R.L. 118,
§102.
Section 20. Any company, except as herein provided, may reinsure 1
in any other company any part or all of any risks assumed by it, and 2
shall file ■n'ith the amiual statement required by section twenty-five and .3
at such other times as the commissioner may require, schedules of all 4
reinsurance. 5
Such reinsurance shall not reduce the taxes to be paid by the ceding 6
company, nor, if a life company, shall it reduce the reserve to be charged 7
to it, unless effected with a company authorized to issue policies in the 8
commonwealth covering risks of the same kinds as those reinsured. 9
Such reinsurance shall not reduce the reserve or other liability to be 10
charged to the ceding company, other than life, unless (a) it is effected 11
with a company authorized in the commonwealth as aforesaid, or (6) 12
with a company similarly authorized in another state or territory of the 13
United States conforming to the same standard of solvency and fulfilling 14
the same statutory- or departmental regulations which would be required 1.5
of such company if, at the time such reinsurance is effected, it were 16
authorized as aforesaid in the commonwealth; pro\'ided, that any con- 17
tract of reinsurance, other than life, made by any domestic company 18
or by any company incorporated in a foreign country and ha^^ng its 19
principal office in the commonwealth, ceding more than se\enty-five per 20
cent of its total outstanding risks, shall be subject to the written approval 21
of the commissioner; and pro\'ided, further, that no domestic life com- 22
pany shall reinsure its risks without the ^\Titten permission of the com- 23
missioner, but may reinsure not exceeding one half of an indi\-idual risk. 24
When reinsurance is so effected the ceding company, other than a 25
life company, shall thereafter be charged on the gross premium basis 26
with an unearned premium liability, and a life company shall be charged 27
thereafter with a reserve liability, both said unearned premium and 28
reserve liability representing the proportion of the obligation retained 29
by it, and the company with which the reinsurance is effected shall be 30
charged thereafter in like maimer with the proportion of the obligation 31
assumed by it. Both the companies shall together carry the same 32
unearned premium liability or reserve which the ceding company would 33
ha\'e carried had it not reinsured the risk. 34
Reinsurance of risks shall not be held to be within the provisions of law 35
requiring the use of standard forms of policies. A company ceding re- 36
insurance to a mutual company shall not, unless the contract of rein- 37
surance so pro\'ides, become thereby a member of the company accepting 38
such reinsurance or be entitled to any di^^dend or expiration return of 39
premium or be subject to liability to assessment. 40
This section shall not permit a ceding company, other than life, to 41
receive through the cession of the whole of any of its risks any advantage 42
in respect to its unearned premium reserve, or, if a life company, in re- 43
spect to the net value of its policies involving life contingencies that 44
would reduce the same below the actual amount thereof. 45
A company and any officer or agent thereof effecting or acting in the 46
negotiation of reinsurance in violation of this section shall severally be 47
punished by a fine of five hundred dollars. i907,576,§§ m, 122. 48
Chap. 175.] insueance. 1957
1 Section 21. No company shall insure in a single risk wherever lo- Limit of
2 cated, excepting transportation, inland navigation and ocean and coast- i8'f7!'iTo!'§ 7.
3 wise marine risks, a larger amount than one tenth of its net assets, unless fg^f, 453,^7;
4 it has reinsured, as provided in the preceding section, the excess over said J|-^|' Ipvy^-
5 limit to take efFect simultaneously with the original contract; but a fg^^^ V^' ^ ^*^'
6 domestic mutual boiler company may, except as provided in section fifty- §§"26, loi
7 four, insure in a single risk an amount not exceeding one fourth of its 1892U7. '
8 net assets. A company violating this section shall be punished by a sll^fkSos.
9 fine of five hundred dollars.
1895. 59. §1. 1907. 576, §§ 20, 112, 122. 181 Mass. 522.
1898, 638, § 3. 1916, 21, § 3. 1 Op. A. G. 315, 573.
R. L. 118, §§ 20. 103, 1919,114,5 1. 2 Op. A. G. 34.
1 Section 22. No company and no officer or agent thereof shall make, Certain
2 issue or deliver any policy of insurance or any annuity or pure endow- poii'cie3°void.
3 ment contract containing any condition, stipulation or agreement depriv- q ^s'l8^§\6"
4 ing the courts of the commonwealth of jurisdiction of actions against it ; ^^f^ i^'u Vis
5 limiting the time for commencing actions against it to a period of less ^set'. 522! 1 21;:
6 than two years from the time when the cause of action accrues; making 1907,' 576,'
7 any person appointed and licensed as its agent the agent of the applicant i9io,'493T§ 2,
8 or insured or holder of the policy or contract for any purpose; or pro- i86Vass:4i3.
9 viding that no person shall be deemed an agent of the company unless
10 authorized by the company in writing. Any such condition, stipulation
11 or agreement shall be void.
1 Section 23. No life company, and no oflBcer or agent thereof, after Life company
2 notice as pro\dded in sections five and seven, shall issue new policies of nesTaft'er '"
3 life or endo'R'ment insurance or annuitv or pure endo^^•ment contracts °°'i^^i!l?i".,
4 until its funds have become equal to its liabilities and it has complied that funds
5 With saici sections, and has obtained from tlie commissioner a certificate ciept.
6 to that effect, with authority to resume business. Whoever violates p. s.'iio.'
7 this section shall forfeit not more than one thousand dollars. i887.'2i4,
1894, 522, §§ 66, 104. R. L. 113, §§ 66, 104. 1907, 576, |§ 67. 113, 122. §§66,104.
1 Section 24. A domestic life company, notwithstanding any limita- PoUcies of
2 tions of its charter to the contrary, and any foreign life company ad- pinie°s'^ay
3 mitted to this commonwealth, if it is permitted so to do by its charter tot'ai''etc°'^
4 or by the state where it is incorporated, whether or not it has a capital disability and
_ , , ^ , ^ ,. . .. p , .■^- accidental
5 stock, may incorporate in its policies pro\asions tor the waiver of death benefits.
6 premiums or for the granting of special surrender values therefor in lom, ih'.
7 the event that the insured, or either of them, thereunder shall from 1920] 327. § 2.
8 any cause become totally and permanently disabled. These proAisions ^^^ ^*^^ ^"'
9 shall state the special benefits to be granted thereunder and the cost
10 thereof to tJie insured, and shall define what shall constitute total and
11 permanent disabihty; and any such company may pro^^de for the
12 pa.-\Tnent of a larger sum if death is caused by accident than if it re-
13 suits from other causes, provided that the sum payable in the e\ent of
14 accidental death shall not exceed on any one life three per cent of the
15 company's aggregate expected mortality as shown by its last annual
16 statement to the commissioner. The consideration for such special
17 benefits shall be separately stated in the policy.
1958
INSUK-INCE.
[Celu>. 175.
Annual Statcmenis.
1.
I 4.
S21.
1;
Annual state-
ments.
1837, 192,
§§ 1.2.
1838, 178,
1842. 9. ^
1849. 104,
1851, 281,
1852. 227
231, §5; 311,
§ 14.
1854, 453. § 37,
and lorms.
1856, 252. § S.
and forms.
1859, 146.
G. S. 58, §§ 25,
75, and forms.
1860, 150.
1862, 181, § 6,
and forms.
1867, 267,
§§2,3.
1870, 349, § 2.
P. S. 119.
§§ 226, 229,
and forms.
1883, 33, § 4.
1884, 58; 217.
1887, 214,
§ 96, and forms.
1894, 522, § 96,
and forms.
R. L. lis, § 90,
and forms.
1907, 576,
§§ 101, 122.
1919,30.
1 Op. A. G.
423.
2 Op. A. G,
381.
Section 25. Every company shall annually, on or before January 1
fifteenth, file with the con:imissioner a statement sho^^ang its financial 2
condition on December tliirty-first of the pre\'ious year, and its busi- 3
ness of that year. For cause the commissioner may extend the time 4
■\\ithin which any such statement may be filed, but not to a date later 5
than INIarch first. But a life company shall not be required to file that 6
part of its annual statement known as the gain and loss exliibit until 7
May first following. 8
Such annual statement shall be in the form required by the commis- 9
sioner. He shall embody therein, so far as appropriate to the several 10
companies, the substance of the forms provided for in this section, 11
with any additional inquiries he may require for the purpose of eliciting 12
a complete and accurate exliibit of the condition and transactions of the 13
companies. The assets and liabilities shall be computed and allowed in 14
such statement in accordance with the rules stated in sections nine, ten, 15
eleven and twelve. Such statement shall be subscribed and sworn to 16
by the president and secretary, or, in their absence, by two of its princi- 17
pal officers. The commissioner may at other times require any such 18
statements as he may deem necessary. 19
Life companies having both industrial and ordinary policies out- 20
standing shall make two annual statements of receipts and disburse- 21
ments, one of which shall cover the industrial department and the 22
other the ordinary department; but the aggregate income and dis- 23
bursements of each department may be carried into its appropriate ac- 24
count in the statement of the other department, and the assets and 25
liabilities of the company shall be so entered in both statements that 26
each shall show the company's entire assets and liabilities. The com- 27
missioner may make such further rules as he shall deem necessary for 28
carr.^'ing out as completely as possible the separation of accounts in- 29
tended by this section. 30
Such statement of a company of a foreign country shall embrace only 31
its business and condition in the United States, and shall be subscribed 32
and sworn to by its resident manager, or if its resident manager is a 33
corporation, by the president and secretary or other duly authorized 34
officers thereof. 35
The annual statement made to the commissioner, pursuant to this 36
section, shall at least include the substance of that required by the 37
following forms: 38
FoEM A. — Fire, Marine, and Fire and Marine Companies.
Stock companies, except United States branches of companies of foreign coun-
tries. 1. Name of company. 2. Location of home office. 3. Date of incor-
poration. 4. Date on which the company commenced business. 5. Names of
officers and directors. 6. Amount of paid-up capital. 7. Amount of ledger
assets December thirty-first of the previous year.
Income. ■ — 8. Gross and net premiums on policies ■WTitten or renewed. 9.
Gross amount received from interest and rents. 10. Gross profit on the sale or
maturity of ledger assets. 11. Gross increase in the book value of ledger assets.
12. Income from all other sources.
Disbursements. — 13. Gross and net amounts paid policy holders for losses.
14. Dividends to stockholders. 15. Commissions or brokerage. 16. Salaries
of officers and employees. 17. Rents. IS. Repairs and expenses on real estate.
19. Taxes on real estate. 20. Insurance department fees and taxes. 21. Gross
loss on the sale or maturity of ledger assets. 22. Gross decrease in the book
value of ledger assets. 23. All other disbursements.
CiL\p. 175.] msuK-usTCE. 1959
Assets. — 24. Book and market value of real estate owned. 25. Amount
loaned on mortgages on real estate. 26. Loans secured by pledge of collateral.
27. Book and market value of stocks and bonds owned. 28. Cash in the com-
pany's office and in bank. 29. Agents' balances, stating separately the amount
of the same which represents business WTitten prior to October first next preced-
ing the date of the statement. 30. Bills receivable. 31. Interest and rents due
and accrued. 32. All other assets. From the assets of the company there shall
be deducted: (a) company's stock owned and loans on the same; (6) agents'
balances representing business written prior to October first; (c) bills receivable
past due taken for marine, inland and fire risks; (rf) loans on personal security;
(e) the e.xcess of the book value of ledger assets over the market value ; (/) and
such other items as the commissioner may deem expedient.
Liabilities. — 33. Gross and net unpaid losses and claims. 34. Unearned
premiums. 35. Borrowed money and interest thereon. 36. All liabilities, in-
cluding the paid-up capital. 37. Surplus over all Uabilities. 3S. Surplus to
policy holders.
The exhibit of risks and premiums shall show the gross amount of the risks in
force on December thirty-first preceding, the amount of the risks written or
renewed, the amount terminated, the amount reinsured and the amount in
force on December thirty-first of the year covered by the statement, and the
gross premiums on all of the risks mentioned herein.
Forms B .\nd C. ■ — Mutual Companies and United States Branches or
Companies of Foreign Countries.
The form of return required from mutual fire companies and from the United
States branches of fire companies of foreign countries, and from all other com-
panies except life and those reporting under chapters one hundred and seventy-
six and one hundred and seventy-seven, shall be the same as outlined above, with
such modifications as the commissioner may deem necessary to make the fore-
going form applicable to the business of such companies.
Form D. — Life Companies.
L Name of company. 2. Location of home office. 3. Date of incorporation.
4. Date on which the company commenced business. 5. Names of officers and
directors. 6. Amount of paid-up capital. 7. Amount of ledger assets Decem-
ber thirty-first of the previous year.
Income. — 8. First year's premiums on original policies. 9. Renewal premi-
ums. 10. Gross amount received from interest and rents. IL Gross profit on sale
or maturity of ledger assets. 12. Gross increase in the book value of ledger assets.
13. Income from all other sources.
Disbursements. — 14. Gross and net amounts paid for losses. 15. Annuities
involving life contingencies. 16. Premium notes voided by lapse. 17. Sur-
render values paid in cash. IS. Surrender values applied to pa3anent of new and
renewal premiums. 19. Surrender values applied to the purchase of paid-up
insurance and annuities. 20. Dividends paid policy holders in cash. 21. Divi-
dends applied to pay renewal premiums. 22. Dividends applied to purchase
paid-up additions and annuities. 23. Investigation of claims. 24. Amount
paid on claims on supplementary contracts not involving life contingencies.
25. Dividends to stockholders. 26. Commissions and bonuses to agents. 27.
Commuted renewal commissions. 28. Salaries and allowances to agents and
agencies. 29. Agency supervision. 30. Medical examiners' fees. 31. Inspection
of risks. 32. Salaries and all other compensation of officers. 33. Rents. 34.
■ Advertising, printing, stationery and postage. 35. Legal expenses. 36. Furni-
ture, fixtures and safes. 37. Insurance taxes, license and department fees. 38.
Taxes on real estate. 39. Repairs and expenses on real estate. 40. Gross loss
on sale or maturity of ledger assets. 41. Gross decrease in book value of ledger
assets. 42. All other disbursements.
Assets. — 43. Book and market value of real estate owned. 44. Amount
loaned on mortgages on real estate. 45. Loans secured by pledge of collateral.
46. Loans made to policy holders on the company's policies assigned as col-
lateral. 47. Book and market value of stocks and bonds owned. 48. Deposits
in trust companies and banks on interest. 49. Deposits in trust companies and
banks not on interest. 50. Cash in company's office. 51. Agents' balances.
52. Bills receivable. 53. Interest and rents due and accrued. 54. Gross and
net uncollected and deferred premiums. 55. All other assets. From the assets
1960 INSURANCE. [Chap. 175.
of the company there shall be deducted: (n) company's stock o'mied, and loans
on the same; (b) supplies, stationery, printed matter, furniture, fixtures and
safes; (c) commuted commissions; (rf) agents' debit balances; (e) cash advanced
to or in the hands of officers or agents; (/) loans on personal security; (g) bills
receivable; (/;) premium notes and loans on pohcies, and net premiums in ex-
cess of the net value of their policies; (i) the excess of the book value of ledger
assets over the market value; (j) and such other items as the commissioner may
deem expedient.
Liabilities. — 56. Net present value of all outstanding policies in force, which
shall show the basis of the computation, and the amount of liability upon each
basis, if more than one is used. 57. Net value of risks reinsured. 58. Net re-
serve. 59. Present value of amounts not yet due on supplementary contracts
not involved in fife contingencies. 60. Liability on policies cancelled and not
included in the net reserve upon which a surrender value may be demanded.
61. Claims for death losses due and unpaid. 62. Claims for death losses in
process of adjustment. 63. Claims for death losses reported on which no proofs
have been received. 64. Claims for matured endowments due and unpaid. 65.
Claims for death losses and other policy claims resisted by the company. 66.
The amount due on annuity claims involving life contingencies. 67. Amount
due on supplementary contracts not involved in life contingencies. 6S. Premi-
ums paid in advance. 69. Interest and rents paid in advance. 70. Commis-
sions due agents on premium notes when paid. 71. Cost of collecting uncol-
lected and deferred premiums in excess of the loading thereon. 72. Commissions
to agents due or accrued. 73. Salaries, rents, office expenses and miscellaneous
bills and accounts due or accrued. 74. Medical examiners' and legal fees due or
accrued. 75. State, county and municipal taxes due or accrued. 76. Bor-
rowed money and interest thereon. 77. Dividends or other profits due policy
holders, including those contingent on outstanding and deferred premiums.
78. Dividends declared or apportioned, payable to policy holders during the
next calendar year, whether contingent upon the pajonent of renewal premiums
or otherwise, under annual dividend policies. 79. Dividends declared or appor-
tioned, payable to policy holders during the next calendar year under deferred
dividend pohcy contracts. 80. Amounts set apart, apportioned, provisionally
ascertained, calculated, declared, or held awaiting apportionment upon deferred
dividend policies. 81. Reserve or surplus funds not otherwise included in liabiU-
ties. 82. All other liabihties, including the paid-up capital. 83. Surplus.
The annual statements of all companies shall contain schedules 39
fm-nishing the following and such additional information as the com- 40
missioner may require, all of which shall be arranged in such form as 41
he may deem expedient. 42
Schedule of Real Estate.
Part I. — Containing an itemized exhibit of the real estate owned, and which
shall show: 1. Quantity, dimensions and locations of lands, with the size and
description of buildings, and the nature of the encumbrances on the property, if
any. 2. The date acquired. 3. Name of vendor. 4. Amount of encumbrances.
5. The actual cost to the company, including cost of acquiring title, and, if the
property was acquired by foreclosure, such costs shall include the amounts ex-
pended for taxes, repairs and improvements prior to the date on which the com-
pany acquired the title. 6. The book value. 7. The market value. 8. The in-
crease and the decrease in the book value during the year. 9. The gross rental,
gross expenditures for repairs and expenses, the net income on each piece of prop-
erty for each of the last three years, and if any portion of the property is occupied
by the company for its own use, the rental value thereof.
Part II. — Containing an itemized exhibit of the real estate acquired during
the j'ear, which shall show: 1. Quantity, dimensions and location of lands, with
size and description of buildings, and nature of encumbrances, if any. 2. Date
of purchase. 3. Name of vendor. 4. Cost to the company. 5. Book value.
Part III. — Containing an itemized exhibit of all real estate sold during the
year, which shall show: 1. Quantity, dimensions and location of lands, size and
description of buildings, with nature of encumbrances, if any. 2. Date of sale.
3. Name of purchaser. 4. Consideration. 5. Cost to the company. 6. Book
value at time of sale. 7. Profit and loss on same.
Ch-vp. 175.] msuEANCE. 1961
Schedule of Mortgages.
Containing an itemized exhibit of the mortgage loans on real estate, which
shall show: 1. The company's number of the mortgage. 2. The year in which
the mortgage was given. 3. The year in which it matures. 4. The record of the
mortgage, showing the county or district, book and page. 5. Amount of princi-
pal unpaid. 6. Date on which the interest is due and the rate per annum.
7. Amount of interest past due. 8. Amount of interest accrued. 9. Value of
lands mortgaged. 10. Value of buildings. 11. Amount of insurance held by
the company on the buildings. 12. Location and description of the property.
Schedule of Collateral Loans.
Containing an itemized exhibit of the loans on collateral securities, which
shall show: 1. Name of the borrower. 2. Date, maturity, and rate of interest
on the loan. 3. Description of collateral. 4. Par value of collateral. 5. Mar-
ket value of collateral. 6. Rate used to obtain market value. 7. Amount Ibaned
thereon. 8. All substitutions of collateral during the year.
Schedule of Bonds and Stocks.
Part I. — Containing an itemized account of the bonds owned, which shall
show: 1. Description of the security. 2. Year of maturity and option. 3. Rate
of interest and how paid. 4. Cost to the company. 5. Book value. 6. Increase
and decrease in the book value during the year. 7. Par value. 8. Market value.
9. Rate used to obtain the market value. 10. Interest due and accrued.
Part II. — Containing an itemized exhibit of the stocks owned, which shall
show: 1. The number of shares of each stock owned. 2. Description of the
security. 3. Rate of dividend in each of last three years. 4. Cost to the com-
pany. 5. Book value. 6. Increase and decrease in the book value during the
year. 7. Par value. 8. Market value. 9. Rate used to obtain the market value.
Part III. — Containing an itemized exhibit of the stocks and bonds acquired
during the year, which shall show: 1. Date acquired. 2. Name of vendor. 3.
Cost to the company. 4. Book value of the same. 5. Par value.
Part IV. — Containing an itemized exhibit of the stocks and bonds disposed
of during the year, which shall show: 1. Date of sale. 2. Name of purchaser.
3. Consideration. 4. Par value. 5. Cost to the company. 6. Book value at
date of sale. 7. Profit or loss on the same during the year.
,43 In addition to the schedules herein required, every life company
44 shall furnish —
Schedule showing the largest balance carried in each bank or trust company
during each month of the year covered by the statement.
Schedule showing all death claims resisted or compromised during the year
covered by the statement, and all death claims resisted on December thirty-first
of said year, with the reasons for contesting or resisting said claims.
Schedule showing the salaries, compensation and emoluments, of whatever
amount, received during the year covered by the statement by the officers and
directors, and, when said compensation or emoluments amounted to more than
five thousand dollars, that received by any person, firm or corporation.
Schedule containing a gain and loss exhibit, which shall show the sources of
the increase and the decrease in the surplus of the company during the year
covered by the statement.
Schedule showing the rates of annual dividends paid during the year covered
by the statement, and the annual premiums per one thou.sand dollars of insurance
at ages twenty-five, thirty-five, forty-five and fifty-five, at date of issue, for each
kind and plan of insurance.
Schedule showing the rates of dividends paid during the year covered by the
statement upon deferred dividend policies completing their dividend periods
during said year, and the annual premiums per one thousand dollars of insur-
ance at ages twenty-five, thirty-five, forty-five and fifty-five, for each kind and
plan of insurance.
Schedule showing the amounts set apart, apportioned or provisionally ascer-
tained or calculated during the year covered by the statement, or held awaiting
1962
INSUR-tNCE.
[Chap. 175.
apportionment on policies witli deferred dividend periods longer than one year,
and the annual premiums per one thousand dollars of insurance at ages twenty-
five, thirty-five, forty-five and fifty-five, on each kind of policy issued.
Schedule showing the unlisted assets held by the company on December thirty-
first of the year covered by the statement, and which are not entered in said state-
ment, which schedule shall show: I. Description of the property. 2. Date ac-
quired. 3. Date dropped from the statement. 4. Cost to the company. 5.
Par value. 6. Market value when dropped. 7. Market value December thirty-
first of the year covered by the statement. 8. Reasons for dropping the same.
The commissioner may exempt companies from filing schedules of 45
mortgage loans on real estate, and may as a substitute require such 46
other information in respect to sucli in^•estments as from time to time 47
he shall deem to be essential for determining their soundness as assets. 48
Penalty for
neglect to
make annual
statement.
1837, 192. § 3.
1842,9, § 2.
1849, 104, § 5.
1852, 227, I 2.
1854, 453, § 41.
Section 26. A company neglecting to make and file its annual state-
ment in the form and within the time provided by the preceding section
shall forfeit one hundred dollars for each day during which such neglect
continues, and, upon notice by the commissioner to that effect, its au-
thority to do new business shall cease while such default continues.
1856, 252, § 8,
G. S. 58, § 26.
1867, 267, § 3.
1870, 349, § 3.
P. S. 119. §§ 226, 230.
1887,214, §§ 96, 101.
1894,522, §§96, 101.
R. L. lis, §§96, 101.
1907, 576, §§ 101, 110, 122.
Companies
to report
suits.
1912, 162, § 1.
Section
Every company shall include in its annual statement
under section twenty-five a scliedule of all claims under policies issued by
it to persons in the commonwealth which, during the j'ear covered by
the statement, have been made the subject of suits and also of those
which at the time of making the statement are in suit. Such schedule
shall be in such detail as the commissioner shall prescribe.
Special report
in cases of
delav, etc.
1912, 162, § 2.
Section 28. If, upon examination of said schedule or upon com-
plaint, the commissioner, after investigation and hearing, is of the opinion
that a company is unreasonably and unfairly delaying the settlement of
claims or is unduly engaging in litigation, he shall make a special report
of his findings thereon to the general court at its next session.
Companies
subject to
this chapter.
1835, 147,
§§1,2.
R.S. 37,
§§1,24.
1851,281. § 1.
1854,453, § 1.
1856,252, § 1.
G. S. 58, § 12.
1872,375, § 1.
1873, 167, § 1,
P. S. 119,
§§22,25.
1887, 214, § 2.
1894, 522, § 2.
PROVISIONS RESPECTING DOMESTIC COMPANIES.
General.
Section 29. All companies now or hereafter incorporated or formed 1
by authority of any general or special law of the commonwealth shall, 2
except as pro\-ided in section one hundred and fourteen and in chapters 3
one hundred and se\enty-six and one hundred and se^•enty-se^■en, be 4
subject to tills chapter. Trade unions and other associations of wage 5
workers whose principal objects are to deal with the relations between 6
employers and employees relative to wages, hours of labor and other 7
conditions of emploAiuent shall not be subject to this chapter or chapters 8
one Jiundred and seventv-six and one hundred and se\entA'-sc\en. 9
1,S99, 46S.
II. L. 106, i
IS; 118, §2.
1907, 576, §§ 2. 122.
1909, 514, §§ 30, 145.
1911, 628, § 29,6.
1913, 017, § 5.
Companies
subject to gen-
eral corpora-
tion laws.
P. S. 105, § 1.
1887, 214, § 22.
1894, 103; 522,
§22.
Section 30. The general provisions of law relative to the powers, 1
duties and liabilities of corporations shall apply to all incorporated 2
domestic companies, so far as pertinent and not in confhct with other 3
provisions of law relative to such companies or with their charters. 4
E. L. lis, § 22.
1907, 570. §§ 23, 122.
Chap. 175.] insxirance. 1963
1 Section 31. Domestic companies incorporated by special acts. Continuation
2 whose charters are subject to a limitation of time, shall, after such limi- companies.
3 tation expires, continue to be bodies corporate, subject to all general Ks^'uij,
4 laws applicable to such companies. is87, 214, § 23. 5 2^-
1S94, 522, § 23. R. L. 118, § 23. 1907, 576, §§ 24, 122.
1 Section 32. No domestic company shall issue policies of insurance Domestic
2 or annuity or pure endowment contracts luitil, upon examination by tSobtSn
3 the commissioner, his deputy or examiner, it is found to have com- befor1'""°
issuing
4 plied with the laws of the commonwealth, adopted a proper system of fIji'fgT, 5 „
5 accounting, employed a competent accountant and a competent and p^S; ys^ §5^^
6 experienced underwriter, and to be without liabilities except, if a stock 1894! 522! | 24:
7 company or a mutual company with a guaranty capital, to stock- r. l! ii's, §24.
8 holders for the amount paid in for shares of stock, nor until it has ob- §§ 25, 122.
9 tained from the commissioner a certificate stating that it has complied ^^^^' ^^^■
10 with the foregoing conditions and all other laws, and authorizing it to
11 issue such policies or contracts.
1 Section 33. All such policies or contracts issued by such company signatures
2 shall be signed by its secretary, assistant secretary, or in their absence i8i^?i2a§ 1.
3 by a temporary secretary, and by its president or \ice president or in r.^I.'s",''^^'
4 their absence by two directors. Facsimiles of the signatures of such ||g\^'2|^i; 5 9,
5 officers imprinted thereon shall have the same validity as their WTitten i«54, 45.3. § 7.^
6 signatures. g. s. 58, § 32. 1864, 113, § 2.
§§ 26, 122.
P. S. 119, § 56.
1894, 522, § 25.
1907, 576,
1887, 214, § 25.
R. L. 118, § 25.
1908. 473.
1 SECTit)N 34. Such company shall have its home office in the place Location
2 specified in its charter or agreement of association; and if it establishes des'ign'iftira.
3 agencies in other places, all signs, cards, pamphlets and advertisements \lll'_ HI', | 5^'
4 exhibited or issued by it or its agents shall specify the place where the p|n9,\44.
5 company is located. iss7, 214, § 25.
1894, 522, § 25. R. L. 118, § 25. 1907, 576, §§ 26, 122.
1 Section 35. No domestic company shall pay any salary, compensa- salaries to bo
2 tion or emolument to any officer, trustee or director thereof, nor any d"rlctore; ^
3 salary, compensation or emolument amounting in any year to more than \l%\ q{^] ^ "^•
4 five thousand dollars to any person, unless such payment be first author-
5 ized by a vote of its board of directors. No such company shall make
6 any agreement with any of its officers, trustees or employees whereby it
7 agrees that for any services rendered or to be rendered he shall receive
8 any salary, compensation or emolument that will extend beyond a period
9 of three years from the date of such agreement; nor shall such company
10 pay any pension except as provided in the following section.
1 Section 36. Any domestic company, when authorized so to do by a Pensions to
2 vote in each case of not less than two thirds of the whole number of its ISi3,"6r3!'
3 directors, recorded in the minutes of the board, may grant a pension to
4 any employee who has been continuously in the service of the company
5 for ten years and who has become incapacitated for further service by
G reason of physical or mental disability resulting from sickness or injury,
7 and may grant a pension to any employee retiring by reason of the in-
8 firmities of age who has been continuously in the service of the company
9 for not less than fifteen years. No such pension shall exceed one half
1964 mstJRANCE. [Chap. 175.
the former yearly salary or wages of the employee, nor shall it exceed 10
one thousand dollars in any one year, and any such pension shall be dis- 11
continued when any such pensioner substantially recovers his earning 12
capacity. 13
Any such company, with the MTitten approval of the commissioner, 14
may also establish an employees' savings fimd or contributory pension 15
system for the benefit of its aged or disabled employees, to which fund 16
or system the employees shall contribute an amount not less than the 17
amount contributed by the company; and such a fund or system shall 18
so be established by any such company which pays pensions to the amount 19
of ten thousand dollars or more in any one year. 20
dUsbureemente SECTION 37. No domcstic compauy shall make any disbursements of 1
1907, 576, i 28. twcuty-five dollars or more unless the same be evidenced by a voucher 2
signed by or on behalf of the person recei\-ing the money and correctly 3
describing the consideration for the pajTnent; and if the same be for 4
services and disbursements, setting forth the services rendered and an 5
itemized statement of the disbursements made; and if it be in connection 6
with any matter pending before any legislature or public body, or before 7
any department or officer of any government, correctly describing in 8
addition the nature of the matter and of the interest of such company 9
therein; or if such a voucher cannot be obtained, by an affidavit stating 10
the reason for not obtaining such voucher, and setting forth the partic- 1 1
ulars above mentioned. 12
mry'bt^sdd Section 38. All the right, title, claim and interest of a domestic 1
on execution
1S51.2S1. §
on execution. ^ company in mortgages on real estate held by such company may be 2
ism! 453! I u. attached, taken on execution and sold at public auction to the highest 3
G. s.'ss.l '22. bidder, as provided in the five follo^^^ng sections. p. s. ii9, i 48. 4
1887, 214, I 27. 1894, 522, § 27. R. L. 118, | 27. 1907, 576, §§ 30, 122.
fsmeon^' Section 39. The officer levying such execution, having first given 1
isTi"io5' 5 1 notice of the time and place of sale at least fourteen days pre\-ious thereto 2
i82s', 96, 1 24! in two or more public places in the town where such real estate lies, and 3
i.85i' 281, 1 22. also in a newspaper, if any, published in the county, otherwise, in a 4
liil; 2,52,' § 6.^' newspaper published in Boston, shall convey such lands to the pur- 5
58,f 22.'^^^' chaser, and such conveyance shall transfer to the purchaser all the es- 6
ni.'^^lt ^ ""' tate and interest of the company therein. iss7, 2i4. § 27. 7
1894, 522, § 27. R. L. 115, §90; 118, §27. 1907, 576, §§ 30, 122.
o/'ia""""""' Section 40. The officer who levies such execution may adjourn the 1
1828, 96? 1^: sale from time to time, not exceeding seven days at one time, until the 2
R.'s.' 3g; I 51. sale is completed. issi. 28i, 5 22. 3
1854, 453, §11. P.S. 118, §91; R. L. 115, §91;
1856, 2.52, § 6. 119, § 48. 118, § 27.
G. S. 57, § 74; 1887, 214, § 27. 1907, 576, §§ 30, 122.
58. § 22. 1884, 522, § 27.
ramp.wto Section 41. A debt secured by mortgage, and due to the company 1
chile" ^"^' ^t t^^® t"^^ o* s"*^'i sale, shall pass by the deed of conveyance executed 2
isis'll'""^''""' ^y ^^^^ officer. The purchaser or liis legal representatives may in his or 3
i.'2. ' their name maintain any action proper to recover such debt or obtain 4
iL's.'sb'; 1 52^ possession of such lands which might have been maintained in the name 5
issl; 433; I n'. of the company had no such sale been made; and a copy of such mort- 6
Chap. 175.] insurance. 1965
7 gage deed, certified by the register of deeds for the county or district i?5^ 252, § 6.
8 where the land lies, shall be admissible evidence of the same. ss, §22.'
p. S. lis, § 92; 18S7, 214, § 27. R. L. 115, § 92; 118, § 27.
119, § 48. 1894, 522, § 27. 1907, 576, §§ 30, 122.
1 Section 42. The secretary of the company, on reasonable request, f^Ymnilh '^'^ '
2 shall furnish to the officer serving such execution, or the iudgment credi- copies-of
. . JO notes etc. to
3 tor, a certified copy of the note or obligation and the endorsement thereon ofRrer, etc'
4 secured by the mortgage, with a statement of all pajTuents made thereon i828!9ii; § 24.
5 by the debtor, and, after the sale of such mortgage, shall deliver said fsst, 2si,^§^22.
6 note or obligation to the purchaser. is54. 453, § 11. i856, 252, § e.
G. S. 57, § 76; 58, § 22. 18.S7, 214, § 27. R. L. 115, § 93; 118, § 27.
P. S. 118, § 94; 119, § 48. 1894, 522, § 27. 1907, 576, §§ 30, 122.
1 Section 43. The officer making such seizure on execution, if re- No transfer of
2 quired by the creditor, shall file a notice thereof in the registry of deeds, Ifter notice, '^■'
3 and gi\e a like notice to the secretary, or leave the same at the office, of vludleicept,
4 the company; and no sale or transfer of such note, obligation or mort- jl'is 24 §3
5 gage made by the company after such notice shall have any validity jf"||«'||4
6 against the purchaser under such sale, but the same shall be void except issi. 281, § 22.
7 as between the company and the person to whom it makes such sale or isse] 252! § e. '
8 transfer, his heirs, executors, administrators or assigns. 5s, §22'.'
P. S. 118. § 94: 119, § 48. 1894, 522, § 27. 1907, 576, §§ 30, 122.
1887, 214, § 27. E. L. 115, § 94; 118, § 27.
1 Section 44. If any domestic company shall not commence to issue Powers of
2 policies witliin one year after the date of its charter or of its certificate of ceMc^f"'H .Joes
3 organization, or if after it has commenced to issue policies it shall cease f'o°ra"year!'etc.
4 for the period of one year to make new insurance, its corporate powers }||e! 252, § 3
5 shall thereby expire; and the supreme judicial court, upon petition of the ^^ s ||' 5 1*-
6 commissioner or of any person interested, may fix by decree the time §§ h2_
7 within whicii it shall settle and close its affairs. A company incorporated p. &"'ii9,'
fis '?i "i"? ^n
8 by special act shall, within one year after the date thereof, file with the i887,'2i4', § 28.
9 state secretary a written notice of its organization under its charter, or ^^l\ ui] | i|;
10 the same shall be void. i907, 570, §§ 31, 122, 1 op. a. g. 111.
1 Section 45. No domestic company shall establish an agency or ap- Unauthorized
2 point an agent or other person to solicit, negotiate, continue or renew age^n^ils.
3 contracts of insurance on lives, property or interests in, or annuity or r*^; }i|;
4 pure endowment contracts with residents of, a state, district or territory i907%76,
5 where such company has not been lawfully authorized to transact busi- S§ "S' 122.
6 ness, and no such company or officer or agent thereof shall pay or allow
7 or offer to pay or allow compensation or anything of value to any such
8 person for soliciting, negotiating, continuing or renewing such contracts.
9 Whoever violates this section shall be punished by a fine of not less than
10 three hundred dollars.
1 Section 46. When a domestic stock or mutual fire company be- Preferred
2 comes insolvent, or is unable to pay in full its liabilities as set forth in fnsoh-ent fire
3 sections ten and eleven, unpaid losses under its poHcies shall, in tlie Jgog^^s'];'
4 distribution of its assets, whether liquidation is effected by a receiver 9^oq< 1^
5 or otherwise, be deemed and treated as preferred over claims for return
fi premiums on unex-pired policies. But this section shall not impair tlie
7 obligations now or hereafter imposed by law upon the officers of a mutual
8 fire company to make assessments to pay all its legal obligations.
1966 INSUILtNXE. [ClL\P. 175.
Organizaiio7u
Purposes of SECTION 47. Companies mav be incorporated under the pro\'isions 1
incorporation. ni.i pipn-^
Kinds of 01 this chapter tor the lollo'mng purposes: is72, 375, § 1. p. s. 119, § 20. 2
business. . „ _ _
1SS7, 214, § 29. 1S95, 474, § 1. R. L. 118, § 29.
1894, 133, § 1; 1S96, 447, § 1. 1907, 576, §§ 32, 122.
522, S§ 29, 30. 1900, 92, § 1. 1920, 327, § 1.
First, To insure upon the stock or mutual plan against loss or damage 3
to property by fire; explosion, fire ensuing; explosion, no fire ensuing, 4
except explosion of steam boilers and fl\T\heels; lightning, hail, or tern- 5
pest on land; earthquake, bombardment; invasion, foreign enemies, 6
insurrection, riot, ci^il war or commotion, military or usurped po\^■er; a 7
rising of the waters of the ocean or its tributaries; or by any two or 8
more of said causes; and against loss of use or occupancy caused thereby. 9
1901, 296, § 1. 1908, 509. 1917, 238, § 1.
R. L. lis. § 29, els. 1, 12. 1910, 499, § 1. 1920. 327. § 1. cl. 1.
1907, 576. § 32, els. 1, 12. 1913, 174. Op. A. G. (1917) 13.
Second, To insure upon the stock or mutual plan vessels, freights, 10
goods, money, effects, and money lent on bottomry or respondentia, 11
against the perils of the sea and other perils usually insured against 12
by marine insurance; risks of inland navigation and transportation; 13
also to insure against loss or damage to and loss of use of motor vehicles, 14
their fittings and contents, whether such vehicles are being operated 15
or not, and wherever the same may be, resulting from accident, collision. 16
and any of the perils usually insured against by marine insurance, or 17
1^7,576, §32, from risks of inland navigation and transportation; and against loss or 18
damage caused by teams, automobiles or other vehicles, except rolling 19
stock of railways, to the property of another, for which loss or damage 20
any person is liable. 3 Op. a. g. 39. Dp. a. g. (19i7) i3. 21
Third, To insure on the mutual plan against loss or damage to motor 22
vehicles, other than motor boats, their fittings and contents, whether 23
such vehicles are being operated or not, and wherever the same may 24
be, resulting from accident, collision, theft, and any of the perils usually 25
insured against by marine insurance, and risks of inland navigation and 26
transportation. 27
ilsl' 214' 1 29 Fourth, (a) To guarantee the fidelity of persons in positions of trust, 28
cL3.' ' ' private or public, and (5) to act as surety on official bonds and for the 29
cl. 3;' 522,' §29, performance of Other obligations. 30
1872
375
5 1.
P. S.
119,
§26.
1SS7
214
§29,
cl. 1
1894
133
§1,
cl. 1;
522,
§ 29.
cl. 1.
1893
474,
§l,c
1.1.
1896
447.
§l.c
1.1.
1900
92, § 1,
cl. 1.
1872
375,
§1.
P.S.
119,
§26.
1887,
214
§1,
cl. 2.
1894
133,
§ 1,
cl.2;
522,
§29,
cl. 2.
1895
474,
11,
cl. 2.
1896
447,
§ 1,
cl.2.
1900
92, s
1,
cl.2.
R. L
lis.
§29,
cl.2.
1907,
576,
§32,
cl.2.
190S
509.
1913
541.
1918
115,
§1.
1920
327,
§1,
cl.2.
1914
642.
cl. 3.
1895, 474, § 1, cl. 3. 1900, 92, § 1, cl. 3. 1907, 576, § 32, cl. 3.
1890, 447. § 1. cl. 3. R. L. 118, § 29, cl. 3. 1920, 327. § 1. cl. 3.
issj, 214. § 29, Fifth, To insure upon the stock or mutual plan against loss or damage 31
i89^i.i33,| ^ to property of the insured, and loss or damage to the life, person or 32
cL4! "■ ' ' property of another for which the insured is liable, caused by the ex- 33
ci4.' ' ' plosion of steam boilers, tanks or other receptacles under pressure, or 34
189^6,44 ,§1, .^jjgjj. connections, or by the breakage or rupture of machinery or fly- 35
i9oa 92, § 1, ^-i;igg}s^ and against loss of use and occupancy caused thereby. 36
1901, 296, § 1. 1907, 576, § 32, els. 4. 12. 1915, 178, § 1.
R.L. 118. §29, els. 4, 12. 1910, 499, § 1. 1920, 327, § 1, cl. 4.
1900. 396. 1914, 426.
lh~i ¥*' ^ ^^' Sixth, To insure upon the stock or mutual plan (a) any person 37
i89Vi|3, § i_. against bodily injury or death by accident, or (b) any person against loss 38
cl. 5^' _"" *" or damage on account of the bodily injiuy or death by accident of any 39
cl. 5"' ' ' ' person, or against damage caused by teams, automobiles or other 40
i89_o.44(, § 1, y(,]jjclcs, except rolling stock of railways, to the property of another, 41
Ch-^p. 175.] msuBANCE. 1967
42 for which loss or damage such person is liable, or (c) against loss or woo, 92. § 1,
43 damage to, or loss of use of, motor vehicles designed to operate on land, r. l. ii's, § 29,
44 their fittings and contents, whether such vehicles are being operated or fgoi_ 576, § 32,
45 not, and wherever the same may be, resulting from collision or accident, f^Q^ 24s.
46 except loss or damage by fire or while being transported in any convey- JgJi'liJ'^ '■
47 ance by land or water, and (d) to make insurance upon the health of isia.'asi; 750.
48 individuals. wis. 115, §2. W20, 327, § 1, a 5.
155 Mass. 404. 208 Mass. 386. 3 0p. A.G. 219.
199 Mass. 181. 2 Op. A. G. 289. 4 Op. A. G. 505.
49 Seventh, To insure against the breakage of plate glass, local or in iS73, i67, § i.
50 transit. iss?, 214, § 29, d. 6. is94,i33,§i,ci.6i522, §29,ci. 6. ■ ■ ^^ ^'
1S95, 474, § 1, cl. 6. WOO, 92, § 1, cl. 6. 1907, 576, § 32, cl. 6.
1S90, 447, § 1, cl. 6. R. L. US, § 29, cl. 6. 1920, 327, § 1, cl. 0.
51 Eighth, To insure against loss or damage to any goods or premises 1895,474, §i,
52 of the insured, and loss or damage to the property of another for which figi, 447, § 1,
53 the insured is liable, caused by the breakage or leakage of sprinklers, jljoo, 92, § 1,
54 pumps, water pipes, elevator tanks and cylinders, steam pipes and j[ ^- ^j^ ^ „g
55 radiators, or plumbing and its fixtures, or against accidental injury ^i. 7. ' ' '
56 from other causes than fire, lightning, bombardment or wind storm to ci. 7.'
57 such sprinklers, pumps, water pipes, elevator tanks and cylinders, 1920', 327', § 1,'
58 steam pipes and radiators, plumbing and fixtures; also to insure against '^''^"
59 loss or damage to any goods or premises of the insured, and loss or
60 damage to the property of another for which the insured is liable,
61 caused by the leakage of roofs, leaders and spouts, or by rain and snow
62 driven through broken and open windows and skylights, or caused by
63 the contents of any tank, or impact of any falling tank, tank platform
64 or supports erected in or upon any building, and to insure against loss of
65 use and occupancy due to any of said causes.
66 Ninth, To insure against loss or damage to property and loss of use is95, 474, § 1,
67 and occupancy arising from accidents to elevators, bicycles and vehicles, 1,^9^ 447, § 1,
68 except rolling stock of railways. "^'^ '^^
1900, 92, § 1, ol. 8. 1907, 576, § 32, cl. 8. 1920, 327, § 1, ol. 8.
R. L. 118, § 29, cl. 8. 1913,541.
69 Tenth, To carry on the business commonly known as credit insurance 1896,447, § 1,
70 or guaranty, either by agreeing to purchase uncollectible debts, or 1900, 92, § 1,
71 otherwise to insure against loss or damage from the failure of persons r. l. iis, § 29,
72 iqdebted to the insured to meet their liabilities. '^'- ^•
1907, 576, § 32. cl. 9. 1920, 327, § 1. cl. 9. 4 Op. A.G. 535.
73 Eleventh, To examine titles of real and personal property, furnish issi, iso, § i.
74 information relative thereto, and insure owners and others interested 1889', 378.'
75 therein against loss by reason of encumbrances, defective title or the §§^62,^64"'
76 insufficiency of any mortgage held or sold by the insurer as security f§29 d^io,G4
77 for the amount secured by such mortgage, or against any other loss J?"^'^^; ^(.^''ig 55
78 in connection with any such mortgage or any interest therein, and to wos.'sog.
79 buy and sell mortgages of real property and interests therein. §§ i,'4.
1920, 327, § 1, cl. 10. 4 Op. A.-G. 535.
80 Twelfth, To insure against property loss or damage by burglary, rob- 1900.92, § 1.
81 bery, any larceny, any breaking and entry or entry without breaking of fi n/'*' ^ ~°'
82 any house, building, ship, vessel or railroad car, and loss or damage by |'''32",'c1'^n.
83 forgery. ww, 96. 1920, 327, § 1, ci. 11.
84 Thirteenth, To insure against loss from the death of domestic animals 1910,499, § 1.
85 and to furnish veterinary service. li.'ii. "' '
1968
INSTIRANCE.
[Chap. 175.
Capital of
stock com-
panies.
1872, 375. § 2.
1873, 167, § 2;
182. § 1.
P. S. 119, §§ 28
63.
1883. 33. § 4.
1884, ISO. § 1;
296, §2.
$100,000.
$200,000.
$300,000.
$400,000.
Not over
$1,000,000,
except.
Section 48. Ten or more persons residents of this commonwealth
may form a company (a) to transact the business set forth in any one of
the clauses of the preceding section, (b) to transact the business set forth
in the first and second clauses thereof, or (c) to transact the business set
forth in any two or more of the fourth, fifth, sixth, seventh, eighth, ninth,
tenth, twelfth and thirteenth clauses thereof. is87, 214, §§ 31, 64.
IS88, 141.
1S94, 133. § 2;
522, 5§ 31, 64.
1895, 474, § 2.
1896, 447, § 2.
1900,92, § 2; 183. § 2.
1901, 296. § 2.
R. L. lis, § 31.
1907, 576, §§ 32, 122.
1910, 499, § 1.
1917, 146, § 2.
1920, 327. § 1.
Companies organized under this section shall have a paid-up capital 7
as follows: 8
Under the sixth clause, to insure only against sickness and against 9
the bodily injury or death by accident of the insured; and under the 10
seventh and thirteenth clauses, not less than one hundred thousand 11
dollars. 12
Under the first, fourth, fifth, sixth, except as otherwise provided 13
herein, eighth, ninth, tenth and twelfth clauses, not less than two hun- 14
dred thousand dollars. 15
Under the second clause, not less than three hundred thousand dollars. 16
Under the first and second clauses, not less than four hundred thou- 17
sand dollars. 18
Under the eleventh clause, not exceeding one million dollars; and if 19
insurance against the insufficiency of mortgages as security or against 20
any other loss in connection with mortgages, except insurance of titles 21
is transacted, not less than two hundred thousand dollars. 22
Under two or more of the clauses enumerated herein under (c), the 23
paid-up capital shall not be less than the largest amount required for the 24
transaction of the kinds of business specified in any one clause which it is 25
authorized to transact, and an additional amount equal to one half of 26
the minimum capital required above for the transaction of the kinds 27
of business specified in each additional clause which it is authorized to 28
transact. 29
Formation of
corporation.
1872, 375,
§§ 1.2,5.
1873, 1G7, § 1.
P. S. 119,
§§ 26-28.
1887. 214, 5 30.
1894. 522, § 30.
R. L. 110. § lU;
118, §30.
1907, 576,
15 33. 122.
1919, 333,
§ 14; 350,
§§ 52, 53.
1920, 2.
1872,375.
§§6-8.
P. S. 119,
§§ 32-34.
1872. 375,
§§ 9, 14.
P. S. 119, §35.
Section 49. The company shall be formed in the manner described 1
in and be subject to section nine of chapter one hundred and fifty-five 2
and sections six and eight to twelve, inclusive, of chapter one hundred 3
and fifty-six, except as otherwise expressly provided in this chapter. 4
The name of the corporation shall be subject to appro\al by the 5
commissioner, and shall contain the word "insurance" or, if organized 6
on the mutual plan, the words "mutual msurance". 7
The agreement of association shall state the classes of insurance it 8
proposes to transact and on what business plan or principle; and if a 9
mutual company, the amount of capital stock and the par value of 10
shares shall he omitted. 1 1
At the first meeting, only the directors and such other officers as 12
the by-laws require shall be chosen, and the president, secretary and 13
such other officers as the by-laws authorize them to choose shall be 14
chosen by the directors. 15
The certificate of organization shall be signed and sworn to by the 16
president, secretary and a majority of the directors, and shall, with 17
the records of the company, be submitted to the commissioner instead 18
of the commissioner of corporations and taxation, and he shall per- 19
form the duties relative thereto required of the commissioner of corpora- 20
tions and taxation relative to business corporations. 21
Chap. 175.] iNSUE.«srcE. 1969
22 The certificate issued liy the state secretary under section twel\'e of
2.3 chapter one hundred and fifty-six shall be modified to conform to the
24 requirements of this section.
25 The fee to be paid to the state secretary upon the fihng of the certifi-
26 cate of organization shall be twenty-five dollars.
1 Section 50. A stock company may, by a two thirds vote of all its Change of
2 stock, or a mutual company, by a two thirds vote of those members igil/^TIg.'' '^'
3 present and voting at a meeting duly called therefor, alter, add to or
4 change, to tiie extent authorized by this chapter, the business for the
5 transaction of which it was incorporated. Such articles of amendment,
6 signed and sworn to by the president and secretary and a majority of
7 the directors, shall, witliin thirty days after their adoption, be submitted
8 to the commissioner, who shall examine them in the same manner as
9 the original articles of organization. If he finds that they conform to
10 the requirements of law he shall so certify and endorse his approval
11 thereon, and they shall thereupon be filed in the office of the state secre-
12 tary, who, upon the receipt of a fee of fi^■e dollars, shall cause them and
13 the endorsement thereon to be recorded, and said articles of amendment
14 shall then be deemed to be a part of the charter or articles of organization
15 of the company. No amendment or alteration of the agreement of asso-
16 ciation or articles of organization shall take effect until said articles of
17 amendment shall liave been filed in the office of the state secretary as
18 aforesaid.
1 Section 51. No domestic stock company shall transact any busi- fj^nlsf which
2 ness other than that specified in its charter or agreement of association, maybecom-
,. ^ ii'ipi* ' n ^ 1 ^ t p "^ined bv stock
3 except that it may transact the kinds of business specified below by ret- companies
4 erence to the several clauses of section forty-seven, as follows:
1891. 195. 1898, 380, § 1. 1920, 327, § 2.
1894, 133, §§ 2, 3; 522, §§31, 80. 1900, 92, § 2; 183, § 2. 1 Op. A. G. 19.
1895, 474, §§ 2, 3. R. L. 118, §§ 29, 5li, 80. 4 Op. A. G. 535.
1896, 140, § 1; 447, § 2. 1907, 576, §§ 34, 122. Op. A. G. (1917) 13.
5 (a) The first and second, if authorized to transact either, provided it 1909, 192, § 1.
6 has a paid-up capital of not less than four hundred thousand dollars.
7 (6) Any one or more of the fourth, fifth, sixth, seventh, eighth, ninth, 1902, 340, § 1.
8 tenth, twelfth and thirteenth, if authorized to transact any one of said i9o\ 543I \lo.
9 clauses, provided it conforms to the requirements of section forty-eight \l°f^ Hf
10 in respect to paid-up capital. i'*'^' '^^^■
11 (c) The eighth, if authorized to transact the first.
12 (d) The sixth, if authorized to transact life insurance, pro\nded it has 1920. 152.
13 a paid-up capital of not less than four hundred thousand dollars.
14 (e) The first, if authorized to transact fire insurance.
15 (/) The fifth, if incorporated by special act to insure against loss or 1910, 499, § 2.
16 damage caused by the explosion of steam boilers.
17 {g) Any form of insurance not included in the provisions of section 1920, 327, § 2.
18 forty-seven, provided that such form of insurance is not contrary to law
19 and shall be transacted only upon express license of the commissioner and
20 upon such terms and conditions as he may from time to time prescribe.
1 Section 52. Contracts of insurance for each of the classes specified c?,""''"'''' '"■"
r»» • p 111 -ii* . p airlerent
2 in section forty-seven shall, except as provided in section twenty-iour, classes of insui-
3 be in separate and distinct policies, notwithstanding any pro\'ision of separate
4 this chapter whicji autliorizes a company to transact more than one of »cept!'etc.
505.
1970 msuR.u^CE. [Chap. 175.
1S96, 140, § 2. said classes; except that the commissioner may authorize the issuance of 5
R. L!iis,'§5fi. policies of insurance covering more than one of the said classes upon 6
1907,' 576,' ^ ^' such terms and conditions as he may prescribe and upon policy forms 7
inil^'sli^' approved by him; and except that any domestic company authorized to 8
1918 11' ^^^' transact the kinds of business specified in the fourth and twelfth clauses 9
i92o!327, §2. of scctiou forty-seveu may insure in one policy a bank, banker, in^'est- 10
4 Op. A. G. 38, ment broker, banking association or corporation against the loss of bills 1 1
of exchange, notes, profits, bonds, securities, evidences of debt, deeds, 12
mortgages, documents, currency and money, except against loss thereof 13
in marine transportation or transportation by common carrier. 14
Sin™oUcie"" Section 53. A company insuring property in the commonwealth 1
witifconi^ against loss or damage from explosion, except explosion of steam boilers 2
i9i7°23s 5 ■^ ^""^ fl^nvheels, bombardment, invasion, foreign enemies, insurrection, 3
riot, civil war or commotion, military or usiu-ped power, or any one or 4
more of them, shall file with the commissioner the forms of the policies 5
employed by it in such insurance. 6
Ms°'^which"ma,v SECTION 54. No domestic mutual company shall transact any other 1
certain mJftuaF kind of busiucss than is specified in its charter or agreement of associa- 2
i887"2i'r 5 31 ^^°"' ^^cept that it may in addition transact the kinds of business speci- 3
1894^ 133! § 2; fied below by reference to the several clauses of section forty-seven, as 4
1896,140; f oIloWS : 1898, 380, § 1. 1900, 92, § 2; 183, § 2. 5
**''•. ^ ^- R. L. lis, §§ 29, 56. 1907, 576, §§ 34, 122. 1920, 327, § 2.
1919! 140 (o) The second, if authorized to transact the first and it has two 6
1920, 327, § 2. million dollars of insurance in force in not less than eight hundred separate 7
risks. Any business transacted under said second clause shall be sub- 8
ject to all laws now or hereafter in force relating to the transaction of 9
business by a mutual fire company. 10
^^^^•-'- (b) The fifth, subject to the approval of the commissioner, if authorized 11
to transact the sixth, subdi\-ision (6); pro\'ided, that no policy shall 12
be issued under the fifth clause until one million dollars of insurance 13
has been applied for in not less than one hundred separate boiler risks. 14
The provision of section twenty-one that a mutual boiler company 15
may insure in a single risk an amount of not exceeding one fourth of 16
its net assets shall not apply to mutual companies acting under this 17
paragraph. 18
1917,191. ^g^ fpj^g fourth, subdivision (a), and the sixth, subdivisions (a) and (d), 19
if it is authorized to transact the sixth, subdivision (b); provided, that 20
before transacting the sixth, subdivisions (a) and (d), it shall have a 21
surplus of not less than one hundred thousand dollars, and before trans- 22
acting the fourth, subdi\'ision (o), a surplus of not less than two hundred 23
thousand dollars; and if it transacts both, a surplus of not less than three 24
hundred thousand dollars; and such surpluses shall be maintained while 25
it transacts the said kinds of business. 26
§§°34,?22. (d) The sixth, if authorized to transact life insurance, whether or not 27
327?'§'2 w. ''* ^^^^ ^ capital stock, provided it has a surplus of not less than four 28
hundred thousand dollars; but it shall not be authorized hereunder to 29
transact workmen's compensation insurance. 30
ifs'i.^i'll (e) The eighth, if authorized to transact the first. 31
1920, 327. § 2 (c).
1920. 327, 1 2*" if) TJie first, if authorized to transact fire insurance. 32
1920, 327, § 2. (^) Any form of insurance not included in the proA-isions of section 33
forty-seven; provided, that such form of insurance is not contrary to 34
CH.iP. 175.] INSUR.\NCE. 1971
35 law and shall be transacted only upon express license of the commis-
36 sioner and upon such terms and conditions as he mhy from time to time
37 prescribe.
1 Section 55. Mutual companies organized prior to April sixth, nine- Powers of
2 teen hundred and eleven, to transact employers' liability insurance may TOSpa^nfes"*"^'
3 continue such business under the sixth clause of section forty-seven. 522^'§'^3^f.' ^ ^'
■ 4 They may also transact all the kinds of business specified in the said JIqr; 147^5^2
5 sixth clause if authorized so to do by a vote of two thirds of the policy jl^^i®!' ^ ^'•
6 holders present and voting at a meeting called therefor. R- l- n's, § 29.
7 Mutual companies organized prior to March first, nineteen hundred 122.'
8 and fifteen, to transact steam boiler insurance may transact all the kinds i9n,' 251, § 1.
9 of business specified in the fifth clause of section forty-seven. I9I3; 750:
1915, 178, § 1.
1 Section 56. Any domestic corporation subject to chapter one hun- Reincorpora-
2 dred and seventy-six and confining its membership to a particular order comp°iny
3 or fraternit}^ or to chapter one hundred and seventy-seven, may by a two ehaptersiTs
4 thirds vote of its policy or certificate holders voting thereon adopt this ™,'~J-., . ,, -
•111 -ii pi'i *• 1907, 5/6, § 35.
5 section at a meeting called to consider the same, 01 which meeting written
6 or printed notice shall be mailed to each policy or certificate holder at
7 least thirty days before the day fixed for the meeting, and be reincor-
8 porated under this chapter as a stock company to insure only against
9 the disability of the insured by sickness and the bodily injury and death
10 of the insured by accident as proAided in subdi\'isions (a) and {d) of
11 the sixth clause of section forty-seven. The members of such corpora-
12 tions may vote on tliis proposition by prox>', if the instrument appoint-
13 ing the proxy is filed ■u'ith the secretary of the corporation at least five
14 days before said meeting, and the aforesaid notice to the policy and
15 certificate holders shall so state. A copy of such vote certified to by the
16 president, secretary and a majority of the directors of the corporation
17 shall be filed with the commissioner. If such vote be in the affirmative the
18 recording officer shall cause a notice to be mailed to each policy or cer-
19 tificate holder at his last known address, reciting the substance of such
20 vote, and stating that books for cash subscriptions for stock in said com-
21 pany have been opened in the home office and will continue open for
22 sixty days from the date of said notice, and that a policy or certificate
23 holder in said corporation may have a prior right within said period to
24 subscribe for said stock; and stating also that no member shall subscribe
25 for more than ten shares thereof, and that the par value shall be twenty-
26 five dollars per share; and stating also, in a form satisfactory to the
27 commissioner, the financial condition of the corporation at the time of
28 the meeting aforesaid. If within said period of sixty days the capital,
29 as fixed, shall be oversubscribed by policy or certificate holders, the
30 directors shall allot to each his proportionate part of the amount sub-
31 scribed. At the ex^jiration of said period of sixty days, the said right of
32 priority to subscribe shall cease, and subscriptions for stock then undis-
33 posed of may be received from any member or certificate holder or other
34 person and to any amount. Within thirty days after the stock has been
35 subscribed, a meeting of the subscribers shall be called by a notice signed
36 by the recording officer of the corporation, stating the time, place and
37 purpose of the meeting, a copy of which notice shall, seven days at least
38 before the day appointed for the meeting, be given to each subscriber,
39 or left at his usual place of business or residence, or deposited in the post
40 office, postpaid, and addressed to him at his usual place of business or
1972
rNSmiANCE.
[Ch.u'. 175.
1010, 499, § 2.
Directors; elec-
tion, number,
quorum, term,
classes.
Vacancies.
1832. 95, 5§ 3, 5,
R. S. 37,
§§3,5,7.
1S54, 453,
§§3,4.
1856,252, § 11.
G. S. 58, § 27.
P. S. 119, §51.
residence. Said recording officer shall make an affidavit of his doings, 41
which, with a copy of the notice, shall be recorded in the records of the 42
corporation. At such meeting, including any necessary or reasonable 43
adjournment thereof, by-laws of such stock company shall be adopted, 44
and the secretary, directors and such other officers as the by-laws re- 4,5
quire shall be chosen. The president, treasurer and other officers that the 46
said by-laws authorize them to choose shall be elected by the directors 47
at a meeting held directly after the adjournment of the stockholders' 48
meeting. A certificate of organization, containing a statement that the 49
capital stock has been paid in in cash, shall be signed and sworn to by the 50
president, secretary and a majority of the directors of such corporation, 51
and shall, with the records of the corporation pertaining to the reincor- 52
poration, be submitted to the commissioner. If it appears that the re- 53
quirements of this section have been complied with, the commissioner 54
shall so certify and approve the certificate by his endorsement thereon. 55
Such certificate shall thereupon be filed 'with the state secretary, who, 56
upon payment of a fee of ten dollars, shall issue to such corporation a 57
certificate of reincorporation as a stock company, xvith tlie powers re- 58
tained and hereby conferred. Upon the issuance of such certificate such 59
company shall cease to issue policies or certificates upon its former plan, 60
and shall tlien be empowered to transact its business under this chapter, 61
■with all the obligations, rights and pri\ileges that it would be subject 62
to had it been incorporated thereunder. 63
The company shall be subject to all the liabilities of the former cor- 64
poration, and be entitled to all its assets, including the emergency fund, 65
which shall be paid to it by the state treasurer, upon requisition signed 66
by the president and a majority of the directors, accompanied by a copy 67
of the certificate of reincorporation. All policies or certificates in force 68
at tlie date of reincorporation shall continue in full force and effect in 69
all their provisions, agreements and undertakings, and shall be construed 70
according to the laws under which they were issued, except that the 71
policy or certificate holder shall not be liable to any extra assessment; 72
provided, that the rates for benefits for death from natural causes may 73
from time to time be raised if the experience of the company shows it to 74
be necessary. Any defences or evidence relative to such policies or cer- 75
tificates open under such provisions shall constitute a defence, and shall 76
be received as evidence in any controversy between the parties to or 77
interested in such policies or certificates. No such reincorporated com- 78
pany shall declare a stock dividend unless its surplus thereafter would be 79
equal to the amount of the surplus at the time of reincorporation. 80
Any company reincorporated under this section may increase its 81
capital stock in the manner provided in section seventy, and may, if it has 82
sufficient capital, transact all the kinds of business permitted to domestic 83
companies by section fifty-one. 84
Stock Comimnies.
Section 57. The board of directors of each domestic stock company 1
shall consist of not less than five members, a majority of whom shall be 2
residents of the commonwealth, chosen by ballot from the stocldiolders. 3
They shall hold office for one year or for the term pro\'ided in the by-laws 4
as authorized in the following paragraph, and until their successors are 5
qualified. A majority of tJiose in attendance may transact business, and 6
not less than four shall constitute a quorum. isst. 214. § 32. 7
1894, 522, § 32. 1890, 253. R. L. 118, § 32. 1907, 570, §§ 36, 122.
CH.'i.P. 175.] mSXJEANCE. 1973
8 The by-laws of such a company may di\'ide its board of directors into By-iaws may
9 one, two, three or four classes, and provide for the election thereof at its tors into"*^'
10 annual meetings in such manner that one class only shall retire and vacandes, how
11 their successors be chosen each year. Vacancies in any class may be JjIj^m §25
12 filled by the board by election for the unexpired term. js^*' s??'. 1 25.
■^ K. ij. 118, s .so.
1907, 576, §§ 26, 122,
13 Vacancies in any other office may be filled by the directors or the other
14 stockholders as the by-laws may provide. 1854,453,54. 1356,252,511. how filled.
G, S. 58, § 27. 1S87, 214, § 32. R. L. 118, § 32.
P. S. 119, § 51. 1894, 522, | 32. 1907, 576, §§ 36, 122.
1 Section 58. The board of directors shall annually choose by ballot Directors,
2 a president, who shall be a member of the board, a secretary, and, if the is32?95,
3 by-laws so provide, a treasurer, who may also be the president or secre- II s. 37\'
4 tary, and such other officers as the by-laws may provide. ^^^ 3,4, 6, as.
1854, 4,53, §§ 1, 4. P. S. 119, § 52. R. L. 118, §§32, 41.
1856, 252, § 12. 1887, 214, | 32. 1907, 576, §§ 36, 44, 122.
G. S. 58. § 29. 1894, 522, § 32.
5 They shall call special meetings when written requests therefor, signed Jf '|'37'i 2
6 by owners of one fifth of the capital or by twenty stockholders, are filed i|?i^53'§2.
7 in the office of the company. All matters proposed to be acted upon at §§9,'r3."'
8 any meeting of the company shall be specified in the call therefor. §§ is, 29.
p. S. 119, §§41,53. 1894, 522, §§ 25, 32. 1907, 576, §§ 26, 36. 122.
1SS7, 214, §§ 25, 32. R. L. 118, §§ 25, 32.
9 They shall at each annual meeting of the company submit a full state- is54, 453, 1 12.
10 ment of the transactions of the company during the previous year and a^l.' ssf '§ 34^'
11 of its financial condition. p. s. 119, §os. is87, 214, § 32.
1894, 522, § 32. R. L. US, § 32. 1907, 576, §§ 36, 122.
1 Section 59. The president, or in his absence the vice president, if Duties of
n in • 1 Ti • PIT 1 r 1 1 T president and
2 any, shall preside at all meetings or the directors or stockholders. In .secretary.
3 the absence of both said officers a temporary president may be chosen. g. s.'ss,! 2s. "
1864,113. 1894, 522, § 32. 1907, 576, §§ 36, 44, 122.
P. 8.119. §52. R. L. lis, §§ 32, 41. 1908,471.
1SS7, 214, § 32.
4 The secretary shall keep a list of stockliolders and of the number of feo'^g?- «
5 shares standing in the name of each and a record of the transfers thereof. R..s.' 37', § i.
6 He shall keep a record of the ^•otes, which shall show whether cast in per- ism! 252,'
7 son or by proxy; a record of all other proceedings of all meetings of a.s'.'H,'
8 the directors or the stockholders; a record of all policies issued and of p^l'^iil;
9 all authorized assignments, transfers and cancellations thereof; and such f|s|''2*i^4 « 30
10 other books and records as the president and directors may require, r ''j*' f?|' ^ ^^•
11 The records so kept shall be evidence of all elections and of the transac- §§'32,41.'
12 tions to which they relate, and shall be open to the inspection of any in- §§ 36, 44,' 122.
13 terested person. A secretary who wilfully makes a false record shall be Penalty for
T.J 1 •!, p . false record.
14 deemed guilty 01 perjury. ,
1 Section GO. The president, vice president, if any, the secretary, Qualification
2 assistant secretary, if any, the treasurer and assistant treasurer, if any, is3"9'5,''§§i,4.
3 shall be annually sworn and their oaths entered of record in the books fg^' ^'s^m.*^'
4 of the company. isse, 252, § 12. G. s. 58, § 2S. 1864, 113, § 1.
( 36, 44, 122.
p. S. 119, §52.
1894, 522. § 32.
1907, 576,
1887, 214, § 32.
R. L. lis, §§ 32, 41.
1908, 471.
5 Each director shall file with the secretary a written acceptance of the Directors to
6 trust before he is qualified to act. isse, 252, § 11. aiceptanle.
G. S. 5S, § 27. 1887, 214, § 32. R. L. 118, § 32.
P. S. 119. S 51. 1894, 522, § 32. 1907, 576, |§ 36, 122.
1974
INSURAJSrCE.
[Chap. 175.
tTeSuieTto"^ The secretary and treasurer, if any, shall severally give bonds with 7
Ej,''^ bonds ^ sureties in such sums as the directors may require for the faithful per- 8
1S56! 252,' 1 9.' f ormance of their duties. 9
G. S. 5S, I 17.
p. S. 119, §41.
1S87, 214, § 25.
1S94, 522, § 25.
R.L. 118, 5 25.
1907. 576, § § 26, 122.
Rights of
stockholders
Proxies.
1832,95. § 3
R. S. 37. § 5.
1854, 453,
-)3.4
Section 61. Each stockholder of such a company shall be entitled 1
to one vote for each share he holds, not in excess of one tenth of the 2
capital, in the choice of directors and at all meetings of the company. 3
Proxies may be authorized by ■WTitten power of attornev, but no 4
1856,252.111. a; u 11 'i " c
G. s. S8, 5 27 omcer shall vote as proxy. 5
1S81, 142.
P. S. 119,151.
1887, 214, I 32.
1894, 522, I 32.
R. L. 118, 5 32.
1907, 576, |§ 36, 122.
Liability of
officers.
1817, 120. § 4.
R. S. 37. § 18.
1854, 453, § 12.
1856, 252,
§S 14, 16.
G.S. 58,
5§31,33.
1864, 29.
P. S. 119,
§§ 55, 57.
1887, 214, § 33.
1894, 522, § 33.
R. L. 118, § 33.
1907. 576,
§§36, 122.
10 Gray, 325.
Section 62. The directors or other officers of such a company 1
making or authorizing an inv'estment or loan in violation of sections 2
sixty-three, sixty-five or sixty-six shall be personally liable to the 3
stockholders for any loss caused thereby. 4
If they allow to be insured on a single risk a larger amount than 5
authorized by section twenty-one, they shall be personally liable for 6
any loss in excess of the amount to which they might law-fully insure. 7
If they make or assent to further insurance knowing that the accrued 8
losses of the company ecjual its net assets, they shall be personally liable 9
for any loss under such insurance. 12 Gray, 355. 10
Pa\*ment and
investment of
capital and
resen'e.
1832, 95. I 2.
R. S. 37, § 9.
1854, 453, § 5.
1856, 252, § 14.
G. S. 58, § 30.
1S72, 325.
§§2,3.
P. S. 119,
§§54, 00,
Investments of All Cotnpanies.
Section 63. The capital stock shall be paid in cash within twelve 1
months after the date of the charter or certificate of organization, and 2
no certificates of full shares and no policies shall be issued until the 3
whole capital is paid in. A majority of the directors shall certify on 4
oath that the money has been paid by the stockholders for their respec- 5
tive shares, and that the same is held as the capital of the company, in- 6
vested or to be invested as required by this section. 7
122.
1885, 308.
1887, 214. § 34.
1894, 522, § 34.
R. L. 118, § 34.
1907, 576, §§ 37
146 Mass. 224.
1817, 120. § 3.
R. S. 37, § 10.
1838, 208.
1838, 35.
1845, 55.
1.S56, 2.i2. § 14.
G. S. 58. § 31.
1864. 29.
P. S. 119, §55.
1887, 214, § 34.
1894, 522, § 34.
1896, 171.
R. L. 118, § 34.
1907, 576,
§§ 37, 122.
1909, 92.
1910, 375, § 1.
The capital of any domestic company other than life, and three 8
fourths of the reserve of any domestic stock or mutual life company, 9
shall be invested oidy as follows: 10
1. In the public funds of the United States or District of Columbia, 11
or of any state of the United States. 12
2. (a) In the legally authorized bonds or notes of any county, city, 13
town, school or water district in the commonwealth. 14
(b) In the legally authorized notes or bonds of any county, city, 15
school or water district in any other state in the United States which 16
are a direct obligation of the county, city, school or water district issu- 17
ing the same, and which has a population, according to the last national 18
or state census preceding the date of such investment, of more than 19
one hundred thousand inhabitants. 20
(c) In the legally authorized bonds or notes of any county, city, 21
town, school or water district in any such other state of the United 22
States which are a direct obligation of the county, city, town, school 23
or water district issuing the same whose indebtedness, after deducting 24
the amount of its water debt and securities in the sinking fmids avail- 25
able for payment of its bonds, does not exceed five per cent of the valua- 26
Chap. 175.] insue.\nce. 1975
27 tion of property therein, as assessed for ta.xation next preceding the
28 date of such investment.
29 3. In the bonds or notes of any railroad or street railway corporation 4 Op. a. g. 144.
30 incorporated or located wholly or in part in the commonwealth, or in
31 the mortgage bonds of any railroad corporation located wholly or in
32 part in any state of the United States whose capital stock equals at
33 least one third of its funded indebtedness, which has paid regularly
34 for the five years next preceding the date of such investment all in-
35 .terest charges on said funded indebtedness, and which has paid reg-
36 ularly for such period dividends of at least four per cent per annum
37 upon all its issues of capital stock, or in the mortgage bonds of any rail-
38 road, railway or terminal corporation which have been, both as to
39 principal and interest, assumed or guaranteed by any such railroad or
40 railway corporation.
41 4. In the mortgage bonds of any railroad corporation located wholly
42 or in part in any state of the United States whose liens junior to such
43 mortgage bonds equal at least one third of the funded indebtedness
44 secured by such mortgage bonds and bonds prior thereto which has
45 paid regularly for the five years next preceding the date of such invest- '
46 ment all interest charges on the said funded indebtedness, and which
47 has paid regularly for such period at least four per cent interest on
48 such junior securities.
49 5. In loans upon improved and unencumbered real property in any 3 0p. A.G.147.
50 state of the United States, and upon leasehold estates in improved real * '''^' ■^^*'
51 property for a term of ninety-nine years or more where fifty years or
52 more of the term is unexpired and where unencumbered except by
53 rentals accruing therefrom to the owner of the fee, and where the mort-
54 gagee is entitled to be subrogated to all the rights under the leasehold,
55 provided tha,t no loan on such real property or such leasehold estate shall
56 exceed sixty per cent of the fair market value thereof at the time of such
57 loan, and a certificate of the value of such property shall be executed
58 before making such loan by the persons making or authorizing such
59 loan on behalf of the company, which certificate shall be recorded on
60 the books of the company.
61 6. In such real property as shall be requisite for convenient accom-
62 modation in the transaction of its business and subject to section
63 sixty -four.
64 7. In loans upon the security of its own policies, not exceeding at
65 the time of making the loan the legal reserve on the policy.
66 8. In loans secured by collateral security consisting of any of the above, s Op. a. g. 147.
1 Section 64. All investments and deposits of the funds of any such investments.
2 company shall be made in its corporate name; and no director or other r. s.'st, § 14.
3 officer thereof, and no member of a committee having any authority §§^'1,^*2.'
4 in the investment or disposition of its funds, shall accept, or be the }|fg' |f|' ^ ^•
5 beneficiary, either directly or remotely, of any fee, brokerage, commis- || *■ 3|-
6 sion, gift or other consideration for or on account of any loan, deposit, g. s.'ss.
• §§ 20 21 23
7 purchase, sale, payment or exchange matle by or in behalf of such com- i872,'375'. §'is.
8 pany, or be pecuniarily interested in any such purchase, sale or loan, p. s.'ii9,
9 either as borrower, principal, co-principal, agent or beneficiary, except i8lr|'2i4.'*|' Is!
10 that, if a policy holder, he shall be entitled to all the benefits accruing ^^f; l\f^ 1 1|;
11 under the terms of his contract. ss'ffi ^li
12 No investment, sale or loan, except loans on its own policies, shall iii Mass. '292.
13 be made which has not first been authorized by the board of directors, 4Op;a!g;208;
1976
INSUE.\NCE.
[Chap. 175.
Loans on
mortgages.
1910. 375, 5 2.
191U. 5.
or by a committee thereof charged with the duty of investing or loaning 14
the funds of the company; nor shall any deposit be made in a bank or 15
Imnking institution unless such bank or banking institution has first IG
been approved as a bank of deposit by the board of directors or said 17
committee thereof, and unless the vote authorizing such investment, 18
sale or loan or approval of the place of deposit has been duly recorded 19
in the books of the company. 20
No domestic company hereafter acquiring title to real estate under 21
the conditions of any mortgage owned by it, or by purchase or set-off 22
on execution upon judgment for debts due it previously contracted in 23
the course of its business, or by other process in settlement for debts, 24
shall hold it for a longer period than five years without the WTitten 25
permission of the commissioner; nor shall any such company invest 26
in real estate except to the extent that may be necessary for its con- 27
venient accommodation in the transaction of its business, and then in 28
no case to exceed ten per cent of its invested assets, including cash in 29
banks. 30
Such company shall not engage in buying or selling goods, wares or 31
merchandise, except articles insured by it on which losses are claimed, 32
and except in replacing, rebuilding or repairing insured property as pro- 33
vided in its policies. 34
Section 65. No domestic company shall, except in effecting the 1
sale of real estate owned by it, and then only with the approval of the 2
commissioner, invest any of its funds in loans upon mortgages ex- 3
cept upon the conditions expressed in the fifth paragraph of section 4
sixtv-three. 5
Investments
of life com-
Section 66. No domestic life company shall in\'est any of its funds 1
p^Pi'^jjg ^ _ in any unincorporated business or enterprise, or in the stocks or evidence 2
sop'. A. G. 14?; of indebtedness of any corporation the owners or holders of which 3
stock or evidence of indebtedness may in any event be or become liable 4
on account thereof to any assessment except for taxes, nor shall such 5
life company invest any of its funds in its own stock or in the stock 6
of any other company. No such company shall in\'est in, acquire or 7
hold directly or indirectly more than ten per cent of the capital stock of 8
any corporation, nor shall more than ten per cent of its capital and 9
surplus be invested in the stock of any one corporation. No such com- 10
pany shall subscribe to or participate in any underwTiting of the pur- 11
chase or sale of secm-ities or property, or enter into any transaction 12
for such purchase or sale on account of said company jointly with any 13
other person, nor shall any such company enter into any agreement 14
to withhold from sale any of its property, but the disposition of its 15
property shall be at all times within the control of its board of directors. 16
3 0p. A.G. 147. Nothing in this section or in section sixty-three shall prevent such 17
company from inN'esting or loaning any funds, not required to be in- IS
vested as provided in subdivisions one to eight, inclusive, of section 19
sixty-three, in any manner that the directors may determine; proA-ided, 20
that such funds shall not be invested in the purchase of stock or evi- 21
dence of indebtedness prohibited by the preceding paragraph, and pro- 22
vided that no loan of such funds shall be made to an individual or firm 23
unless it is secured by collateral security. 24
1909,95. Nothing in this section or in section sixtj'-three shall prevent any 25
such life company from entering into an agreement for the purpose 26
8.
Chap. 175.] insurance. 1977
27 of protecting the interests of the company in securities lawfully held
28 by it, or for the purpose of reorganization of a corporation which issued
29 securities so held, and from depositing such securities with a committee
30 or depositaries appointed under such agreement, nor from accepting
31 corporate stock or bonds or other securities which may be distributed
32 pursuant to any such agreement, or to any plan of reorganization; and
33 nothing in this section or section sixty-tlii-ee shall prevent any such life
34 company from acquiring or holding any property acquired in satisfac-
35 tion of any debt previously contracted, or that shall be obtained by
36 sale or foreclosure of any security held by it; pro\'ided, that if the
37 property owned be such as is prohibited for investment by such com-
38 pany, it shall dispose of such property, if personal, •within one year,
39 and if real estate, within five years, from the date when it acquired
40 title to the same, unless the commissioner shall extend the time for
41 such disposition for the reason that the interests of the company will
42 suffer materially by a forced sale of such property.
43 A record of such extension shall be made by the commissioner, which
44 shall state the time of the extension, and in that event the sale of said
45 property may be made at any time before the expiration of the time
46 of such extension.
1 Section 67. Nothing in the charter of any domestic mutual life same subject.
2 company shall limit the investments of such company unless such Jsgf; 522 § 2s,
3 limitation is contained in the general insurance laws in force at the f907"s7l' ^
4 time of making the investment. §§ ^i, 122.
1 Section 68. All property held by any domestic company the in- Prohibited
2 vestment in or loan on which by such company is prohibited by this to'be's"lu'.'^
3 chapter shall be sold and disposed of forthwith unless the time be ex- HqI'^ gj''' ^ ^''■
4 tended by the commissioner in the manner provided in section sixty-
5 six or has been so extended.
Provisions as to Capital Stock.
1 Section 69. If the net assets of the company do not amount to Assessment
2 more than three fourths of its capital, it may make good its capital inipXwi.
3 by assessment of its stock. §'§'7-9^^'*'
4 Shares on which such assessment is not paid within sixty days after jiji' P'^iV-
5 demand shall be forfeitable, and may be cancelled by a vote of the T^^h^'.f
6 directors, and new shares issued to make up the deficiency. iss7, 214, s 35.
7 If such company shall not, within three months after notice from r. l'. ns', § 35!
8 the commissioner, make good its capital as aforesaid, or reduce the §§'3^8,^122.
9 same as pro\ided in section seventy-one, its authority to transact new
10 business shall cease.
1 Section 70. Such company may issue pro rata to its stockholders increnseof
2 certificates of any portion of its actual net surplus it may decide to isja^ivs.
3 divide, which shall be deemed to be an increase of its capital to the is75^'27's5
4 amount of such certificates, or such company may, at a meeting called lF|lf^'
5 therefor, vote to increase the amount and number of shares of its capital p. s. 119.
6 stock, and to issue certificates thereof when paid in full. If a company is87"'2i4. 1 36.
7 shall vote to increase its capital in the second of tlie two ways set forth n^t'. ui] | sei
8 in this section, the directors shall fix the price, not less than par, at ^^fig^^zi.
9 which, and the time, not less than thirty days after the date of such i^'^' ^'^''■
10 vote to increase, within which the new stock may be taken by the
1978 INSUE.iNCE. [Ch.\p. 175.
stockholders. And the directors shall forthwith give wTitten notice to 11
each stockholder who was such at the time of the vote to increase, 12
stating the amount of the increase, the number of shares or fractions 13
of shares of new stock that such stockholder is entitled to take, the 14
price at which and the time within which such new stock may be taken. 15
Within said time each stockholder may take, at the price fixed as afore- 16
said, his proportion of such new shares at the date of such vote to in- 17
crease. If at the expiration of such time any shares remain untaken, 18
the directors may sell the same for the benefit of the corporation in 19
such manner and for such price, not less than the price fixed as afore- 20
said, as they may determine. In whichever mode the increase is made, 21
the company shall, within thirty days after the issue of such certifi- 22
cates, submit to the commissioner a certificate setting forth the pro- 23
ceedings thereof and the amount of such increase, signed and sworn to 2-1
by its president and secretary and a majority of its directors. If the 25
commissioner finds that the increase is made in conformity to law, he 26
shall endorse his approval thereon; and upon filing such certificate so 27
endorsed 'vsith the state secretary and the payment of a fee of five dollars 28
for filing the same, the company may transact business upon tJie capital 29
as increased, and the commissioner shall issue his certificate to that effect. 30
?f'^^a"pTtai" Section 71. If the capital stock of a company is impaired as set 1
Ifi-i'' forth in section six, such company may, upon a %-ote of a majority of 2
f§ 65^68' ^^^^ stock represented at a meeting legally called for that purpose, re- 3
1S87, 214. § 37. duce its capital stock and the number of shares thereof to an amount 4
li. L. lis', § s7. not less than the minimum amount required by sections forty-eight and 5
§§°46,^i22. fifty-one. But no part of its assets and property shall be distributed to 6
its stockliolders. 7
Within ten days after such meeting the company shall submit to S
the commissioner a certificate setting forth the proceedings thereof 9
and the amount of such reduction and the assets and liabilities of the 10
company, signed and sworn to by its president, secretary and a ma- 11
jority of its directors. If the commissioner finds that the reduction is 12
made in conformity to law and that it will not be prejudicial to the 13
public, he shall endorse his approval thereon and upon filing the cer- 14
tificate, so endorsed, with the state secretary and paying a fee of fi^•e 15
dollars for the filing thereof, the company may transact business upon 16
the capital as reduced, and the commissioner shall issue his certificate 17
to that effect. IS
Such company may, by a majority vote of its directors, after such 19
reduction, require the return of the original certificates of stock held 20
l>y each stockliolder in exchange for new certificates which it may issue 21
in lieu thereof for such number of shares as each stockholder is entitled 22
to in the proportion that the reduced capital bears to the original 23
capital. 24
1817? i2a'§ 2. Section 72. No stock company shall make a dividend, citlier in 1
isol; 252,S'io. '^^sh or stock certificates, except from its actual net surplus computed 2
187'' 375^^17 ^^ required by law in its annual statement, nor shall any such com- 3
1874', 222.' pany which has ceased to do new business divide any portion of its 4
1877; 36.' assets, except surplus, to its stockholders until it shall have performed 5
§§'i,'2. ■ or cancelled its policy obligations. Any such company may declare 6
["ilg^TO, 72. and pay, annually or semi-annually from its surplus, cash dividends to 7
isll; 289.' ^ ^*' its stockholders of not more than ten per cent of its capital stock in 8
Chap. 175.] estsubance. 1979
9 a year, and if the dividends in any year are less than ten per cent the is94, 322. § ss.
10 difference may be made up in any subsequent year from surplus accumu- fno?,' sto,' ^ ^*'
11 lations; but any such company may pay such dividend as the directors flill'sg^^"
12 may consider prudent out of any surplus remaining after deducting from
13 the assets all securities and book accounts on which no part of the prin-
14 cipal or interest has been paid within the last year and for which fore-
1.5 closure or suit has not been commenced for collection, or which after
16 judgment obtained thereon shall have remained more than two years
17 unsatisfied and on which interest shall not have been paid, and also
18 deducting all interest due and unpaid on any property of the company.
Mutual Companies.
1 Section 73. No policy shall be issued by a mutual fire company Mutual fire
2 organized subsequent to April twenty-third, eighteen hundred and iss™e o"'*"^'
3 ninety-four, nor by a mutual fire company with a guaranty capital of isss'^uy, 5 5
4 less than one hundred thousand dollars, until not less than one million f^.f ^l- § ^^■
5 dollars of insurance, in not less than four hundred separate risks upon 1S54! 453, s 22.
6 property located in the commonwealth, has been subscribed for and isss! iso.'
7 entered on its books. No policy shall be issued under this section until 1372: 375, § 10.
8 a list of the subscribers for insurance, with such other information as i\a'n9,
9 he may require, shall have been filed with the commissioner, nor until flgyfa^H, § 39,
10 the president and secretary of the company shall have certified on oath P^^i^gg'
11 that every subscription for insurance in the list so filed is genuine and lllflf^-
12 made with an agreement with every subscriber for insurance that he will R. l! us. § 30.
13 take the policies subscribed for by him within thirty days of the grant- 1907! S76',
14 ing by the commissioner of a certificate to issue policies as provided by flittsMf'
15 section thirty-two. If such officei-s shall make a false oath relative to ^^^^■*''-
16 such list, they shall be guilty of perjury. Op. a. g. (1919) 120.
1 Section 74. No mutual fire company operating on the cash certain mutual
2 premium plan as provided in section eighty-one, nor any mutual fire notto'm'akT^
3 company with a guaranty capital of less than one hundred thousand 'uranTe wUh-
4 dollars, either of which has become insolvent, or through reinsurance or ?qo4 g'JJiV^"'''^'
5 cancellation or expiration of risks has on its books less than one million wo?^ 570^
6 dollars of insurance in force, not reinsured, or has less than foiu* hundred 19127403T
7 separate risks in the commonwealth, shall make any further insurance
S until it has secured applications for policies which, together with the
9 unreinsured risks in force, shall amount to not less than one million
10 dollars in not less than four hundred separate risks in the common-
11 wealth, said applications to be subject to the provisions of the pre-
12 ceding section applying to the subscriptions for insurance in a new
13 company; provided, that whenever such reinsurance has been effected
14 for the purpose of reducing the company's liability on account of ex-
15 cessive loss, the number and amount of said applications for policies
16 shall not be required within one year thereafter. Upon the filing of
17 applications under tliis section with the commissioner, he may make
18 such investigation as he deems proper, and, if his findings warrant it,
19 grant a certificate to such company to issue policies.
1 Section 75. No officer or other person whose duty it is to deter- Compens.ition
2 mine the character of the risks, and upon whose decision the appli- det'ermi'ning
3 cation shall be accepted or rejected by a mutual fire company, shall I'lglisoo;
4 receive as any part of his compensation a commission upon the pre- iggo^ilo
1980 msTJRANCE. [Chap. 175.
1897, 62. miums; but his compensation shall be a fixed salary, and, if the directors 5
1904.' 300.' ' so determine, a share of the net profits. Nor shall such officer or person 6
§§'42 ^22. aforesaid be an employee of any officer or agent of the company. 7
1912,403.
Membera of SECTION 76. Every person insured by a mutual fire company shall 1
companies. be a member while his policy is in force, entitled to one vote for each 2
R. s.' 37, '§ 3o: policy he holds, and shall be notified of the time and place of holding 3
lilt', 252; § M: its meetings by a wTitten notice or by an imprint, in type not smaller 4
?87o', sfofir. tlian long primer, upon the filing-back of each policy, receipt or certifi- 5
p^s^'no!' cate of renewal, as follows: 6
§§ 78, so! .
1894' 522 I 4a The assured is hereby notified that by virtue of thi.s policy he is a member of
R. l'. lis', § 40^ the Insurance Company, and is entitled to vote either in person
§hVi''2 or by proxy at any and all meetings of said company. The annual meetings are
Op. A. G. ■ held at its home office on the day of in each year, at
(1920) 258. o'clock.
Penalty, § 1S8.
The blanks shall be duly filled in print, and shall be a sufficient 7
notice. 8
liil' 453 § 16 A corporation becoming a member of such company may authorize 9
isss; 252' §^2g: any person to represent it in such company, and such representative 10
P.S.119. § S4. shall have all the rights of any individual member. 11
1887,214,140. 1894, 522, § 40. R. L. 118. § 40. 1907, 570, §§ 43, 122.
s?s, § 59. Any person holding property in trust may insure the same in such 12
3^7 2H ^4^6 company, and as such trustee assume the liabilities and be entitled to 13
1843. 8:
G
P.
1894! 622! §40! thc rights of a member, but shall not be personally liable upon such 14
R. Lf. lis,
§40.
contract of insurance. i907, 576, §§ 43, 122. 1.5
TuthJIrLed Mcmbcrs may vote by proxies dated and executed within three 16
1835, 147, § 3. months, and returned and recorded on the books of the company tliree 17
1S54', 453, § 15. days or more, before the meeting at which they are to be used. No 18
a'^s! isr's 43!*' person shall, as attorney or otherwise, cast more than twenty votes, and 19
Ra'n9,'5 80. no officer shall, himself or by another, ask for, receive, procure to be 20
liol; 522, 1 4°: obtained or use a proxj- to vote. R. i.. ns, § 40. 1907, 576, §§ 43, 122. 21
compares" SECTION 77. Every such company shall elect by ballot a board of 1
d^recTore dircctors as provided in and subject to section fifty-seven, except that 2
1835, 147, it shall consist of not less than seven members and that five shall con- 3
R. s'. 37, stitute a quorum. After the first election members only shall be eli- 4
is54^4M, § 15. gible, but no director shall be disqualified from serving the term for 5
§§^23,^25,' 37. wliich hc was elected by reason of the termination of his policy. Such 6
?§ 43^45 40 companies having a guaranty capital shall choose one half of the direc- 7
ll?i:23o:^''- tors from the stockholders. 8
1879, 58. 1894, 522. § 40. 1915, 7, § 1.
P. S. 119, 5§ 79,82, S3. R. L. lis, §§40. 41. 8 .\llen, 217.
1SS7, 214, § 40. 1907, 576, |§ 43, 44, 122. Op. A. G. C1920) 25.8.
?85Br252, Such board may call special meetings of the cornpany, of which each 9
G.l^'sl!" member shall have such notice as the by-laws provide, and they shall 10
p sMo' f'^1^ ^^'^^ meetings when requested in writing by twenty members or 11
^3?'^?'; , ., bv the owners of one fifth of the guaranty capital, stating the purpose 12
1S87, 214. § 41. i*" n TO
1894. 522, § 41. thereof. r. l. iis, §4i. i907, 576, §§44, 122. 16
how'^afild.' Vacancies in any office may be filled in such manner as the by-laws 14
provide. 15
compaiier SECTION 78. Such compauics shall be subject to the first para- 1
certain* scrtions. graph of scctlou fifty-cight, cxccpt that a treasurer shall be chosen, and 2
Chap. 175.] insue.\nce. 1981
3 to section fifty-nine, except that the secretary shall keep a record of all Jf'''!']*''' ^ *•
4 proceedings of the meetings of the members, and to the first and third §§ 26, 27.
5 paragraphs of section sixty.
1851,157. P. S. 119, §§ 81,83. R. L. 118, § 41.
1856, 252, 5§ 24, 37. 1887, 214, § 41. 1907, 576, §§ 44, 122.
G. S. 58, §§ 44, 46. 1894, 522, § 41. 190S, 471, § 1.
1 Section 79. A mutual fire company may be formed with, or an Guaranty
2 existing mutual fire company may establish, a guaranty capital of not Dividends.
3 less than twenty-fi^■e thousand nor more than two hundred thousand i8'72"3"75,"''
4 dollars, divided into shares of one hundred dollars each, to be invested f|73|'i77.
5 as provided by this chapter for the investment of the capital stock jl^' ||5' § '•
6 of domestic companies. The stockholders of the guaranty capital shall ?;§;,U|^'
7 be entitled to a semi-annual di\idend of not more than three and one half i8S7, 214, § 42.
8 per cent on their respective shares if the net profits or unused premiums, 1894! 522, § 42.
9 left after all expenses, losses and liabilities then incurred, with the reser\-e ^°t n% § 42.
1 0 for reinsurance, are pro\dded for, shall be sufficient to pay the same. The ll°Ji^^{2i.
1 1 guaranty capital shall be applied to the pajinent of losses only when ^^^ ^'^if- ^o^.
12 the company has exhausted its assets, exclusiveof uncollected premiums; (1920) 25s.
v.] and when thus impaired, the directors may make good tlie whole or any
11 part of it by assessments upon the contingent funds of the company at
1,5 the date of such impairment. Shareholders and members of such com-
10 panics shall be subject to the same provisions of law relative to their
17 right to vote as apply respectively to shareholders in stock companies
IS and policy holders in mutual companies; ami said guaranty capital shall
19 be retired when the profits accumulated under section eighty ecjual two
20 per cent of its insurance in force; and said guaranty capital may be
21 reduced or retired by vote of the policy holders of the company and the
22 written assent of the commissioner, if the net assets of the company
2,'5 above its reinsurance reserve and all other claims and obligations, ex-
24 clusi^'e of guaranty capital, for two years last preceding and including
25 the date of its last annual statement, shall be not less than twenty-five
26 per cent of the guaranty capital. Due notice of such proposed action
27 on the part of the company shall be mailed to each policy holder of the
28 company not less than thirty days before the meeting when such action
29 may be taken, and shall also be adAcrtised in two papers of general
30 circulation, approved by the commissioner, not less than three times a
31 week for a period of not less than four weeks before said meeting. No
32 company with a guaranty capital which has ceased to do new business
33 shall divide among its stockholders any part of its assets or guaranty
34 capital, except income from investments, until it shall have performed
35 or cancelled its policy obligations.
1 Section 80. From time to time the directors of a mutual fire com- Dividends.
2 pany may by vote fix and determine the percentages of dividend or profits"e'tcr
3 expiration return of premium to be paid on expiring policies, which r*^|; 37!'^'§y"'
4 may in their discretion be different for policies insuring farm, manu- }|^g; 25!; | io.
5 facturing or storage risks from those insuring other classes of risks of ^^s. ss,
6 the same term. But policies insuring risks in the commonwealth in i|63, 240, § 0.
7 the same classification shall have an equal rate of dividend or return §§3,' 5.
8 premium, and in case of an assessment the rate thereof may be dif- §§90.97'.
9 ferent for policies insuring farm, manufacturing or storage risks from §§^«,^4'*.'
10 that on policies insuring other classes of risks for the same term; but }s9j;522,
11 policies insuring risks in the same class shall have the same rate of as- ilgy'^'igy 5 1
1982 INSURANCE. [Chap. 175.
R. L. lis, sessment. Every policy placed in the said class of farm, manufacturing 12
im'm. or storage risks shall, when issued, bear an endorsement to the effect 13
If Ih^l?: 122. that it is so classified. 14
1909 39o' ^ny such company may accumulate and hold profits, but only until 15
191?' q''^' ^""^h profits equal four per cent of its insurance in force; and such ac- IG
9 Allen. 29. cumulatiou shall be subject to the laws relative to the investment of 17
4 0p. a!g. ■ the capital stock of domestic companies, and may be used from time IS
to time in the paAonent of losses, di\adends and expenses. 19
E%-ery policy holder of a domestic company and every policy holder 20
in this commonwealth of a foreign company shall be notified, at his last 21
known address, within six months after the expiration of his pohcy, of 22
the amount of any di^■idend declared and payable thereon, unless in the 23
meantime such dividend has been paid in cash or applied in paj-ment 24
of the premium on the renewal of the policy. 25
Premium. SECTION 81. Mutual fire Companies, except as provided in the follow- 1
552.
Contingent
O
iiahiiit.v ing section, shall charge and collect upon their policies a full mutual
p. s.' Ill),' §97. premium in cash or notes absolutely payable. Any such company 3
1894! 522! i %'. may in its by-laws and policies fix the contingent mutual liability of 4
Mm. 576.' ^ '*"■ its members for the payment of losses and expenses not provided for 5
1 o*p*'a."g. by its cash funds, but such contingent liability of a member shall not 6
o^A G be less than an amount equal to and in addition to the cash premium 7
(1920)140. T^Titten in his policy. The total amount of the liability of the policy S
holder shall be plainly and legibly stated upon the filing-back of each 9
policy. WTienever any reduction is made in the contingent liability of 10
members, such reduction shall apply proportionally to all policies in 11
force. 12
Mmplnies SECTION 82. ^lutual fire companies organized prior to May twenty- 1
may take Q^^f eighteen hundred and eightv-seven, and now lawfully doing busi- 2
deposit notes. J t? , « , . , • r> e i o
1876, 120, ness upon the plan of takmg deposit notes tor a percentage or the amount 6
1877, 198. insured by their policies, and making a call or assessment thereon for 4
Rs'iil.''' expenses and for the paj-ment of losses only after such losses are in- 5
ils^la^ii J 46. curred, may continue such system of business, and such deposit notes 6
R ^L lis, 1 46: shall constitute the entire liability of their members. 7
1907, 576, §§ 49, 122. 1 Op. A. G. 158. Op. A. G. (1920) 140.
is35!^i47"?7. Section 83. If a mutual fire company is not possessed of assets 1
?8m; 453,^^18. above its unearned premiums sufficient for tlie paj-ment of incurred 2
i|5|J252,'^^ losses and expenses, it shall make an assessment upon its members liable 3
G S.58,' ' to assessment therefor, in proportion to their several liabilities, for the 4
1863, '249, §4. amount needed to pay such losses and expenses. 5
1877; 198. The company shall cause to be recorded in a book kept therefor the 6
l§ 97-100, 107. order for such assessment, with a statement setting forth the condition 7
H «,^47,'4s. o^ the company at the date of the order, the amount of its cash assets 8
1S94622 ^^'^ °^ its deposit notes or other contingent funds liable to the assess- 9
§§44,47,'48 ment, the amount which the assessment calls for, and the particular 10
R.Liiis! ' losses or other liabilities for which it is to provide. The said record 11
ilol'^'sre,^*' shall be made and signed by the directors voting for the order, before 12
i9i3°'343^' any part of the assessment is collected, and any person liable to the 13
7 A"e^n,^23\ ^°' asscssmcnt may inspect and take a copy of the same. _ 14
9 Allen 319 ^^ ^y Tcason of any depreciation or loss of its funds or otherwise 15
*S3. ' ' the assets of such a company, after providing for its other debts, are 16
CH-VP. 175.] INSURANCE. 1983
17 less than the unearned premiums upon its policies, it shall make good no'^Ma^'s^iib
18 the deficiency by assessment in the mode above provided; or the di- }^| i*. is^. '
.ini 1 ^ , r> 117 Mass. 30.
19 rectors may, instead or such assessment, make two assessments, the nrst i79 Mass. lo.
20 determining what each policy holder must equitably pay or receive in
21 case of his withdrawal from the company and the cancellation of his
22 policy, the second determining what further amount each must pay to
23 continue the policy for its unexpired term, and being for such propor-
24 tion of the unearned premium as the directors may fix by vote, but
25 in no event to exceed the amount of such unearned premium. Each
26 policy holder shall pay or receive according to the first assessment, and
27 his policy shall then be cancelled unless he pays the further amount
28 determined by the second assessment, in which case his policy shall
29 continue in force for its unexpired term; but in neither case shall a
30 policy holder receive or have credited to him more than he would have
31 received on having his policy cancelled by the company in accordance
32 with the terms of the policy. '
33 If within two months after such alternative assessments have be-
34 come collectible the amount of the policies whose holders have settled
35 for both assessments is less than one million dollars, the company shall
36 cease to issue policies; and all policies whose holders have not settled
37 for both assessments shall be void, and the company shall continue only
38 for the purpose of adjusting the deficiency or excess of premiums among
39 the members and settling outstanding claims.
40 Each policy holder shall be liable to pay his proportional part of any
41 assessments laid by the company in accordance with law and his con-
42 tract, on account of losses and expenses incurred while a member, if
43 he is notified of such assessment within one year after the expiration
44 or cancellation of his policy; and when an assessment is ordered, the
45 directors shall forthwith cause written notice and demand for paj-ment
46 to be made upon each person subject thereto, by mail or personal
47 service.
1 Section 84. If the directors by authority of law make an assessment Supreme
^ ., I IP 11- • jurucial court
2 or call on the members tor money, or vote that there exists a necessity n.ay review
3 therefor, they or any person interested in the company as an officer, assMsment.
4 policy holder or creditor may apply to the supreme judicial court for §§^-3''*''
5 any county, by a petition in equity, praying the court to examine such §f s^'s^*®'
6 assessment or call, the necessity therefor, and all matters connected \lyi-i%-
7 therewith, and to confirm, amend or annul the assessment or call, or to fj^j!}iJ'A.
8 order the same to be made as law and justice may require; but if an is.s7, 214. §40.
n I- X- ■ ^ J I, ^ i ji ^ -1 ' _ 1894, 522. I 49.
y application is made by any party except the company, or a receiver, r, l. 11s, §49.
10 or the commissioner, the court may decline to exercise jurisdiction ^^"s^i.Ysli.
11 thereof. If the directors unreasonably neglect to make an assessment ?/Anenfs74
12 or call to satisfy an admitted or ascertained claim upon the company, any JJI ^■'»*'- "2.
13 judgment creditor, or any person holding such claim, or the commis- niMass. 4S4.
14 sioner, may make the application to the court. Upon such application,
15 if made by the directors, or upon an order of the court, if made by any
16 other person, the directors shall set forth the claims against the com-
17 pany, its assets, and all other facts and particulars appertaining thereto.
18 The court shall order notice by publication or otherwise to all parties
19 interested, and upon the return thereof shall examine the assessment
20 or call, or the necessity therefor, and all matters connected therewith.
21 Any parties interested may appear and be heard thereon. All questions
22 arising shall be heard and determined as in other equity cases.
1984
INSL-E.iNCE.
[Chap. 175.
The application shall be referred to an auditor, who shall appoint a 23
time and place to hear all parties interested, and shall give personal 24
written notice thereof to the commissioner, and by mail, so far as he is 25
able, to all persons liable upon said assessment or call. The auditor 26
shall hear the parties, and report upon the correctness of the assessment 27
or call, and all matters connected therewith. The court may confirm, 28
amend or annul the assessment or call, or order one to be made, and 29
may make such orders and decrees as under all the circumstances justice 30
and equity require. If the assessment or call is altered or amended, or 31
one is ordered to be made, the directors shall forthwith proceed to vote 32
the same in legal form, and the record of such vote shall be set forth in 33
a supplemental bill or answer. 34
When an assessment or call has been so confirmed, ascertained or 35
established, a decree shall be entered which shall be final and conclusive 36
upon the company and all persons liable to the assessment or call as to 37
its necessity, the authority of the company to make or collect it, the 38
amount thereof, and all formalities connected therewith. An assess- 39
ment or call altered or amended by vote of directors and decree of the 40
court thereon shall be binding upon all parties who would have been 41
liable under it as originally made, and in all legal proceedings shall be 42
held to be such original assessment or call. All such proceedings shall 43
be at the cost of the company unless the court for cause otherwise orders, 44
and in all cases the court may control the disposition of the funds col- 45
lected under such proceedings. 46
If the com-t finds that the net proceeds of any assessment or call will 47
be insufficient to furnish substantial relief to those having claims against 48
th^. company, it may decree that no assessment shall be collected; and 49
if, upon the application of the commissioner or a member of the com- 50
pany or of any person interested, the court is of opinion that further 51
attempts to collect an assessment then partially collected will not benefit 52
those having claims against the company, it may stay the further col- 53
lection of said assessment. 54
Penalty for
guaranty
against as
-
sessnient.
1S60,
149.
P. S.
119,
§108.
18S7,
214,
§§ 50, 106
Personal
liability of
officers.
1S6S.
317,
§2.
P.S.
119,
§ 109.
1887.
214,
§ 50.
1894,
522,
§50.
R. L.
118,
§ 50.
1907,
576,
§§52
, 122
1833,
147,
§0.
U.S.
37,
§33.
1854,
453,
§ 19.
1850,
522,
§28.
G. S.
58,
§4B.
P.S.
119,
§112
1887,
'214.
§ 50.
1894,
522,
§ 50.
R. L.
118,
§ 50.
1835,
147,
§8.
R. S.
37,
§ 32.
1854,
453,
§ 18.
1858,
252,
§27.
G. S.
58,
S 48.
Section 85. A director or other officer of a mutual fire company
who officially or privately gives a guaranty to a policy holder thereof
against an assessment to which he woulil otherwise be liable shall be
punished by a fine of not more than one hundred dollars.
1894, 522, §§ 50, 106. R. L. 118, §§ 50, 106. 1907, 576, §§ 52, 115, 122.
If the directors of any such company neglect or omit for six months 5
to lay and collect with all practicable diligence any assessment they are 6
required to make by sections eighty-three and eighty-four, they shall 7
be personally liable for all debts and claims then outstanding against 8
the company, or that may accrue until such assessment is laid and put in 9
process of collection. 10
If the treasurer of such company unreasonably neglects to collect an 11
assessment made by order of the directors, and to apply the same to the 12
payment of the claims for which it was made, he shall be personally 13
liable to the person having such claims for the amount of the assessment, 14
and he may repay himself out of any money afterward received for the 15
company on account of said assessment. i907, 576, §§ 52, 122. 16
If sufficient property of any such company cannot be found to satisfy 17
an execution against it, and it has property belonging to the period as- 18
sessed the proceeds of which can be applied to satisfy such execution, if 19
Ch.\P. 175.] INSUR-iNCE. 1985
20 the directors neglect to pay the same, or neglect for thirty days after the p. s. ii9. § iio.
21 rendition of judgment to make an assessment and deliver the same to 1S94! 522! | so!
22 the treasurer for collection, or to apply such assessment when collected fgj^i 57I; * ^■
23 to the payment of the execution, they shall be personally liable for the fos^jia^^si
24 amount of the execution.
25 If the directors of any such company are liable to pay an execution isss, 147, § 10.
26 against it, the creditor may recover the same by a suit in equity or by §§ 34. 35.
27 an action at law against the directors. The director who pays an execu- isx, 252! § 29!
28 tion against the company for which he is personally liable may sue in p.l'ng.fiii.
29 equity for contribution any of the directors for their proportion, and }g|p ^y- 1 j^-
30 also the companv or the individual members thereof to the extent of J*- l- U?' ^ ^''•
1 • 1 1* 1 M* IP 190*. o7o,
31 then- several liability to assessment therefor. loe Mass. 344. §§52,122.
1 Section 86. A mutual marine company formed under the second companiS^""*
2 clause of section forty-seven shall have an agreement under the seal of J;'5jjj''|.\^
3 each subscriber thereto, substantially as follows: its'' 137' ^ '^'
§§ h2.
The subscribers severally agree to pay to the Insurance Com- iS54, 453, § 25.
pany on demand the whole or such part of the amounts set against our names Q^g' ||^' ^ '*■
as may be called from time to time for the use of said company in the payment §§ 35, 40, 41.
of its losses and expenses not otherwise provided for. p^l^'ng^' ^ ^'
§§ I'lfi, i'i7,
4 Such company shall not issue policies until the amount of three hun- iss?, 2i'4, § 52.
5 dred thousand dollars, which shall be the total of such subscriptions, shall u^t. iis, | si;
6 have been so subscribed, and a certificate, signed by the president and ||°5''3,Y22.
7 a majority of the directors, certifying that the subscribers are known to
8 them and that they believe them to be soh'ent and able to pay their sub-
9 scriptions, has been deposited with and approved by the commissioner.
10 If a subscriber dies or becomes insolvent, his subscription shall be can-
11 celled; and if the amount of the subscription fund is thereby or other-
12 wise reduced, the deficiency shall be made good by new subscriptions
13 certified in the same manner as the original. Subscribers shall be entitled
14 to annual dividends of two per cent upon the amount of their subscrip-
15 tions from the profits of the company, and shall also be reimbursed from
16 future profits for all amounts of money they may pay the company
17 for its uses under their agreement, with lawful interest thereon.
18 The net profits or divisible surplus of such companies shall annually
19 be divided among the insured whose policies terminated within the year,
20 in proportion to the contribution of each to such profits or surplus, and
21 such dividends shall be made only in scrip certificates payable only out
22 of the accumulation of net profits or surplus, which accumulation shall
23 constitute and be kept and invested by the company as a separate fund
24 in trust for the redemption of such scrip certificates and the contingent
25 payment of losses and expenses as herein provided. Such certificates
26 until redeemed shall be subject to future losses and expenses of the com-
27 pany and to be reduced if the redemption fund is drawn upon for the
28 payment of such losses and expenses. But no part of the redemption
29 fund shall be used for the payment of losses or expenses unless the cash
30 assets of the company are insufficient therefor, and except to the extent
31 of the deficiency; and if any portion thereof shall be used for such pay-
32 ment, the outstanding certificates shall be reduced in proportion, so that
33 the redemption fund shall at all times equal the amount of the unre-
34 deemed certificates. The net income of the redemption fund shall be
35 divided annually among the holders of its certificates, or the company
36 may make such certificates with a specific rate of interest payable from
1986
INSURANCE.
[Ch.4P. 175.
the income of its invested funds. As such profits accumulate and are 37
invested, subscriptions of an equal amount shall be cancelled. The 38
maximum of such accumulation of profits shall be three hundred thou- 39
sand dollars, and all excess of profits above said amount shall be applied 40
annually to the pa\Tnent of the certificates in the order of their issue. 41
The certificates shall forthwith be payable when the company shall cease 42
to issue policies and the fund is no longer liable to be drawn upon for the 43
payment of losses. 44
com^aniS"sub^ SECTION 87. A uiutual marine and a mutual fire and marine com- 1
iui'tutes'"'''''' P^ny organized prior to ^lay twenty-first, eighteen hundred and eighty- 2
1887,214. §53. scveu, uiidcr anv law of the commonwealth shall remain subject to the 3
1894. 522, § S3. . '. i-" , , , • i • • i i i i ^
R. L. 118. § 53. provisions applicable to each contained in sections one hundred and 4
seventeen to one hundred and thirty, inclusive, of chapter one hundred 5
and nineteen of the Public Statutes, notwithstanding the repeal of said 6
chapter. Any such company may redeem its certificates of dividends 7
of profits when its permanent fund has been paid in cash and invested 8
and its surplus is sufficient therefor. The shareholders of the permanent 9
fund of any such company shall be entitled to not more than five per 10
cent semi-annual dividends thereon. 11
1907, 576,
§§ 54, 122.
205 Mass. 303
Mutual marine
companies
subject to
certain sec-
tions.
1851,281,
§§ 2-8.
1854, 453.
1856, 252,
Section 88. Sections seventy-six, seventy-seven and seventy-eight 1
shall apply to all domestic mutual marine companies, and each sub- 2
scriber to the agreement specified in section eighty-six shall be a mem- 3
„. ber of the company during the term of his subscription and entitled to 4
19. one vote. g. s. 5s, § se. p. s. H9, §.121. 5
1887. 214, § 54. 1894, 522, § 54. R. L. 118, § 54. 1907. 576, 55 55. 122.
Liability of
subscriber
and officer.
1851,281,
§5 16, 19.
1856, 252,
55 20, 21.
G. S. 58,
55 37. 38.
P. S. 119,
§§ 119, 123.
1887, 214, 5 5.x
1894, 522, 5 55.
R. L. lis. § 55.
Section 89. If a subscriber to the agreement specified in section 1
eighty-six fails to pay his subscription or any assessment thereon, and it 2
is pro\ed that the president or a director certified falsely under said 3
section in regard to such subscriber, the person certif^'ing shall be liable 4
to the company for such amount as the subscriber fails to pay. 5
If any such company is at any time liable for losses beyond the amount 6
of its net assets, the president and directors shall personally be liable for 7
all losses on insurance effected while the company was in such condition. 8
1907, 576, 55 56, 122. 10 Gray, 325. 12 Gray, 355.
SSSani^"*'"' Section 90. Mutual companies transacting the business specified
subject to law jjj dauses three, five or sLx of section fortv-seven shall, except as provided
as to mutual , , ,* . *■ . ^ . , „
fire companies, m scctious uinetv-two and ninet^-tliree, be subiect to the provisions or
1911 251 . *- . •. ^ ^ J r
H 2,'3. ■ this chapter relating to mutual fire companies so far as applicable.
1914,642. 1915, 17S, 55 1, 2; 181.
Mutual
automobile
companies.
Formation.
1914, 642.
Section 91. A mutual company formed to transact business under 1
the third clause of section forty-seven shall be formed in the same 2
manner as a mutual fire company. 3
Mutual boiler
companies.
Issue of
policies.
1915, 178, § 3.
Section 92. Xo policy shall be issued by a mutual company formed
to transact business under the fifth clause of section forty-seven until
insurance has been applied for to the amount of one million dollars upon
not less than one hundred separate risks, nor until such company has
made arrangements for its protection from e.xtraordinary losses caused
by any one disaster by reinsurance as provided in section twenty.
Chap. 175.] inst.tiance. 1987
1 Section 93. No policy shall be issued by a mutual company formed y^^\^f
2 to transact business under the sixth clause of section forty-seven until companies.
3 there has been secured by it — policies.
4 (1) Applications for insurance the premiums for which shall be not less i9is] 181.'
5 than fifty thousand dollars; or
6 (2) Applications by not less than one hundred employers having not
7 less than ten thousand employees; or
8 (3) Applications by not less than fifty employers having not less than
9 five thousand employees, each of such employers having become obli-
10 gated by the by-laws of the company for an amount not less than five
11 times his cash premium, which may be called for as the necessities of the
12 company to pay its losses and expenses may, in the judgment of its
13 directors, require; or
14 (4) Applications by not less than fifty employers having not less than
15 five thousand employees, accompanied by a bond for one hundred thou-
16 sand dollars running to the commonwealth, made by a surety company
17 authorized to transact business therein and conditioned to assume and
18 discharge all the obligations of the statutes applicable thereto upon the
19 failure of the said company to perform and discharge the same; or
20 (5) Applications by not less than fifty employers having not less than
21 five thousand employees, accompanied by a fund of fifty thousand dol-
22 lars, to be deposited with a trustee for the purpose of settling due and
23 unpaid obligations of the company, which fund, if drawn upon, shall be
24 reimbursed by the employers in proportion to their several premiums;
25 nor, whichever of the five options herein stated has been selected, until
26 such company has made arrangements for its protection from extraor-
27 dinary losses caused by any one disaster by reinsurance as provided in
28 section twenty.
29 No such company which has at any time upon Its books less insurance
30 than the minimum amount required for one of the above options which
31 it has selected as a basis for beginning business shall make any further
32 insurance until it has secured applications for policies which will restore
33 the original condition in respect to the number and amount of applica-
34 tions, said applications to be subject to the same provisions of this section
35 as apply to the subscriptions for a new company; nor shall it make any
36 further insurance if the security required by paragraphs (4) and (5) of this
37 section becomes impaired until such impairment is made good.
38 The liability of any policy holder to pay his proportional part of any
39 assessments which may be laid by the company, in accordance with law
40 and his contract, on account of losses and expenses incurred while he was
41 a member, shall continue so long as there are outstanding any obligations
42 incurred while such member.
1 Section 94. Except as provided in section one hundred and thirty- Mutual life
2 seven, every person insured by a domestic mutual life company shall Member^'
3 be a member entitled to one vote, and one vote additional for each five Ka'Alsl's^ss.
4 thousand dollars of insurance in excess of the first five thousand dollars, j|^J' |' J' | ^*-
5 and shall be notified of its annual meetings by WTitten notice or by an R; l. i is. § 74.
6 imprint in the form prescribed in section seventy-six upon the filing- §§ 82, 122.
7 back, or, in case of policies on which the premiums are payable monthly Penalty, § iss.
8 or oftener, on some other prominent place of each policy, and also upon
9 receipts or certificates of renewal.
10 Members may vote by proxies dated and executed within three Proxies
11 months and returned and recorded on the books of the company seven ""
1988
INSURANCE.
[Chap. 175.
Directors.
Guaranty
capital.
Dividends.
Redemption.
1854, 453, § 27.
1856, 252, § 40.
G. S. 58, § 60.
1870, 349, § B.
P. S. 119, § 14.5.
1887, 214, § 72.
1894, 522, I 72.
days or more before the meeting at which they are to be used; but 12
no person siiall, as attorney or otherwise, cast more than twenty votes, 13
and no officer shall, himself or by another, ask for, receive, procure to 14
be obtained or use a proxy vote. 15
Two thirds at least of the directors shall be citizens of the common- 16
wealth, and after the first election members only shall be eligible; and 17
no person shall be qualified to serve as director after the termination 18
of his policy in the company. 19
The stockholders of the guaranty capital of any such company shall 20
be entitled to such annual dividends, not exceeding eight per cent, 21
payable from the net suiplus, as may have been agreed upon in the 22
subscription therefor. Such guaranty capital shall be redeemed, by 23
appropriation of net surplus for that purpose, whenever the net surplus 24
is twice the amount of said guaranty capital. 25
R. L. 118, §75. 1907, 576, §§82, 122.
Over-insurance
prohibited.
Term of fire
policy.
1835, 147, § 5.
R. S. 37, § 28.
1854, 453, § 22.
1856, 2.52, § 31.
G. S. 58, § 24.
1875, 72, § 1.
1878, 132, § 1.
FIRE INSURANCE.
Section 95. No company, and no officer or agent thereof, and no 1
insurance broker shall knowingly issue, negotiate, continue or renew or 2
cause or permit to be issued, negotiated, continued or renewed any fire 3
insurance policy upon property or interests within the commonwealth 4
of an amount which, with any existing insurance thereon, exceeds the fair 5
value of the property, nor for a longer term than seven years. 6
p. S. 119, §§ 136, 178. 1894, 522, § 57. 1907, 576, §§ 57, 122.
1887, 214, § 57. R. L. 118, § 67.
Liability for
fire loss
limited.
1898, 571.
R. L. 118, § 5
1907, 576,
§§ 67, 122.
221 Mass. 518
Section 96. If buildings within the commonwealth insured against 1
loss by fire are totally destroyed by fire, the company shall not be 2
liable beyond the actual value of the insured property at the time of 3
the loss or damage; and if it shall appear that the insured has paid 4
premiums on an amount in excess of said actual value, he shall be re- 5
imbursed the proportionate excess of premiums paid on the difference 6
between the amount named in the policy and said actual value, with 7
interest at six per cent per annum from the date of issue; and said excess 8
of premiums and interest thereon shall be allowed the insured from the 9
time any companies carr;^ang said insurance at the time of the loss have 10
continuously carried tlie insurance on tiie destroyed buildings, wliether 11
under policies existing at the time of tlie loss or under previous policies 12
in the same companies. 13
Section 97. If, by an agreement vnth the insured or by the terms
Payment of
mortgagees.
p^^l'n'cf'Aiv °^ ^ ^'"^ insurance policy taken out by a mortgagor, the wjiole or any
lilt' 1^9 1 58 P^'^' °^ ^^^ '°^^ thereon is payable to mortgagees of the property or for
R. l'. lis', 1 58! their benefit, the company shall, upon satisfactory proof of the rights
§§ 58, 122. and title of the parties, in accordance with such terms or agreement,
168 Mass. 147. p^y gjj n^ortgagees protected by such policy in the order of their priority
of claim as their claim shall appear, not beyond the amount for which
the company is liable, and such payment shall be to the extent thereof
pajTnent and satisfaction of the liability of the company under such
policy.
1
2
3
4
5
6
7
8
9
10
fpphcTit.oV" Section 98. In all insurance against loss by fire, neither the ap- 1
contracl'etc. phcatioii of the iusurcd nor the by-laws of the company shall be con- 2
1861, 152. sidered as a warranty or a part of the contract except so far as they 3
Chap. 175.] insurance. 1989
4 are incorporated in full in the policy as provided in the ninth clause of p^^of ■/fy®'. jjg
5 the following section.
18S7, 214, § 59. 1907. 576, §5 59, 122. 112 Mass. llfi. 131 Mass. 1,
1894,622,5 59. 7 Allen. 42, 45, 118 Mass. 393. 145 Mass. 426.
R. h. lis, § 59. 98 Mass. 420. 120 Mass. 254. 172 Mass. 278.
1 Section 99. No fire company shall issue fire insurance policies on standard form
2 property or interests in the commonwealth, other than those of the israfssi,"^^'
3 standard form herein set forth, except as follows: ilso, m.
4 First, A company may print on or in its policies its name, location Jf^/'s®®'
5 and date of incorporation, plan of operation, whether stock or mutual, P- S-' lia. § i39.
6 and, if the former, the amount of its paid-up capital stock, the names is94; 522! § eo!
7 of its officers and agents, the number and date of the policy, and, if it §§ 3,'4. '
8 is issued through an agent, the words "This policy shall not be valid 1904,' 240.' ^ ^°"
9 until countersigned by the duly authorized agent of the company at ffed.^i^ll
10 ", and, if a mutual company, may fix the contingent }|}°' ^|2, 1 2.
11 mutual liability of its members for payment of losses and expenses Jfl^-'*"' Ior
12 not provided for by its cash funds. los Mass.' 4r,2'
13 Second, A company may print or use in its policies printed forms 215 Masl.' 425!
14 of description and specification of the property insured. i^cdp^^a.^g.^sI'
15 Third, A company insuring against damage by lightning may print, 2°op. a. g.
IG in the clause enumerating the perils insured against, the additional q'^'a^g^^'
17 words "Also any damage by lightning, whether fire ensues or not", [}"'? I?-
IS and, in the clause providing for an apportionment of loss in case of (1920) 2S6.
19 other insurance, the words "whether by fire, lightning or both". Penalty, § i90.
20 Fourth, A domestic company may print in its policies any provi-
21 sions which it is authorized or required by law to insert therein; and
22 any foreign company may, with the appro\'al of the commissioner,
23 so print any provision required by its charter or deed of settlement,
24 or by the laws of its own state or country not contrary to the laws of
25 this commonwealth; but the commissioner shall require any provision
26 which in his opinion modifies the contract of insurance in such way
27 as to affect the question of loss to be appended to the policy by a slip
28 or rider as hereinafter provided.
29 Fifth, The blanks in said standard form may be filled in print or
30 WTiting.
31 Sixth, A company may print upon policies issued in compliance
32 with this section the words "Massachusetts Standard Policy".
33 Seventh, There shall be printed or stamped on the filing-back of
34 every policy, in clear t}'j)e not smaller than long primer, the words " In
35 case of fire notify the company or its local agent at once in writing".
36 Eighth, There shall be printed on the margin of the policy near the
37 part thereof that relates to cancellation, in type not smaller than long
38 primer, or attached to such policy by rider as hereinafter provided, the
39 following: " If the premium on this policy has not been paid to the com-
40 pany or its agent or to the duly licensed insurance broker through whom
41 the contract of insurance was negotiated, this policy may be cancelled
42 by the company in the manner herein provided without tendering to the
43 assured any part of the premium".
44 Ninth, A company may ^\■rite upon the margin or across the face of 1^° J{j;^^- ^Jj^-
45 a policy, or write, or print in type not smaller than long primer, upon j '^^, Mu.w soi.
46 separate slips or riders ,to be attached thereto, provisions adding to or 431, S40.'
47 modifying those contained in the standard form; and all such slips, 3 op. a. ci. 70."
48 riders and provisions shall be signed by the officers or agents of the
49 company so using them.
1990 iNSUK-usrcE. [Chap. 175.
Said standard form of policy shall be plainly printed, and no portion 50
thereof shall be in type smaller than long primer, and shall be as follows: 51
No. $
(Corporate name of the company; its principal place or places of business.)
This company shall not be liable beyond the actual value of the insured prop-
erty at the time any loss or damage happens.
In consideration of dollars to it paid by the insured, hereinafter
named, the receipt whereof is hereby acknowledged, does insure
and legal representatives against loss or damage by fhe, to the
amount of dollars.
(Description of property insured.)
Bills of exchange, notes, accounts, evidences and securities of property of
every kind, books, wearing apparel, plate, money, jewels, medals, patterns,
models, scientific cabinets and collections, paintings, sculpture and curiosities
are not included in said insured property, unless specially mentioned.
234 Ma3s. 301. Said property is insured for the term of beginning on the
day of , in the year nineteen hundred and , at noon,
and continuing until the day of , in the year nineteen
hundred and , at noon, against all loss or damage by Fibe originat-
ing from any cause except invasion, foreign enemies, civil commotions, riots or
any military or usurped power whatever; the amount of said loss or damage to
be estimated according to the actual value of the- insured property at the time
when such loss or damage happens, but not to include loss or damage caused
by explosions of any kind unless fire ensues, and then to include that caused by
fire only.
140 Mass. 38. This policy shall be Void if any material fact or circumstance stated in -wTiting
145 M^; 265, has not been fairly represented by the insured; or if the insured now has or
3S9, 426.' ' shaU hereafter make any other insurance on the said property without the assent
150 Mms! STi'. in -m-iting or in print of the company; or if, without such assent, the said prop-
153 Mass! 335! erty shall be removed, except that, if such removal shall be necessary for the
158 MaS: 475: preservation of the property from fire, this policy shall be valid without such
162 Mass! 479! assent for five days thereafter; or if, without such assent, the situation or cir-
178 M^: 535; cumstances affecting the risk shall, by or with the knowledge, advice, agency or
179 Mass! 434; consent of the insured, be so altered as to cause an increase of such risks, or if,
205MaS.'ss°' without such assent, the said property shall be sold, or this policy assigned, or if
207 Mass! 337. the premises hereby insured shall become vacant by the removal of the owner or
234 Mass. 23. oggypant, and so remain vacant for more than thirty days without such assent,
or if it be a manufacturing establishment, running, in whole or in part, extra time,
except that such estabhshments may run, in whole or in part, extra hours not
later than nine o'clock p.m., or if such estabhshments shall cease operation for
more than tliirty days without permission in wi-iting endorsed hereon, or if the
insured shaU make any attempt to defraud the company either before or after
the loss; or if gunpowder or other articles subject to legal restriction shall be
kept in quantities or manner different from those allowed or prescribed by law;
or if camphene, benzine, naphtha, or other chemical oils or burning fluids shall
be kept or used by the insured on the premises insured, except that what is kno^vn
as refined petroleum, kerosene or coal oU may be used for hghting, and in dwell-
ing houses kerosene oil stoves may be used for domestic purposes, to be filled
when cold, by daylight, and vAth oil of lawful fire test only.
If the insured property shall be exposed to loss or damage by fire, the insured
shall make all reasonable exertions to save and protect the same.
140 Mass. 38. In case of any loss or damage under this policy, a St.\tement in -nTiting, signed
145 mSs! 582! and sworn to by the insured, shall be forthwith rendered to the company, setting
160 Mass. 100. forth the value of the property insured, the interest of the insured therein, all
164 Mass! 382! Other insurance thereon in detail, the purposes for which and the persons by
166 Mass. 210. whoui the building insured, or containing the property insured, was used, and the
196 MaS! 23o! time at which and manner in which the fire originated, so far as known to the
200 Mass. 60. insured. The company may also examine the books of account and vouchers of
206 Mass! 247,' the insured, and make extracts from the same.
691. 208 Mass. 378. 212 Mass. 318. 227 Mass. 132.
226 Mass' 236 ^^ *^^^^ °^ ^^^ ^°^^ °'" damage, the company, within sixty days after the in-
"^' ' sured shall have submitted a statement, as provided in the preceding clause,
shall either pay the amount for which it shall be liable, which amount, if not
agreed upon, shall be ascertained by award, of referees as hereinafter provided,
Chap. 175.] insurance. 1991
or replace the property with other of the same kind and goodnes.^; or it may,
within fifteen days after such statement is submitted, notify the insured of its
intention to rebuild or repair the premises, or any portion thereof separately
insured by this policy, and shall thereupon enter upon said premises and proceed
to rebuild or repair the same with reasonable expedition. It is moreover under-
stood that there can be no abandonment of the property insured to the company,
and that the company shall not in any case be liable for more than the sum
insured, with interest thereon from the time when the loss shall become payable,
as above provided.
If there shall be any Other Insurance on the property insured, whether
prior or subsequent, the insured shall recover on this policy no greater propor-
tion of the loss sustained than the sum hereby insured bears to the whole amount
insured thereon. And whenever the comjiany shall pay any loss, the insured shall
assign to it, to the extent of the amount so paid, all rights to recover satisfaction
for the loss or damage from any person, town or other corporation, excepting
other insurers; or the insured, if requested, shall prosecute therefor at the charge
and for the account of the company.
If this policy shall be made payable to a mortgagee of the insured real estate, ir6 Mass. is9.
no act or default of any person other than such mortgagee or his agents, or those }^^| Ma^|?|'
claiming under him, shall affect such mortgagee's right to recover in case of loss vm Mass! 230!
on such real estate : provided, that the mortgagee shall on demand pay according |J8 Mass. 378.
to the established scale of rates for any increase of risks not paid for by the in- 2 Op. a. g. 582.
sured; and whenever this comjjany shall be liable to a mortgagee for any sum for
loss under this policy, for which no liability exists as to the mortgagor, or owner,
and this company shall elect by itself, or with others, to pay the mortgagee the
full amount secured by such mortgage, then the mortgagee shall assign and trans-
fer to the companies interested, upon such payment, the said mortgage, together
with the note and debt thereby secured.
This policy may be Cancelled at any time at the request of the insured, who 197 Mass. 19.
shall thereupon be entitled to a return of the portion of the above premium remain-
ing, after deducting the customary monthly short rates for the tmie this pohcy
shall have been in force. The company also reserves the right, after gi^ng WTitten
notice to the insured and to any mortgagee to whom this policy is made payable,
and tendering to the insured a ratable proportion of the premium, to cancel this
policy as to all risks subsequent to the expiration of ten days from such notice,
and no mortgagee shall then have the right to recover as to such risks.
In case of loss under this policy and a failure of the parties to agree as to the iss Mass. 572.
amount of loss, it is mutually agreed that the amount of such loss shall be referred JI3 Jj^|^- gH"
to three disinterested men, the company and the insured each choosing one out 1.54 Mkss! 77. '
of three persons to be named by the other, and the third being selected by the two }5^ JjjJ^; Hf
so chosen; the award in writing by a majority of the referees shall be conclusive i7i Mkss! 433!
and final upon the parties as to the amount of loss or damage, and such refer- igg J}^^; fif
ence, unless waived by the parties, shall be a condition precedent to any right of action 213 Mass', sis!
in law or equity to recover for such loss: but no person shall be chosen or act as a |jg ^jlJJ- j||-
referee, against the objection of either party, who has acted in a like capacity 2i'i Mkss! sis!
within four months. _ _ , ,. , . i6M:S!i36;
No suit or action agamst this company for the recovery of any claim by virtue 2 Op. a. g.
of this policy shall be sustained in any court of law or equity in this common- **^-
wealth unless commenced within two years from the time the loss occurred: pro-
vided, however, that if, within said two years, in accordance with the provisions of
the preceding paragraph, the amount of the loss shall have been referred to arbi-
tration after failure of the parties to agree thereon, the limitation of time for
bringing such suit or action shall in no event be less than ninety days after a
valid award has been made upon such reference or after such reference or award
has been expressly waived by the parties. If suit or action upon this policy is
enjoined or abated, suit or action may be commenced at any time within one year
after the dissolution of such injunction, or the abatement of such suit or action,
to the same extent as would be possible if there was no limitation of time provided
herein for the bringing of such suit or action.
In witness whereof the said company has caused this policy to
be signed by its president and attested by its secretary (or by such proper officers
as may be designated), at their ofl&ce in (date).
52 The word "noon", occurring in the standard form above set forth,
53 shall be construed to be the noon of standard time of the place where the
54 property covered by the policy is situated.
1992
INSURANCE.
[Chap. 175.
Appointment
of referees.
1S88, 151.
1891,291.
1894. 622, § 60.
1896, 137.
1897, 357.
R. L. 118, § 60.
1907. 576,
§§ 60, 122.
1911,406.
1919,31.
204 Mass. 90.
224 Mass. 310.
Referees to
determine
sound value,
when.
Section 100. In case of loss under any fire policy issued on prop- 1
erty in the commonwealth in the standard form set forth in the preceding 2
section, and the failure of the parties to agree as to the amount of loss, 3
the company shall, within ten days after a written request to appoint 4
referees under the provision for arbitration in such policy, name three 5
men no one of whom shall, without the written consent of the insured, 6
be a person who has served in that capacity for said company within 7
four months, each of whom shall be a resident of the commonwealth 8
and willing to act as one of such referees, of whom the insured shall, 9
within ten days after receiving said names, make known to the com- 10
pany his choice of one to act as one of such referees; and such company 11
sliall, ■within ten days after receiAing the names of three men named by 12
the insured, make known to the insured its choice of one of them to act 13
as one of such referees. And in case of the failure of two referees chosen, 14
respectively, by the company and the insured to agree upon and select, 15
within ten days from their appointment, a third referee willing to act in 16
said capacity, either of said referees or parties may make written appli- 17
cation, setting forth the facts, to the commissioner to appoint such third 1<8
referee; and said commissioner shall thereupon make such appointment, 19
and shall send written notification thereof to the parties. In every case 20
of the appointment by the commissioner of said third referee, the insuring 21
companies shall withhold from the amount of the award rendered one 22
half of the compensation and expenses of said referee, and said companies 23
shall thereupon pay to said referee the full amount of his compensation 24
and expenses. 25
If a policy of fire insurance contains a reduced rate or co-insurance 26
clause, and if, in case of loss, the parties do not agree as to the sound 27
value of the property affected, such value shall be determined by the 28
referees chosen to determine the loss or damage. If the parties agree 29
as to the loss or damage, but do not agree as to the amount of the sound 30
value, said value shall be determined by referees appointed as provided 31
in and subject to the provisions of this section and of said standard 32
form. An award in writing of a majority of the referees shall be final 33
and conclusive on the parties as to the amount of the sound value. 34
Meetings of
referees.
1910, 489.
221 Mass. 522.
229 Mass. 10.
Section 101. Referees selected under the preceding section to deter- 1
mine the amount of loss under a policy of fire insurance as set forth 2
in the standard form of policy prescribed by section ninety-nine 3
shall, within ten days after the appointment of the third referee, meet 4
to hear the evidence in the case; and if the case is not completed at the 5
first hearing, adjourned hearings may be held from time to time, but not 6
more than one week shall elapse between hearings except by unanimous 7
agreement of said referees. 8
Lack of sworn
statement of
loss not to be
taken advan-
tage of by the
company, etc.
1910,652, § 1.
206 Mass. 249.
221 Mass. 524.
227 Mass. 134.
Section 102. In case of loss under any fire insurance policy in the 1
standard form prescribed by section ninety-nine, tjie company siiall not, 2
in defence of any action, avail itself of the omission on the part of the 3
insured to furnish fortJiwith to the company the sworn written statement 4
required by said standard form, pro\'ided the insured has, after such loss, 5
forthwith in writing notified the company, at its home office or at the 6
office of the agency issuing the policy, of the fire, and the location thereof, 7
and pro\ided further that the insured, if the company, after recei\-ing 8
notice in writing as aforesaid, requests him in writing so to do, furnishes 9
Chap. 175.] insukance. 1993
10 tJie company with said sworn statement. If, after recei%in<; written
11 notice as aforesaid from the insured, the company does not forthwith
12 reciuest of the insured said sworn statement, the periods of time within
13 wiiicji tlie company shall, as pro-vided in the policy, pay the amount for
14 which it is liable, or replace the property, or notify the insured of its
15 intention to rebuild or repair the premises, shall be computed from the
16 time when the company received said written notice.
1 Section 103. A company issuing fire insurance policies on property Companies
2 or interests in the commonwealth in the standard form prescribed by "nafn fire
3 section ninety-nine may cancel any such policy in the manner pro^^ded igis'^is, § i.
4 therein without tendering to the insured a ratable proportion of the
5 premium, if the premium has not been paid to the company or its agent
6 or to a duly licensed insurance broker through whom the contract of
7 insurance was negotiated.
1 Section 104. Any person aggrieved by any rating of a fire company Complaint
2 or board making premium rates for fire insurance may file a written agg?revedby
3 complaint with the commissioner, who shall notify the board of appeal Jgn^^i, § 2.
4 on fire insurance rates. The complaint shall state in detail the grounds
5 upon which the complainant asks relief. The said board shall notify in
6 writing all parties whom it deems to be interested, and shall fix a time,
7 not earlier than seven days after the date of the notice, and a place for
8 hearing the complaint. After due hearing the board shall make a finding
9 as to whether the established rate is excessi\-e, unfair or discriminatory,
10 and shall make such recommendations as it deems advisable. The find-
11 ing and recommendation in each case shall be made a matter of record
12 and shall be open to public inspection.
fidelity insurance and corporate StIRETY.
1 Section 105. A company organized under the fourth clause of gj^f"°^j
2 section forty-seven or corresponding provisions of earlier laws may make corporate
3 contracts of insurance to guarantee the fidelity of persons holding positions companies.
4 of trust in pri\-ate or public emplojinent or responsibility, and may, if §§"3,'4.
5 accepted and approved by the court, magistrate, obligee or person compe- \gs^] 214, § ei.
6 tent to appro\e such bond, act as joint or sole surety upon the official §f®i%"''
7 bond or the bond, recognizance or other undertaking in civil and criminal }i^^;||,f: |^^ •
8 procedure of any person or corporation to the United States, to the com- isss! 54/ ^
9 monwealth or to any county, city, town, judge of probate and insolvency r. l! iis',
10 or other court, sherilT, magistrate or other public officer, or to any cor- 1907,576.
11 poration or association public or private; and also may act as joint or 1009,256.
12 sole surety upon any bond or undertaking to any person or corporation }^Ji; l^-
13 or to the commonwealth conditioned upon the performance of any duty J^jg;!^;,^^ '■
14 or trust, or for the doing or not doing of anytliing in said bond specified, §§ 45, 46,' 52.
15 and upon bonds to indemnify against lo.ss any person or persons who are
IG responsible as surety or sureties upon a written instrument or otherwise
17 for the performance by others of any office, emploj-nient, contract or
18 trust. If by law two or more sureties are required upon any obligation
19 upon which such company is autliorized to act as surety, it may act as
20 joint or sole surety thereon, and may be accepted as such by the court,
21 justice, magistrate or other officer or person authorized to approve the
22 sufficiency of such bond or undertaking; and so much of section nine of
1994 ixscR.^-CE. [Chap. 175.
chapter two hundred and fi\"e as requires that sureties on bontls to a 23
judge of probate shall be residents of the commonwealth shall not forbid 24
the acceptance of a qualified foreign company as joint or sole surety on 25
any such bond. A bond given by it under section twenty of chapter one 26
hundred and fifty-eight, section twenty-foiu- of chapter one hundred and 27
sixty-eight or section nine of chapter one hundred and seventy shall be in 28
a form approved by the commissioner of corporations and taxation or 29
the commissioner of banks, respectively, and an attested copy of such 30
bond, 'o'ith a certificate of the custodian that the original is in his posses- 31
sion, shall be filed with the commissioner concerned. No such company 32
shall incur in behalf or on account of any one person a Hability for an 33
amount larger than one tenth of its net assets, unless it shall be secured 34
from loss thereon beyond that amount by suitable and sufficient collateral 35
agreements of indemnity, by agreements of other joint surety or sureties 36
relati^•e to the amount of liability assumed by it or them, by deposit ^\ith 37
it in pledge or conveyance to it in trust for its protection of property 38
equal in value to the excess of its liability over such Hmit, or, if such 39
liability is incurred in behalf or on account of a fiduciary holding property 40
in a trust capacity, by such deposit or other disposition of a suitable and 41
sufficient portion of the estate so held that no further sale, mortgage, 42
pledge or other disposition can be made thereof ■without such company's 43
approval, except by the decree of a court ha^^ng proper jurisdiction. 44
In cases where an individual surety would be required to make an 45
oral recognizance in open court or before a justice or other magistrate, a 46
company authorized by this section to act on such recognizance as sole 47
surety shall, instead of recognizing orally by an officer or agent, enter 48
into a bond duly executed by tlie principal, and in behalf of such com- 49
pany acting as surety, by its officer or agent thereto duly authorized, 50
and sealed with its corporate seal, and neither the principal nor the surety 51
shall recognize orally. The condition of the bond shall be the same as 52
that of an oral recognizance taken in such cases from an individual 53
surety, and the bond shall be subject to the approval of the court, justice 54
or other magistrate, who shall endorse his approval on it. Such bond, if 55
approved by the court, justice or other magistrate, shall not be defeated 56
by reason of the failure of the principal to execute the bond, or by any 57
failure to comply with the provisions of this section that would not de- 58
feat the bond at common law as against the company acting as surety. 59
Any receiver, assignee, guardian, conservator, trustee, executor, ad- 60
ministrator or other fiduciary, or party from whom a bond is required, 61
may agree and arrange with his sureties for the deposit for safe keeping of 62
any or all moneys, assets and other property for which he is or may be re- 63
sponsible with a bank, savings bank, safe deposit or trust company au- 64
thorized by law to do business as such in the commonwealth, and in such 65
manner as to prevent the withdrawal or alienation of such money, assets 66
or otlier property, or any part thereof, w ithout the WTitten consent of such 67
sureties, or an order of the court in which such bond is filed, or of a judge 68
thereof, made on such notice to such sureties as the court or judge may 69
direct. 70
The commissioner shall transmit forthwith to each register of probate 71
and insolvency the names of all corporate surety companies as they be- 72
come or cease to be qualified to do business in the commonwealth. 73
reqmr^ SECTION 106. A forcign company of the class designated in the pre- 1
TOm^L^. ceding section shall not be admitted and authorized to transact business 2
Chap. 175.] insurance. 1995
3 in tlie commonwealth until besides complj-ing ^\^th sections one hundred J^°|' |9*-
4 and fifty-one and one hundred and fifty-five it has satisfied the commis- §§ ei, 122.
5 sioner that it has made a deposit wth the state treasurer, or the proper
6 officer or board of some other state of the United States, for the protec-
7 tion of its policy holders in tlie United States of an amount not less than
8 one hundred thousand dollars, wliich, if so on deposit in the common-
9 wealth, shall not be returned to the company while it has any liabilities
10 outstanding in the commonwealtli, nor until the commissioner has given
11 his written consent to such return.
1 Section 107. The bonds on which such company becomes sTu-ety status of
2 shall not be deemed insurance contracts as defined in section two, but i9i9%o.°" '^'
3 the company shall otherwise be subject to this chapter so far as appli-
4 cable, and insurance agents and brokers shall in respect to such bonds be
5 subject to all the provisions of this chapter applying to them in respect
6 to insurance contracts.
ACCIDENT, HEALTH AND LIABILITY' INSURANCE.
1 Section 108. No policy of insurance against loss or damage from Accident or
2 disease or by the bodily injury or death by accident of the insured tole approv«i
3 shall be issued or delivered in the commonwealth : (a) until a copy of the sioneT™'^"
4 policy and the table of rates or manual of risks of the company has been c?rtaiS™ro-'''°
5 on file with the commissioner for at least thirty days, unless before the ilfi'^lgj . ^
6 expiration of said thirty days the commissioner shall have approved the jsi?' iss-
7 policy in writing; nor (6) if the commissioner notifies the company in 19:9! 92', § 1.
8 MTiting that in his opinion the form of said policy does not comply with sosf"'
9 the laws of the commonwealth, specif jang the reasons for his opinion, a9i7)2.'
10 provided that such action of the commissioner shall be subject to re\'iew Penalty, § 190.
11 by the supreme judicial court; nor (c) unless every part is plainly printed
12 in tj^pe not smaller than long primer or ten point tj-pe; nor (d) unless
13 there is printed on the first page thereof and on its filing-back, in tj-pe
14 not smaller than eighteen point or great primer, a brief description of
15 the poHcy; nor (e) unless the exceptions be printed with the same prom-
16 inence as the benefits to which such exceptions apply; nor (/) unless it
17 contains in substance the following provisions:
18 1. A provision that such policy and such papers as may be attached
19 to or endorsed thereon shall constitute the whole contract of insurance,
20 except as the same may be affected by any table of rates or classification
21 of risks filed by the company with the commissioner.
22 2. A pro\-ision that no statement made by the applicant which is not
23 incorporated in or endorsed on the policy issued to such applicajit shall
24 avoicl the policy or be used in evidence, and that no pro\'ision of the
25 charter, constitution or by-laws shall be used in defence of any claims
26 arising under any such policy unless such pro\'isions are incorporated in
27 full in the policy; but this requirement shall not be deemed to apply to
28 the table of rates or manual of classification of risks of any company filed
29 with the commissioner prior to the date of the occurrence of the injury
30 or commencement of the sickness for which indemnity is claimed.
31 3. A provision specifying the time within which notice of accident or
32 disability shall be given, which shall not be less than twenty days from
33 the date of the accident nor less than ten days from the date of the be-
34 ginning of the disability from sickness upon which the claim is based;
35 provided, that in case of accidental death immediate notice thereof may
1996 " rNsuK-wcE. [Ch.\p. 175.
be required, unless the notice as herein specified may be shown not to 36
have been reasonably possible. 37
4. A provision that notice of a claim for indemnity shall be deemed 38
sufficient when given to the office or agent of the company specified in the 39
policy. 40
5. A provision that under every" such policy, if a past due premium 41
shall be accepted by the company or by a branch office or by a duly au- 42
thorized agent of the company in the town or county where the insured 43
shall reside, or by the duly authorized agent of the company who ac- 44
cepted the last premium on the policy, if so authorized at the time of the 45
acceptance of ^ the past due premium, such acceptance shall reinstate 46
the policy in full as to disability resulting from accidental bodily injuries 47
thereafter sustained, but shall only reinstate the policy as to disability 48
from disease beginning more than ten days after the date of such 49
acceptance. 50
6. A provision that if the insured is injured or contracts disease after 51
having changed his occupation to one classified by the company as more 52
hazardous than that stated in the policy, or while he is doing any act 53
or thing pertaining to any occupation so classified, except ordinary 54
duties about his residence or while engaged in recreation, the company 55
will pay such proportion of the indemnities provided in the policy as the 56
premium paid would have purchased at the rate, but within the limits 57
fixed by the company, for such more hazardous occupation according to 58
the company's rates and classification of risks filed with the commis- 59
sioner prior to the occiu-rence of the injiuy or the commencement of the 60
disease for which indemnity is claimed. As an alternative to the pro- 61
visions of this paragraph the policy may provide that no reduction shall 62
be made in any indemnity therein provided for by reason of any change 63
in the occupation of the insured or by reason of his doing any act or thing 64
pertaining to any other occupation. 65
7. A provision that the company will pay the benefit promised for 66
specified disabilities or accidental death within sixty days of the receipt 67
of due proofs thereof; or in lieu thereof a provision, at the option of the 68
insured, that such benefit for a specified amount shall be payable in instal- 69
ments, the provision to state the time within which the first instalment 70
shall be paid, which shall not exceed sLxty days from the receipt of due 71
proofs by the company, the time for payment of subsequent instalments 72
and the number thereof; also a provision, which may be incorporated 73
in the body of the policy or made a part of the contract by an endorse- 74
ment or rider, that the company will pay to any person entitled thereto, 75
at least once in thirty days, the amount which has accrued on account 76
of sickness or accident, upon receipt of due proof thereof. 77
?&i7)2' ^- ^ provision that cancellation may be efl"ected by the company 78
only by written notice delivered to the insured or mailed, postpaid, to 79
liim at his last address, as shown by the records of the company, and the 80
tender of cash or the company's cheek for the unearned portion of the 81
premium, but such cancellation shall be without prejudice to any claim 82
arising on account of disability commencing prior to the date on which 83
the cancellation takes effect. The foregoing provision shall be used only 84
in policies pro\'iding for cancellation by the company. 85
9. A provision specifying the time within which proofs of claim shall 86
be furnished to the company, which shall be not less than ninety days 87
from the date of death, dismemberment or loss of sight or from the termi- 88
nation of any other disability. 89
Ch.\P. 175.] INSUK.WJCE. 1997
90 A policy shall be deemed to contain any such provision in substance,
91 when, in the opinion of the commissioner, the provision is stated in terms
92 more favorable to the insured or his beneficiary than are herein set forth.
1 Section 109. No policy insuring against accidental bodily injuries Certain
2 or disease or death from accident shall be issued or delivered in the com- p?Shi'bitS.
3 monwealth if it contains in substance any of the following provisions: '®^°' *^^' ^ ^•
4 1. A provision that shall authorize the deduction of any premium or Penalty, §i90,
5 assessment from any indemnity payable under the terms of the policy,
6 except such premium or assessment as may be due or covered by written
7 order or note at the time of payment of the indemnity.
8 2. A provision limiting the amount of indemnity to be paid to a sum
9 less than the indemnity as stated in the policy and for which the premium
10 has been paid; provided, that if the insured shall carry other insurance
11 covering the hazard without giving written notice to the companies
12 issuing the policies, then and in that case each company may stipulate
13 that it will be liable only for such proportionate amount of benefits as
14 the indemnity promised bears to the total amount of indemnity in all
15 the policies covering such hazard and for the return of such part of the
16 premium paid as shall exceed the pro rata of the premium for the benefits
17 paid.
1 Section 110. Nothing in the two preceding sections shall apply to or sections los
2 affect any general or blanket policy of insurance issued to any employer, applicable
3 whether an individual, corporation, co-partnership, or association, or to poHcL^'"
4 any municipal corporation or department thereof, police or fire depart- l9}9,'92f'§^2^'
5 ment, underwriters' corps, salvage bureau or like organization, where
6 the officers, members or employees or classes or departments thereof
7 are insured against specified accidental bodily injuries or diseases while
8 exposed to the hazards of the occupation or otherwise, for a premium
9 intended to cover the risks of all the persons' insured under such policy.
1 Section 111. The beneficiary under a policy of insurance against ^^^if"^^^,
2 loss or damage from disease or by the bodily injury or death by accident dent, etc.,
„ , . , . . "^ . , ■ . , . policies
3 of the msured may mamtain an action thereon m his own name. may sue.
1918, 257, § 371. 1919, 5. 1920, 2.
1 Section 112. In respect to every contract of insurance made be- Payment of
2 tween a company and any person, by which such person is insured against iSuty" "^"^
3 loss or damage on account of the bodily injury or death by accident of re^uLTed.
4 any person, for which loss or damage such person is responsible, whenever J?J^'']yi'*^33; fg\-
5 a loss occurs on account of a casualty covered by such contract of insur- ^^^Jj^jj^^g 35 '
6 ance, the liability of the companj^ shall become absolute, and the pajTiient
7 of said loss shall not depend upon the satisfaction by the insured of a final
8 judgment against him for loss or damage or death occasioned by said
9 casualty. No such contract of insurance shall be cancelled or annulled
10 by any agreement between the company and the insured after the said
11 insured has become responsible for such loss or damage, and any such
12 cancellation or annulment shall be void.
1 Section 113. Upon the recovery of a final judgment against any Effect of
2 person by any person, including administrators or executors, for loss or i"'i4!"i(i4,' § 2.
3 damage on account of bodily injury or death, if the defendant in such '^'^ ^^'^''' '^"
1998 msxiBANCE. [Chap. 175.
action was insured against said loss or damage at the time when the 4
right of action arose, the judgment creditor shall be entitled to have the 5
insurance money, provided for in the contract of insurance between the 6
company and the defendant, applied to the satisfaction of the judgment. 7
Title instirance
companies
TITLE INSURANCE.
Section 114. A company organized under the eleventh clause of 1
thfs"(Sapter°™ scctiou forty-sevcu or under earlier laws relating to such companies shall 2
1887' 214' ^ ^' ^^°^ ^^ subject to tliis chapter, except this section and sections twenty- 3
i889^'378 ^^^' forty-seven, forty-eight, one hundred and fifteen, and one hundred 4
1894; 522; and sixteen. Such company may transact all the kinds of business sped- 5
R. L.'iis', fied in said eleventh clause. 6
I 62, 64.
1907. 676, §§ 63, 65, 122. 1917, 146, § 4. 1 Op. A. G. 41.
Satingto Section 115. Any such company, before it issues any policy or 1
^™.!f^lfJ'°''^ makes any contract of guaranty or insurance, shall file with the com- 2
i|s*' ISO- missioner a certified copy of the record in the office of the state secre- 3
1887, 214, § 62. tary of its certificate of organization, and shall obtain from the com- 4
1894 522 §62.. . . .
R. l! lis! I 62! missioner his certificate that it has complied with the laws applicable to 5
§§ 63, 122. it and is authorized to do business. 6
Every such company shall annually, on or before January fifteenth, 7
file in the office of the commissioner such statement as he may require 8
of its condition and of its affairs for the year ending on the preceding 9
December thirty-first, signed and sworn to by its president or secretary 10
or treasurer and one of its directors. For neglect to file such annual 11
statement or for making a wilfully false statement, the company shall 12
be liable to the penalties prescribed by section twenty-six of this chapter 13
and section forty-eight of chapter one hundred and fifty-five, respec- 14
tively. The commissioner shall haA-e the power and authority to \-isit 15
and examine such companies conferred by section four in respect to 16
other domestic insurance companies, and the duties and liabilities of 17
such companies and their officers and agents relatiA'e to such examina- 18
tion shall be the same as those of other domestic insurance companies. 19
fu'Jfd.*"^ Section 116. Every such company shall set apart an amount not 1
1887', 214', 1 63. Icss thau two fifths of its capital, and not less than one hundred thou- 2
R^t. lis! I ei; sand dollars in any case, as a title guaranty fund, and shall invest it sub- 3
ITii^i^'i J^^t to tlie limitations imposed by this chapter upon the inA"estment of 4
Io^'a'g^u *^^^ capital of other domestic insurance companies, and shall issue no 5
title policy and make no contract of title guaranty or title insurance 6
imtil such amount is so set apart and invested.
The principal of such title guaranty fund shall be a trust for the pro- 8
tection of title policy holders, and shall be applied only to the paATnent 9
of losses and expenses incurred by reason of the title guaranty or title 10
insurance contracts of the company. Whenever the company shall in- 11
crease its capital, two fifths or a sufficient part of the increase shall be 12
set apart and duly invested and added to the title guaranty fund so that 13
such fund shall always be not less in amount than two fifths of the entire 14
capital. 15
If by reason of losses or other cause the title guaranty fund is less 16
than two fifths of the capital, the company shall make no further con- 17
tract of title guaranty or title insurance until the fund is made good. 18
Chap. 175.] insueance. 1999
STEAM BOILER INSURANCE.
1 Section 117. No company shall issue a policy of insurance on a Term of
2 steam boiler for a longer period than three years. poUdea.
1907, 465, § 18. 1908, 563, § 2. 3 Op. A. G. 585.
LIFE insurance.
1 Section 118. All companies doing business in the commonwealth Definition of
2 under any charter, compact, agreement or statute of this or any other i87o,°S49?T5.
3 state, involving the payment of money or other thing of value to families llll\ fof; I ]■
4 or representatives of policy and certificate holders or members, condi- H"' ?°:S' f ?•
r'l 1 .^*^ . „, ,., .,. 18S0, 19b, § 4.
5 tioned upon the continuance or cessation oi human lire, or involving an p. s-ii9. §154.
6 insurance, guaranty, contract or pledge for the paJ^nent of endowments 1894^ 522! § es!
7 or annuities, shall be deemed to be life companies, and shall not make loorlsTe!
8 any such insurance, guaranty, contract or pledge in the commonwealth, i9i7%\o"'
9 or to or with any resident thereof, which does not distinctly state the i26Masl'306.
10 amount of benefits pavable, the manner of pavment and the consider- ?rX ^."^A^^i,.
-.-.'■It* 1. i,-^ ^P- A. 0. 480.
11 ation thereior, nor any such insurance, guaranty, contract or pledge
12 the performance of which is contingent upon the payment of assess--
13 ments made upon survivors. Nothing herein relating to the consider-
14 ation for the policy shall apply to any extra compensation which may be
15 charged by a company to the insured for engaging in military or naval
16 service in time of war.
17 All life insurance hereafter transacted by the corporations which for- 1899,229.
18 merly issued policies on the assessment plan under chapter four hundred f^ i,.^ii8, § es.
19 and twenty-one of the acts of eighteen hundred and ninety and acts in §|°J6,\"2^2.
20 amendment thereof shall be carried on in accordance with this chapter;
21 but such corporations may carry out in good faith their assessment
22 contracts made with their members prior to July first, eighteen hundred
23 and ninety-nine.
1 Section 119. Domestic life companies may make pure endowment Life companies
2 contracts, and grant, purchase and dispose of annuities. 1917, 117. rn''n^ufS°,'etc.
1 Section 120. No life company and no officer or agent thereof shall Discrimination
2 make or permit any distinction or discrimination in favor of individuals i8S7, 214, § es.
3 between insurants of the same class and equal expectation of life in the r. l! iis] § es!
4 amount or payment of premiums or rates charged for policies of life or §§'69,"22.
5 endowment insurance, or annuity or pure endowment contracts, or in iSp.AG'iT^"
6 the dividends or other benefits payable thereon, or in any other of the
7 terms and conditions of the contracts it makes.
1 Section 121. No life company and no officer or agent thereof and Certain
2 no insurance broker shall make any contract of life or endowment in- proiuijitcti.
3 surance or any annuity or pure endowment contract or any agreement isSV, 522! § es!
4 as to such contract other than as plainly expressed in the policy issued Wiml Mf,'. ^ "^'
5 thereon; or give, sell or purchase, or offer to give, sell or purchase, as in- |,^p'^a' \f'
6 ducement to placing or negotiating any such contract or the continuance ^'^'^' '^^- ^^•
7 or renewal thereof or in connection therewith, any stocks, bonds or
8 other securities of any company or other corporation, association or
9 partnership, or any dividends or profits accrued thereon.
2000
INSTJR.\NCE.
[ClLU>. 175.
Discrimination
on account of
color pro-
hibited.
1884, 235.
1887. 214,
§§ 69, 109.
1894. S22,
|§ 69, 109.
R. L. 118,
§§69,109.
1907, 576,
§§ 70, 118,
122.
Section 122. No life company shall make any distinction or dis- 1
crimination between white persons and colored persons wholly or partly 2
of African descent as to the premiums or rates charged for policies upon 3
the lives of such persons; nor shall any such company demand or require 4
greater premiums from such colored persons than are at that time re- 5
quired by such company from white persons of the same age, sex, general 6
condition of health and prospect of longevity; nor shall any such com- 7
pany make or require any rebate, diminution or discount upon the 8
amount to be paid on such policy in case of the death of such colored 9
person insured, nor insert in the policy any condition, nor make any 10
stipulation whereby such person insured shall bind himself or his heirs, 11
executors, administrators and assigns to accept any amount less than 12
the full value or amount of such policy in case of a claim accruing thereon, 13
by reason of the death of such person insured, other than such as are 14
imposed upon white persons in similar cases; and any such stipulation 15
or condition so made or inserted shall be void. 16
Any such company which shall refuse the application of any such 17
colored person for insurance upon such person's life shall furnish such 18
person, on his request therefor, with the certificate of a regular exam- 19
ining physician of such company who made the examination, stating 20
that such refusal was not because such applicant is a person of color, 21
but solely upon such grounds of the general health and prospect of Ion- 22
gevity of such person as would be applicable to white persons of the 23
same age and sex. 24
A company or an officer or agent thereof who violates any provision 25
hereof shall be punished by a fine of not more than one hundred dollars. 26
Medical
examination
required,
except, etc.
1895, 366.
R. L. 118. §
1907. 676,
l§ 71. 122.
1916. 12.
1918, 35.
71.
Section 123. No life company shall enter into any contract of in- 1
surance upon lives within the commonwealth without having previously 2
made or caused to be made a prescribed medical examination of the in- 3
sured by a registered medical practitioner; except that an inspection 4
by a competent person of a group of employees and their environment 5
may be substituted for such medical examination in cases where the in- 6
surance is granted under a single policy issued to a person, covering 7
simultaneously a group of not less than one hundred lives all in the 8
employ of such person. Nor shall medical examination be required for 9
the issuance of contracts based upon the continuance of life, such as 10
annuity or pure endowment contracts, whether or not they embody an 11
agreement to refund, upon the death of the holder, to his estate or to a 12
specified payee, any sum not exceeding the premiums paid thereon. 13
Any company \iolating this section, or any officer, agent or other person 14
soliciting or efTecting, or attempting to efTect, a contract of insurance 15
contrary to the pro\'isions hereof, shall be punished by a fine of not 16
more than one hundred dollars. 17
statements as
to age. health,
etc.. binding
if policy
issued without
medical exam-
ination, etc.,
except, etc.
1892. 372.
1893. 434.
1894. 622. § 73.
R. L. 118, § 73.
1907. 576,
5§ 73, 122.
160 Mass. 386.
162 Mass. 236.
Section 124. In any claim arising under a policy issued in the com- 1
monwealth by any life company, without previous medical examination, 2
or without the knowledge and consent of the insured, or, if said insured 3
is a minor, without the consent of the parent, guardian or other person 4
having legal custody of said minor, the statements made in the application 5
as to the age, physical condition and family history of the insured shall 6
be held to be valid and binding on tlie company; but the company shall 7
not be debarred from proving as a defence to such claim that said state- 8
ments were wilfully false, fraudulent or misleading. 9
Chap. 175.] insxjrance. 2001
1 Section 125. If a policy of insurance is effected by any person on Rights of
2 his own life or on another life, in favor of a person other than himself bem;fida?y^
3 having an insurable interest therein, the lawful beneficiary thereof, other §f*|;|^'
4 than himself or his legal representatives, shall be entitled to its proceeds ]^- 2*|- ^g
5 against the creditors and representatives of the person effecting the isss, 252! § 42.
6 same; and the person to whom a policy of life or endowment insurance, p.s.'ng. § i67.
• • • 1 SS7 ''14 5 7*^
7 issued subsequent to April elcA^enth, eighteen hundred and ninety-four, i8fl2i 372.'
8 is made payable may maintain an action thereon in his own name; pro- [Igl] 225';
9 vided, that, subject to the statute of limitations, the amount of any |"'l.^i'i^s, 5 73.
10 premiums for said insurance paid in fraud of creditors, with interest ls°73^[f2
11 thereon, shall enure to their benefit from the proceeds of the policy; but 'i Aiien,22j.
. . . . ... * 97 Mass 359
12 the company issuing the policy shall be discharged of all liability thereon 99 Mass! 154!
13 by pa\-ment of its proceeds in accordance with its terms, unless before ns' Mass. 219.
14 such paj-ment the company shall have ^\Titten notice, by or in behalf 157 m^; It*'
15 of a creditor, of a claim to recover for certain premiums paid in fraud of }^ Mas!; 302'
Ifi creditors, with specification of the amount claimed.
172 Mass. 498. 202 Mass. 562. 2H Mass. 512.
185 Mass. lO.-?, 318. 207 Mass. 159. 226 Mass. 306.
186 Mass. 358. 210 Mass. 35. 228 Mass. 181.
1 Section 126. E^■e^y policy of life or endo'mnent insurance made Policies
2 payable to or for the benefit of a married woman, or after its issue as- SSried '°
3 signed, transferred or in anyway made payable to a married woman, or J™™er'bei'iefit
4 to any person in trust for her or for her benefit, whether procured by her- lf^f-§^-
5 self, her husband or bv anv other person, and whether the assignment or 1854. 453, § 23.
. I V i^ ■■ o 1S56 252 § 42
6 transfer is made by her husband or by any other person, shall enure to g. s.'ss. § 62. '
7 her separate use and benefit, and to that of her children, subject to the p. s.'ii9,§i67.
8 provisions of the preceding section relative to premiums paid in fraud ally's '73.'
9 of creditors and to sections one hundred and forty-four to one hundred {goy- jif' ^ ''^
10 and forty-eight, inclusive. iiAUen, 224. 97 Mass. 359. §'§73.122.
99 Mass. 154, 157. 132 Mass. 408. 202 M.ass. 100, 549, 562.
118 Mass. 219. 185 Mass. 318. 210 Mass. 35.
131 Mass. 294. 186 Mass. 358. 217 Mass. 444.
1 Section 127. An insurance agent, examining physician or other Penalties for
2 person who kno\%-ingh- or wilfully makes a false or fraudulent statement mlfnts'etc!
3 or representation in or relative to any application for life or endowment J|g|' Hf
4 insurance, or who makes any such statement for tlie purpose of obtaining i894, 522. § 73.
5 a fee, commission or money, or benefit in a company transacting such i907.'576.'
6 business under this chapter, shall be punished by a fine of not less than
7 one hundred nor more than five hundred dollars or by imprisonment for
8 not less than one month nor more than one year, or both; and a person
9 who wilfully makes a false statement of any material fact or thing in a
10 sworn statement as to the death or disability of a policy holder in any
1 1 such company, for the purpose of procuring payment of a benefit named
12 in the policy, shall be guilty of perjury.
1 Section 128. No party to any contract of life or endowonent in- infant cannot
2 surance made after RIarch thirtieth, nineteen lumdred and. seA"enteen, fOTinsurance'!'
3 upon the life of such party, for the benefit of the insured, or for the bene- ^®^^' ^''•
4 fit of the wife, husband, children, father, mother, brother or sister of the
5 insured, shall, because of infancy, be entitled to avoid or repudiate the
() contract or to avoid or repudiate any discharge or receipt given by him
7 for any benefit accrued or accruing, or for any money paid or payable
8 under the contract; provided, that such party had attained the age of
9 fifteen when the contract was effected.
2002
INSURANCE.
[Chap. 175.
Description
of life, etc.,
policies.
1894, 442,
§ 1; 522. §73.
R. L. 118, § 73.
1907, 576,
§§ 74, 122.
1909, 467.
Section 129. No life company and no officer or agent thereof shall 1
issue a policy of life or endowment insurance or an annuity or pure en- 2
dowment policy to a resident of the commomvealth not bearing in bold 3
letters upon its face a plain description of the policy, so fully defining 4
its character, including cli\idend periods and other peculiarities, that the 5
holder thereof shall not be likely to mistake the nature or scope of the 6
contract. 7
Dating of
life, etc.,
policies.
1912, 119.
Application
referred to in
life policy must
be attached
thereto.
1893, 434.
1894, 522. § 73.
R. L. 118, § 73.
1907. 576,
§§ 73, 122.
1909, 242.
165 Mass. 462.
172 Mass. 278.
Section 130. No policy of life or endowment insurance, and no 1
annuity or pure endowment contract, shall be issued or deliA'ered in the 2
commonwealth if it shall purport to be issued or to take effect at an age 3
lower than the age of the applicant at his nearest birthday at the time 4
of the original \\Titten application. 5
Section 131. Unless a correct copy of the application is endorsed 1
upon or attached to a policy of life or endowment insurance, when issued, 2
the application shall not be considered a part of the policy or received 3
in e^^dence for any purpose. E\ery such policy which contains a refer- 4
ence to the application, either as a part of the policy or as ha\ing any 5
bearing thereon, shall have endorsed thereon or attached thereto, when 6
issued, a correct copy of the application. i8o. Mass. 407. 7
188 Mass. 212.
191 Mass. 153.
192 Mass. 468.
193 Mass. 215.
194 Mass. 66, 527.
199 Mass. 190.
200 Mass. 197.
205 Mass. 290.
208 Mass. 1.
Life, annuity,
etc., policies
to be ap-
proved by
commissioner.
Life policies
to contain
certain pro-
visions.
1907, 576. § 75.
1916, 47.
1918, 60;
112, § 8.
199 Mass. 181,
190.
208 Mass. 386.
220 Mass. 52.
Penalty, § 190.
Section 132. No policy of life or endowment insurance and no 1
annuity or pure endowment policy shall be issued or delivered in the 2
commonwealth until a copy of the form thereof has been on file for 3
thirty days with the commissioner, unless before the expiration of said 4
thirty days he shall ha^•e approved the form of the policy in writing; 5
nor if the commissioner notifies the company in ■UTiting, \\'ithin said 6
thirty days, that in his opinion the form of the policy does not comply 7
with the laws of the commonwealth, specif\-ing his reasons therefor, pro- 8
\'ided that such action of the commissioner shall be subject to re\-iew 9
by the supreme judicial court; nor shall such policy, except policies of 10
industrial insurance, on which the premiums are payable monthly or 11
oftener, and except annuity or pure endo^wment policies, whether or not 12
they embody an agreement to refund to the estate of the holder upon 13
his death or to a specified payee any sum not exceeding the premiums 14
jjaid thereon, be so issued or delivered unless it contains in substance the 15
following: 16
1. A provision that the insured is entitled to thirty days of grace 17
within which the payment of any premium after the first year may be 18
made, subject at the option of the company to an interest charge not in 19
excess of six per cent per annum for the number of days of grace elapsing 20
before the payment of the premium, during w-hich period of grace the 21
policy shall continue in full force; but if the policy becomes a claim dur- 22
ing the said period of grace before the overdue premium or the deferred 23
premiums of the current policy year, if any, are paid, the amount of 24
such premiums, w ith interest on any overdue premium, may be taken 25
from the face of the policy in settlement. 26
2. A pro\ ision that the policy shall be incontestable after two years 27
from its date of issue except for non-payment of premiums or violation 28
of the conditions of the policy relating to military or naval service in 29
time of war. 30
ClIAP. 175.] INSURANCE. 2003
31 3. A provision that the policy and the application therefor shall con-
32 stitute the entire contract between the parties, and that no statement
33 made by the insured or on iiis behalf shall be used in defence to a claim
34 under the policy unless it is contained in a written application, and a copy
35 of such application is endorsed upon or attached to the policy when
36 issued.
37 4. A provision that if the age of the insured has been misstated the
38 amount payable under the policy shall be such as the premium would
39 have purchased at the correct age.
40 5. A provision that the policy shall participate in the surplus of the
41 company annually, beginning not later than the end of the third policy
42 year.
43 6. A provision specifying the options to which the policy holder is
44 entitled in the event of default in a premium payment after three full
45 annual premiums shall have been paid.
46 7. A provision that not later than the third anniversary of the policy
47 the holder of the policy shall, upon a proper assignment thereof to the
48 company, be entitled to borrow of the company, on the sole security of
49 the policy, a sum not more than ninety-five per cent of the cash sur-
50 render value thereof, less any indebtedness to the company, at a rate of
51 interest not exceeding six per cent. Said provision shall include such
52 other conditions as, in conformity to the laws of the commonwealth, the
53 company will impose when the application for the loan is made.
54 8. A table showing in figures the loan values, if any, and the options
55 available under the policy each year upon default in premium payments,
56 during at least twenty years of the policy, beginning with the year in
57 which such values and options first become available.
58 9. A provision that the company may at its option defer the granting
59 of any loan other than to pay premiums on the policies in the company,
60 and may at its option defer the granting of any cash surrender value for
Gl a period not exceeding ninety days from tlie date of the application for
62 such loan or surrender value.
63 10. In case the proceeds of a policy are payable in instalments or as an
64 annuity, a table showing the amounts of the instalments and annuity
65 payments.
66 1 1 . A provision that the holder of a policy shall be entitled to have the
67 policy reinstated at any time within three years from the date of de-
68 fault, unless the cash surrender value has been duly paid or the extension
69 period has expired, upon the production of e\'idence of insurability satis-
70 factory to the company and the payment of all overdue premiums antl
71 any other indebtedness to the company upon said policy, with interest
72 at the rate of not exceeding six per cent per annum.
73 Any of the foregoing provisions or portions thereof not applicable to
74 single premium or non-participating or term policies shall to that extent
75 not be incorporated therein, and paragraph seven shall not apply to
76 foreign companies.
77 This section shall not apply to policies of group life insurance issued
78 or delivered in the commonwealth after June thirtieth, nineteen hun-
79 dred and eighteen.
80 A policy shall be deemed to contain any such provision in substance
81 when in the opinion of the commissioner the provision is stated in terms
82 more favorable to the insured or his beneficiary than are herein set
83 forth.
2004
INSURANCE.
[ClIAP. 175.
Group life
insurance
defined.
191S, 112. § 1.
Section 133. Group life insurance is hereby defined to be that form
of hfe insurance covering not less than fifty employees, ■uith or without
medical examination, "written under a policy issued to the employer, the
premium on which is to be paid by the employer or by the employer and
employees jointly, and insuring only all of his employees, or all of any
class or classes thereof determined by conditions pertaining to the em-
ployment, for amounts of insurance based upon some plan precluding
indi\ddual selection, and for the benefit of persons other than the em-
ployer; provided, that when the premium is to be paid by the employer
and employee jointly and the benefits of the policy are ofi'ered to all
eligible employees, not less than seA-enty-five per cent of such employees 11
may be so insured, or not less than forty per cent if each employee be- 12
longing to the insured group has been medically examined and found 13
acceptable for ordinary insurance by an indi\idual policy. 14
Group life
policies to be
approved by
commissioner
and to contain
certain pro-
visions.
191S, 112, § 2.
Penalty, § 190.
1
2
3
4
5
6
7
8
9
10
Section 134. No policy of group life insurance shall be issued or
delivered in the commonwealth until a copy of the form thereof has
been on file for thirty days with the commissioner, unless, before the
expiration of said thirty days, he shall have approved the policy in
writing; nor if the commissioner notifies the company in writing, within
said thirty days, that in his opinion the form of the policy does not com-
ply with the laws of the commonwealth, specifying his reasons therefor,
provided, that this action of the commissioner shall be subject to review
by the supreme judicial court; nor shall any such policy be so issued or
delivered unless it contains in substance the following provisions:
1. That the policy shall be incontestable after two years from its
date of issue except for non-payment of premiums or violation of the
conditions of the policy relating to military or naval service in time
of war.
2. That the policy, the application of the employer and the indi-
vidual applications, if any, of the emploj'ees insured shall constitute the
entire contract between the parties, and that no statement made by the
employer or any employee or on their behalf shall be used in defence
to a claim under the policy unless contained in a written application.
3. That the premium or the amount of insurance payable in the
event of a misstatement of the age of an employee shall be equitably
adjusted.
4. That the company will issue to the employer, for delivery to the
employee whose life is insured under the policy, an individual certifi-
cate setting forth a statement as to the insurance protection to which
he is entitled and to whom payable, together with a provision to the
efi'ect that if the employment is terminated for any reason whatsoever
the employee shall be entitled to have issued to him by the company,
without evidence of insm-ability, and upon application made to the
company within thirty-one days after such ternaination, and upon the
payment of the premium applicable to the class of risk to which he
belongs and to the form and amount of the policy at his then attained
age, a policy of life insurance in any one of the forms customarily issued
by the company, except term insurance, in an amount ecjual to the
amount of his insurance under such group policy at the time of such
termination.
5. That to the group or class thereof originally insured shall be added
from time to time all new employees of the employer eligible to in-
surance in such group or class.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
Chap. 175.] insurance. 2005
40 A policy shall be deemed to contain any such provision in substance
41 when, in the opinion of the commissioner, the provision is stated in
42 terms more favorable to the employer or employee than are herein
43 set forth.
1 Section 135. No such policy, or the proceeds thereof when paid to Group life
2 any employee or employees thereunder, or to their beneficiaries, shall subfectto'
3 be liable to attachment, trustee process or other process, or to be seized, i9\8'''\"l2°§ 4
4 taken, appropriated or applied by any legal or equitable process or
5 operation of law to pay any debt or liabilities of such employee or his
6 beneficiary or any other person having right thereunder either before
7 or after pajTnent; nor shall the proceeds thereof, when not made pay-
8 able to any beneficiary, constitute a part of the estate of the employee
9 for the payment of his debts.
1 Section 136. Such policies shall be exempt from any loan pro- such policies
2 vision or requirement. Any equity of the insured in a group life in- foanp'rovis^on.
3 surance policy at the time of default in the payment of a premium, ^^"^^g j^, , ^
4 whether that equity exists by reason of the terms of the policy or by
5 law, shall be applied to purchase extended or paid-up insurance for
6 each of the insured at attained age on the basis of the mortality table
7 and rate of interest used in computing the premium for the group.
1 Section 137. Under any group policy issued by a domestic mutual Employer only
2 life company, the employer only shall be a member of the company, of n mutual
3 and entitled to one vote by virtue of such policy at the meetings of L"umgTuch
4 the company. i9is. 112, § 6. policies.
1 Section 138. So much of this chapter as is inconsistent with sec- Effect of
2 tions one hundred and thirty-three to one hundred and thirty-seven, to^is™^ "^
3 inclusive, shall not apply to policies issued under said sections. ^^^*' ^^^' ^ *•
1 Section 139. At the request of a policy holder whose policy con- Exchange of
2 tains no provision for exchange or alteration, a domestic life company poucii.''^''
3 may issue and deliver, in exchange for a policy issued by it prior to Jan- ^^^^- *^®-
4 uary first, nineteen himdred and eight, any policy of life or endowment
5 insurance complying with the laws applicable to the original policy; pro-
6 \ided, that any policy so issued and delivered shall be issued as of the
7 date of the original policy, and shall not exceed the amount payable by
8 the terms thereof.
1 Section 140. Except as provided in this section, every domestic Annual
2 life company heretofore or hereafter organized, anything in its charter las'f,™^; § 27.
3 or its certificate of incorporation or special act to the contrary notwith- a^y.'slfiGo."'
4 standing, shall pro\ide in e\'ery policy of life or endowment insiu^ance ],sgo, 33.
5 hereafter issued that the proportion of the divisible surplus of the com- §§ li'', 150
6 pany contributed by said policy shall be ascertained and distributed is94'. 522', 1 75!
7 annually, and not other^vise, beginning not later than the end of the r. l". us', § 7s.
8 third policy year; but such distribution shall not be made contingent §§7(5,^122.
9 upon the payment of any further premium except tJiat if dividends
10 are allowed on an anniversary of the policy preceding the third, such
1 1 dividends may be made subject to the payment of the succeeding year's
12 premium. Every such company shall on December thirty-first of each
2006 INSURANCE. [Ch.\P. 175.
year or as soon thereafter as practicable, after providing for the resen-e 13
required by sections nine and eleven and for all other liabilities, in- 14
eluding di\adends declared upon the capital stock, if any, and such 15
sum as may be held on account of existing deferred di^^dend policies, 16
and pro\'iding also for a contingency reserve not in excess of the limit 17
prescribed in the follo\\'ing section, apportion its remaining funds upon 18
the contribution to surplus plan, as di^^dends, to all other policies en- 19
titled to share therein. Each such di\'idend shall annually, at the option 20
of the holder of the policy, (a) be payable in cash, or (&) applied in 21
reduction of premiimis, or (c) to the piu-chase of a paid-up addition, or 22
(rf) be left %ntli the company to accumulate to the credit of the policy 23
and be payable at the maturity thereof, or be •tt-ithdra%vable in cash on 24
demand by the holder of the policy, or applied as hereinafter set forth; 25
but if no election is made by the holder of the policy prior to any anni- 26
versary thereof, the di\'idend for that anni\ersary shall be held by the 27
company as p^o^^ded in option (fZ); and if any premium on the policy 28
is not paid at the expiration of the days of grace, the company shall 29
keep the policy in force by applj-ing the di\'idend accumulations to 30
the paj-ment due on the policy if such accumulations are sufficient 31
to make said payment in full, and shall forthwith mail a notice to the 32
holder thereof at his last known address, stating what amount has been 33
so applied, and if a balance of the dividend accumulations remains to 34
the credit of the policy, the amount thereof, pro\'ided that the share of 35
the surplus so apportioned to a term policy shall not be available for the 36
■ purchase of a paid-up addition, and provided that nothing herein con- 37
tained shall operate to continue a policy in force beyond the period which 38
any dividend accumulation so applied would carry the policy under its 39
full premium rate, nor beyond the term for which the policy was orig- 40
inally issued, and that the affidavit of any officer, clerk or agent of the 41
company, or of any one authorized to mail such notice, that the notice 42
required by this section has been duly mailed by the company, shall be 43
prima facie evidence that such notice was duly given. 44
On policies of industrial insurance on which premiums are payable 45
weekly the annual surplus distribution shall begin not later than the 46
end of the fifth policy year, and be applied to the paj-ment of any 47
premiums, or at the option of the holder of the policy be made in cash, 48
but such distribution shall not be made contingent upon the payment 49
of future premiums. 50
This section shall not apply to contracts of pure endowment or annul- 51
ties nor to any stock life company issuing only non-participating poll- 52
cies. A foreign life company wliich does not proAide in every partici- 53
pating policy hereafter issued or delivered in the commonwealth that 54
the proportion of the surplus accruing upon said policy shall be ascer- 55
tained and distributed annually and not otherwise, either by pajTuent 56
in cash of the amount apportioned to a policy, or by its application to 57
the pajTnent of premimns or to the purcliase of paid-up additions, or 58
for the accumulation of the amounts from time to time apportioned, 59
said accumulations to be subject to withdrawal by the policj^ holder, 60
shall not be permitted to do new business within the commonwealth. 61
i9cr7%n^'§' 77. Section 141. Any domestic life company may from its surplus funds 1
or profits accumulate and hold, or hold if already accumulated, as a 2
safety fund, an amount not in excess of twelve per cent of its reserve 3
Chap. 175.] insurance. 2007
4 or one hundred thousand dollars, whichever is greater, and, in addition
5 thereto any surplus that may have been contributed by the holders of
6 the guaranty stock of the company, or which has been accumulated for
7 the retirement of said guaranty stock and the margin of the market
8 value of its securities over their book value, provided that in cases where
9 the existing surplus or safety fund, exclusive of all accumulations held on
10 account of existing deferred dividend policies, exceeds the limit above
11 designated, the company shall be entitled to retain said surplus or safety
12 fund, but shall not be entitled to add thereto so long as it exceeds said
13 limit, and provided that for cause shown, the commissioner may at any ^
14 time and from time to time permit any company to accumulate and
15 maintain a safety fund in excess of the limit above mentioned, for a
16 prescribed period not exceeding one year in any one permission, by filing
17 in his office a decision stating his reasons therefor, and causing the same
18 to be published in his next annual report.
19 This section shall not apply to any company issuing only non-partici-
20 pating policies.
1 Section 142. After three full annual premiums have been paid on Loans.
2 any policy of life or endowment insurance issued by a domestic life igis] 47. ' '
3 company after December thirty-first, nineteen hundred and seven, the
4 holder thereof, upon its proper assignment to the company, shall within
5 ninety days of the application therefor be entitled to a loan from the
6 company, on the sole security of the policy and, at not exceeding six per
7 cent interest, of a sum not exceeding its loan value, which loan ^'alue
8 shall be not less than ninety-fiA'e per cent of the cash sm-render value of
9 the policy at the end of the policy year during which the application
10 for the loan is made, computed as prescribed by section one hundred
11 and forty-four, and of all dividend ailditions thereto, less any indebted-
12 ness to the company and any unpaid portion of the premimn for the
13 then ciu-rent policy j'ear. Failure to repay any such loan or to pay
14 interest thereon shall not avoid the policy while the total indebtedness
15 thereon is less than such loan value at the time said default in paj-ment
16 occurs, nor until thirty days after notice has been mailed by the com-
17" pany to the last known address of the insured. The affidavit of any
18 officer, clerk or agent of the company, or of any one authorized to mail
19 such notice, that the notice required by this section has been duly
20 mailed by the company, shall be prima facie evidence that such notice
21 was duly given. Nothing in this section shall require any company to
22 make a loan upon any policy for less than twenty-five dollars.
23 This section shall not apply to term policies nor to those in force as
24 extended insurance as provided in clause (c) of section one hundred and
25 forty-four.
1 Section 143. All policies of life or endowment insurance issued certain poii-
r% • T /»• iiti'ii 1 *^'^^ subject to
2 prior to January first, nmeteen hundred and eight, by any domestic life earlier laws
3 company shall be subject to the laws limiting forfeiture applicable and forfeiture.
4 in force at the date of their issue. isso, 232, § 6. p.s. 119. §§ 159, leo, lee.
18S7. 214, § 76. 1896,470. R. L. 118, 5 76.
1894, 522, § 76. 1900, 363, § 3. 1U07, 576, |§ 79, 122.
1 Section 144. After three full annual premiums have been paid on Policies issued
2 any policy of life or endowment insurance issued by a domestic life si'^iool"™
3 company after December thirty-first, nineteen hundred and seven, the rend'er Value,
2008
INSURANCE.
[Ch.U'. 175.
extended term
insurance or
paid-up policy
after three
annual premi-
ums have
been paid,
1861, 186.
1877.61,
1880, 232,
§§ 1-5.
P. S. 119.
§§ lGl-166.
1SS7, 214, § 70,
189-4, 522, § 76.
1896, 470,
1900, 303. § 3,
R, L, 118. I 76.
1907, 676,
§§ 80, 122.
1908, 166.
1910. 366.
1916.47.
100 Mass. 500.
103 Mass. 254.
123 Mass. 113.
127 Mass. 153.
170 Mass. 254.
181 Mass. 341.
holder thereof, within thirty days after any default in the payment of a 4
subsequent premium, may elect, by a writing filed with the company 5
at its home office, (a) to surrender the policy and, with the written assent 6
of the person to whom it is made payable, receive its value in cash, or 7
(6) take paid-up insurance which shall be participating if the policy is 8
on a participating basis, payable at the same time and on the same 9
conditions as in the original contract, or (c) have tlie policy continued 10
in force as extended term insurance from the anniversary date last 11
passed for its face amount, including any outstanding di\adend ad- 12
ditions and less any indebtedness thereon or secured thereby, but with- 13
out the right to loans; provided, that a policy whose proceeds are pay- 14
able in instalments or as an annuity may pro\ide that if either option 15
(b) or (c) becomes operati^■e the proceeds of the policy shall be payable 16
in one sum. The cash surrender value shall be the reserve on tlie policy 17
at the end of the last pohcy year for which the premium was paid in 18
full, plus a proportionate part of the increase in the cash value at the 19
end of the succeeding year if any instalment not less than a c^uarterly 20
instalment of the premium for that year has been paid, and of any 21
di\-idend additions thereto, computed on the mortality and interest 22
assumption upon which the company elects to reserve as prescribed 23
by section nine, less a surreiuler charge of not more than five per cent 24
of the present value of tlie future net premiums, which by its terms 25
the policy is exposed to pay in case of its continuance, computed upon 26
the aforesaid mortality and interest basis, and less any existing in- 27
debtedness to the company on the policy or secured thereby. The 28
company may reserve the right to defer the payment of such cash value 29
for not exceeding ninety days after the application therefor is made. 30
The term for which tlie policy 'will be continued or the amount of the 31
paid-up policy will be such as the cash value will purchase as a net 32
single premimn at attained age of the insured according to the mor- 33
tality and interest basis heretofore designated. But in case of an en- 34
dowment policy, if the sum applicable to the purchase of extended 35
term insurance shall be more than sufficient to continue the insurance 36
to the end of the endowment term named in the policy, the excess shall 37
be used to purchase in the same manner non-participating paid-up pure 38
endowment, payable at the end of the endowment term on the same 39
conditions. 40
If the holder shall not within thirty days from default surrender the 41
policy to the company for cash as provided in option (a), or elect, by a 42
writing filed witli the company at its home office, to take extended term 43
insurance as pro\ided in option (c), the insurance will be bintling upon 44
the company from the date of default ■uithout any further stipulation 45
or act as provided in option (6). The paid-up or extended term in- 46
surance granted by the terms of the policy shall have a cash surrender 47
value which shall be its net value less any indebtedne.ss to the company 48
on account of such policy or secured thereby, and the holder thereof 49
may, witliin ninety days of the application therefor, and ■^-ith the written 50
assent of the person to whom the policy is payable, claim and receive 51
in cash such surrender value. 52
Every such policy which by its terms has become paid up shall have a 53
cash surrender value which shall be its net value, less not more than five 54
per cent of one net annual premium on a ten payment life policy at the 55
age of entry of the insured, and less any indebtedness to the company 56
on such policy or secured thereby; and the holder thereof may, \\itJiin 57
i
Chap. 175.] insurance. 2009
58 ninety days of the application therefor and vnth the WTitten assent of
59 the person to wJiom tlie poHcy is payable, claim and receive in cash
60 such surrender ^'ahle.
61 This section shall not apply to annuity or pure endo\\Tnent contracts
62 \\-ith or without return of premiums, or to survivorship insurance, and,
6.3 in the case of a policy pro\-iding for both insurance and an annuitj^,
64 shall apply only to that part of the contract providing for insurance;
65 but every such contract providing for a deferred annuity on the life of
66 the insiu-ed only shall, unless paid for by a single premium, provide
67 that, in the event of the non-payment of any premium after three full
68 years' premiums shall have been paid, the annuity shall automatically
69 become con^'erted into a paid-up annuity for such proportion of the
70 original annuity as the number of completed years' premiums paid bears
71 to the total number of premiums required under the contract.
1 Section 145. On policies of industrial insurance issued on or before Cash surrender
2 December tliirty-first, nineteen hundred and ele^'en, by a domestic life Mustrfai
3 company on which premiums are paid weekly and are not more than {JefMl^ "*^"'"*
4 fifty cents each, the surrender value shall in all cases be payable In cash, December si.
5 which shall be a legal claim for not more than two years from the date p^f 'i^jg^'A^
6 of lapse, and be pa-s-able within sixtv davs after the demand therefor. iss7, 214, s le.
T. . . J^ ^' '' . . , 1S94 522, § 76
7 Witliln ninety days after the lapse of any policy which has a surrender isoe! 470!
8 value and upon which a settlement has not been made, the company r. l'. 11s', § 76.
9 shall send a notice thereof to the last known address of the holder of §§°s6,^'22.
10 said policy, which shall state the amount of the surrender value of said \^q- Hf
1 1 policy. The affi^la^it of any officer, clerk or agent of tlie company, or jaji. pi. § i-
12 any one authorized to mail such notice, that the notice reciulred herein
1 3 has been duly mailed by the company, shall be prima facie evidence that
14 such notice was duly given.
1 Section 146. After premiums have been paid for three full years industrial
2 on any policy of industrial insurance issued by a domestic life company .?fter"De™mber
3 after December thirty-first, nineteen hundred and eleven, in case of ?end«i^term"in-
4 failure to pay any subsequent premium the policy shall be binding upon three^ears""^
5 the company from the date of default, without anv further stipulation premiums have
* "^ , . " ■*■ been paid,
6 or act, as extended term insurance for its face amount, from the date to ion, 301. § 1.
. . . . 1912 52
7 which premiums have been paid, for such term as will be purchased at
8 the attained age of the insiu-ed by a net single premium, which shall be
9 the full reserve on the policy at the end of the last policy j'car for which
10 the premiums were paid in full, plus a proportionate part of the increase
11 in the reserve of the succeeding year for each additional thirteen weeks'
12 premium paid, computed upon the mortality and interest assumption
13 on which the company elects to reserve as prescribed by section nine,
14 less an amount not exceeding two and one half per cent of the sum in-
15 sured, and less any indebtedness to the company on the policy or secured
16 thereby. But in case of an endo\\Tnent policy, if the sum applicable to
17 the purchase of extended term insurance shall be more than sufficient
18 to continue the insurance to the end of the en(kn\'ment term named in
19 the policy, tlie excess shall be used to purchase in the same manner
20 non-participating paid-up pure endowment, payable at the end of the
21 endowment term on the same conditions.
1 Section 147. After premiums have been paid for five full years upon Same subject.
2 any such policy of industrial insurance, the holder thereof, in case of any or^'casl'^su?-"^''
2010
rNSUE.VNCE.
[Ch.u>. 175.
If?e1-''five years' default in tlic payment of a subsequent premium, may, by -m-iting filed 3
Eav^bMn ^^*-^^ t'^® company at its home office, within the term of extension and 4
i9n' 361 5 2 "°*' '^^^^ t^o-T^ thirteen weeks from the date to which premiums have 5
been paid, elect in lieu of extended term insurance, (1) to surrender the 6
policy to the company and recei^'e in exchange therefor a paid-up policy 7
of not less value according to the mortality and interest basis aforesaid, 8
payable at the same time and on the same conditions as the original 9
policy, or (2) to surrender the policy, with the written assent of the 10
person to whom it is payable, and receive its value in cash ^\^thin sixty 11
days after the demand therefor. Said cash surrenrler A-alue shall be equal 12
to the net single premium computed in the manner pro%'ided in the pre- 13
ceding section in the case of extended insurance. Any such policy of 14
industrial insurance which shall, after five years from its original date 15
of issue, become extended term insurance or a paid-up policy shall have 16
a cash surrender value which shall be its net %alue at the date of the 17
application therefor, less any indebtedness to the company then existing 18
thereon or secured thereby, which the holder thereof may, ^^^th the 19
written assent of the person to whom the policy is payable, claim and 20
receive in cash within sixty days after WTitten demand therefor. 21
Notice of
lapse of such
policy, etc.
1911, 361, § 3.
Section 148. Within ninety days after the lapse of any such policy 1
of industrial insurance on which any of the foregoing options have be- 2
come available, and upon which settlement has not been made, not con- 3
taining a table showing in figures the extended insurance, paid-up 4
insurance and cash surrender values available as pro-\'ided by the two 5
preceding sections, the company shall send a notice thereof to the last 6
known address of the insured stating the term of extension and the 7
amount of the paid-up insurance and the amount of the surrender 8
value. The affidavit of any officer, clerk or agent of the company, or 9
any one authorized to mail such notice, that the notice required herein 10
was dulj' mailed by the company, shall be prima facie evidence that such 11
notice was duly given. 12
Company
not to issue
participating
and non-
participating
policies.
1907, 576, § 81.
Section 149. No domestic stock or mutual life company, issuing or 1
professing to issue on or after January first, nineteen hundred and eight, 2
any participating policies, shall issue any policies of life or endo'miient 3
insurance wliich do not by their terms gWe to the hoklers thereof full 4
right to participate in the accumulations of said company as pro\'ided 5
in section one hundred and forty. This section shall not apply to an- 6
nuity or pure endowment contracts. 7
Admission.
1887, 214, § 77.
1894, 522, § 77.
1896, 124.
R. L. lis, § 77.
1904. 304.
1907, 576,
|§ 83, 122.
160 Mass. 413.
1 Op. A. G. 1,
115, 455.
2 0p. A. G.
2S9.
Op. A. G.
(1919) 120.
FOREIGN COMPANIES.
Section 150. Foreign companies, upon complying with the condi- 1
tions herein set forth applicable to such companies, may be admitted 2
to transact in the commonwealth, as provided in section one hundred 3
and fifty-seven, any kinds of business authorized by this chapter, subject 4
to all general laws now or hereafter in force relative to insurance com- 5
panics, and subject to all laws applicable to the transaction of such busi- 6
ness by foreign companies and their agents; but no pro\ision of law 7
which by its terms applies specifically to domestic life companies shall 8
thereby become applicable to foreign life companies. 9
The license of any such foreign company shall expire on June thirtieth 10
of each year, unless sooner revoked or suspended as provided in section 11
Chap. 175.] insukance. 2011
12 five, but may be renewed by the commissioner on or before tliat date on
13 written application of the company.
1 Section 151. No foreign company shall be admitted and authorized admfgsion^"^
2 to do business until — i826, hi, § i.
R. S. 37, § 40. 1867. 267, §§ 1, 4, 7. 1894, 522, § 78, cl. 1.
1852,311,5 6. 1868, 317, § 1. R. L. 118. § 78. cl. 1.
1854, 453, § 35. 1878. 36, § 3. 1907, 570, § 84, cl. 1, § 122.
1856, 252, § 48. P. S. 119, § 199. 1919, 114, § 2.
G. S. 58, § 71. 1887. 214, § 78, cl. 1. 2 Op. A, G. 64.
3 First, It has deposited with the commissioner a certified copy of its 2 Alien, 398.
4 charter or deed of settlement and a statement of its financial condition ^" ^^^^' ^^*'
5 and business, in the form prescribed by section tweiity-fi\e, and signed
6 and sworn to as p^o^^ded in said section, and has paid for the filing
7 of such copy thirty dollars, and for the filing of such statement twenty
8 dollars.
9 Second, It has satisfied the commissioner that (1) it is fully and 55^2%'*^'
10 legally organized under the laws of its state or government to do the IVfi^J^
11 business it proposes to transact; that (2) it has, if a stock company, a If*'''^''^-
12 fully paid-up and unimpaired capital, exclusive of stockholders' obliga- 1852,311,57.
13 tions of any description, of an amount not less than is required of i85o!252', ''
14 domestic companies under sections forty-eight and fifty-one; that (3) g. "'ssf
15 it has, if a mutual company, other than life, (a) net cash assets equal |go3%49, § 10
16 to the capital required of like companies on the stock plan; or (b) net Jfgg'fj^' t }•
17 cash assets of not less than fifty thousand dollars and contingent assets 1872] 375', § le.
IS of not less than three hundred thousand dollars, or (c) net cash assets p. s.'iig.
19 of not less than se\enty-five thousand dollars, with contingent assets of iss?, 214, '
20 not less than one hundred and fifty thousand dollars, or (rf) net cash isiM',^!,'
■ 21 assets equal to its total liabilities and contingent assets of not less than lg^~; 270 § 1
22 one hundred thousand dollars; (4) that such capital and assets, other f'^l'j.^'l
23 than contingent, are well in\ested and available for the pa^-ment of iao''. 5^«,
. . . . .* 5 84 cl 2 5 122
24 losses in the commonwealth; and (5) that it insures in a single risk where- igon. 415.
25 ever located an amount no larger than one tenth of its net assets except
26 as pro\'ided in section twenty-one.
27 Third, It has filed with the commissioner a power of attorney consti- §§^|:5^^''
28 tuting and appointing the commissioner or his successor its true and }||^'^|o I4I
29 lawful attorney, upon whom all lawful processes in any action or legal g s.'ss, '
30 proceeding against it may be served, and therein shall agree that any i867,'267, § 1.
31 lawful process against it which may be served upon its said attorney shall is75! 79.
32 be of the same force and validity as if served on the company, and p*';!' no. §202.
33 that the authority thereof shall continue in force irrevocable so long as §*7Y'eV3
34 any liability of the company remains outstanding in the commonwealth. I^||'^®,-|'
35 The power of attorney shall be executed by the president and secretary R- l- 11s, § 78.
36 of the company, or other officers duly authorized thereto, under its cor- 1907'. 576'.'
37 porate seal, and shall be accompanied by a certified copy of the resolu- 12 dray, 201. '
38 tion of the board of directors of the company making said appointment u Aiie",' ise!
39 and authorizing the execution of said power of attorney which shall be J3I Jj!^^^- HI'
40 in a form prescribed by the commissioner. Tlie ser\ice of such process }ll ^\'^^'- 2S2.
,, I II 1 111 • • , !• • 1 1 rr- I. 139 Mass. 295.
41 shall be made by leaMng the same in duplicate in the hands or office or 149 Mass. 26.
42 the commissioner. One of the duplicates of such process, certified by the loo M.-is.s'4i3!
43 commissioner as ha\'ing been served upon him, shall be deemed sufficient Ic.s Mlllseb.
44 ev-idence thereof, and ser\'ice upon such attorney shall be deemed serN-ice \li l\lll\ }f|;
45 upon the principal. 94 u. s. 535.
46 Fourth, It has appointed as pro\nded in section one hundred and sixty- iss?, 214^.
47 tliree some residents of the commonwealth as its agents therein. ism', 522,'
R. L. lis, § 78, cl. 4. 1907, 576, § 84, d. 4, § 122. 8 Gray, 206. 1 Allen, 43G. § 'S, cl. 4.
2012
INSUK.\NCE.
[Ch.\p. 175.
G^l'58^'§y^' Fifth, It has obtained from the commissioner a Hcense stating that 48
ITi'i'^^' ^* ^^^^ comphed ^\^th the laws of the commonwealth and specif jing the 49
1868, 317, § 1. kinds of business it is authorized to transact. 50
p. S. 119, § 198.
1887, 214, § 78. cl. 5.
1894, 522, § 78, cl. 5.
R. L. 118, § 78, cl. 5.
1907, 576, § 84, cl. 5, § 122
2 0p. A. G.64.
Kinds of
business
which may be
combined by
foreign com-
panies.
1879, 130.
1881,51.
P. S. 119, §201.
1887, 214, § 80.
1889, 356.
1891, 195.
1894, 133, § 3;
522, § 80.
1895, 474, § 3.
1896, 140.
1898, 380, § 1.
R. L. 118,
§§ 56, 80.
Section 152. Any foreign stock company admitted to this common-
wealth, or any company admitted under section one hundred and fifty-
five, may, if its charter permits, transact the kinds of business per-
mitted to domestic stock companies under section fifty-one, and shall be
subject to said section fifty-one and to section fiifty-two. Any foreign
mutual company admitted to this commonwealth may, if its charter
permits, transact the kinds of business permitted to domestic mutual
companies by clauses («), (rf), (e), if) and (g) of section fifty-four. Any
foreign life company admitted to this commonwealth may, if its charter
permits, transact the kinds of business permitted to domestic life com- 10
panies under section one hundred and nineteen.
1905, 401, § 1. 1912, 524.
1907, 576, §§ 34, 122. 1913, 489.
1916, 32; 135.
1918, 36; 86.
. 576,
1908, 543; 646.
1909, 192, § 2; 488.
1911, 205.
1919, 140.
1902,340, §§ 1,3.
1920. 152; 327. § 2.
155 Mass. 404.
217 Mass. 47.
lOp. A. G. 19,47.
2 Op. A. G. 64.
11
Conditions of
admission of
foreign life
companies.
1878. 130,
§§1,7.
P. S. 119, §218.
1887, 214, § 67.
1894, 522, § 67.
R. L. 118. § 67.
1907, 576,
§§ 68, 122.
1 Op. A. G. 269.
Section 153. A company organized under the laws of any other of 1
the United States for the transaction of life insurance may be admitted 2
to do business in this commonwealth, upon comphang with section one 3
Jiundred and fifty-one, if it has the requisite funds of a life company and, 4
in the opinion of the commissioner, is in sound financial condition and 5
has policies in force upon not less than one thousand lives in the United 6
States for an aggregate amount of not less than one million dollars. Any 7
such company organized under the laws of a state or government other 8
than one of the United States may be so admitted if, in addition to ful- 9
filling the above requirements, it complies ^\'ith section one hundred and 10
fifty-five and if it shall ha\-e and keep on deposit or in the hands of trus- 11
tees, as pro\-ided in said section one hundred and fifty-five and in section 12
one hundred and fifty-six, in exclusive trust for the security of its con- 13
tracts with policy holders in the United States, funds of an amount equal 14
to the net ^•alue of all its policies in the United States and not less than 15
two hundred thousand dollars. 16
Service of
process on
commissioner.
1878. 36. §2.
1879, 14.
P. S. 119, §203.
1887, 214. § 14.
1894, 522. § 14.
R. L. lis, § 14;
126, § 5.
1907, 576,
§§ 14. 122.
215 Mass. 204.
Section 154. When legal process is served upon the commissioner 1
as attorney for a foreign company under the third clause of section 2
one hundred and fifty-one, he shall forthwith forward one of the dupli- 3
cate copies of the process served on him to its secretary, or, in the case 4
of a company of a foreign country, to its resident manager in the United 5
States, or to such other person as may previously have been designated 6
by the company by written notice filed in the office of the conimis- 7
sioncr. As a condition of valid and eft'ectual service and of the duty of 8
the commissioner in the premises, the plaintiff in each such process shall 9
pay to the commissioner at the time of service thereof the sum of two 10
dollars, which the said plaintiff shall recover as taxable costs if he pre- 11
vails in his suit. The commissioner shall keep a record of all such proc- 12
esses showing the day and hour of service. 13
admfislonof SECTION 155. A foreign company, if formed under the laws of any 1
foreigncounti^ govemmeut or state other than the United States or one of the United 2
Chap. 175.] insue.usice. 2013
3 States, shall not be admitted and authorized to do business until, besides ists, iso,
4 complying with the conditions of section one hundred and fifty-one — p. s. lio. 5 21s.
5 First, It has satisfied the commissioner that it has made a deposit }||I; 522.' § 79;
6 ^^^th the state treasurer or with the proper board or officer of some other fg,,^- 1|^' | ^^■
7 state of the United States of an amount not less than the capital required i90|' |oi' § 2.
8 of domestic companies by sections forty-eight and fifty-one. Such deposit §§ ss, 122.
9 shall be in exclusive trust for the benefit and security of all the company's
10 policy holders and creditors in the United States, and may be made in the
1 1 securities and subject to the limitations specified in sections sixty-three
12 and sixty-six. Of such deposit an amount equal to the capital required
13 of domestic companies by this chapter shall be regarded as the deposit
14 capital in the company's annual statement the same as the capital stock
15 of domestic companies, but the excess of any such deposit shall not be
16 charged to the company as a liability for deposit capital.
17 Second, It has appointed, as its resident manager in the United
18 States, a citizen or corporation of the United States approved by the com-
19 missioner, and has filed with him a certified copy of the record of the
20 appointment of such manager by the directors of the company and a
21 duplicate original of the power of attorney to the United States manager
22 which shall be in a form satisfactory to the commissioner.
2o Third, It has filed with the commissioner, in such form and detail
24 as he may require, a statement of its trustees appointed under section
25 one hundred and fifty-six showing the funds held by such trustees, signed
26 and sworn to by them, or if the trustee is a corporation, signed and sworn
27 to by its president and secretary or other duly authorized officers.
28 The documents required by this section and sections one hundred and
29 fifty-one and one hundred and fifty-six shall be executed and authenti-
30 cated in a manner satisfactory to the commissioner.
1 Section 156. Any such company ma;s' appoint trustees, who are Company of a
2 citizens or corporations of the United States and approved bj^ the com- t^Tmay a^
3 missioner, to hold funds in trust for the benefit of its policy holders and ?8i.8' iSS;""^''
4 creditors in the United States. Said trustees shall be named by the |^ |; f J;
5 directors of the company, and a certified copy of the record of the appoint- flg^-^^ju "§ si
6 ment of such trustees and a duplicate original of the deed of trust on a 1894' 52|' § si.
7 form appro\ed by him shall be filed Mith the commissioner, who may 1907! 576."
8 examine such trustees and the assets in trust and all books and papers
9 relative thereto in the same manner as he may examine the officers, agents,
10 assets and affairs of companies. The funds so held by such trustees, so
11 far as the same are in securities, money or credits admissible as sound
12 assets in the financial accounts of companies, shall, with its deposits made
13 in accordance with the preceding section, constitute the assets of such
14 company for the purpose of making its annual statements to the com-
15 missioner. Such company shall file with the annual statement required
10 by section twenty-five a statement of the trustees executed as prescribed
17 in the preceding section, in such form and detail as the commissioner
18 requires, showing the funds held by them.
1 Section 157. Foreign companies admitted to do business in the Foreign com-
2 commonwealth shall make contracts of insurance upon lives, property {"hmSh^esl-
3 or interests therein, and annuity or pure endowment contracts with iiS7,Ti'4"?'84.
4 residents thereof, only by lawfully constituted and licensed resident Jsgs;ti?;|2^
5 agents. R. l iis, § si. 1907. 570. §§ 89, 122. 1919, 114, 1 3. 2 op. a. g. 123.
2014 INSURANCE. [Chap. 175.
kiva1fdat°ed SECTION 158. No policy of insurance and no annuity or pure endow- 1
by ""J ment contract issued to a resident of the commonwealth by an authorized 2
§§ i,'7. ' company organized under the laws of a foreign country shall be invaH- 3
1887, 214, § &i'. dated by war between such foreign country and the United States. 4
1894,522,5 84. R. L. 118, § 84. 1919, 114, § 3.
1898,637,5 2. 1907, 67G, §| 89, 122. Op. A. G. (1917) 37.
Conditions of Section 159. If by the laws of anv other state any taxes, fines, 1
laws of other e i • / ii-. i..
states. penalties, licenses, tees, deposits or other obligations or prohibitions, 2
R. s.'37, §44.' additional to or in excess of those imposed by the laws of this com- 3
is'se! 252! 1 4-' monwealth upon foreign companies and their agents, are imposed on 4
?87o, 39'r '°' domestic companies and their agents doing business in such state, like 5
1S73! i4i! I n°' obligations and prohibitions shall be imposed upon all companies of 6
isii "u ^ ^^^' ^^^^ state and their agents doing business in this commonwealth so long 7
§§ 85, iii. as such laws remain in force. Compliance with this section may be 8
§§ 85, ui. enforced in the ordinary course of equity procedure by information 9
§§85.112. brought in the supreme judicial court by the attorney general at the 10
§§°9o,^i2i, 122. relation of the commissioner. 1 1
Sraw'fu/""^ Section 160. Whoever, for a person other than himself, acts or 1
ism'^'^ui' §'3 ^^^^ ^^ ^'^y manner in the negotiation, continuation, or renewal of a 2
R-||^'§43. policy of insurance or an annuity or pure endowment contract with a 3
§ 10; 311', § 17. foreign company not lawfully admitted to issue such policies or contracts 4
§§ 36, 40.' in this commonwealth shall, except as pro\'ided in section one hundred 5
§§ «,*SL and sixty-eight, be punished by a fine of not less than one hundred nor 6
?§■ 72^77. more than five hundred dollars; but this section shall not apply to a 7
p^^s'ng' '^^^^y licensed special insurance broker acting under said section one hun- 8
li is2^ 200. dred and sixty-eight, nor to any act of a duly licensed insurance broker 9
§§97,'98.' in negotiating, continuing or renewing policies of insurance on transpor- 10
§§ 97, 98.' tation, inland na\agation and ocean and coastwise marine risks, nor to 1 1
§§'97, VI' any insurance appertaining thereto which cannot, to the advantage of 12
§§°ioG^io'7,i22. the insured, be placed in authorized companies. A person, other than 13
i6oVa^ss'4i3 ^^^^ commissiouer or his deputy, upon whose complaint a con\'iction is 14
168 Mass. 59B. J^ad for \iolation of tliis section, shall be entitled to one half of the fine 15
1/3 Mass. 119. ,.11. -.r.
175 Mass. 154. rccovcrcd upon Sentence tiiereior. is3U. s. ssa. 2 0p. a. g. 471. lb
LLOYDS ASSOCIATIONS.
Lloyds Section 161. Associations of individuals, citizens of the United 1
sssocistions. ^ ...»•
||"8.2i8, States, whether organized within this commonwealth or elsewhere 2
p. s! 119, § 175. within the United States, formed upon the plan known as Lloyds — 3
283. '§ 2. ' ' whereby each associate underwTiter becomes liable for a proportionate 4
n^t. Ill', I It', part of the whole amount insured by a policy — may be authorized 5
§§°9i.^i22. to transact insurance, other than life, in the commonwealth in like 6
manner and upon the same terms and conditions as companies of other 7
states of the United States. 8
agents, brokers and adjusters.
?847"273°u Section 162. Whoever, for compensation, not being the duly licensed 1
1856' 252 i 54' insurance agent of the company in which any policy of insurance or any 2
i86i', i7o'. ■ annuity or pure endo\Mnent contract is effected, or an officer of a domestic 3
1869'. 93,' ■ company acting under section one hundred and sixty-five, acts or aids 4
1871,297, §8. in any manner in negotiating policies of insurance or annuity or pure 5
Chap. 175.1 insueance. 2015
6 endowment contracts, or placing risks or effecting insurance, or in nego- p. s. U9,
7 tiating the continuance or renewal of such policies or contracts for a ile! hi^.^'
8 person other than himself, shall be an insurance broker. §§*87,^g3.'
9 Whoe\er, for compensation, not being a duly licensed insurance ^^^|^^||'
10 broker or an officer of a domestic company acting under section one j.H^'ff'clg,
11 hundred and sixty-five, solicits insurance on behalf of any company, or loof, s-ej^
12 transmits for a person other than himself an application for or a policy i9i7',':647§ i.
13 of insurance or an annuity or pure endowment contract to or from such J^'^'^^'Si-
14 company, or offers or assumes to act in the negotiation of any such policy los'ML'gs.^Ts.
15 or contract, or in the negotiation of its continuance or renewal, shall be }rj Mass' lis
16 an insurance agent within the intent of this chapter, and shall thereby J^s Mass. ii9.
17 become liable to all the duties, requirements, liabilities and penalties to lOp. a. g. 74.'
9 On A f^ 9
18 which an agent of such company is subject. 233. " ■ • •
19 Whoever, for compensation, not being an attorney at law acting in (1918)92.
20 the usual course of his profession, or a trustee or agent of the property
21 insured, directly or indirectly solicits from the insured or his repre-
22 sentative the settlement of a loss under a fire insurance policy shall be
23 an adjuster of fire losses.
1 Section 163. Upon wTitten notice by a company authorized to Licenses of
2 transact business in the commonwealth of its appointment of a person ilse' 252, § 51.
3 to act as its agent herein, the commissioner shall, if he is satisfied that ^807, leVf/l'.
4 the appointee is a suitable person of full age and intends to hold himself ^g|-; ^^f^ §,209.
5 out and carry on business in good faith as an insurance agent, issue to iss*. |22, § 91.
6 him a license which shall state in substance that the company is author- 1S97; 64!
7 ized to do business in the commonwealth, and that the person named §§ 87, 88."
8 therein is the constituted agent of the company in the commonwealth }|o7,' sfe! "
9 for the transaction of such business as it is authorized to transact therein, ioos^to. ^^^'
10 Such notice shall be upon a form furnished by the commissioner, and J^JJ' ^^s. 1 1.
11 shall be accompanied by a statement executed on oath by the appointee 1917! m! § 2.
12 which shall give his name, age, residence, present occupation, his occu- I9i9,' 46!
13 pation for the fi\'e years nex-t preceding the date of the notice, and such p- • ■
14 other information as the commissioner may require upon a form fiu"-
15 nished by him. The commissioner may, except as provided in section
16 five, at any time, for cause shown and after a hearing, revoke the license
17 or suspend it for a period not exceeding the unex-pired term thereof,
IS and may, for cause shown and after a hearing, revoke the license while
19 so suspended, and shall notify both the company and the agent in writ-
20 ing of such revocation or suspension. A license issued hereunder shall
21 expire on the thirtieth day of June next after its issue, unless sooner re-
22 voked or suspended as aforesaid, or unless the company, by a written
23 notice filed with the commissioner, cancels the authority of the agent to
24 act for it. Such license may, in the discretion of the commissioner, be
25 renewed for any succeeding year by a renewal certificate without requir-
26 ing anew the detailed information hereinbefore specified. Every com-
27 pany shall be bound by the acts of the person named in the license
28 within the scope of his apparent authority as its acknowledged agent
29 while such license remains in force. Every foreign company shall pay
30 for each such license or renewal thereof a fee of two dollars. WhocAcr,
31 not being a duly licensed insiu-ance broker or an officer of a domestic
32 company acting under section one hundred and sixty-five, acts as an in-
33 surance agent as defined in the preceding section, without siich license or
34 diu-ing a suspension of his license, shall be punished by a fine of not less
35 than twentv nor more than five hundred dollars.
2016 rNstJE.\NCE. [Chap. 175.
necl3sar?°for SECTION 164. A colIcctor of premiums who does not solicit appli- 1
igi-^s'io cations for or the renewal or continuance of insurance contracts, or 2
1919, 85; 86. ^ct OF aid iu negotiating such contracts or the continuance or renewal 3
thereof, may carry on such business without a license therefor, proAided 4
that the collection fee does not exceed five per cent of any amount 5
collected. 6
omaiToY"^ Section 165. An officer of a domestic company may without a li- 1
domestic cense act for such company in the negotiation of anv contract of insurance 2
company. , -^ * ^ , . , '. i i» ii in
1S87, 214. § ss. or an annuity or pure endownnent contract, which it may lawiully make, 6
R. l! lis] § so! or in the negotiation of the continuance or renewal of such contracts. 4
1907, 57G, §§ 94, 122. 1919, 35.
brokerr °^ SECTION 166. The Commissioner may, upon the payment of a fee of 1
ssf-4 ^" ten dollars, issue to any suitable person of full age resident in the com- 2
1873, 164. monwealth, or resident in any other state granting brokers' licenses or 3
§§ 187, V8S. like privileges to residents of the commonwealth, a license to act as an 4
§§ M,^9s.' insurance broker to negotiate, continue or renew contracts of insurance 5
l^g'^^gs.' or annuity or pure endowniient contracts, or to place risks, or effect in- 6
l^2^'i59 surance with any qualified domestic company or its agents, or with the 7
1896, 448. lawfully constituted and licensed resident agents in this commonwealth 8
§§■ 90, 98." of any foreign company duly admitted to issue such policies or contracts 9
§§95,107,122. therein upon the following conditions: The applicant for the license 10
1913! 474] Is! shall file with the commissioner a written application upon a form pro- 11
2^0p'. Y.'g. ^ided by the commissioner, which shall be executed on oath by the 12
299,471. applicant and kept on file by the commissioner. The application shall 13
state the name, age, residence and occupation of the applicant at the 14
time of making the application, his occupation for the five years next 15
preceding the date of the application, that the applicant intends to 16
hold himself out and carry on business in good faith as an insurance 17
broker, and such other information as the commissioner may require. 18
The application shall also contain a statement as to the trustworthiness 19
and competency of the applicant, signed by at least three reputable 20
citizens of this commonwealth. If the commissioner is satisfied that 21
the applicant is trustworthy and competent and intends to hold himself 22
out and carry on business in good faith as an insurance broker, he shall 23
issue the license, which shall expire in one year from its date, unless 24
sooner revoked or suspended as provided herein. The license may, in 25
the discretion of the commissioner, be renewed, upon paj-ment of the 26
fee of ten dollars, for any succeeding year without requiring anew the 27
detailed information hereinbefore specified. The commissioner may at 28
any time, for cause shown and after a hearing, revoke the license or 29
suspend it for a period not exceeding the unexpired term thereof, and 30
may, for cause shown and after a hearing, revoke the license while so 31
suspended, and shall notify the licensee in writing of such revocation or 32
suspension, and may publish a notice of such revocation or suspension 33
in such manner as he may deem necessary for the protection of the 34
public. No fee for a license issued hereunder shall be required of any 35
soldier, sailor or marine resident in this commonwealth who has served 36
in the army or na\y of the United States in time of war or insurrection 37
and received an honorable discharge therefrom or release from active 38
duty therein, if he presents to the commissioner satisfactory e\idence 39
of his identity. Whoever, not being a duly licensed insurance agent of 40
the company in which any policy of insurance or any annuity or pure 41
Ch.\p. 175.] msuR-VNCE. 2017
42 endowment contract is effected or an officer of a domestic company
43 acting under section one hundred and sixty-fiAe, acts as an insurance
44 broker as defined in section one hundred and sixty-two, without such
45 Hcense or during a suspension of his hcense, shall be punished by a fine
46 of not less than twenty nor more than five hundred dollars.
1 Sectiox 167. The commissioner may, in addition to issuing brokers' Limited
2 licenses gi^^ng full authoritj- to the licensee as set forth in the preceding of b°rXrs.
3 section, issue insurance brokers' licenses which limit the authority of the ^^^^' ^*'-
4 licensee to the extent agreed upon ^\^th him and set forth in the license,
5 but in other respects the granting of such licenses and the brokers so
6 licensed shall be governed by the laws relating to insurance brokers.
1 Section 168. The commissioner may, upon the pajinent of a fee of fg^^^^ brokers'
2 twenty dollars, issue to any suitable person of full age resident in the suranceby
3 commonwealth, a license to act as a special insurance broker to negotiate, companie'J^^
4 continue or renew contracts of fire, bombardment, steam boiler or fly- isi)?! 214;
5 wheel insurance on property in this commonwealth in foreign companies fsM^'uy; 522,
6 not authorized to transact such business therein, upon the following con- i|/8^'2^8o § 2
7 ditions: The applicant for the license shall file with the commissioner a i3°T^'??i
1-1 • T • '111 • 1 1 1 1 • . K. 1/. 11J>,
8 ■WTitten apphcation as prescribed by section one hundred and sixty-six, §§s3, 99.
9 which shall be executed on oath by the applicant and kept on file by the §"§ ss, ios, 122.
10 commissioner. If the commissioner is satisfied that the applicant is 1917,' 132.'
11 trustworthy and competent, he shall issue the license, subject to sus-
12 pension or revocation at the pleasure of the commissioner, wliich shall
13 expire in one year from its date, unless sooner suspended or revoked
14 as aforesaid. The license may, in the discretion of the commissioner, be
15 renewed for each succeeding year, upon the pa^'ment of a fee of twenty
16 dollars, without requiring anew the detailed information specified by
17 section one hundred and sixty-six. Before the person named in sucli
18 license shall procure any insurance in such companies on any such
19 property, he shall in e^•ery case execute, and witliin fi\'e days thereafter
20 file with the commissioner, an affidavit, which shall have force and
21 efl'ect for one year only from the date of said affida%it, that he is unable
22 to procure, in companies admitted to do business in the commonwealth,
23 tlie amount of insurance necessary to protect said property, and shall
24 procure insurance under such license only after he has procured in-
25 surance in companies admitted to do business as aforesaid to the full
26 amount wliich said companies are M-illing to WTite on said property;
27 but such licensed person shall not be required to file sucli affida\it if one
28 relati\e to the same property has been filed ■within the preceding t\\elve
29 months by any broker licensed under tliis section, nor to offer any por-
30 tion of such insurance to any company not possessed of net cash assets
31 of at least twenty-five thousand dollars, nor to one which has within
32 the preceding tweh-e months been in an impaired condition. Each
33 person so licensed shall keep a separate account of the business done
34 under the license, a certified copy of wliich account he shall forth\vith
35 file with the commissioner, showng the exact amount of such insurance
36 placed for any person, the gross premium charged thereon, the com-
37 panics in wliich the same is placed, the date of the policies and the
38 term thereof, and also a report in the same detail of all such policies
39 cancelled, with the gross return premiums thereon, and before recei\ing
40 such license shall execute and deli^•er to the state treasurer a bond in
2018 msuKANCE. [Ch.^.p. 175.
the penal sum of t^vo thousand dollars, \\'ith such sureties as he shall 41
appro\-e, conditioned that the licensee will faitlifully comply ^^^th all the 43
requirements of tlus section, and Mill annually, in January, file with 43
the state treasurer a sworn statement of the gross premiums charged 44
for insurance procured or placed and the gross return premiums on such 45
insurance cancelled under such license during the year ending on Decem- 46
ber thirty-first last preceding, and at the time of filing such statement 47
■uill pay to the commonwealth an amount equal to four per cent of such 48
gross premiums, less such return premiums so reported. 49
A person licensed under this section who negotiates, continues or renews 50
any such contract of insurance in any imauthorized foreign compam^, 51
and who neglects to make and file the affida^■it and statements required 52
by this section, or who -n-ilfully makes a false affida^^t or statement, or 53
who negotiates, continues or renews any such contract of insurance after 54
the revocation or during the suspension of his license, shall forfeit his 55
license and be punished by a fine of not less than one hundred nor more 56
than five hmidred dollars or by imprisonment for not more than one 57
year, or both. 58
Effect of Section 169. An insurance agent or broker acting for a person other 1
agent or than himself in negotiating, continuing or rene%\'ing any policy of in- 2
i878"i66. § 1. surance or any annuity or pure endo'mnent contract shall, for the pur- 3
islr.'^SH.^^so.' pose of recei\-ing any premium therefor, be held to be the agent of the 4
R/tliii^in!' company, whatever conditions or stipulations may be inserted in the 5
ifde, "22 policj' or contract. i9i9, 19. 20s Mass. 214. 6
pretence by SECTION 170. An insurauce agent or broker who kno\\'ingly procures 1
ill" 376 ™^'"^' ^y fraudulent representations paj-ment or the obligation for the pay- 2
1854', 453, 1 39. ment of any premium on any policy of insurance or any annuity or 3
G. s." 58r'§ 74. ■ pure endowment contract shall be punished by a fine of not less than 4
1SS7, 214, § 90.' one hundred nor more than one thousand dollars or by imprisonment 5
iLL.'nf,'§Vi?' for not more than one year. i907, 576, §§ 96, 122. 1919,19. 6
megaf*^"" Section 171. An insurance agent shall be personally liable on all 1
iIm'^Th 52 contracts of insurance unlawfully made by or through him, directly or 2
i87s; 36, '§ 4. ■ indirectlv, for or in behalf of anv companv not authorized to do business 3
p. s. 119. § 210. . ^, • , , , ^ f .
1887, 214, § 89. in the commonwealth. 4
1894, 522, § 89. R. L. 118, §92. 1907, 576, §§ 97, 122. 160 Mass. 413.
Licenses of SECTION 172. The Commissioner may, upon the paj-ment of a fee of 1
fire losses. two dollars, issue to any suitable person of full age a license to act as an 2
1919! 38. " adjuster of fire losses upon the followng conditions : The appUcant for 3
the license shall file T;\'ith the commissioner a written application as 4
prescribed by section one hundred and sixty-six, wliich shall be executed 5
on oath by the appUcant, and kept on file by the commissioner. If the 6
commissioner is satisfied that the applicant is trustworthy and compe- 7
tent, he shall issue the license, which shall expire in one year from its date, 8
unless sooner revoked or suspended as proAided herein. The license may, 9
in the discretion of the commissioner and upon the pa\Tacnt of a fee of 10
two dollars, be renewed for any succeeding year witliout requiring anew 11
the detailed information specified by section one hmidred and sixty-six. 12
The commissioner may at any time, for cause shown and after a hearing, 13
re^•oke the hcense or suspend it for a period not exceeding the unexpired 14
Chap. 175.] insur.\nce. 2019
1.5 term thereof, and may, for cause shown and after a hearing, revoke the
16 license while so suspended, and shall notifj' the licensee in writing of such
17 revocation or suspension. Whoever acts as an adjuster of fire losses, as
IS defined in section one hundred and sixty-two, without such license or
19 during a susjjension of his license, shall be punished by a fine of not more
20 than two hundred dollars or by imprisonment for not more than six
21 months.
1 Section 17.3. The licenses described in sections one hundred and sixty- P-irtnership
2 three, one hundred and sixty-six, one hiuidred and sixty-seven, one hun- 1920^ 317, § 1.
3 dred and sixty-eight and one hundred and se\'enty-two may be issued to
4 partnerships on the conditions specified in and subject to said sections,
5 except as otherwise pro^■ided herein. Each member of the partnership
6 shall file the statement or application required by law, including a written
7 request that the license be issued in the partnership name. Together
8 with said statements or applications, there shall be filed a duplicate
9 original of the WTitten partnership agreement signed by all the partners.
10 The Hcense shall be issued in the partnership name, and may be revoked
11 or suspended as to one or all members of the partnership. Minors who
12 are parties to the written articles of partnership may be included in the
1.3 partnersliip hcense, proAided that there is one adult member of the firm.
14 If the partnersliip is terminated prior to the ex]3iration of the license, the
15 partners shall forth\nth give notice thereof to the commissioner, who
16 shall thereupon without a hearing revoke the license. Each partner shall
17 be personally hable to the penalties of the insurance laws for any viola-
18 tion thereof, although the act of \-ioIation is done in the name of or in
19 behalf of the partnership. WTioever, being licensed as a partner under
20 this section, fails to give notice as required herein of the termination of
21 the partnership, or after the partnersliip is terminated acts under such
22 hcense, shall be punished by a fine of not less than twenty nor more than
23 five hundred dollars.
1 Section 174. The licenses described in sections one hundred and jJ^J'J'nse"*'""
2 sixty-three, one hundred and sixty-six, one hundred and sixty-seven, J^JS' ^f
3 one hundred and sixty-eight and one hundred and seventy-two may be imo! 317,
4 issued to any corporation which is incorporated exclusi\ely for the pur-
5 pose of acting as an insurance agent, broker or adjuster of fire losses and
6 which, in case of a corporation incorporated to act as an insurance agent
7 or broker, by its by-laws and articles of organization hmits the hokhng
8 and ownersliip of its capital stock to insurance agents and brokers or
9 persons employed in good faith by such agents or brokers. Such hcense,
10 together with the corporation and officers of the corporation named in
11 the Hcense, shall be subject to said sections, except as otherwise pro\'ided
12 herein. Each license shall specify the officers, not exceeding fi\e, who
13 may act thereunder in the name and on behalf of the corporation.
14 Minors may be designated as such officers in the license. Each officer
15 shall file the statement or application required by law. A certified copy
16 of the by-laws, articles of organization and cliarter shall be filed with
17 the said statements or apphcations. The license may be revoked or
18 suspended as to the corporation or as to any officer named therein. No
19 foreign corporation shall be hcensed as an insurance agent of a foreign
20 company under said section one hundred and sixty-three or as a special
21 insurance broker under said section one himdred and sixty-eight. The
2020
ESrSUE.\XCE.
[Chap. 1,5.
commissioner may at any time require such information as he deems 22
necessary in respect to the corporation, its officers or affairs, and may 23
make such examination of its books and affairs as he deems necessary. 24
The clerk or other corresponding officer shall file ■with the commissioner, 25
wathin thirty days after the adoption thereof, certified copies of all 26
amendments to the by-laws or charter, and shall at once notify the 27
commissioner in AM'iting in case of the dissolution or revocation of the 28
charter of the corporation. Upon receipt of such notice, the commis- 29
sioner shall forthwith revoke its Hcense without a hearing. E^-ery officer 30
specified in the license shall be personally hable to the penalties of the 31
insurance laws for any \iolation thereof, although the act of Aiolation is 32
done in the name and in behalf of the corporation. The corporation 33
shall be hable for any such \iolation, the responsibility for which can- 34
not be placed on any indi^•idual officer. 35
Whoever, being clerk or corresponding officer of a corporation licensed 36
under this section, fails to file with the commissioner copies of all amend- 37
ments to the by-laws or charter of such corporation as provided herein, 38
or fails to notify the commissioner of the dissolution or revocation of the 39
charter of the corporation, or whoever, being specified in the hcense of 40
such corporation as an officer, acts under said hcense after the dissolu- 41
tion or the re\-ocation of the charter of such corporation, shall be punished 42
b^- a fine of not less than t\\"ent>- nor more than five hundred dollars. 43
Penalty for
pretending to
be a broker,
etc.
1919, 26.
Section 175. ^Mioever, not being duly licensed as an insurance 1
agent or broker or as an adjuster of fire losses, represents or holds him- 2
self out to the public as being such an agent, broker or adjuster, or as 3
being engaged in the insurance business, by means of ad\ertisements, 4
cards, circulars, letterheads, signs or other methods, or whoever, being 5
duly licensed as such agent, broker or adjuster, ad\ertises as aforesaid 6
or carries on such business in any other name than that stated in liis 7
license, shall be pimished by a fine of not less than ten nor more than 8
one hundred dollars. 9
Section 176. An insurance agent or broker who acts in negotiating
or renewing or continuing a pohcy of insurance or an aimuity or pure
endo-mnent contract issued by a company lawi'ully doing business in the
commonwealth, and who receives any money or substitute for money
as a premiiun for such a pohcy or contract from the insured or holder
thereof, shall be deemed to hold such premium in trust for the company.
If he fails to pay the same over to the company after wTitten demand
2 6p!.\.G.299. made iipon liim therefor, less liis commission and any deductions to
w liich, by the written consent of the company, he may be entitled, such
failure shall be prima facie e\idence that he has used or apphed the said 10
premium for a purpose other than pacing the same over to the company, 1 1
and upon comiction thereof he shall be guilty of larceny. 12
Larceny of
premium by
agent or
broker.
1S78. 166, §
P. S. 203, § 4
1894. 522,
§ 111.
R. L. 118.
§ 112.
1907, 576,
§§ 121, 122.
1910, 426
Compensation
to unlicensed
persons
forbidden.
1919,87.
Section 177. No company and no officer, agent or employee 1
thereof, and no duly licensed insurance broker, shall, directly or in- 2
directly, pay or allow, or agree to pay or allow, compensation or any- 3
tiling of value to any person, excepting an officer of a domestic company 4
acting luider section one himdred and sixty-fiAc, for placing or negotiat- 5
ing a pohcy of insurance on hA"es, property or interests in the common- 6
wealth, or any annuity or pure endowment contract with a resident 7
thereof, or negotiating the continuance or renewal thereof, or for attempt- 8
Chap. 175.] insuk.\nce. 2021
9 ing so to do, who, at the date thereof, is not duly licensed as an insurance
10 agent of such company or as an insurance broker; pro\'ided, that tliis
11 section shall not affect sections one hundred and eighty-two to one hun-
12 dred and eight,^'-four, inclusive. Whoe^-er knowngly ^iolates any pro-
13 Aision of this section shall be punished by a fine of not less than twenty
14 nor more than two hundred dollars.
RECEIVERS.
1 Section 178. The compensation of receivers of insolvent companies Compensation
2 shall be fixed by the supreme judicial court. All accounts rendered to oPrewWer"'^
3 the court by such receivers shall be referred to the commissioner. sf's*'/"*'
4 Such receivers, at the expiration of one year after final settlement J|7^'|3^v\^-
5 ordered by the court, shall report to the court the names and residences, isso'. 25'
6 if known, of the persons entitled to money or di\idends from the estate §§ ibs, 109,
7 of such companies remaining in their hands uncalled for, with the Jsls, 3.3, § 5;
8 amount due to each. The court shall thereupon order a notice to be 1886,^300,^2.
9 given by the receivers and, upon the expiration of one year after the j[|^]' ^||' 1 1|
10 time of giving such notice, the receivers shall in like manner report R Li's.S 95.
1 1 the amounts still uncalled for. Unless cause shall appear for decreeing §§ 100, 122.
12 otherwise, such amounts shall then be ordered to be paid to the com-
13 mon\Aealth, and schedules signed by the receivers shall at the same
14 time be deposited with the state treasurer and state auditor, setting
15 forth the decree of the court and the names and residences, so far as
IG known, of the persons or parties entitled thereto, alphabetically ar-
17 ranged, and the amount due to each. The state auditor shall forthwith
IS cause notice of such deposit to be mailed to such persons, and, upon
19 certification by him that a claimant is entitled to any part of said
20 deposit, it shall be paid in the same manner as other claims against
21 the commonwealth. Upon the payment to the commonwealth of such
22 unclaimed money or dividends by the receiver and the allowance by
23 the court of his final account, or at the expiration of one year after the
24 final settlement ordered by the court, if he then has in his hands no
25 unclaimed money or dividends, he shall deposit with the commissioner
26 all books and papers of such company, including those relative to his
27 receivership, which shall be preserved by the commissioner.
1 Section 179. In any proceeding in which application is made by commissioner
2 or at the relation of the commissioner for the appointment, either tempo- eto'','may be
3 rary or permanent, of a receiver of a company, the commissioner or feeeh-^!"'
4 one of his deputies or assistants may, in the discretion of the court, i9iS'^2.
5 be appointed receiver, and when so appointed shall serve without com-
6 pensation other than his official salary. When authorized in advance
7 by the court, counsel may be employed, and paid, from the assets of
8 the company, such sums as the court may fix. Expenses, other than
9 those incurred for services in the settlement of the affairs of the com-
10 pany shall, subject to the approval of the court, be paid from its assets.
1 Section ISO. The commissioner, his deputy or examiner shall annu- Examinations
2 ally or oftener examine the accounts and transactions of all receivers of?ece°ivera.
3 of insolvent companies; and shall also carefully examine all accounts Ij^'s^"*'
4 of such receivers referred to him under section one hundred and seventy- W^-P-
5 eight and make report thereof to the court. P- s. 119. §§ i69, 170.
1887, 214, § 13. 1894, 622. § 13. 1898,53. R. L. 118, § 13. 1907. 576. §§ 13, 122.
2022
IXSUR-VXCE.
[Ch-vp. 175.
p*s^'nV/i7i ^o^ ^^^ above purposes he, his deputy or examiner shall ha\'e free G
access to the official books and papers of such receivers relative to their 7
transactions, and may examine such receivers on oath as to all matters 8
connected therewith. 9
IS?!' 83^5 4^' I^ i'^ ^^^ opinion a receiver has violated his duty in office, or further 10
p. s.'n9,'§i72. proceedings by receivers to collect an assessment will not offer sub- 11
stantial relief to creditors, the commissioner shall certify the facts to 12
the court. 13
Misrepre-
sentations
to insured
prohibited.
1907, 576,
1909, 467.
1913, 474,
§§1,2.
§ 74.
MISREPRESENTATIONS AND REBATES.
Section 181. No company, no officer or agent thereof and no in-
surance broker shall make, issue, circulate or use, or cause or permit to
be made, issued, circulated or used, any WTitten or oral statement mis-
representing the terms of any policy of insurance or any annuity or pure
endowment contract issued or to be issued by any company, or the bene-
fits or privileges promised thereunder. No such company, officer, agent
or broker shall make any written or oral statement misrepresenting the
terms, pri^^leges or benefits of any policy of insurance or any annuity
or pure endo^Tiient contract to any person insured under such policy or
holding such contract in any company, in order to induce, or which would
tend to induce, any such person to lapse, forfeit or surrender such policy 1 1
or contract. Violation of tJiis section shall be punished by a fine of not 12
more than one hundred dollars. 13
1
2
3
4
5
6
7
8
9
10
Rebates, etc.,
forbidden.
1887, 214, § 68.
1S94, 522, I 68.
R.L. lis, §6S.
1907, 576,
§§ 69, 122.
1908, 511, § 1.
1912,401, § 1.
1920, 147 § 1
2 0p. A. G. 167.
3 0p. A.G.47.
4 Op. A. G. 327,
503.
Op. AG.
Ca919) 43, 88.
Op. A. G
(1920) 132,
185.
Section 182. No company, no officer or agent thereof and no in- 1
surance broker shall pay or allow, or offer to pay or allow, in connection 2
with placing or negotiating any policy of insurance or any annuity or 3
pure endowment contract or the continuance or renewal thereof, any 4
valuable consideration or inducement not specified in the policy or con- 5
tract, or any special favor or advantage in the di\"idends or other benefits 6
to accrue thereon; or shall gWe, sell or purchase, or offer to give, sell or 7
purchase, anj-tliing of value whatsoever not specified in the policy; or 8
shall give, sell, negotiate, deliver, issue, or authorize to issue or offer to 9
give, sell, negotiate, deliver, issue, or authorize to issue any policy of 10
workmen's compensation insurance at a rate less than that approved by 11
the commissioner. No such company, officer, agent or broker shall at 12
any time pay or allow, or offer to pay or allow, any rebate of any premium 13
paid or payable on any policy of insurance or any annuity or pure endow- 14
ment contract. 15
Acceptance of
such rebates,
etc., forbidden.
1907, 576, § 69.
1908, 511, I 2.
1912, 401, § 2.
1920, 147, § 2.
Section 183. No person shall receive or accept from any company 1
or officer or agent thereof, or any insurance broker, or any other person, 2
any such rebate of premium paid or payable on the policy or contract, or 3
any special iaxor or advantage in the di\idends or other benefits to accrue 4
thereon, or any valuable consideration or inducement not specified in 5
the policy or contract or any policy of workmen's compensation insurance 6
at a rate less than that approved by the commissioner. No person shall 7
be excused from testifying, or from producing any books, papers, con- S
tracts, agreements or documents at the trial of any other person charged 9
■with \'iolating any pro\-ision of this and the preceding section, on the 10
ground that such testimony or e\'idence may tend to incriminate himself; 11
but no person shall be prosecuted for any act concerning M-hich he shall 12
be compelled so to testify or produce e\idence, documentary or other- 13
Mise, except for perjury committed in so testifjang. 14
Ch.\p. 175.] iNSUK-^fCE. 2023
1 Section 18-4. The two preceding sections shall apply to all kinds of f„PP''rece°d"n"i
2 insurance, including contracts of corporate siiretysliip, except those speci- jgy^""!".-, , ^
3 fied in the second clause of section forty-se\'en, as to which they shall i9io!is5;256'
■i apply only to insurance against loss or damage to motor vehicles, their 1920,' h?,' § 1."
5 fittings and contents and against loss or damage caused by teams, auto-
6 mobiles or other vehicles, excepting rolling stock of railways, as provided
7 in said second clause. The said sections shall not proliibit any company
8 from paying a commission to another company or to any person who is
9 duly licensed as an insurance agent of such company or as an insurance
10 broker and who holds himself out and carries on business in good faith
1 1 as such, or proliibit any such person or any company from recei^^ng a
12 commission in respect to any policy under wliich lie or it is insured, or
13 in respect to any annuity or pure endowment contract held by him; nor
14 shall said sections apply to (1) a distribution, without special favor or
15 adA-antage, by mutual companies to policy holders of sa\-ings, earnings
16 or surplus without specification thereof in the policy, or (2) the furnishing
17 to the insured of information or adA-ice by any company, officer, agent
IS or broker with regard to any risk for the purpose of reducing the liabil-
19 ity of loss, or (3) the paj-ment or allowance to the insured of a return
20 premium or a cash surrender or other value upon cancellation, lapse or
21 surrender of a policy.
MISCELL-INEOUS PROVISIONS.
1 Section 185. The state treasurer in his official capacity shall take Deposits of
2 and hold in trust deposits made by any domestic company for the pur- isSIJTsa^s 43.
3 pose of complying with the laws of any other state or country to enable ^srl; fabf ^^'
4 such company to do business in such state or country, and also in like f,^ |; jjg
5 manner take and hold any deposit made by a foreign company under any flsy'^ioy'*-
6 law of this commonwealth. The company making such deposit shall be issi! ijo^ ^^
7 entitled to the income thereof, and may from time to time, with the con- isoa,' 224.'
8 sent of the treasurer, when not forbidden by the law under which the r. l! lii'. § 9i.
9 deposit is made, change in whole or in part the securities composing the §§°99,^i22.
10 deposit for other approved securities of equal par value.
11 Upon request of any domestic company the state treasurer may re-
12 turn to such company the whole or any portion of the securities of such
13 company held by him on deposit if he shall be satisfied that the securities
14 so asked to be returned are subject to no liability and are not required to
15 be longer held by any p^o^^sion of law or for the purpose of the original
16 deposit. And he may return to the trustees, or other representative
17 authorized for that purpose, of a foreign company any deposit made by
18 such company if it shall appear that such company has ceased to do
19 business in this commonwealth, and is under no obligation to policy
20 holders or other persons in this commonwealth or in the United States
21 for whose benefit such deposit was made.
22 A company which has made such deposit, or its trustees or resident
23 manager in the United States, or the commissioner, or any creditor of such
24 company may at any time bring, in the supreme judicial court for the
25 county of Suft'olk, a suit in equity against the commonwealth and other
26 parties properly joined therein to enforce, administer or terminate the
27 trust created by such deposit. The process in such suit shall be served on
28 the state treasiuer, who shall appear and answer on behalf of the com-
29 monwealth and perform such orders and decrees as the court may make
30 thereon.
2024
INSUR.\NCE.
[CH-^P. 175.
Misrepre-
sentation by
insured.
Effect.
1878, 157.
P. S. 119, § ISl.
18S7, 214, § 21.
1894, 622, § 21.
1895, 271.
R. L. 118, §21.
1907, 576,
§§21, 122.
Section 186. No oral or written misrepresentation or warranty
made in the negotiation of a policy of insurance by the insured or in his
behalf shall be deemed material or defeat or avoid the policy or pre\ent
its attaching unless such misrepresentation or warranty is made ■uith
actual intent to deceive, or unless the matter misrepresented or made a
warrantv increased the risk of loss. 145 Mass. 426.
139 Mass. 514.
163 Mass. 108, 117.
164 Mass. 448.
167 Mass. 109.
170 Mass. 224.
172 Mass. 498.
173 Mass. 197.
ISl Mass. 139.
188 Mass. 542.
189 Mass. 538.
194 Mass. 56.
198 Mass. 375.
202 Mass. 169.
207 Mass. 79, 398.
208 Mass. 1.
213 Mass. 389.
224 Mass. 6, 327.
228 Mass. 450.
Companies
may insert
conditions
required by
foreign laws.
1910, 493, § 5.
1913, 533.
1916, 47.
1918, 112, §3.
Section 187. Policies of life or endowment insurance, group life 1
insurance or insurance against accidental injiu-y or disease issued by a 2
foreign company in tliis commonM-ealth may contain any pro\ision re- 3
quired by the law of the state, territory or district of the United States 4
under wliich the company is organized; and such policies of a domestic 5
company issued in any other state, territory, district or country may 6
contain any pro^'ision required by the laws of the state, territory, district 7
or country in which the same are issued. 8
Penalty for
unlawful use
of proxy.
1887, 214,
§107.
1894, 522,
§ 107.
R. L. lis,
§ 107.
Section 188. A paid officer of a domestic mutual company who 1
asks for, receives or procures to be obtained or uses a proxy to vote in 2
Aiolation of any pro^^sion of section seventy-six or ninety-four shall be 3
punished by a fine of not less than one hundred nor more than three hun- 4
dred dollars. i907, 376, §§ no, 122. 1908, 162. 5
Penalty for
making, etc.,
policies in
violation of
Section 189. A company or any officer or agent thereof who makes, 1
issues or deli\ers a policy of insurance or an aiuiuity or pure endo'ft-ment 2
1907? 576?§'29. coutract in ^^olation of tiiis chapter shall, except as pro%-ided in the follow- 3
1920] 150. ing section, forfeit not less than fifty nor more than two hundred dollars. 4
Penalty for
making, etc.,
policies con-
trarj' to sections
99, 108, 109,
132, 134.
1873, 331,
§§3,4.
1881, 166, § 2.
P. S. 119.
§ 140.
1887, 214,
§ 105.
1894, 522,
§ 105.
Section 190. A company or any officer or agent thereof who makes, 1
issues or delivers a policy of fire insurance in wilful A-iolation of section 2
ninety-nine or a policy of accident or health insurance in v^iUul ^^olation 3
of any pro\'ision of section one hundred and eight or one hundred and 4
nine, or a policy of life or endowment insurance or an annuity or pure 5
endo^^^nent policy in Milful \-iolation of any pro\ision of section one hun- 6
dred and tliirty-two or one hundred and thirty-four shall be punished by 7
a fine of not more than five hundred dollars. 8
R. L. 118, § 103.
1907, 576, §§ 114, 122
1910, 493, § 7.
Section 191. The commissioner may require a company to submit
Companies to
file policies,
onrequest.'"" for liis inspection copies of any policy form used by the company; a
1920, 123, § 2. foi-jQ of any rider, endorsement or application used in connection there-
with, and copies of any circular or other advertising matter issued by
it in the commonwealth. A company, or any officer or agent thereof
who, within thirty days after receipt of a UTitten request therefor, neg-
lects or refuses to comply ■nith tliis section shall be punished by a fine
of not less than one hundred nor more than fi^e hundred dollars.
?ubfectto°' Section 192. All provisions of law relative to the filing of policy
commS'ioner. forms with, and the approval of such forms by, the commissioner shall
1920, 123, § 1. also apply to all forms of riders, endorsements and applications de-
signed to be attached to such policy forms and when so attached to
Chap. 176.]
FRATERNAL BENEFIT SOCIETIES.
2025
5 constitute a part of the contract; p^o^^defl, that riders or endorsements
6 used at the request of indiMidual pohcy holders in connection ^\itli
7 policies of life or endowTnent insm-ance relative to the distribution of
8 benefits payable under their policies or to the reservation of rights or
9 benefits thereunder, may be used, so far as consistent with law, with-
10 out such approval.
Policies valid
though issued
contrary- to
1 Section 193. Any policy of insurance or any annuity or pure en-
2 dowment contract issued in ^'iolation of any pro\'ision of tliis chapter
3 shall be vahd and binding upon the company issuing it, and the rights, i|'|j^453'"';
4 duties and obligations of the parties thereto shall be determined by this G^s'58"'§y^'
5 chapter. i873, 331. § 6. issi, 166. § 2. p. s. 119, §1 140, 200.
i4.
1887, 2U, § 105.
1894, 522, § 105.
R. L. 118, § 105.
1907. 576, §§ 29, 114, 12
1910, 493,
1919, 110.
1920, 150.
160 Mass. 413.
165 Mass. 501.
182 Mass. 389.
184 Mass. 177.
232 Mass. 214.
GENERAL PENALTY.
1 Section 194. 'WTioever ^•iolates any pro\-ision of tliis chapter, the General
2 penalty whereof is not specifically pro'vided for herein, shall be punished is87,'2i4,
3 bv a fine of not more than fi\-e hundred dollars.
110.
1894, 522, § 110.
E. L. lis, I 111.
1907, 576, §§ 120, 12
190S. 511, § 4.
1912, 401, §4.
1920, 147, i 3.
REFERENCES.
Burning to defraud company, Chap. 266, § 10.
Change of name of insurance companies, Chap. 15.5, § 10.
False reports in statements required to be filed, etc.. Chap. 155, §§ 48, 49.
Forgery of policies, Chap. 267, § 1.
Municipal building funds insurance. Chap. 40, § 13.
Organization of division of insurance, Chap. 26, §§ 6-S.
Pohtical contributions forbidden, Chap. 55, § 7.
Restraining companies from doing unauthorized business, Chap. 155, § 11.
Service on agent of foreign companies, Chap. 223, § 39.
Taxation of companies, Chap. 63, § 20 et seq.
Workmen's compensation poUcies, Chap. 152, § 52 et seq.
CHAPTER 176.
FRATERNAL BENEFIT SOCIETIES.
Sect.
1. Definitions.
2. Lodge system defined.
3. Representative fonu of government de-
fined.
4. Form of government of certain socie-
ties.
5. Laws applicable to fraternal societies.
6. Formation of corporation.
7. First meeting.
8. Preliminary license, etc., for society on
the lodge plan.
9. Certificate of organization, etc.
10. Effect of failure to do business for a
year.
11. Altering purpose of corporation.
12. Merger or transfer.
13. Creation of death fund, etc.
14. Proportion of pa>"ment3 which may be
used for expenses.
Sect.
15. Deferred payments considered as liabili-
ties.
16. Certain societies may grant extended or
paid-up protection, etc.
17. Distribution of surplus, etc.
18. Investment of funds.
19. Payment of death benefits, etc.
20. Certificates, etc.
21. Beneficiaries, etc.
22. Burial benefits.
23. Death benefits on lives of children.
24. Medical examination of children, etc.
25. Reserves on children's certificates.
26. Separation of assets, etc., connected
with children's insurance.
27. Payments to expense fund. Children's
certificates. •
28. Continuation of child's certificate.
29. Action by beneficiarj'.
2026
FRATERNAL BENEFIT SOCIETIES.
[Ch.\p. 176.
Sect.
30. Money, etc., not liable to attachment.
31. Beneficial members.
32. Constitution and by-laws.
33. Where meetings may be held.
34. Subordinate bodies may not waive pro-
vision of constitution, etc.
35. Copies of amendments to be filed.
36. Examination of domestic societies.
Commissioner not to make public fi-
nancial statements pending examina-
tion, etc.
Annual statement.
39. Reports by societies on the lodge system .
40. Extra rates in case of deficiency. Class
of members at higher rates.
37
38
Sect.
41. Foreign societies.
42'. Appointment of commissioner as attor-
ney for service of process.
43. Revocation of license of foreign society.
44. Examination of foreign societies.
45. Domestic societies with limited mem-
bership, etc.
46. Same subject. Societies exempt from
this chapter, except sections 20 and
29.
47. Unlawful business may be enjoined.
48. Penalties for false statements.
49. Penalty for soliciting membership in
unauthorized society.
50. General penalty.
Definitions.
1911,628, § 1.
1919. 3.i0,
§§ 45, 46.
Section 1. In this chapter the following words shall have the fol- 1
lowing meanings: . 2
"Commissioner", the commissioner of insurance. 3
"Fraternal benefit society" or "society", any corporation, associa- 4
tion, society, order, fraternity or other organization without capital 5
stock, organized and carried on solely for the mutual benefit of its mem- 6
bers or their beneficiaries, and not for profit, and either with a lodge 7
system, with ritualistic form of work and representative form of govern- 8
ment, or without a lodge system, under the direct control of its members, 9
which makes provision for the payment of death or disability benefits 10
or both. 11
Lodge system
defined.
1911,628, I 2.
1 Op. A. G. 54.
Section 2. Any such society shall be deemed to be operating on the 1
r^'l'iio'H'' loflg^ system when it has a supreme governing or legislative body, and 2
subordinate lodges or branches, by whatever name known, to which 3
members are elected, initiated and admitted in accordance with its 4
constitution, by-laws, and prescribed ritualistic ceremonies, and the 5
subordinate lodges or branches of which are required by the by-laws 6
of such society to hold regular or stated meetings at least once in each 7
month. 8
Represent.ntive
form of go\'-
ernment
define<l.
1901,422,
§§ 1,11,10.
R. L. 119,
§§ 1,2.11.
1911,628, §3.
Form of
government
of certain
societies.
1901,422, 5
R. L. 119, I
1911,628, §
div. b.
1913,617, §
Section 3. Any such society shall be deemed to have a representa- 1
ti\-e form of government when it shall provide in its constitution and 2
by-laws for a supreme legislative or governing body, composed of repre- 3
sentatives elected either by the members or by delegates elected directly 4
or indirectly by the members, together with such other members as 5
may be prescribed by its constitution and by-laws; provided, that 6
the electi\e members shall have not less than two thirds of the votes 7
nor less than the number of votes required to amend its constitution 8
and by-laws; and provided, further, that the meetings of the supreme 9
or governing body and the election of officers, representati\es or dele- 10
gates shall be held as often as once in four years. The members, ofR- 11
cers, representatives or delegates of a fraternal benefit society shall not 12
vote by prox}'. 13
Section 4. A corporation which limits its membership to the mem-
bers of a particular fraternal beneficiary corporation, fraternity or
religious denomination, or to the graduates of a designated professional
or vocational school, or to the employees or ex-employees of cities or
towns or of the commonwealth or of the federal government, or to the
Chap. 176.] fraternal benefit societies. 2027
6 employees or ex-employees of a designated firm, business house or cor- 1915.39.
7 poration, or of any department of a designated firm, business house or 206 iiass. iso.
8 corporation, or to persons of the same foreign extraction retaining common
9 national interests and designation, or to persons of the same occupation,
10 may be on the lodge system, and if not on the lodge system shall be
11 governed by a direct vote of its members without the lodge system. A
12 corporation not so limiting its membership shall be on the lodge system,
13 with a representative form of government as defined in sections two
14 and three.
1 Section 5. Societies shall be governed by this chapter, and shall be Laws applicable
2 exempt from all other provisions of the insurance laws of the common- sodetS.""'
3 wealth except sections sixteen and one Innidred and seventy-eight to Jgjf ; IqI] | l'
4 one hundred and eighty, inclusive, of chapter one hundred and seventy- p^f'/i^s^'.^j^tj
5 five, not only in go^'ernmental relations with the commonwealth, but for jsss. ig^ 1 1-
6 every other purpose; and no law hereafter enacted shall apply to them i89o,'42i', § i.'
7 unless they are expressly designated therein. 1894, 367, § is.
189S, 474, 5 22. 1901, 422. § 27. 1910, 493, § 3.
1899,442,127. R. L. 119, § 22; 120, |1. 1911,628, §4.
1 Section 6. Seven or more persons, residents of the commonwealth. Formation of
2 may form a corporation for the purposes set forth in this chapter. i88s??29!°'
3 The agreement of association shall state that the subscribers thereto i894'|67,
4 associate themselves with the intention of forming a corporation, the figg' ^y^j
5 corporate name assumed, the purpose for which it is formed, and the §§ i.'z- '
6 town, which shall be in the commonwealth, in which it is established §§ 1,2.
7 or situated. The name shall not so closely resemble the name of any §§ i,'2. '
8 corporation or insurance company already transacting business in the uo^'§§°?5.\o;
9 commonwealth as to mislead the public or lead to confusion. Any law- Jgoj^lig"'
10 ful social, intellectual, educational, charitable, benevolent, moral or reli- 1911,62s, §12,
« ] divs. a and b.
1 1 gious advantages may be set forth among the purposes of the corpora- i9i3. 617, § 2.
12 tion. If the corporation limits its membership as provided in section 1916] 4.'
13 foiu-, the agreement of association shall state the maximum amounts of
14 benefits to be paid, and shall designate to which one of the classes men-
1.3 tioned in said section its membership is restricted.
1 Section 7. The first meeting of the associates shall be called by a First meeting.
2 notice, signed by one or more of the subscribers to the agreement, stating iff.'s,"!.'
3 the time, place and purpose of the meeting; a copy of the notice shall, |S9^^^367'
4 seven days at least before the day appointed for the meeting, be given ll^^zfj-
5 to each subscriber, or left at his usual place of business or place of resi- is99, 442.
6 dence, or deposited in the post office, postpaid, addressed to him at his 1901, 422.
7 usual place of business or residence. Whoever gives such notice shall r. l'.uo,
8 make an affidavit of his doings, which shall be recorded in the records \IqJ( "' ^°'
9 of the corporation. At such first meeting, including any reasonable Jg^^ §^6.^ ^ ^^
10 adjournment thereof, an organization shall be effected by the choice by ^^^-^^jj^^J j,,,
11 ballot of a temporary clerk, who shall be sworn, and by the adoption lOp. A.'o.iiL
12 of by-laws, and the election by ballot of directors, president, secretary
13 and treasurer, or other officers corresponding thereto, with powers and
14 duties similar to those of such officers, and such other officers as the
15 by-laws may provide for; but at such election no person shall be eligi-
16 ble as a director or other officer who has not subscribed the agreement
17 of association. The temporary clerk shall make and attest a record of
18 the proceedings until the secretary has been chosen and sworn, including
2028 FRATERNAL BENEFIT SOCIETIES. [Ch.A.P. 176.
a record of such choice and quaHfication. The president, secretary 19
and a majority of the directors, or other officers corresponding thereto, 20
shall forthwith make, sign and swear to a certificate of organization 21
in duplicate, setting forth a true copy of the agreement of association, 22
with the names of the subscribers thereto, the date of the first meeting 23
and of the successive adjournments thereof, if any; and said certificate 24
of organization and duly certified copy of the by-laws, and copies of all 25
proposed forms of benefit certificates, applications therefor and litera- 26
ture to be issued by the corporation shall be filed with the commis- 27
sioner, who may require such further information as he deems neces- 28
sary; and if the purposes and by-laws of the corporation conform to 29
the requirements of this chapter and all its provisions have been com- 30
plied with, the commissioner shall so certify, and place on file the agree- 31
ment of association, one of the duplicate certificates of organization, 32
and a copy of the by-laws approved by him. 33
ucm™"*?. Section 8. The commissioner shall then furnish the incorporators 1
OTtheiodge of any such society, if on the lodge plan, with a preliminary license, 2
1895' 340 5 2 authorizing it to solicit members for the purpose of completing its or- 3
1898! 474; §s: ganization. It shall collect from each applicant the amount of not 4
1901! 422! I s. more than one periodical benefit assessment or pa\Tuent, in accordance 5
??n; 628, § 12, with its tables of rates as provided by its constitution and by-laws, 6
msfios. and shall issue to every such applicant a receipt for the amount so 7
1920, 257, § I. collected. But no such society shall incur any liability other than 8
for such advance pajmients, nor issue any benefit certificate, nor pay or 9
allow, or offer or promise to pay or allow, to any person any death or 10
disability benefit until actual bona fide applications for death or dis- 11
ability benefit certificates, as the case may be, have been secured from 12
at least five hundred persons, and all such applicants for death bene- 13
fits shall have been regularly examined by legally qualified practicing 14
physicians, and certificates of such examinations have been duly filed 15
and approved by the chief medical examiner of the societj'; nor until 16
there shall be established ten subordinate lodges or branches, in which 17
said five hundred applicants have been initiated; nor until there has IS
been submitted to the commissioner, on oath of the president and secre- 19
tary or corresponding officers of such society, a list of the said appli- 20
cants, giving their names, addresses, date of examination, date of ap- 21
proval, date of initiation, name and number of the subordinate branch 22
of which each applicant is a member, amount of benefits to be granted, 23
and rate of regular payments or assessments, which for societies off'ering 24
death benefits shall not be lower for death benefits than those required 25
by the National Fraternal Congress Table of Mortality as adopted by 26
the National Fraternal Congress August twenty-thhd, eighteen hundred 27
and ninety-nine, or any higher standard at the option of the society, 28
with an interest assumption not higher than four per cent per annum; 29
nor until it shall be shown to the commissioner, by the sworn statement 30
of the treasiu-er or corresponding officer of such society, that at least five 31
hmidred appHcants for death benefits have each paid in cash one regular 32
payment or assessment as herein pro\ided, and the payments in the 33
aggregate shall amount to at least twenty-five hundred dollars, all of 34
which shall be credited to the mortuary or disability fund on account of 35
the applicants, and no part of which may be used for ex-penses. Such 36
advance payments shall, during the period of organization, be held in trust 37
Chap. 176.] fe.\tern.\l benefit societies. 2029
38 for the applicants, and, if the organization is not completed within one
39 year as hereinafter provided, shall be returned to them. The commis-
40 sioner may make such examination and require such fiu-ther information
41 as he deems advisable; and upon presentation of satisfactory evidence
42 that the society has complied with all the provisions of this chapter, he
43 shall issue to the society a certificate to that effect.
1 Section 9. The society shall file a certificate of organization, with Certificate of
2 the certificate of the commissioner endorsed thereon, and if on the °J^'""^''"°°'
3 lodge plan also the certificate required by the preceding section, in JIgf ; lo?,' | 7'.
4 the office of the state secretary, who, upon the receipt of five dollars, }|99;442;|7'
5 shall cause the same, with the endorsements, to be recorded, and shall ^ "l 1",o' | on-
6 thereupon issue a certificate in the following form: 119, §2.
^ ° 1911. 628, § 12,
div. e.
/-I ■. r 149 Mass. 436.
COMMOT\T\-EALTH OF AIaSSACHTJSETTS. 151 Mass. 558.
Be it known that whereas (here the names of the subscribers to the agree-
ment of the association shall be inserted) have associated themselves with the
intention of forming a corporation under the name of (here the name of the
corporation shall be inserted), for the purpose (here the purpose declared in
the agreement of association shall be inserted), and have complied with the
provisions of the statutes of the commonwealth in such case made and pro-
vided, as appears from the certificate of officers of said corporation, duly
certified by the commissioner of insurance and recorded in this office: Now,
therefore, I (here the name of the secretary shall be inserted), secretary of the
commonwealth of Massachusetts, do hereby certify that said (here the names
of the subscribers to the agreement of association shall be inserted), their asso-
ciates and successors, are legally organized and established as, and are hereby
made a corporation, under the name of (here the name of the corporation shall
be inserted), wdth the powers, rights and privileges, and subject to the limita-
tions, duties and restrictions which by law appertain tliereto. Witness my
official signatiu'e hereunto subscribed, and the great seal of the commonwealth
of Massachusetts hereunto affixed, this day of in the
year . (In these blanks the day, month and year of the execution of the
certificate shall be inserted.)
7 The state secretary shall sign the same and cause the seal of the com-
8 monwealth to be affixed thereto, and the certificate shall be conclusive
9 evidence of the existence of the corporation at the date of the certificate.
10 He shall also cause a record of the certificate to be made, and a certi-
11 fied copy of the record may be given in evidence with like effect as the
12 original.
1 Section 10. If any society fails to secure its certificate of incorpora- Effect of
2 tion and to begin business within one year after the date of receiving b'uii'ness°fOT
3 the certificate of the commissioner, as provided in section seven, its is89"429. § n
4 agreement of association and all proceedings thereunder shall become JggI' 474' | ojj'
5 null and void; and if any domestic corporation subject to this chapter '^S^'^i^M^S-
6 ceases to do business for the period of one year, its charter or certificate R. l! ii5', § 20!
7 of incorporation shall become null and void. i9ii, 628, § 12, div. f.
1 Section 11. A domestic fraternal benefit corporation may, with the Altering
approval of the commissioner, change the j)urposes for which it was ?orporat°on.
3 incorporated so as to permit it to transact any business authorized by isolisu?,'!}!"
4 this chapter. Upon such approval the presiding, financial and recording Jl"!' 44|' | Is'
5 officers, and a majority of its other officers having the powers of di- n'°f' ■',","9' |%
6 rectors, shall file in the office of the state secretary a certificate, with iuii,'c2s,'§ 13.'
2030
FRATERNAL BENEFIT SOCIETIES.
[Chap. 176.
the approval of the commissioner endorsed thereon, setting forth the 7
change in the purposes of the corporation. The state secretary shall, 8
upon receipt of five dollars, cause such certificate to be filed and re- 9
corded in his office. E^'ery domestic fraternal beneficiary corporation 10
may exercise all the rights, powers and privileges conferred by this 11
chapter, including the powers specified in section thirty-two, or its 12
certificate of incorporation or charter, not inconsistent herewith, and 1.3
shall be subject to this chapter, as if reincorporated hereunder. 14
Merger or
transfer.
1882, 19.5. § 4.
1S88. 429, I 10.
1S90, 341.
1893, 47.
1894, 367, § 9.
1898,474, § 12.
1899,442,1 16.
1901, 422, I 16.
R. L. 119, § 11.
1908, 463.
1911,628, § 14.
215 Mass. 347.
Section 12. No domestic society shall merge with or accept the 1
transfer of the membership or funds of any other society unless such 2
merger or transfer is evidenced by a WTitten contract, setting out in 3
full the terms and conditions of the merger or transfer, and filed with 4
the commissioner, together with a sworn statement by the president and 5
secretary, or corresponding oflBcers, of each of said societies of its finan- 6
cial condition, and a sworn certificate of the said officers of each of 7
the contracting societies that the merger or transfer has been approved 8
by a vote of two thirds of the members of the supreme legislative or 9
governing body of each of said societies. 10
Upon the submission of said contract, financial statements and cer- 11
tificates, the commissioner shall examine them, and if he shall find the 12
said financial statements correct, and the said contract in conformity 1.3
with this section, and that the merger or transfer is just and equitable 14
to the members of each of said societies, he shall approve the merger or 15
transfer, issue his certificate to that eft'ect, and thereupon the said con- 16
tract of merger or transfer shall be of full force and effect; provided, 17
that no such merger proposed by two societies not incorporated in the 18
same state shall go into effect until approved by the commissioner, or 19
corresponding officer, of each state incorporating the societies involved 20
in the proposed transaction, nor until their joint certificate of approval 21
of the contract therefor is issued. 22
Creation of
death fund,
etc.
1890, 341,
§ 1; 400.
1894, 367, § 8.
1897, 228.
1898,474, § 11.
1899, 442,
§§ 11.12.
1901, 275;
■422, §§11, 12.
R. L. 119,
§§6,7.
1911, 028, § 9,
subs. 1.
159 M.1SS. 9.
196 Mass. 151.
215 Mass. 185.
Section 13. Any society may create, maintain, invest, disburse 1
and apply a death fund, any part of which may in accordance with 2
the by-laws of the society be designated and set apart as an emergency, 3
a surplus or other similar fund, and a disability fund. Such funds shall 4
be held, invested and disbursed for the use and benefit of the society, 5
and no member or beneficiary shall have or acquire individual rights 6
therein, or become entitled to any part thereof, except as prov-ided in 7
section sixteen, seventeen or nineteen. The funds from which benefits 8
shall be paid shall be derived and the fund from which the expenses of 9
the society shall be defrayed may be derived from periodical or other 10
paj-ments by the members of the society and accretions of said funds; 11
provided, that no society shall be incorporated, and no societj^ not 12
authorized on January first, nineteen hundred and twelve, to do busi- 13
ness in the commonwealth shall be admitted to transact business therein, 14
which does not provide for stated periodical contributions sufficient to 15
meet the mortuary obligations contracted, when valued upon the basis 16
of the National Fraternal Congress Table of IMortality as adopted by 17
the National Fraternal Congress August twenty-third, eighteen hun- 18
dred and ninety-nine, or any higher standard, with interest assumption 19
not more than four per cent per annum, except societies providing 20
benefits for disability or death from accident only. 21
CH-^P. 176.] FRATERNAL BENEFIT SOCIETIES. 2031
1 Section 14. Every provision of tlie by-la\vs of the society for pay- Proportion of
2 ment by members of such society, in whate\-er form made, shall dis- which may be
3 tinctly state the purposes of the same and the proportion thereof which expenses.
4 may be used for expenses, and no part of the money collected for mortu- jUJf ; H^; ^ ^■
5 ary or disability purposes or the net accretions of either or any of said J^as. 474. | n.
6 funds shall be used for expenses.
1901,422, |§ 12, 13. R. L. 119, |§7, S. 1911, 628, § 11.
1 Section 15. Deferred payments or instalments of claims shall be Deferred
2 considered as fixed liabilities on the happening of the contingency upon coSS-ed as
3 which such payments or instalments are thereafter to be paid. Such 1911,' els. § 9,
4 liability shall be the present value of such future payments or instal- ™'^^' ^•
5 ments upon the rate of interest and mortality assumed by the society
6 for establishing contributions and for valuation; and every society
7 shall at once, upon the filing of due proofs of the happening of the con-
8 tingency, set apart a fund to meet such deferred payments, regardless of
9 proposed future collections to meet any such payments, and hold such
10 fund, with its interest accretions, in trust for the beneficiary entitled
11 thereto.
12 No society shall provide for such deferred pajTnents or instalments
13 unless it possesses the full reserve specified in the following section, or,
14 if paying accident benefits only, has assets sufficient to pay all its
15 liabilities.
1 Section 16. Any society which shows by the annual valuation Certain socie-
2 hereinafter provided for that it is accumulating and maintaining the exTeS m""^'
3 tabular reserve required by a table of mortality not lower than the toS etT
4 American Ex-perience Table and four per cent interest, and which has subs' 2^*' ^ ^'
5 provided for stated periodical mortuary contributions based on said Jgjg'gg^-
6 standard, or which shows that its stated periodical mortuary contri- Op. a.g.
7 butions for the period of the &ve years next preceding, at rates at no
8 time higher than those in use following said period, were sufficient to
9 pay the actual claims and maintain the aforesaid reserve for said period
10 without recourse to the reserves released by the lapsing of certificates,
11 and without falling below said standard for any two consecutive years
12 of said period, may grant to its members such extended or paid-up
13 protection or such withdrawal equities as its constitution and by-laws
14 may provide; provided, that such grants shall be equitable, and shall
15 in no case exceed in value the portion of the reserve derived from the
16 payments of the individual members to whom they are made.
1 Section 17. Whenever the actual assets of a society exceed its Distribution
2 liabilities, including in liabilities the net value of its outstanding con- i9iT,'62s!f5!'
3 tracts computed on the basis specified in the preceding section, by an ^"''^' ^'
4 amount equal to five per cent of said net value, such society may make
5 an equitable distribution of any surplus in excess of said five per cent
6 by a reduction of the periodical contributions of its members.
1 Section 18. Every society shall invest its funds only in securities investment
2 permitted by chapter one hundred and seventy-five for the investment of isss. 429, § 9.
3 the capital of insurance companies: provided, that any foreign society llgJ^seT^ss.
4 permitted or seeking to do business in the commonwealth may invest Jsnsllftsii.
5 its funds in accordance with the laws of the state where it is incorpo- j;'iui'402'| }!;■
6 rated, and provided, that a part thereof, not exceeding twenty per cent R. l' na! § 7.
2032
FRATERNAL BENEFIT SOCIETIES.
[ClL\P. 176.
1910. 649.
1911, 628, § 10.
1920. 359.
1 Op. A. G. 1,
32, 135.
of its death fund, may be invested in a building for use and occupation 7
by the society as its home office; and that a society having branches 8
situated in the Dominion of Canada may invest a part of its death fund 9
in the public funds of the Dominion of Canada, or of any province of 10
the Dominion of Canada, not exceeding in the aggregate an amount 11
equal to the sum of its collected premiums for the foiu* months last past. 12
Payment of
death benefits.
1877, 204, § 1.
P. S. lis, § 8.
1882, 192,
§§1,2.
1888,429, § 8.
1890, 341.
1894, 367, § 8.
1897, 228.
1898,474, § 11.
1899,442,
§§ 11, 12, 16.
1901,275:422.
§§ 1, 11. 12, 10.
R. L. 119.
§§ 1,6,7,11.
1911,628, § S,
subs. 1.
175 Mass. 396.
181 Mass. 111.
206 Mass. 131,
158, 168.
215 Mass. 185.
Certificates,
etc.
1899.
442,
§11-
1901,
275;
442,
§11.
R. L.
119,
§6.
1911,
628,
§ s.
2 Op.
A.G
i. 212.
Section 19. Every society may provide for the pajTnent of death 1
benefits, and may provide for the pajonent of benefits in case of tempo- 2
rary or permanent physical disability, either as the result of disease, 3
accident or old age; p^o^•ided, that the period of life at wliich the pay- 4
ment of benefits for disability on account of old age shall commence 5
shall not be under seventy years. Such society may give a member, 6
when permanently disabled, or on attaining the age of seventy, all or 7
such portion of the face value of his certificate as the by-laws of the 8
society may provide; provided, that this chapter shall not prevent the 9
issuing of benefit certificates, for a term of years less than the whole 10
of life, which are payable upon the death or permanent disability of the 11
member occurring within the term for which the benefit certificate is 12
issued. Such society may, upon written application of a member, accept 13
a part of the periodical contributions for mortuary purposes in cash and 14
charge the remainder, not exceeding one half of the periodical contri- 15
butions, against the certificate, with interest payable or compounded 16
annually at a rate not lower than four per cent per annum; provided, 17
that this privilege shall not be exercised except by societies which have 18
readjusted or may hereafter readjust their rates of contributions, and 19
then only as to contracts affected by such readjustment, and provided, 20
further, that the yearly amount and the amount in the aggregate of 21
such charges against the certificates of members, including interest 22
charged, as cannot be collected on account of the lapsing of members 23
against whose certificates such charges have been made, shall be stated 24
in the records of the proceedings of the annual or other regular meet- 25
ings of the society. Such society providing on January first, nineteen 26
hundred and twelve, for tombstones to the memory of deceased members 27
may continue such provision, but not at an expense in excess of one 28
hundred dollars for any member. 29
Section 20. A certificate issued by any society shall specify the 1
amount of death benefit provided thereby; and the certificate, the 2
charter or articles of organization, or, if it is a voluntary association, 3
the articles of association, the constitution and by-laws of the society 4
and the application for membership and medical examination, if any, 5
signed by the applicant, and all amendments to each thereof, shall con- 6
stitute the agreement between the society and the members; and copies 7
of the same, certified by the secretary of the society or corresponding 8
officer, shall be received in evidence of the terms and conditions thereof. 9
Any changes, additions or amendments to said charter, articles of in- 10
corporation, or articles of association, constitution or by-laws duly 11
made or enacted subsequent to the issuance of a benefit certificate shall 12
bind the member and his beneficiaries, and shall govern and control the 13
agreement in all respects in the same manner as if such changes, ad- 14
ditions or amendments had been made prior to and were in force at the 15
time of the application for membership. The foregoing provision shall 16
be incorporated in substance in every benefit certificate hereafter issued. 17
ClIAP. 176.] FRATERNAL BENEFIT SOCIETIES. 2033
1 Section 21. Death benefits shall be payable only to the wife, hus- Beneficiaries,
2 band, relative by blood, father-in-law, mother-in-law, son-in-law, daugh- 1877, 204, § 1.
3 ter-in-law, stepfather, stepmother, stepchildren, betrothed, adopted rsfiVs^s.^ *'
4 children or adoptive parents, or to persons dependent upon the mem- figs', 429, § s.
5 ber; provided, that if after the issuance of the original certificate the {fg^'ljs'-
G member, his wife or minor children shall become dependent upon an 367, § s.
7 incorporated charitable institution or upon a home situated within isos! 474.' §11.
8 the commonwealth and incorporated under the laws thereof and main- §§ li, 13.'
9 tained and supported by any secret fraternity or order for the care and l22^\Yii,
10 maintenance of its aged, infirm, indigent or unfortunate members, or Ji^'L'^/fg
11 for the care and support of a wife or widow of such a member, or for f|j'j'|,g .g
12 the care, support and education of minor children of such members or i9i3!6i7;ii.
13 of deceased members, the member shall have the privilege, with the i42Massl224;
14 consent of the society, of making such institution or home his bene- 146MS217;
15 ficiary to the full amount becoming due or payable under said certifi- iMMass. 272.
1(3 cate, or to the extent of the amount disbiused for the benefit of said JfgMassIsi'
17 member, his wife, widow or child, by such charitable institution or f^s
„ , , p I. • 1 !• 1 • 158 Mass. 224,
18 home at the rate or average cost or mauitenance or care thereof durmg 322.
19 the period such member, his wife, widow or children shall be so cared ns Mass! 25!
20 for, together with any sums expended by such institution or home for loi'Mass. 477.
21 assessments, dues, tax or other pajinents by reason of such benefit gog ^j^gg; J3};
22 certificate and, subject to the limitation of this section, another person ip^f^j^-j 224
23 as beneficiary of the remainder. Within the above restrictions each 222 Mass. 237.
1 1111 1 -1 1 * 1*1 n • IP 223 Mass. 237.
24 member shall have the right to designate his beneficiary, and from 234 Mass. 299.
25 time to time have the same changed in accordance with the by-laws
26 of the society; and no beneficiary shall have or obtain any vested in-
27 terest in the said benefit until the same has become due and payable
28 upon the death of the said member; provided, that any society may
29 by its by-laws limit the scope of beneficiaries within the above classes.
30 If a benefit certificate has been lawfully issued and the beneficiary
31 therein named, and the husband, wife, betrothed, child, adopted child,
32 parent, adoptive parent, or persons dependent upon the member named
33 in the benefit certificate have all died, the member, with the consent of
34 the officers of the society and under such rules as they may prescribe,
35 may have any other person substituted as beneficiary therein. No con-
36 tract under this chapter, except where an incorporated charitable in-
37 stitution or home is made beneficiary as aforesaid, shall be valid which
38 shall be conditioned upon an agreement or understanding that the per-
39 son to whom the death benefit is made payable shall pay the periodical
40 or other contributions of the member.
1 Section 22. Any society may provide in its by-laws that a part of ^"J^gj„
2 the amount payable as a death benefit may be used to pay the funeral i9i". w".
3 expenses of the insured; provided, that the amount so paid shall not
4 exceed one hundred dollars, and shall be deducted from the amount
5 payable as a death benefit.
1 Section 23. Any society operating on the lodge system may pro- Death benefits
2 vide in its constitution and by-laws, in addition to other benefits pro- children"'
3 vided for therein, for the pajonent of death or annuity benefits upon ^®^^' ^^^- ^ '•
4 the lives of children between the ages of two and eighteen years at the
5 next birthday, for whose support and maintenance a member of the
6 society is responsible. Any such society may at its option organize and
2034
FRATERXAL BENEFIT SOCIETIES.
[Chap. 176.
operate branches for such children, and membership in local lodges and 7
initiation therein shall not be required of such chiklren, nor shall they 8
have any voice in the management of the society. The total death 9
benefits payable as above provided shall in no case exceed the follow- 10
ing amounts at ages at the next birthday after death, respectively, 11
as follows: two, thirty-four dollars; three, forty dollars; four, forty- 12
eight dollars; five, fifty-eight dollars; six, one hundred and forty dollars; 13
seven, one hundred and sixty-eight dollars; eight, two hundred dollars; 14
nine, two hundred and forty dollars; ten, three hundred dollars; eleven, 15
three hiuidred and eighty dollars; twelve, four hundred and sixty dol- 16
lars; thirteen to fifteen, five hundred and twenty dollars; and sixteen 17
to eighteen years, where not otherwise authorized by law, six hundred 18
dollars. 19
Medical ex-
amination of
children, etc.
1917, 128. § 2.
Section 24. No death benefit certificate as to any child shall take 1
effect until after medical examination or inspection by a licensed medi- 2
cal practitioner, in accordance with the by-laws of the society, nor shall 3
any such benefit certificate be issued unless the society shall simul- 4
taneously put in force at least fi\'e hundred such certificates, on each 5
of which at least one assessment has been paid, nor where the number 6
of lives represented by such certificates falls below five hundred. The 7
death benefit contributions to be made upon such certificate shall be 8
based upon the Standard Industrial ^Mortality Table or the English 9
Life Table Number Six, with a rate of interest not greater than four 10
per cent per annum, or upon a higher standard; provided, that contri- 11
butions may be waived or returns may be made from any surplus held 12
in excess of reserve and other liabilities, as provided in the by-laws; 13
and pro\ided, further, that extra contributions shall be made if the 14
reserves provided for in the following section become impaired. 15
Reserves on
children's
certificates.
1917, 128, § 3.
Section 25. Any society entering into insurance agreements under 1
section twenty-three shall maintain on all such contracts the reserve 2
required by the standard of mortality and interest adopted by the 3
society for computing contributions as provided in section twenty-four; 4
and the funds representing the benefit contributions and all accretions 5
thereto shall be kept as separate and distinct funds, independent of the 6
other funds of the society, and shall not be liable for nor used for pay- 7
ment of the debts and obligations of the society other than the benefits 8
herein authorized; provided, that a society may provide that when a 9
child reaches the minimum age for initiation into membership in such 10
society, any benefit certificate issued under sections twenty-three to 11
twenty-eight, inclusive, may be surrendered for cancellation and ex- 12
changed for any other form of certificate issued by the society; pro- 13
vided, also, that such surrender will not reduce the nunilier of lives 14
Insured In any children's branch below five hundred, and upon the 15
issuance of such new certificate any reserve upon the original certifi- 16
cate herein provided for shall be transferred to the credit of the new 17
certificate. Neither the person who originally made application for IS
benefits on account of such child, nor the beneficiary named in such 19
original certificate, nor the person who paid the contribution shall have 20
any vested right in such new certificate, the free nomination of a bene- 21
ficlary under the new certificate being left to the child so admitted to 22
benefit membership. 23
Ch.\P. 176.] FRATERNAL BENEFIT SOCIETIES. 2035
1 Section 26. An entirely separate financial statement of the busi- fgf^'Jg^gj"'' °^
2 ness transactions, and of assets and liabilities arising therefrom, shall be connected With
3 made in its annual statement to the commissioner by any society avail- inaurance,
4 ing itself of sections twenty-three to twenty-eight, inclusive. The • - . s ■
5 separation of assets, funds and liabilities required hereby shall not be
6 terminated, rescinded or modified, nor shall the funds be diverted for
7 any use other than as specified in the preceding section, as long as any
8 certificates issued under sections twenty-three to twenty-eight, inclu-
9 sive, remain in force; and this requirement shall be recognized and en-
10 forced in any liquidation, reinsurance, merger or other change in the
11 condition or status of the society.
1 Section 27. Any society may provide in its by-laws and in the cer- Payments to
2 tificate issued under sections twenty-three to twenty-eight, inclusive, chMren's" '
3 for specified paj-ments on account of the expense or general fund, which Jg'i'y^ilsl^j s.
4 may be mingled with the general fund of the society or not as its con-
5 stitution and by-laws may provide.
1 Section 28. In case of the termination of membership in the society Continuation
2 by the person responsible for the support of any child on whose ac- Certificate.
3 count a certificate has been issued under sections twenty-three to twenty- ^^^^' ^"®' ^ ®'
4 eight, inclusive, the certificate may be continued for the benefit of the
5 estate of the child, or for the benefit of any other person responsible
6 for the support and maintenance of such child, provided the contribu-
7 tions are continued.
1 Section 29. The beneficiary under a certificate issued by any so- Action by
2 ciety may maintain an action thereon in his own name. """^ "'^'^
1918, 257, § 371. 1919, o. 1920, 2.
1 Section 30. Money or other benefit, charity or relief or aid, to be Money, etc
2 paid, provided or rendered by any society, shall not be attached or taken attachmen\°
3 upon execution or other process or by operation of law to pay any debt ^'s.'iii'it
4 or liability of a member or beneficiary, or of any other person who may If^^'g^^'
5 have a right thereunder, either before or after payment.
1888,429.5 1.5. R. L. 119, §17. 139 Mass. 473.
1894, 307, § 14. 1903, 332. 144 Mass. 306.
1.S98. 474, I 17. 1909. 407. lo9 Mass. 259.
1899, 442, § 22. 1910. 339. 175 Mass. 396.
1901, 422, § 22. 1911. 628, § 20. 202 Mass. 549.
1 Section 31. Except as provided in sections twenty-three to twenty- Beneficial
2 eight, inclusive, any society may admit to beneficial membership any igTiVoS, § 7.
3 person, not less than sixteen and not more than sixty years of age, who
4 has been examined by a legally ciualified physician if the examination
5 has been supervised and approved in accordance with the by-laws of
6 the society; provided, that any member of such society who shall apply
7 for a certificate providing for benefits on account of disability from
8 sickness or injury, or death by accident only, need not be required to
9 pass a medical examination therefor. This section shall not prevent
10 such society from accepting general or social members.
1 Section 32. Every society may, subject to this chapter, make a Constitution
2 constitution and by-laws for its government, admission of members, i888,429,"^^'5.
3 management of its affairs, and the fixing and readjusting of the rates \lll[ l^l] 1 1;
4 and contributions of its members from time to time, and may amend }|oi,' 422! 1 1'
2036
FIL^TERNAL BENEFIT SOCIETIES.
[Ch.\p. 176.
its constitution and by-laws, and it shall have such other powers as
are necessary or incidental to carry into effect its objects and purposes.
R. L. 119, § 2.
1911,628, § 12,
div. g.
1 Op! a" G. 411. The constitution and by-laws may prescribe the ofiBcers and elected
p- ■ ■ '■ members of standing committees, who may be ex ofEciis directors or
other officers corresponding thereto.
Where meetings
mav be held.
1S9S, 474. § 10.
I.sn9, 442, I 10.
1901,422, I 10.
R. L. 119, §5.
1911, 62S, § IS.
Section 3.3. Any domestic society may provide that the meetings
of its legislative or governing body may be held in any state or province
wherein such society has subordinate branches, and all business trans-
acted at such meetings shall be as valid in all respects as if such meetings
were held in this commonwealth. But its principal office shall be situ-
ated in this commonwealth.
Subordinate
bodies may
not waive pro-
vision of con-
stitution, etc.
1911, 628, § 19.
Section 34. The constitution and by-laws of the society shall be
binding on it, on every member thereof, and on all beneficiaries of mem-
bers, and shall provide that no subordinate body nor any of its subor-
dinate officers or members shall have power or authority to waive any
provision thereof, and otherwise there shall be no waiver excepting as
the constitution and by-laws of the supreme body shall specifically
permit.
Copies of
amendments
to be filed.
1899,442, §21.
1901,422, §21.
R. L. 119, I 16.
1907.472.
1910.296.
1911, 628, § 21.
Section 35. The recording officer of every society shall file with the
commissioner a duly certified copy, in English, of all amendments of or
additions to its constitution and by-laws, within ninety days after their
adoption. Printed copies of the constitution and by-laws, as amended,
changed or added to, certified by the secretary or corresponding officer
of the society, shall be prima facie evidence of the same and of the
legal adoption thereof.
Examination
of domestic
societies.
1880, 196, § 2.
P. S. 11.5, § 12.
1892, 435, § 1,
1895,340. § 1.
1898,474, § 19.
1899, 442, I 24.
1901.422,
5§ 19, 24.
R. L. 119,
H 15, 19.
1911, 628,
§§ 24. 25.
1.59 Mass. 9.
196 Mass. 151.
206 Mass. 139.
Section 36. The commissioner or any person designated by him 1
may examine the affairs of any domestic society. He may employ 2
assistants for the purpose of such examination, and he or any person 3
designated by him shall ha\-e free access to all the books, papers and 4
documents relating to the business of the society, and may summon .5
and qualify as witnesses on oath and examine its officers, agents and 6
employees, and other persons in relation to the affairs, transactions 7
and condition of the society. 8
Whenever after examination the commissioner is satisfied that any 9
domestic society has failed to comply with any provision of this chap- 10
ter, or is exceeding its powers, or is not carrying out its contracts in 11
good faith, or is transacting business fraudulently, or whenever any 12
domestic society, after the existence of one year or more, shall ha\-e 13
a membership of less than four hundred, or shall determine to dis- l-l
continue business, the commissioner may present the facts relating 15
thereto to the attorney general, who shall, if he deems the circum- 16
stances warrant, begin a quo warranto proceeding in the supreme 17
judicial court, and the court shall thereupon notify the officers of the IS
society of a hearing, and if it then appears that the society should be 19
dissolved, the society shall be enjoined from carrying on any further 20
business, and some person shall be appointed receiver, and shall proceed 21
at once to take possession of its books, papers, moneys, and other assets, 22
and shall forthwith, under the direction of the court, proceed to close 23
its affairs, and to distribute its funds to those entitled thereto. 24
Chap. 176.] fraternal benefit societies. 2037
25 No such proceeding shall be begun by the attorney general until
26 after notice has been duly served on the chief executive officers of the
27 society by the commissioner and a reasonable opportunity given to it,
28 on a date to be named in the notice, to show cause why such proceedings
29 should not be begun, nor shall such proceedings be entertained unless
30 brought by the attorney general.
1 Section 37. After an examination of any society, either domestic Commissioner
2 or foreign, has been begun, the commissioner shall make public no pSbii? fiJiandai
3 financial statement, report or finding affecting the status, standing or pend'ng'ex-
4 rights of the society until a copy thereof shall have been served upon ?3n,''62'8!'§^27.
5 the society at its home office, and the society shall have been afforded
6 a reasonable opportunity to be heard regarding such financial state-
7 ment, report or finding; but the commissioner may use such facts as
8 come to his knowledge for the purpose of securing an injunction as pro-
9 vided in the preceding section.
1 Section 38. Every society shall annually, on or before March Annual
2 first, file with the commissioner, in such form as he may require, a state- is8o,"96,'§ i.
3 ment on oath of its president, secretary, treasurer and chief accountant, fssl'.Vss,!"'
4 or corresponding officers, of its condition and standing on December is9o!34i! 1 1"'
.5 thirty-first next preceding, and of its transactions for the year ending i|^|' |^J' | Ji-
6 on that date; and also shall furnish such other information as the com- JSJl^'lp' I ^^■
7 missioner may deem necessary to a proper exliibit of its business and r. l.'ii9,'|i4!
8 plan of working. The commissioner may at other times require any div. a. '
9 further statement relating to such society which he may deem necessary.
1 Section 39. In addition to the annual statement required by the Reports by
2 preceding section, every society on the lodge system authorized to pay fodges''yste''m. *
3 benefits in the commonwealth upon the death of its members, except dfv.^k ^*' ^ ^""
4 those societies which do not pay benefits for death from natural causes, op'^^\^G.' ^ ^'
5 shall annually report to the commissioner a valuation of its certifi- '■^^^^^ so.
6 cates providing for death benefits in force on December thirty-first next
7 preceding. The report shall show, as contingent liabilities, the present
8 mid-year value of the death benefits promised in the outstanding con-
9 tracts of the society, and as contingent assets, the present mid-year
10 value of the future net mortuary contributions provided in the con-
11 stitution and by-laws as the same are in practice actually collected,
12 not including therein any value for the right to make extra assessments.
13 At the option of any such society, in lieu of the above, the valuation
14 may show the net mid-year value of the outstanding contracts; and
15 said net value, when computed in case of monthly contributions, may
16 be the mean of the terminal values for the end of the preceding and of
17 the current insurance years, the right to make extra assessments being
18 excluded from consideration. The valuation shall be certified by a
19 competent accountant or actuary, or at the request and expense of the
20 society, verified by the actuary of the department of insurance of the
21 home state of the society, and shall be filed with the commissioner on
22 or before April thirtieth next after the submission of the last preceding
23 annual statement. The legal minimum standard of valuation shall be
24 the National Fraternal Congress Table of ]\Iortality as adopted by the
25 National Fraternal Congress August twenty-third, eighteen hundred
26 and ninety-nine; or, at the option of the society, any higher mortality
27 table; or, at its option, it may use a mortality table based on the
2038 FRATERNAL BENEFIT SOCIETIES. [ChAP. 176.
society's own experience of at least twenty years, and covering not 28
less than one hundred thousand lives, with interest assumption not 29
higher than four per cent per annum, whichever mortality table is 30
adopted. E\ery such report shall set forth clearly and fully the mor- 31
tality and interest basis and the method of valuation. Any society 32
providing for disability or accidental death benefits, or both, shall keep 33
the net contributions for such benefits in a fund separate and apart 34
from all other benefit funds and from expense funds. The valuation 35
herein provided for shall not be considered or regarded in any action 36
that may arise as a test of the financial solvency of the society, but 37
each society shall be held to be legally sohent so long as the funds in 38
its possession are equal to or in excess of its liabilities, not including in 39
the term "liabilities" any charge for reserve computed as in this section 40
required. 41
Such report of valuation and an explanation of the facts concerning 42
the condition of the society thereby disclosed shall be sent to each 43
member of the governing body of the society not later than June first 44
of each year; or in lieu thereof, such report of valuation and showing 45
of the society's condition as thereby disclosed may be published in the 46
society's official paper, and the issue containing the same shall be mailed 47
to each beneficiary member of the society. 48
S''ca"of°^ Section 40. If the stated periodical contributions of the members 1
class'of'^^" ^^ ^"*^^ society are insufficient to pay all reported death and disability 2
members at claims lu fuU, and to provids for the creation and maintenance of the 3
1890, 341, §'i. funds required by its by-laws or by this chapter, additional contributions 4
1894! 367, §9. or additional, increased or extra rates of contribution shall be collected 5
isglitll', I u,'. from its members to meet the deficiency, and the by-laws of the society 6
r*l' 119,' I ii' shall so provide; and such by-laws may provide that upon the written 7
d?v ^b^~^' ^ ^"' application or consent of the member his certificate may be charged 8
1920,217. with its proportion of any deficiency disclosed by valuation, with in- 9
terest not exceeding five per cent per annum. 10
In rerating its members or for the purpose of placing itself on a sounder 11
financial basis, any domestic society and any foreign society now ad- 12
mitted to this commonwealth, if it be not in conflict with the laws of its 13
domicile, may, if "legally solvent" as defined in the preceding section, 14
establish by its constitution and by-laws a separate class of members 15
who shall make mortuary contributions on the basis prescribed in section 16
eight, to which class all new members who from time to time join the 17
society shall be assigned, unless such new member or members shall 18
otherwise elect, and all present members may at their option be trans- 19
ferred at the prescribed rates for such class. The mortuary contribu- 20
tions of such class shall be placed in a separate account and used only 21
for the benefit of the members of that class or of their beneficiaries. In 22
case of a society which has established such higher rate class whose con- 23
tributions are held and used as herein set forth the " additional contribu- 24
tions" or "extra rates'' specified in this section shall be required only of 25
the members of the class or classes respectively where the deficiency in 26
contributions is apparent, and each class shall provide for its own de- 27
ficiency. Any class of a domestic society failing so to do shall be subject 28
to the receivership provisions set forth in section thirty-six. A foreign 29
society which has legally established such a class in its home state and 30
whose constitution or by-laws require the segregation and use of the 31
mortuarv contributions of its members as herein set forth mav be ad- 32
ClL\P. 176.] FRATERNAL BENEFIT SOCIETIES. 2039
33 mitted to this commonwealth with respect to such class upon compliance
34 with the laws of this commonwealth not in conflict with this provision.
1 Section 41. No foreign society shall transact any business in the Foreign
2 commonwealth without a license from the commissioner. Every such ilsl.^g, §11.
3 society applying for such a license shall file with the commissioner a ism! la'
4 duly certified copy of its charter or articles of association; a copy of Isgl; 367,' 1 16
5 its constitution and by-laws, certified by its secretary or corresponding }g9|'4jo' | }|'
6 officer; a power of attorney to the commissioner, as provided in the i^ooiiss
7 following section; a statement of its business, on oath of its president r. l.' no! § 13'.
8 and secretary, or corresponding officers, in the form required by the i9iii62si
9 commissioner, duly verified by an examination made by the supervising i92a'257, §2.
10 insurance official of its home state or other state satisfactory to the }c| Mass! 391'
11 commissioner; a copy of its certificate of membership; a certificate ^ is m^ss^ 204^
12 from the proper official of its home state, territory, district or country 2 0p.A.G. 524.
13 that the society is legally organized; and the society shall show that
14 the benefits are provicled for by periodical or other payments by persons
15 holding similar contracts, and that its assets are invested in accordance
16 with the laws of the state or country where it is organized, and that
17 it has the qualifications reciuired of domestic societies on the lodge
18 system incorporated under this chapter; provided, that a society which
19 grants benefits for disability arising from accidental injury or from sick-
20 ness shall be required to show that it has accumulated funds, usable only
21 for the payment of such benefits and in excess of accrued claims for such
22 benefits, not less in amount than three monthly contributions or one
23 quarterly contribution from members entitled to such benefits, and shall
24 be required, as a condition for the maintenance of its authority to do
25 business in this commonwealth, to maintain at all times after admission,
2G as regards disability benefits, funds in amount as above set forth; and
27 shall furnish the commissioner such other information as he may deem
28 necessary for the proper exliibit of its business and plan of working.
29 Upon compliance with these requirements, such foreign society shall be
30 entitled to a license to transact business in the commonwealth until July
31 first following, and such license shall, upon compliance with this chapter,
32 be renewed amuially, but in all cases to terminate on July first follow-
33 ing; except that it shall continue in full force and effect until the new li-
34 cense is issued or refused. For every such license or renewal the society
35 shall pay to the commissioner twenty dollars. When the commissioner
36 refuses to license any society or revokes its authority to do business in
37 the commonwealth as provided in section forty-three, he shall reduce
38 his ruling, order or decision to writing and file the same in his office, and
39 shall furnish a copy thereof, together with a statement of his reasons, to
40 the officers of the society upon request, and the action of the commis-
41 sioner shall be reviewable by proper proceedings in any court of com-
42 petent jurisdiction in the commonwealth; provided, that this section shall
43 not prevent the society from continuing in good faith all contracts made
44 in the commonwealth during the time when it was legally authorized to
45 transact business therein.
1 Section 42. Every foreign society applying for admission to the Appointment
2 commonwealth shall, by duly executed instrument filed with the com- sioMras'"
3 missioner as provided in the third paragraph of section one hundred ser^fce^o/""^
4 and fifty-one of chapter one hundred and seventy-five, appoint the ^ggg'^^ljo § 13
5 commissioner as its attorney for the service of process upon it, which J|9|' f^^' | Jf
2040
FRATERNAL BENEFIT SOCIETIES.
[ClI.\P. 176.
1S99. 442. § 20. shall be served in accordance with said paragraph and section one
R. L.' 119] § 13: hundred and fifty-four of said chapter. All process against a foreign
1907 4*71 society shall be served at least thirtv days before the return day named
i9ii;62S, §17. thprein
201 Mass. 557. T^nerClIl.
Revocation of
license of for-
eign society.
189S, 474, 5 19.
1S99. 442, I 24.
1901.422. §24.
R. L. 119. I 19.
1911, 62S, § 28.
Examination
of foreign
societies.
1880, 196, I 2.
P. S. 115, § 12.
1901,422. § 19.
R. L. 119, § 15.
1911, 628, § 26.
Section 43. \^^len the commissioner, on investigation, is satisfied 1
that any foreign society has exceeded its powers, or has failed to comply 2
with any provision of this chapter, or is conducting business fraudu- 3
lently, or is not carrying out its contracts in good faith, he shall notify 4
the society of his findings, and state in ^\Titing the grounds of his dis- 5
satisfaction, and, after reasonable notice, shall require the society, on a 6
date named, to show cause why its license should not be revoked. If, 7
on the date named in said notice, such objections have not been re- 8
moved to the satisfaction of the commissioner, or the society does not 9
present good and sufficient reasons why its authority to transact busi- 10
ness in the commonwealth should not at that time be revoked, he may 1 1
revoke the authority of the society to continue business therein. 12
Section 44. The commissioner, or any person designated by him, 1
may examine any foreign society transacting business in the common- 2
wealth or apph'ing for admission. For this purpose he or the person 3
designated by him shall have the powers given by section thirty-six 4
relative to domestic societies. He may accept in lieu of such examina- 5
tion the examination of the insurance department of the state or coun- 6
try where the society is organized. The actual expenses of the examiners 7
making any such examination shall be paid by the society, upon a 8
statement furnished by the commissioner. 9
If any such society or its officers refuse to submit to such examina- 10
tion, or to comply with the provisions of this section relati\'e thereto, 11
the authority of such society to write new business in the common- 12
wealth shall be suspended or its license refused until satisfactory evi- 13
dence is furnished to the commissioner relating to the condition and 14
affairs of the society, and during such suspension the society shall not 15
write new business in the commonwealth. 16
Domestic
societies with
limited mem-
bership, etc.
1888, 429.
§5 6, 10.
1890, 341,
§ U 400.
1893, 47.
1894, 60;
367, §§ 6, 9.
1895, 340,
§§2,3.
1897, 228.
1898, 474,
§§6,8,11, 12,
16.
1899, 442,
§§6,8, 16,21.
1901, 275; 422,
§§6,8, 11, 16,
21.
R. L. 119,
§§3,4,6, 11,
16.
1907, 472.
1908, 463, § 1.
1910, 296.
1911,628, §29,
div. a.
206 Mass. ISO.
2 Op. A. G. 214.
Section 45. Domestic fraternal benefit corporations governed by 1
direct vote of their members and limiting their membership as pro- 2
vided in section four and domestic fraternal benefit corporations limiting 3
their membership to the permanent employees of cities or towns, the 4
commonwealth or the federal government, and not paying death bene- 5
fits, but paj-ing annuities or gratuities contingent upon disability or long 6
service, may continue to transact business in the commonwealth. Such 7
corporations and like societies incorporated under this chapter shall be 8
governed by sections four to eleven, inclusive, fourteen and twenty-one, 9
so far as the same are applicable, twenty-nine, thirty, thirty-two, thirty 10
six to thirty-eight, inclusi^•e, and forty-eight of this chapter and section 11
five of chapter fifty-nine, and in addition by the following provisions: 12
The ofiicers of such limited corporations shall be elected by ballot by 13
the members as often as once in two years. Proxies shall not be used 14
in voting. No person under sixteen shall be admitted to membership. 15
The recording officer of such a corporation shall file with the commissioner 16
amendments to its by-laws, in English, within thirty da^■s after their 17
adoption. Such equitable assessments, either periodical or otherwise, 18
shall be made upon the members as shall be necessary to carry out the 19
36.
12.
17.
CH.4.P. 176.] FRATERNAL BENEFIT SOCIETIES. 2041
20 purposes of the organization. Paid agents shall not be employed in
21 soliciting or procuring members, except that corporations wliich limit
22 tlieir certificate holders to a particular fraternity may pay members for
23 securing new members, and any corporation may pay local collectors.
24 No corporation formed after January first, nineteen hundred and twelve,
25 unless it confines its membership to that of a particular fraternity in
26 any one county or to a lodge of some fraternity, shall contract to pay
27 benefits to its members until it shall satisfy the commissioner that it has
28 received at least fi^-e hundred bona fide applications for membership.
29 With the written approval of the commissioner and the consent of each
30 corporation expressed by vote at a duly called meeting, any corpora-
31 tion governed by this section may transfer its membership and funds
32 to any authorized similar corporation.
1 Section 46. A domestic society which limits its membership as Same subject.
2 provided in section four, or which limits its membership to the members exempt from
3 and ex-members of any social organization having a lodge system and except sections
4 secret form of work, or a secret order or fraternity which operates on igg's^'is^e!
5 the lodge sj'stem with a representative form of government and grants }g9f'44l'|
6 insurance benefits as incidental only to the work of the order or frater- J^oi. *'--• | ij-
7 nity, or a purely charitable association or corporation existing on May laosi 332!
8 twenty-third, nineteen hundred and one, any one of which pays a death 1909! 407!
9 or funeral benefit limited to not more than two hundred dollars, dis- loi?; m'; 628,
10 ability benefits not exceeding ten dollars per week, or any or all of such f/ig, '^'n;'''
11 benefits, and which is not conducted as a business enterprise or for 1917^107
12 profit, and a subordinate lodge of a secret fraternity or order as defined 215 Mass. 204.
13 in this section which is not conducted as a business enterprise or for
14 profit, which pays death benefits to families or dependents of deceased
15 members as fixed by its by-laws, but not more than two hundred dollars
16 if the lodge membership is two hundred or less, and if over two hundred
17 not in excess of the amount of an assessment of one dollar upon each
18 member thereof in good standing at the time of the death of the member,
19 may transact business in the commonwealth without conforming to the
20 provisions of this chapter, chapter one hundred and seventy-fi\e, or
21 chapter one hundred and seventy-seven, except this section and sections
22 twenty and twenty-nine.
23 The recording officer of any organization subject to this or the pre-
24 ceding section failing to file a certified copy of its by-laws with the com-
25 missioner, whenever he so requires in writing, and also such organization,
26 shall be punished by a fine of not more than two hundred dollars.
27 Any society transacting business under this section may, in the event
28 of the death of the wife of a member, pay to said member a part of the
29 amount payable at said member's death; provided, that the amount so
30 paid shall be deducted from the amount payable at the member's death,
31 and that the total amount so paid, both at the death of the member and
32 of the member's wife, shall not exceed the amount allowed by this sec-
33 tion to be paid at the death of a member. Any such society may also
34 furnish physicians and nurses for its members and their families.
35 Any such limited society may be incorporated, and limited fraternal
36 beneficiary corporations may be formed, in the manner prescribed in
37 and be subject to sections six, seven, nine, ten, thirty and thirty-two.
1 Section 47. Upon an information in equity in the name of the unlawful
2 attorney general at the relation of the commissioner, the supreme judicial brenj'oi'ned*^
2042
ASSESSMENT INSUKAJJCE.
[Ch--^. 177.
1S9S, 474. § 19.
1899,442, 6 24.
1901,422. § 24.
R. L. 119, I 19.
1910, 98.
1912, 82.
or superior court may enjoin any foreign or domestic society or any 3
officer, organizer or agent thereof from transacting or assisting in trans- 4
acting, within the commonwealtli, the business of paying death and 5
disabihty benefits in violation of this chapter. 6
Penalties for
f.ilse state-
ments.
1888,429, § 16.
1894,307. § 15.
1898,474. § IS.
1899,442, §23.
1901.422,
§§ 19,23.
R. L. 119.
§§ 14, 18.
1911, 184;
628, I 31.
1914,661, § 1.
Section 48. Any person, officer, member or examining physician of 1
any society who shall kno\Yingly or wilfully make any false or fraudu- 2
lent statement or representation in or with reference to any application 3
for membership, or in order to obtain money from or benefit in any 4
society, shall be punished by a fine of not less than one hundred nor 5
more than five hundred dollars or by imprisonment in jail for not less 6
than one month or more than one year, or both; and any person wil- 7
fully making a false statement of any material fact or thing in a sworn 8
statement as to the death or disability of a certificate holder in any 9
society for the purpose of procuring pajvment of a benefit named in the 10
certificate of such holder shall be guilty of perjury; and any person 11
who wilfully makes any false statement in any verified report or declara- 12
tion on oath required or authorized by this chapter shall be punished 13
by a fine of not more than fi%'e thousand dollars or by imprisonment 14
for not more than two and one half years, or both. 15
Penalty for
soliciting
membership in
unauthorized
society.
1888, 429, § 14.
1894, 307, § 13.
Section 49. Whoever solicits membership for or in any manner 1
assists in procuring membership in a society not authorized to do busi- 2
ness in the commonwealth shall be punished by a fine of not less than 3
fifty nor more than two hundred dollars. 4
1898, 474,
1899, 442,
516.
§21.
1901,422, !
R. L. 119, i
1907, 472.
1910,296.
1911, 628, § 31.
206 Mass. 180.
General
penalty.
1888,429, § is.
1893. 321, § 2.
1894,367, § 17.
Section 50. Whoever violates any provision of this chapter for 1
which a specific penalty is not provided shall be punished by a fine of 2
not more than two hundred dollars. i898, 474, § 21. 3
1899, 442, § 26. 1901, 422, § 2G. E. L. 119, § 21. 1911, 628, § 31.
REFERENCES.
Change of name of fraternal benefit society, Chap. 155, § 10.
Exemption from taxation of fraternal benefit societies operating mider the lodge
system, etc.. Chap. 59, § 5, el. 7.
CHAPTER 177.
ASSESSMENT INSURANCE.
Sect.
1. Definitions.
2. Contract of assessment insurance.
3. Chapter 175 applicable to assessment
insurance.
4. Formation of companies.
5. Old corporations may continue. Time
for beginning business by new cor-
poration.
G. Issuance of policies.
7. Reinsurance, etc.
8. Amount of Ijenefit to be specified. Pay-
ment of l)enefit, etc.
9. Investigation by commissioner, and re-
ceivership.
10. Emergency fund.
11. Liability of officers.
Sect.
12. Company exceeding its powers, etc.,
may be enjoined.
13. Foreign corporations may be admitted.
14. Insurable interest. Age limit. Calls.
15. Copy of application to be attached to
policy.
16. Annual statement; examination of
company's affairs.
17. Benefits not subject to attachment.
IS. Penalty for false statement.
19. Company to file names of agents with
commissioner.
20. Soliciting insurance in unauthorized
company forbidden.
21. Penalty.
Chap. 177.] assessment insxjkance. 2043
1 Section 1. The following words as used in tliis chapter shall have Definitions.
2 the following meanings: §'§4V-4u.'
3 "Commissioner", the commissioner of insurance.
4 "Company" or "corporation", a corporation authorized under this
5 chapter to transact insurance on the assessment plan as defined in sec-
6 tion two.
1 - Section 2. Every contract whereby a benefit is to accrue to a person Contract of
2 named therein tlirough the death of the insured by accident or liis physi- fnlurlnr"'
3 cal disability from accident or sickness, if the benefit is conditioned, not llooilii! i i!
4 upon fixed payments but upon the collection from time to time of an l^^°l' ^:Jg , j
5 assessment upon persons holding similar contracts, shall be a contract iC* jj"^**' ^°?,-
6 of insiu"ance on the assessment plan; and the business involving the iss Mass! 224!
7 issuance of such contracts shall be carried on in the commonwealth only i-o Mass. 218',
8 by duly organized corporations subject to this chapter. "'^'
171 Mass. 4.55. 1 Op. A. G. 455, 505. 2 Op. A. G. 214.
1 Section 3. Except as specifically provided in this chapter, all in- chapter 175
2 surance or benefit contracts relative to insurance on the assessment ass'essment'"
3 plan witliin the commonwealth, or with residents thereof, shall be sub- is9o?42i; § 27.
4 ject to chapter one hundred and seventy-five. i70 Mass. 224. ^- ^- ^^o- § 22.
1 Section 4. Seven or more persons, residents of the commonwealth, Formation of
2 may form a corporation for the purpose of transacting the business of iss5!Ts3r§ 2.
3 assessment insurance. The corporation shall be formed in the manner If^a-s."^'
4 prescribed in, and shall be subject to, the provisions of sections six to i2o^m'2-4^ '^'
5 nine, inclusive, and thirty-two, of chapter one hundred and seventy-six, Jf .^Ij' |33, § 10.
6 so far as applicable to such a corporation, except as is otherwise expressly im Mass. 4.30.
7 provided herein. The name of the corporation shall contain the word iOp.A.^G.312.
8 "insurance".
9 Officers chosen at the first meeting of the associates shall hold office
10 until the next succeeding meeting of the company for the election of
11 officers, the date of wliich shall be within two years of the time of or-
12 ganization, and shall be prescribed by the by-laws. At this meeting and
13 thereafter at least biennially the officers shall be chosen and hold office
14 until their successors are qualified.
1 Section 5. A domestic corporation now engaged in transacting the oid corpora-
2 business of insurance on the assessment plan may continue to exercise t'nue.'""Time""
3 all rights, powers and privileges conferred by this chapter, or its articles b°usin'eTs°by'^
4 of incorporation not inconsistent herewith, subject to this chapter. No "oJ^ii°n
5 certificate of incorporation granted under the provisions of this chapter 'Inn-J^^'ll^
6 shall continue valid after one year from the date thereof unless the or- R.'L.'i2o.'§2a
7 ganization has been completed and business begun thereunder. 505."
1 Section 6. A company shall not assume any liability nor make any issuance of
2 other than the advance assessment nor issue any policy or certificate, isss.'Tss, § 2.
3 until at least five hundred persons have subscribed in %\Titing an agree- r^^l! iloi i s!
4 ment to be insured therein, and have each paid one full benefit assess-
5 ment, to be held in trust for the beneficiaries, which shall have been
6 deposited as provided in section ten, nor until the commissioner has cer-
7 tified that it has complied with the provisions of law and is authorized
8 to transact business. The commissioner may require of the applicants
2044 ASSESSMENT INSUEANCE. [ChaP. 177.
for such certificate, and at any time of the officers of any corporation, 9
such evidence, under oath or otherwise, relative to its affairs as he may 10
consider necessary. 11
Reinsurance, c^ ^ c l ' •j.T. j. i? 'j. -i
etc. Section /. buch company may reinsiu-e -with or transier its mem- 1
1890, lit, I ^i'2. bersliip certificates and funds to any company doing business under 2
wia 23°; ^ *' this chapter, or to any domestic stock insurance company authorized to 3
transact the business of accident and health iiisiu'ance. The contract of 4
reinsiu^ance or transfer shall be submitted to and approved by a two 5
thirds vote of the policy or certificate holders of the ceding company 6
present at a meeting called to consider the same, of wliich a written or 7
printed notice shall be mailed to each policy or certificate holder at least 8
thirty days before the day fixed for the meeting. If the vote is in the 9
affirmative, a certified copy of all proceedings relating to the proposed 10
reinsurance shall be filed with the commissioner, who, if he finds that 11
the proceedings have been in accordance with law, shall approve the 12
same. The reinsuring corporation shall be entitled to all the assets of 13
the ceding company and shall assume all of its liabilities. If such vote 14
of appro^•al of reinsurance or transfer shall include an agreement for the 15
transfer of an emergency fund to the reinsuring corporation, the com- 16
missioner shall approve an order for the transfer of the emergency fund 17
to the reinsuring corporation, and the state treasurer shall thereupon 18
pay over the emergency fund to the reinsuring corporation. If the 19
corporation assuming the reinsurance or transfer is subject to this chap- 20
ter, the proposed contract of reinsurance shall be submitted to its policy 21
or certificate holders, and the same notice given and the same affirma- 22
tive vote required of its policy or certificate holders as is required of the 23
policy or certificate holders of the ceding company. The policies or 24
certificates in force at the date of reinsurance or transfer shall continue 25
in full force and effect in all their pro\isions, agreements and under- 26
takings, and shall be construed according to the provisions of law under 27
wlu'ch they were issued, except that the policy or certificate holders 28
shall not be liable to any extra assessment; provided, that the rates for 29
assessments for death from natural causes may from time to time be 30
raised if the experience of the company shows it to be necessary. Any 31
defences or evidence relative to such policies or certificates open under 32
their provisions shall constitute a defence, and shall be recei\-ed as evi- 33
dence in any controversy between the parties to and interested in such 34
policies or certificates. If the ceding company has policies or certificates 35
outstanding wliich provide benefits for death from natural causes, the 36
surplus at the date of transfer or reinsurance after deducting from the 37
admitted assets all losses and claims for losses and all other liabilities, 38
including the unearned portion of the premiums on policies in force, 39
shall be held by the reinsuring corporation as a separate fund, and to- 40
getlier with all natural death benefit assessments or premiums shall be 41
used only in the payment of the natural death benefits payable under 42
the policies or certificates assumed by the reinsuring corporation so 43
long as any contracts providing such benefits remain in force; provided, 44
that such fund need at no time be larger than the total face value of 45
such outstanding certificates. The approval by the commissioner of a 46
contract of reinsurance or transfer shall operate to dissolve the ceding 47
company, and all liability upon its policies shall thereupon cease, but 48
its officers may thereafter perform any act necessary to close its affairs. 49
Chap. 177.] assessment instoance. 2045
1 Section 8. Every policy issued by any such company shall specify Amount of
2 the amount of money which it promises to pay upon the contingency be specified.
3 insured against, which shall not be larger than the amount of one benefit bene'fit,"etc^
4 assessment upon the entire membership, and the number of days after ligo;^!, §to.
5 satisfactory proof of the happening of such contingency when such pay- fa^^j/^"' \fg
6 ment shall be made; and upon the occiu-rence of such contingency, the ill H'^^^iS^-
_ , „ . . . '^ . , ,. . , . Ii4 Mass. 2(4.
7 benenciary may mamtam an action upon such policy in his own name; lOp.A.c. 312.
8 and the indebtedness thereon shall be a lien upon all the property of the
9 company with priority over all indebtedness thereafter incurred, except
10 as provided in the following section. If the commissioner is satisfied, on
1 1 in\'estigation, that any such company has refused or failed to pay such
12 indebtedness for thirty days after it became due, and after proper de-
13 mand, he shall notify it to suspend business until such indebtedness is
14 fully paid. While such notice is in force no officer or agent of the com-
15 pany shall make, sign or issue any policy of insurance, nor issue any
16 notice of or call upon the members for payment of an assessment; and
17 all money received from any source by the company, its agents or officers,
18 shall be forthwith deposited in a bank or trust company to await a final
19 decision as provided in the following section.
1 Section 9. When the commissioner has given the notice required by investigation
2 the preceding section, he shall proceed without delay to investigate the sion™?^d
3 condition of the company, and if it shall appear to him that its liabilities 1^*5) iss,'? s.
4 exceed its resources, and that it cannot within a reasonable time, not Hl^] 435. ^ ^*'
5 more than three months from the date of the original default, pay its JlA,'-o> f„^^
6 accrued indebtedness in full, he shall report the facts to the attorney i74 Mass. 274.
7 general, who shall, upon the commissioner's report, apply to the supreme
8 judicial or superior court for an order closing the business of the com-
9 pany, and appointing a receiver for the distribution of its assets among
10 its creditors; but ten days' notice shall be given before a final order
11 therein, and the court may make such order as the interest of the com-
12 pany and the public may require.
1 Section 10. Such companies shall provide in their contracts with Emergency
2 policy holders for the accumulation of an emergency fund, which shall isssi is3, 5 s.
3 be at all times not less than the proceeds of one benefit assessment on all r*®l; tlo. 1 10.
4 policy holders thereof; said fund shall be accumulated within six months JH j;}^^^- Hf
5 from the date of their incorporation, and, together with the income lOp. a. g. S7.
G thereon, shall be held in trust for the payment of death and disability
7 claims, provided, that when said emergency fund is greater than double
8 the amount of one benefit assessment upon the entire membership, the
9 company may apply the excess, or any portion thereof, in reduction of
10 assessments upon policy holders, or in such other equitable division or
11 apportionment thereof as its rules or contracts may provide. Said fund
12 shall be invested in securities in which insurance companies are allowed
13 by chapter one hundred and seventy-five to in\-est their capital, and of such
14 securities an amount not less than one assessment shall be deposited in
15 trust with the state treasurer; but the company shall have at all times,
16 on approval of the commissioner, the right to exchange any part of said
17 securities for others of a like amount and character. Any portion of said
18 emergency fund may be drawn by a requisition, signed by two thirds of
19 the directors and endorsed by the commissioner, setting forth that the
20 same is to be used for the purposes of said trust. If such company shall
2046
ASSESSMENT rNSUE.\NCE.
[Chap. 177.
discontinue business the supreme judicial or superior court may appoint 21
a receiver to administer any unexhausted portion of said fund, which 22
shall be used, less such compensation, not to exceed five per cent thereof 2.3
if the assets exceed five thousand dollars, as the court may allow the re- 24
ceiver: first, in the payment of accrued claims upon policies, and if in- 25
sufficient to pay such claims in full, in their payment pro rata; second, 26
if a balance remain, in the payment of like claims thereafter accruing in 27
the order of their occurrence. ' 28
offic^'era*^"' Section 11. The officers of a company refusing or neglecting, for
it^L. ilo. Vn. ^'^^y ^^y^ ^^^^^ *^^ filing of satisfactory proof of the accidental death of a
1 Op. A. G. 408. policy holder, if the claim arising thereon is not disputed and if the benefit
or emergency fund is not sufficient to pay said claim, to levy an assess-
ment to provide for its payment, shall thereby become liable to the bene-
ficiary under said policy in an amount not exceeding the face of said
claim.
Company ex-
ceeding it.i
powers, etc.,
may be
enjoined.
18S5, 183, § 4.
1S90,421,§ 13.
R. L. 120. §9.
174 Mass. 274.
Section 12. If the commissioner, on investigation, is satisfied that 1
any such company has exceeded its powers, failed to comply with any 2
provision of law or is conducting business fraudulently, he shall report 3
tiie facts to the attorney general, who shall thereupon apply to the su- 4
preme judicial or superior coiu-t for an injunction restraining such com- 5
pany from the further prosecution of business. The com-t may, upon 6
hearing, issue such injunction, or decree the removal of any officer, and 7
substitute a suitable person to serve in his stead until a successor is 8
chosen, and may make such other orders and decrees as the interests of 9
the company and the public may require. 10
Foreign cor-
porations may
be admitted.
1885, 183, § 9.
1890.421, § 10.
R. L. 120, 5 12.
1918, 8.
3 Op. A. G. 82.
Section 13. A corporation organized under the authority of an- 1
other state or government to issue policies of insurance on the assess- 2
ment plan, as a condition precedent to transacting business in this com- 3
monwealth, shall deposit ^\ith the commissioner a certified copy of its 4
charter; a statement, on oath, of its president and secretary in the form .5
required by the commissioner, of its business for the preceding year; a 6
certificate, on oath, of its president and secretary, that it is paying, and 7
for the twelve months then last preceding has paid, the maximum amount 8
named in its policies in full; a certificate from the proper authority in 9
its home state that corporations of this commonwealth engaged according 10
to this chapter in insurance on the assessment plan, are legally entitled to 1 1
do business in such state; a copy of its policy and application, wliich must 12
show that benefits are provided for by assessment upon policy holders; 13
evidence satisfactory to the commissioner that it has accumulated and 14
maintains a fund equal in amount to that required by section ten, that 1.5
such accumulation is permitted by the law of its incorporation and is 16
held in trust for the benefit of policy holders only, and is securely in- 17
vested. The commissioner shall thereupon issue a license authorizing 18
such corporation to do business in this commonwealth; and such au- 19
thority shall be revoked if the commissioner, on investigation, is satis- 20
fied that such corporation is not paying in full the maximum amoimt 21
named in its policies, or that it has otherwise failed to comply Mith 22
any provision of this chapter or its own contracts. Upon such revo- 23
cation the commissioner shall cause notice thereof to be published in 24
such manner as he deems necessary for the protection of the public; and 25
CH-^P. 177.] ASSESSMENT INSUR.\NCE. 2047
26 no new business shall be thereafter clone Ijy it or its agents in this com-
27 monwealth. A foreign corporation admitted under this section to trans-
28 act business shall pay, on filing its application, thirty dollars, and for
29 each annual statement thereafter, twenty dollars. If any other state or
30 country shall impose any obligation in excess of those imposed by this
31 chapter upon any such corporation of this commonwealth, like obliga-
32 tion shall be imposed on similar corporations, and their agents, of such
33 state or country doing business in the commonwealth.
1 Section 14. No such company shall issue a policy in favor of any insurable
2 person as beneficiary who has no insurable interest, and an assignment AgeUmit.
3 of a policy to a person having no such interest shall render such policy fg^gg ; is.3, § 10.
4 void. No such company shall insiue any person who is more than seventy Jf^{2^|o'
5 years of age when the policy is issued, except in case of transfer or re- }f^L'?'o
6 insurance as provided in section seven. Every call for payments by the
7 policy holders shall distinctly state the purpose of the same, and if any
8 part of the amount called for is to be used for expenses the call shall
9 clearly state how much. Funds received from benefit calls shall be ex-
10 pended only in the payment of benefits, but expenses inciured in in-
11 vestigating and contesting cases believed to be fraudulent may be con-
12 sidered as part of the benefit expense.
1 Section 15. All policies issued to persons within the commonwealth Copyofappu-
2 by such companies, if they contain any reference to the application of attach^ to*
3 the insured, or the constitution, by-laws or other rules of the company, 1890*421, § 21.
4 either as forming a part of or affecting the policy or contract between the foV^Ma'ss' 242'''
5 parties thereto, shall contain or have attached to them correct copies of i''^ m^^s- 2"8.
6 the applications as signed by the applicants, and the portions of the con-
7 stitution, by-laws or other rules referred to; and unless so attached and
8 accompanying the policy, no such application, constitution, by-laws or
9 other rules shall be received as evidence in any controversy between the
10 persons interested in said policy, or parties to it, and shall not be con-
11 sidered a part of the policy or of the contract between such parties.
12 Said policy, application, constitution, by-laws or other rules shall be
13 plainly printed, and no portion thereof shall be in tv^je smaller than
14 brevier; but this section shall not apply to health certificates or con-
15 tributional receipts or other evidences used in reinstatement of a policy.
1 Section 16. Every such company shall annually, on or before Feb- Annual state-
2 ruary first, return to the commissioner, in such manner and form and Sation'^of ""
3 including such information as he may require, a sworn statement of its affai?s.°^^
4 affairs for the year ending on December thirty-first preceding. Such }^^q' J?,j' | l^-
5 statement shall be signed and sworn to by the president and secretary l^^.^-^p- , .
6 of the company or, in their absence, by two of its principal officers. The la'i-t] eh'.
7 commissioner may personally or by his deputy or examiner visit each iop!a.'g.468.
8 such domestic company and thoroughly inspect and examine its afTairs
9 to ascertain its financial condition, its ability to fulfil its obligations, and
10 whether it has complied with the provisions of law. If he considers it
11 prudent for the protection of the policy holders in the commonwealth,
12 he may in like manner visit and examine, or cause to be visited and
13 examined by some competent person he may appoint for that purpose,
14 any such foreign company applying for admission or already admitted
15 to do business in this commonwealth, and such company shall pay the
2048 ASSESSMENT ESfSUILVNCE. [CH-y. 177.
expense of such examination, including the expenses of the commissioner 16
or the persons he may appoint and the expenses and compensation of 17
all assistants employed therein. For the purposes aforesaid the commis- 18
sioner or person making the examination shall have free access to all the 19
books and papers which relate to the business of such company, and to 20
the books and papers kept by any of its agents, and may summon, ad- 21
minister the oath to and examine as witnesses the directors, ofBcers, 22
agents and trustees of any such company and any other persons, rela- 23
tive to its affairs, transactions and condition. 24
Benefits not Section 17. The benefit to be paid by any such company shall not 1
subject to 1 !• I 1 1 I • 1 1
attachment be liable to attachment by trustee or other process, or be seized, taken, 2
is9o! 42i! 1 23! appropriated or applied by any legal or equitable process, nor by opera- 3
tion of law, to pay any debt or liability of a policy holder, or any bene- 4
ficiarv therein. 5
R. L. 120, I 18.
Wseswt" Section IS. A person who knowingly or wilfully makes a false or 1
1885 183 § 12 fraudulent statement or representation in or relative to an application 2
R T' i?o' 1 19' ^^^ insurance, or for the purpose of obtaining any money or benefit, in 3
any such company, shall be punished by a fine of not less than one hun- 4
dred nor more than five hundred dollars or by imprisonment for not less 5
than one month nor more than one year, or both ; and a person who wil- 6
fully makes a false statement of a material fact or thing in a sworn state- 7
ment as to the death or disability of a policy holder in such company, for 8
the purpose of procuring payment of a benefit named in the policy of such 9
holder, shall be guilty of perjury. 10
me'namesof SECTION 19. Evcry such compauy shall file with the commissioner 1
commiSner ^^^^ uamc aiid residence of each person it shall appoint or employ to act 2
if T' i?o' I il' ^^ ^'^ agent witliin the commonwealth; and no person shall assume to 3
1903, 227'. act as such agent, or, on behalf of such company, in any manner for com- 4
pensation aid in negotiating contracts of insurance, or the continuance 5
or renewal thereof, for a person other than himself, before such notice 6
of appointment or employment is filed. 7
bi°i^an"clin SECTION 20. No pcrson shall solicit assessment insurance for any 1
compaiTy'^^ Corporation or organization not authorized to do business in the com- 2
i89o''4'i' § 19 Dionwealth or in any manner assist in placing insurance in such corpora- 3
R. L.'i2o,'§i4. tion or organization. 4
riga^i, 1 26. Section 21. Any such company or any officer or agent thereof neg- 1
R.L. 120, §21. iggting to comply with or violating any provision of this chapter shall, 2
except as otherwise provided, be punished by a fine of not less than one 3
hundred nor more than five hundred dollars. 4
Ch-yp. 178.]
SAVINGS B.UvK LIFE INSUE.UJCE.
2049
CHAPTER 178,
SAVINGS BANK LIFE INSURANCE.
Sect.
1. Definitions.
2. Savings banks may establish insurance
departments.
3. Special guaranty funds to be provided
before issue of certificate establishing
the department.
4. Special expense guaranty fund.
5. Special insurance guaranty fund.
6. Policies of insurance and annuities.
7. License to issue policies, etc.
8. Assets and accounts of insurance de-
partment and savings department to
be kept separate.
Investment of funds of insurance de-
partment.
Amount of policy.
Policy, etc., not to be forfeited after
payment of six months' premiums.
Policies to be issued to residents, etc.,
only.
13. Solicitors not to be employed.
14. Management of General Insurance
Guaranty Fund.
15. Duties of state actuary.
16. Duties of state medical director.
17. Services of actuary and medical director
to be without charge, etc.
18. A percentage of premiums to be paid to
General Insurance Guaranty Fund, etc.
9.
12
Sect.
19. When funds of General Insurance
Guaranty Fund are sufficient, it may
guarantee insurance risks in certain
cases, etc.
20. Investments of funds of General Insur-
ance Guaranty Fund.
21. A percentage of profits of insurance de-
partment to be set apart as an emer-
gency fund, etc.
22. Insurance policies. By whom signed.
23. Percentage of premiums to be paid to
General Insurance Guaranty Fund
may be reduced in certain cases,
etc.
24. Suits on policies, etc.
25. Issue of policies may be discontinued,
etc.
26. Examination by commissioner of insur-
ance and commissioner of banks.
27. Summoning witnesses, etc.
28. Insurance departments may in certain
cases be restrained from doing busi-
ness.
29. Annual statements, etc. Form.
30. Treasurer of General Insurance Guar-
anty Fund to make annual statement.
31. Annual report of commissioners.
1 Section 1. The following words as user! in this chapter shall, unless Definitions.
2 the context otherwise requires, have the following meanings:
3 "Savings bank", a savings bank incorporated under the laws of the
4 commonwealth, including institutions for savings incorporated as such
5 in the commonwealth.
6 "Savings and insurance bank", a savings bank which has established
7 an insurance department.
8 "Savings department", that department of a savings and insurance
9 bank in which the business done by savings banks other than that pro-
10 vided for by this chapter is conducted.
11 "In.surance department", the department of a savings and insurance
12 bank in which the business of issuing life insurance and the granting of
1.3 annuities is conducted.
14 "Trustees", trustees of the savings bank or savings and insurance
15 bank.
IC "Treasurer", the treasurer of the savings bank or savings and insur-
17 ance bank.
1 Section 2. Any savings bank may, upon complying with the pro- Savinus banka
2 visions hereinafter set forth, establish an insurance department if its "nsur.infe'^''^''
3 board of trustees has, at a meeting specially called for the purpose, voted i907,'^5"Gi°f i.
4 so to do by a majority of two thirds of its trustees present at the meeting ^ Qp' ^j\
40.
'499.
2050
SAVINGS B.VNK LIFE INSI.TR.\NCE.
[Cn-iP. 178.
Special
guaranty
funds to be
provided
before issue
certificate
establishing
the depart-
ment.
1907, S61, §
1919, 350, §
and voting, and if such vote has been ratified by vote of a majority of the 5
incorporators present and voting at a meeting duly called therefor. The 6
notice of such trustees' meeting shall be given at least thirty days prior 7
to the date of the meeting, and shall be otherwise in accordance with any 8
laws and by-laws governing the calling of special meetings of trustees. 9
Copies of the vote of the trustees to establish the insurance department 10
and of the vote of the incorporators ratifying the same, certified to by the 11
clerk of the bank and sworn to by the president or vice president and the 12
treasurer or assistant treasurer, shall be filed with the commissioner of 13
banks and with the commissioner of insurance within thirty days after 14
the adoption thereof; and if said commissioners shall find said votes 15
to be in conformity with law, and that the conditions provided by the 16
following section have been complied with, and if in the opinion of the 17
commissioner of banks the financial condition of the bank presents no 18
objection to the establishment of an insurance department, they shall 19
issue a joint certificate declaring said insurance department established. 20
Section 3. The certificate establishing the insurance department 1
shall not be issued until there shall have been pro\aded (a) a special 2
3f expense guaranty fund as set forth in the following seclion and (b) either 3
a special insurance guaranty fund as set forth in section five or a guar- 4
anty contract under section nineteen; and until (c) a certificate in dupli- 5
46. cate, under the oath of the treasurer, shall have been filed with the com- 6
missioner of insurance and the commissioner of banks certifying that 7
said special expense guaranty fund and said special insurance guaranty 8
fund or guaranty contract have been furnished, and (d) said commis- 9
sioners shall, upon investigation, have made a joint finding that said 10
requirements have duly been complied with. 11
Special
expense
guaranty
fund.
1907, S61, § 4.
1919, 350, 5 46.
Section 4. The special expense guaranty fund mentioned in the 1
preceding section shall consist of not less than five thousand dollars in 2
cash, advanced to and placed at the risk of said department as a guaranty 3
fund to be applied in payment of the expenses thereof, if and so far as 4
the amounts contributed from the loading in the insurance premium and 5
in annuity charges, together with any membership fee and surrender and 6
death charges, shall prove insufficient to pay the expenses of said insur- 7
ance department. The original amount of such guaranty fund shall be 8
fixed by the trustees, with the approval of the state actuary of the divi- 9
sion of savings bank life insurance of the department of banking and 10
insurance, and the guaranty fund may be increased at any time there- 11
after by the trustees. The amounts advanced as a special expense guar- 12
anty fund shall be evidenced by certificates of the par value of one hun- 13
dred dollars, and the holders thereof shall be credited with interest 14
thereon annually, with annual rests, at a rate equal to the average rate 15
paid in that year upon its deposits by the savings department. If in any 16
year ending October thirty-first the profits remaining, after setting aside 17
amounts for surplus as provided in section twenty-one, shall be sufficient 18
therefor, the trustees shall from such profits reimburse said expense 19
guaranty fund for any amounts theretofore drawn from it to defray ex- 20
penses of the insurance department; and if, after so reimbursing said fund, 21
and after reimbursing the special insurance guaranty fund for amounts 22
theretofore drawn from it, the balance of profits shall be sufficient there- 23
for, the trustees shall pay to the holders of the certificates of said ex- 24
pense guaranty fund the interest accrued thereon, or such part thereof 25
1919, 350, I 46.
Chap. 178.] saatngs b.^nk life iNStiR.«srcE. 2051
26 as the amount may suffice to cover. Said expense guaranty fund may be
27 retired, with the approval of the commissioner of banks and the com-
28 missioner of insurance, whenever in the opinion of the trustees it is no
29 longer required. The amount so advanced as an expense guaranty fund
30 shall be repaid and the interest credited shall be paid only as above pro-
31 vided, or under section twenty-five, and shall not be deemed a liability
32 of the insurance department in determining the solvency thereof.
1 Section 5. The special insurance guaranty fund mentioned in Special
2 section three shall consist of not less than twenty thousand dollars in glfa^Tnt™
3 cash, advanced to and placed at the risk of the insurance department, igo?; 56i, f s.
4 which shall be applicable to the payment and satisfaction of all losses
5 or other obligations arising out of policies or annuity contracts if and
6 whenever the liabilities of said department, including the insurance
7 reserve, are in excess of its assets. The original amount of such special
8 insurance guaranty fund shall be fixed by the trustees, with the ap-
9 proval of the state actuary, and the guaranty fund may be increased
10 at any time thereafter by vote of the trustees. The amounts advanced
] 1 to such special insurance guaranty fund shall be represented by cer-
12 tificates of the par value of one hundred dollars; and the holders thereof
13 shall be credited with interest thereon annually, with annual rests, at
14 the rate equal to the average rate paid in that year upon its deposits
15 by the savings department. If in any year ending October thirty-
16 first the profits remaining are sufficient therefor, after setting aside
17 amounts for the surplus as provided in section twenty-one, and reim-
18 bursing the special expense guaranty fund and said special insurance
19 guaranty fund for all amounts theretofore drawn from them or either
20 of them, and paying interest on the certificates representing the special
21 expense guaranty fund, the trustees may pay the interest accrued on
22 said insurance guaranty certificates or such part thereof as the amount
23 may suffice to cover. After the special expense guaranty fund has been
24 retired as provided in section four, said special insurance guaranty
25 fund may, with the approval of the commissioner of insurance, be re-
26 tired by the trustees as soon as the insurance department shall have
27 accumulated a surplus in excess of all its liabilities equal to the amount
28 of such guaranty fund, including any interest accrued thereon rcmain-
29 ing unpaid; and said insurance guaranty fund may, with like approval,
30 be retired from time to time, in part, but the balance of such guaranty
31 fund, including unpaid interest plus the surplus on hand, shall at no
32 time be less than the amount of the original insurance guaranty fund.
33 The amounts so advanced as an insurance guaranty fund shall be re-
34 paid and the interest credited thereon shall be paid only as above pro-
35 vided, or under section twenty-five, and shall not be deemed a liability
36 of the insurance department in determining the solvency thereof.
1 Section 6. Any savings and insurance bank acting through its PoUcies of
2 insurance department, after the issue of the license provided for in the TnnntSS.^'"^
3 following section, may make and issue policies upon the lives of persons ^^°''" ^'^^' ^ ®"
4 and grant or sell annuities with all the rights, powers and privileges
5 and subject to all the duties, liabilities and restrictions in respect to
6 the conduct of the business of life insurance conferred or imposed by
7 general laws relating to domestic legal reserve life insurance companies,
8 so far as the same are applicable and except as is otherwise provided
9 herein. The insurance department shall in all respects, except as is
2052
SAVINGS B.\NK LIFE INSUK.\NCE.
[Chaf. 178.
otherwise provided herein, be managed as savings banks are managed 10
under general laws relating to savings banks. Such insurance depart- 11
ment may decline particular classes of risks or reject any particular 12
application. 13
kiulfpoHcies Section 7. A license to issue policies and make annuity contracts
^^'^- shall, upon the application of the trustees, be granted by the com-
1907,561, |7. ."".' "1— -; t-t-"^"-^--" --' "•- ..^^.-^,^^^ e.' — ".; ,.,,'"
1919, 350, § 46. missioner or insurance to any savings and insurance bank which has
duly complied with the requirement set forth in section tliree; but the
said license shall be revocable by said commissioner at his discretion,
and after having given thirty days' written notice to said trustees,
provided not more than twenty thousand dollars of insurance on not
less than one hundred lives of residents of the commonwealth, on which
all pa\Tnents due by the terms thereof have been made thereon, shall
have been applied for and issued, and then remain outstanding. A list 10
showing the amount of outstanding policies, with the names of the 11
holders thereof, shall be filed by the treasurer of the said bank with 12
said commissioner at the close of each month until the above limits as 13
to amount of insurance and number of persons insured and holding 14
policies standing in full force by reason of the due payment of premium, 15
have been exceeded. Upon the filing of every such list, the correctness 16
of which shall be certified by the treasurer on oath, the said commis- 17
sioner may make such investigations as he deems proper, in order to 18
ascertain the truth of the facts thus certified by the treasurer. 19
The revocation of the license of any bank under the terms of this 20
section shall not affect the right and the obligation of the bank to con- 21
tinue and fulfil its existing contracts, or the right, with the approval 22
of said commissioner, to reinsure them or to transfer them to another 23
bank or company holding a license to do insurance business in the 24
commonwealth. 25
Assets and
accounts of
insurance
department
and savings
department
to De kept
separate.
1907, 561, § S.
Section S. The assets of the savings department shall be liable for 1
and applicable to the payment and satisfaction of the liabilities, obliga- 2
tions and expenses of the savings department only. The assets of the 3
insurance department shall be liable for and applicable to the payment 4
and satisfaction of the liabilities, obligations and expenses of the in- 5
surance department only. The savings department and the insurance 6
department shall be kept distinct also in matters of accounting and of 7
investment. Expenses pertaining to the conduct of both the savings 8
department and the insurance department, such as ofiice rent and the 9
salaries of general officers, shall be apportioned by the trustees equitably 10
between the two departments. 11
Investment
of funds of
insurance
department.
1907, 561, § 9.
Section 9. The funds of the insurance department, whether arising
from premiums, annuity contracts, guaranty funds, or from the income
thereof, and whether constituting insurance reserve or surplus, shall be
invested in the same classes of securities and in the same manner in
which the deposits of the savings department are required by law to be
invested, except that it may make loans upon any policy of insurance or
annuity contract issued by it to the extent specified in section fifteen.
^oU°y. Section 10. No savings and insurance bank shall WTite any policy 1
1915! 32.'' * '"■ l^inding it to pay more than one thousand dollars, exclusive of dividends 2
1918, 70.
Cn\T. 178.] SAVINGS B.INK LIFE INSURANCE. 2053
3 or profits, upon the death of any one person, except for such amount, if l^^^' ^^^ ^gg
4 any, as it may be bound to pay upon the death of such person under an
5 employees' group poUcy, nor any annuity contract binding it to pay in
6 any one year more than two hundred dollars, exclusive of dividends or
7 profits.
1 Section 11. No policy of life or endowment insurance or annuity Policy, etc.,
2 contract issued by anj^ savings and insurance bank shall become forfeit forfeUed after
3 or void for non-payment of premium after six full months' premiums Sl^month"'
4 have been paid thereon; and in case of default in the pajTnent of any i907"si;l§ii.
5 subsequent premium, then, without any further stipulation or act, such '^°^' "-■
6 policy shall be binding upon the bank at its option, either (a) for the
7 cash surrender -s-alue or (6) for the amount of paid-up insurance which the
8 then net value of the policy and all dividend additions thereon, less any
9 indebtedness to the bank on account of said policy, and less a surrender
10 charge of not more than one per cent of the face value of the policy, will
11 purchase as a net single premium for life or endowment insurance, ma-
12 turing or terminating at the time and in the manner provided for in the
13 original policy contract, or (c) for the amount of paid-up term insurance
14 which such net Aalue would purchase.
1 Section 12. No policy or annuity contract shall be issued except Policies to
2 upon the life and for the benefit of a resident of the commonwealth or re^siden'ts, °
3 of a person regularly employed therein. If the holder of any policy i907,°6(i^', § 12.
4 or annuity issued by such a bank becomes a resident of another state or
5 country, it shall be necessary, unless the bank otherwise provides, for
6 such a policy holder or such an annuitant, or his duly authorized repre-
7 sentative, or the beneficiary entitled to a claim for loss under such a
8 policy, to make or receive payments at the bank, or by correspondence,
9 without notice from the bank. Should a lapse occur by reason of the
10 failure of any such person to do so seasonably, the liability of the bank,
11 in case of a policy of insurance, shall be only for the amount of its previ-
12 ously acquired paid-up insurance value, or, on demand, for the stipulated
13 cash surrender value thereof. Upon the presentation of the proof of
14 death of any insured who had so become a resident of another state, the
15 treasurer of the issuing bank may, if he deems it necessary, cause an in-
16 dependent investigation to be made in such other state into the alleged
17 facts; and the expenses thereof may, in the discretion of the treasurer, be
18 deducted from the amount otherwise payable on the policy.
1 Section 13. Savings and insurance banks shall not employ solicitors solicitors
2 of insurance, and shall not employ persons to make house to house col- employed.
3 lections of premiums; but the trustees may establish such agencies and mg,' 350,' i 11'.
4 means for the receipt of applications for insurance and of deposits and of
5 premium and annuity payments, at such convenient places and times,
6 of such nature and upon such terms as the commissioner of banks and
7 the commissioner of insurance may approve. The trustees may also,
8 witji like approval, appoint any savings bank or sa\'ings and insurance
9 bank its agent to make, so far as thereunto authorized, payments due on
10 policies of insurance and on contracts for annuities, and to perform other
11 services for the insurance department. All savings banks and all savings
12 and insurance banks may, with like approval, act as such agents. The
13 business of the insurance department may, in the discretion of the trus-
2054 SAVINGS B.«^K LIFE INSURANCE. [ChAP. 178.
tees, be carried on either in the same building with that of tlie savings 14
department or in a different building. 15
Management SECTION 14. The General Insurance Guaranty Fund shall be a 1
of General • i i -f* u • i i • i • i
Insurance body Corporate, with the powers specincally provided in this chapter and 2
Fund. with all the general corporate powers incident thereto. It shall be man- 3
■ aged by the board of trustees appointed under section ten of chapter 4
twenty-six. The trustees of the fund shall adopt a code of by-laws. 5
state'^acfuary. SECTION 15. The statc actuary, appointed under section eleven of 1
1914' ^4ii' ^ ^^' chapter twenty-six, with the advice of the attorney general as to matters 2
1919, 350, § 46. of legal form, shall prepare standard forms of life insurance policies and .3
life annuity contracts, including a whole life policy, a limited payment 4
life policy, a limited term policy, an endowment policy, an annuity con- 5
tract, and a combination of life insurance policy and deferred annuity 6
contract, and such others as may from time to time, in the opinion of the 7
commissioner of insurance, be desirable. Every policy and annuity con- 8
tract shall provide that the issuing bank may make any payment there- 9
under by placing to the credit of the account of the registered beneficiary 10
in the savings department the amount payable. Such standard forms 11
shall be used as the uniform and exclusive forms of policies by all savings 12
and insurance banks. He shall also prepare the form of blanks for appli- 1.3
cations for life insurance policies and life annuity contracts and for proof 14
of loss, and all other forms necessary for the efficient prosecution of the 15
business, also books of record and of account, and all schedules and all 16
reports, not otherwise provided for, required in the conduct of the busi- 17
ness, and these shall be used as the uniform and exclusive form of blanks, 18
books, schedules and reports in the insurance departments of all savings 19
and insurance banks. He shall also, consistently with the law govern- 20
ing domestic legal reserve life insurance companies, determine and pre- 21
pare the table of premium rates for all kinds of life insurance policies, 22
and the purchase rates for annuities, and the amount of the member- 23
ship fee, the surrender and any proof of death charges, and the premium 24
rates for reinsurance. The rates, fees and charges so fixed shall be 25
adopted as the uniform and exclusive premiums, annuity rates, the initia- 26
tion, the surrender, and the proof of death charges. He shall also deter- 27
mine and prepare tables showing the amounts which may be loaned on 28
insurance policies, and the reinsurance rates to be charged by all savings 29
and insurance banks, and the guaranty charges to be made by the Gen- 30
eral Insurance Guaranty Fund, but the loan value shall in no event ex- 31
ceed the reserve on any policy. He shall also prepare or procure tables 32
for computing the legal reserve to be held under insurance and annuity 33
contracts, and for this purpose may, with the approval of the commis- 34
sioner of insurance, adopt a table of mortality which may be deemed more 35
suitable than the American Experience Table for policies of insurance of 36
the character and amounts to which the risks of the banks are limited; 37
and shall in all other respects, except as otherwise provided, perform the 38
duties of insurance actuary for all the savings and insurance banks and 39
the General Insurance Guaranty Fund. The ordinary actuarial routine 40
work of the banks, including an annual and other valuations of their 41
policies, shall be performed by their clerks, guided and assisted, so far 42
as may be necessary, by the advice and instruction of the state actuary; 43
but an annual valuation of all the policies of the banks and of the condi- 44
Chap. 178.] savings b.uvk life DvSuk.\nce. 2055
45 tion of the General Insurance Guaranty Fund as of October thirty-first
46 of each year shall be made in the ofBce of the state actuary under his
47 direction, and from schedules of policy data on blanks furnished by him
48 and prepared by the banks in accordance with his instructions. The
49 state actuary shall also furnish to the savings and insurance banks and
50 to the General Insurance Guaranty Fund all blanks for policies, applica-
51 tions, schedules, and other papers and books which the state actuary
52 is required to prepare, as herein provided. The state actuary shall for
53 each year ending October thirty-first determine the ratio of actual to
54 expected mortality claims for all of the savings and insurance banks com-
55 bined, and shall determine a similar ratio for each of the savings and in-
56 surance banks separately. Both calculations shall be based upon the
57 mortality tables and the rate of interest used by the banks in the calcu-
58 lation of the premiums, or upon such other bases as shall be approved by
59 the commissioner of insurance. If the calculation of the ratio pertaining
60 to any savings and insurance bank shows that the actual mortality ex-
61 perienced is less than the mortality expected to be experienced by all of
62 the banks combined, the state actuary shall send to such bank a cer-
63 tificate setting forth the amount of such difference, and thereupon such
64 bank shall send to the General Insiu-ance Guaranty Fund in cash the
65 amount of such certificate. The state actuary shall also furnish to the
66 trustees of the General Insurance Guaranty Fund a certificate in respect
67 to any savings and insurance bank in which the ratio of the actual to the
68 expected mortality has exceeded the ratio of the actual to the expected
69 mortality for all of the banks combined, and thereupon the trustees of
70 the General Insurance Guaranty Fund shall pay to such bank the amount
71 of such excess as evidenced by such certificate.
72 In determining the net profits, as defined in section twenty-one, to be
73 distributed to the holders of the policies and annuity contracts each
74 year for each savings and insurance bank, the state actuary shall con-
75 sider as a mortality factor the ratio of the actual to the expected mortal-
76 ity for all of the savings and insm-ance banks combined.
1 Section 16. The state medical director, appointed under section Duties of
2 twelve of chapter twenty-six, shall, subject to the supervision and control d^rector^'^'"'
3 of the commissioner of insurance, prescribe the rules relating to health Jgjg' ffg' 1 45;
4 or acceptability of the applicant for insurance, and shall act as super-
5 vising and advising physician for the medical department of all the
6 savings and insurance banks.
1 Section 17. No charge shall be made to the banks by the General fcSy and
2 Insurance Guaranty Fund or by the commonwealth for the services "o^'to be''^'t'h-
3 which the state actuary or the state medical director renders and for the igoT^'sGi'^s^'?'
4 blanks and books furnished to the savings and insurance banks under
5 section fifteen.
1 Section 18. Every savings and insurance bank shall, on the third ^f^^m^ums"
2 Wednesday of each month, pay to the General Insurance Guaranty '"q^p^"/^!
3 Fund an amount equal to four per cent of all amounts paid to it as insurarue
4 premiums on policies or in the purchase of annuities during the pre- Fund, cu-.
5 ceding month. Said sums shall be held as a guaranty for all obligations
6 on policies or annuity contracts of the insurance departments of all
7 savings and insurance banks; and so much thereof shall be paid over
2056
SAVINGS B.\NK LIFE INSUEANCE.
[CiLiP. 178.
to any bank, to be applied in the pajTnent of losses or satisfaction of 8
other obligations on said policies or annuity contracts, as may be re- 9
quired to prevent or to make good an impairment of its insurance 10
reserve. Any amount so paid to any bank shall be charged to its ac- 11
count, and be repaid, with interest compounded semi-annually at the 12
rate of five per cent per annum out of the surplus funds of said insurance 13
department as soon and so far as an adequate surplus exists. The 14
amounts so advanced by the General Insurance Guaranty Fund to any 15
bank shall be repaid only as abo^•e provided, and shall not be deemed a 16
liability in determining the soh-ency of its insurance department. 17
When funds
of General
Insurance
Guaranty Fund
are sufficient it
may guarantee
insurance risks
in certain
cases, etc.
1907, S61, 5 19.
1919, 350, I 40.
Section 19. \^^■lene^•er the funds held by the General Insurance 1
Guaranty Fund are, in the opinion of both the commissioner of insur- 2
ance and the commissioner of banks, sufficient therefor, the trustees of 3
the fund may enter into a contract with any savings bank desiring to 4
establish an insurance department to guarantee all the risks of such 5
bank until such time as it shall have a surplus of not less than twenty 6
thousand dollars nor less than ten per cent of the aggregate insurance 7
reserve. If such guaranty contract is entered into by any bank, it shall 8
not be necessary to provide the special insurance guaranty fund pro- 9
vided for in section five before the commissioner of insurance and the 10
commissioner of banks are entitled to issue the certificate establishing 11
the insurance department as p^o^•ided in section three. 12
of fund™^°*^ Section 20. The funds of the General Insurance Guaranty Fund
ins^^rance' shall be invested in the same classes of securities and in the same
Fund""'^ manner in which the deposits of the savings department are required
1907, 561, § 20. \)y law to be invested; but the trustees of said fund shall be at liberty
to deposit in any savings bank any funds on hand which, by reason of
the smallness of the amount or for any other reason, cannot, in the
opinion of said trustees, other^\"ise properly be invested at that time.
of profiTs'of' Section 21. Sa^•^ngs and insurance banks shall annually set apart 1
depar'tment ^^ ''' surplus from the net profits which have been earned in the in- 2
to be set apart suTance department, an amount not less than twenty nor more than 3
as an emer- ^ irMipi i
gency fund, scventy-fivc per cent thereof, until such fund equals ten per cent oi the 4
1907, 561, § 21. net insurance reserve or the amount of the special insurance guaranty 5
fund, whichever is the greater. Such surplus fund shall thereafter be 6
maintained and held to meet losses in its insurance department from 7
unexpectedly great mortality, depreciation in its securities, or other- S
wise. The balance of the net profits shall annually be distributed 9
equitably among the holders of its policies and annuity contracts, such 10
distribution to be made, in the discretion of the trustees, either in cash 11
or by addition to the amount payable under the policies or annuity 12
contracts. 13
Section 22. Life insurance policies and annuity contracts may be
Insurance
policies. By
r9'oT56i°§'''''' signed on behalf of the savings and insurance banks by the treasurer or
assistant treasurer, or by such other officer or employee of the sa\"ings
and insurance banks as the trustees may from time to time determine.
Percentage
of premiums
to De paid
to General
Section 23. Whenever the net assets of the General Insurance 1
Guaranty Fund over all liabilities exceed one hundred thousand dollars 2
ClIAP. 178.J SAVINGS B.ANK LIFE INSITR.\NCE. 2057
3 or five per cent of the aggregate outstandins insurance reserve of all insurance
, . , • 111-1 • 1 1 ,. Guaranty Fund
4 savings and insurance banks, wnicne\er is the greater, the trustees ot may be ,
5 said fund may, with the approval of the commissioner of insurance, certain cases,
6 reduce the percentage of premiums on insurance and annuities so pay- 1907, sr.i, § 23.
7 able to it or altogether discontinue the same; but said trustees may '^i^' ^^o. § *«•
S require at any time thereafter said contribution to be made at a rate
9 not exceeding that provided for in section eighteen.
1 Section 24. Any suit brought on or in respect to any policy or Suits on
2 annuity contract issued by any savings and insurance bank shall be imJI'sgi.'i 25.
3 brought in the county where such bank is located, and within two years
4 after the date of the alleged cause of action.
1 Section 25. Any savings and insurance bank may at any time issue of
2 discontinue the issuing of insurance policies and annuity contracts if drscontimed.''^
3 its board of trustees has, at a meeting duly called for the purpose, voted 1907,5^1. §26.
4 so to do by a majority of t\\o thirds of its trustees present at the meet- ^^^^- ^^°' ^ ^^■
5 ing and voting. The notice of such meeting shall be given at least
6 thirty days prior to the date thereof, and shall be otherwise in accord-
7 ance with any laws or by-laws governing the calling of special meetings
8 of trustees. A copy of the vote to discontinue said business, certified
9 to by the clerk of the bank and sworn to by its president or vice presi-
10 dent and its treasurer or assistant treasurer, shall be filed with the com-
11 missioner of banks and also with the commissioner of insurance. A
12 bank which has so voted may reinsure all outstanding policies and an-
13 nuity contracts in any other savings and insurance bank, or, with the
14 approval of the commissioner of insurance and the commissioner of
15 banks, in any purely mutual legal reserve life insurance company or-
16 ganized under the laws of the commonwealth, if such company does
17 not employ solicitors of insurance or make house to house collection of
18 premiums, and does not provide for the pajonent of interest on its
19 guaranty capital of more than four per cent, if it makes provision satis-
20 factory to the commissioner of insurance for carrying out with reason-
21 able convenience to policy holders and annuitants its existing con-
22 tracts. WTien a bank which has voted to discontinue said business
23 has so reinsured its outstanding policies and annuity contracts, or fully
24 performed the same, it shall transfer to the General Insurance Guaranty
25 Fund all the assets of the insurance department remaining after pay-
26 ing all its liabilities, including special guaranty fund certificates issued
27 under section four or five.
1 Section 26. The commissioner of insurance and the commissioner Examination
2 of banks shall, at least once in each year and whenever they consider it ^oner™?'^'
3 ex-pedient, either alone or together, personally or by deputy or assistant, commissfone?
4 examine the insurance department of each savings and insurance bank "gof "|oi « 07
5 and the General Insurance Guaranty Fund. At such examination they i9i9' 35o, s lu.
6 shall have free access to the vaults, books and papers, and shall thor-
7 oughly inspect and examine the affairs of any such corporation to ascer-
8 tain its condition, its transactions, its ability to fulfil its obligations, and
9 whether it has complied with all the provisions of law applicable to it.
10 They shall preserve in a permanent form a full record of their proceedings,
11 including a statement of the condition of the insurance department of
12 each of said banks.
2058
SAVINGS B.ANK LIFE INSURANCE.
[CH-^. 178.
w'i'tnSse's'"ftc SECTION 27. Either of said commissioners, or his deputy or assistant 1
1907. 5fii', § 28. specially authorized by him in wTiting, may summon the trustees, officers 2
or agents of any such corporation, and such other witnesses as he thinks .3
proper, and examine them relative to the affairs, transactions and con- 4
dition of the insurance department or of the General Insurance Guar- 5
anty Fund, and for that pm-pose may administer oaths. Whoever with- 6
out justifiable cause refuses to appear and testify when so required, and 7
whoever obstructs a commissioner in the performance of his duty, shall 8
be punished by a fine of not more than one thousand dollars or by im- 9
prisonment for not more than one year. 10
deTrtments Section 28. If upou examination the insurance department of any
may in certain saviugs and iusuraucc bank appears to both the commissioner of banks
restrained and tlic commissioucr of insurance to be insolvent, or if they find its con-
busTness'."^ ditiou such as to render the continuance of its business hazardous to the
1919,' 350,' § lo.' public or to the holders of its policies or contracts, the commissioners
shall apply or, if such bank appears to have exceeded its powers or failed
to comply with any provision of law, may apply to the supreme judicial
court, which shall have jurisdiction in equity of such application, for an
injunction to restrain such department, in whole or in part, from further
proceeding with its business. The court may appoint one or more re-
ceivers to take possession of the property of the insurance department,
subject to such directions as may from time to time be prescribed by the 12
court, without in any respect affecting the operations of the savings 13
department. 14
1
2
3
4
5
6
7
8
9
10
11
Annual
statements,
etc. Form.
1907, 661. § 30.
1919, 350, § 40.
Section 29. The treasurer shall annually, within twenty days after
the last business day in October, file with the commissioner of insurance
and the commissioner of banks a statement showing the financial con-
dition of the insurance department on the last business day of October.
For cause the commissioners may extend the time within which any such
statement may be filed, but not to a date later than the following De-
cember fifteenth. Such annual statement shall be in the form required
by the commissioners, who shall embody therein so much of the forms 8
now prescribed for life insurance companies and for savings banks as 9
may seem to them appropriate, with any additional inquiries they may 10
require for the purpose of eliciting a complete and accurate exhibit of the 1 1
condition and transactions of the banks. The assets and liabilities shall 12
be computed and allowed in such statement in accordance with the rules 13
governing insurance companies, except as herein otherwise provided. 14
The president or vice president of the savings and insurance bank and 15
five or more of its trustees shall make oath that the report is correct 16
according to the best of their knowledge and belief. The commissioner 17
of insurance and the commissioner of banks may also at any time require 18
the treasurer to make such other statement of condition or furnish such 19
other information concerning the insurance department as they deem 20
necessary. 21
o/clnerai Section 30. The treasurer of the General Insurance Guaranty Fund 1
Guaranty ^^^''^'^ annually, within thirty days after the last business day of October, 2
Fund to ^ file with the commissioner of insurance and the commissioner of banks a 3
Btatement. statement, in such form as said commissioners shall prescribe, showing 4
1919^ 350,' § 46' its financial condition on the last business day of October, and shall also 5
at any time make such statement of condition and furnish such other G
CH-^P. 179.] PROPRIETORS OF REAL ESTATE LYING IN COMMON, ETC.
2059
7 information concerning its business as said commissioners deem neces-
8 sary. The president of said fund and tliree or more trustees thereof shall
9 make oath that the report is correct to the best of their knowledge and
10 belief.
1 Section 31. The commissioner of insiu-ance and the commissioner Annual report
2 of banks shall prepare annually from the said reports concerning insur- sioners.
3 ance departments and the General Insurance Guaranty Fund, and com- 1919,' 350,' j te.
4 municate to the general court on or before the first Wednesday in Febru-
5 ary, a statement of the condition of each savings and insurance bank and
6 of said General Insurance Guaranty Fund, and shall make such sug-
7 gestions as they consider expedient relative to the general conduct and
8 condition of each bank visited by them.
REFERENCE.
Taxation of funds of insurance departments and of General Insurance Guaranty
Fund, Chap. 63, § IS.
CHAPTER 179.
PROPRIETORS OF WHARVES, REAL ESTATE LYING IN COMMON, AND
GENERAL FIELDS.
Sect.
■wharves akd beal estate lying in
9.
10.
11.
12.
13.
14.
15.
16.
17.
Application for incorporation.
Notice, etc., o{ first meeting.
Organization.
Clerk, oath, duties.
Treasurer, duties and powers.
Proprietors may sue and be sued, etc.
Proprietors may make by-laws.
Power of moderator.
Powers of proprietors at legal meeting.
Votes. Proxies.
Proprietors may raise money, etc.
Assessments, how collected.
Redemption of shares.
Sale by proprietors.
Deposit of records.
Corporate powers, etc., to remain.
After division meetings may be held,
etc.
GENERAL FIELnS.
18. Meetings, etc.
19. Meetings, etc., how called. Votes.
20. Clerk, assessors, etc. Oath.
21. Field drivers.
Sect.
22. Regulations.
23. Proprietors of enclosed land not to vote.
24. Trespass.
25. Assessment of money.
26. Clerk to issue warrant for collecting,
etc.
27. Proprietor injured by beasts of stranger.
28. Apportionment of fence, etc.
29. Proprietors, when not to maintain
fence.
30. Expense of apportioning fence, etc.
31. Proceedings when part of fence assigned
is deficient.
32. Party neglecting to repair liable to
double damages, etc.
33. Liability to repair in ease of sudden
destruction, etc.
34. Proprietor may enclose his land.
35. Proprietors to run lines once in two
years, etc.
36. Superior court may order proprietors to
fence land as general field.
37. After order, proprietors to have powers
as if enclosed by consent.
38. Division of general field upon petition.
39. Same subject.
40. Discontinuance of general fields.
■WHARVES AND REAL ESTATE LYING IN COMMON.
1 Section 1. Upon written application of five or more proprietors of ^rm'^"''™
2 lands, wharves or other real estate held in common to a justice of the ''i'Vjs « ^
3 peace, stating that they intend to organize themselves as a corporation, 1735-G, 5, |\. '
4 he shall issue his warrant to one of the applicants, directing him to call nIsTsbJ'i l '
2060
PROPEIETORS OF REAL ESTATE LYING IN COMMON. [ChAP. 179.
R. S. 43,
§§1,2.
G. S. 67,
§§1,2.
a meeting of all the proprietors and expressing in the warrant the time, 5
place, occasion and purpose of the meeting. p. s hi, §§ i, 2. 6
R. L. 123, § 1.
1 Mass. 159.
8 Pick. 455.
24 Pick. 304
10 Met. 408.
153 Mass. 42.
Sfiret meeting SECTION 2. The meeting shall be called by posting a notice contain-
"12-13,9 §1. ing the substance of the warrant, signed by the person to whom the
1753-4! i! § i. warrant is directed, fourteen days at least before the meeting, in one or
R. s.'43,'|3.' more public places in the town, and by publishing it in a newspaper, if
p.'l.'in, §^3. any, published in the county where the estate lies; otherwise, in a news-
10 Me't'ios." paper published in an adjoining county.
Organization.
1712-13, 9, *
1735-6, 5, § 1.
1753-4, 1. § 1.
17S3, 39, § 1.
R. S. 43,
§§ 4, 5.
G. S. 67,
§§ 4, 5.
P. S. Ill,
§§4,5.
1897, 496, 5 7.
R. L. 123, § 3.
Section .3. At such meeting, by vote of a majority in number and 1
interest of all the proprietors, they may organize themselves as a cor- 2
poration under this chapter; and they may thereupon choose a clerk, 3
treasurer, collector and such committees and other officers as they deem 4
necessary for the management of their affairs, and may agree upon and 5
direct the manner of calling future meetings. Each officer chosen by 6
the proprietors shall hold his office until his successor is qualified. The 7
clerk, treasurer and collector shall forthwith make, sign, swear to and 8
file for record in the office of the state secretary a certificate setting 9
forth the name of the corporation, its purpose, the town and county 10
where it is located, the date of the meeting for organization and any 11
adjournments thereof, and any other facts of importance contained 12
in the proceedings of organization; otherwise, the organization shall 13
be void. 14
Clerk, oath,
duties.
1712-13, 9. § 1.
1753-4, 1, § 1.
1783,39, § 1.
R. S. 43, § 14.
G. S. 67, § 6.
Section 4. The clerk shall be sworn, and shall record all votes, 1
orders and proceedings of the proprietors in books which he shall keep 2
for that purpose until they are delivered to the town clerk as hereinafter 3
provided. p. s. in, §6. r. l. 123, §4. 4
Treasurer,
duties and
powers.
1726-7, 15, § 1
1783, 39, § 7.
R. S.43, § 15.
G. S. 67, § 7.
P.S. ill, §7.
R. L. 123, § 5.
Section 5. The treasurer shall demand and receive all money due or
belonging to the proprietors, shall sue for and recover in his own name
to their use all fines and penalties incurred under sections seven and eight,
shall pay out all money in his hands according to the order of the pro-
prietors and shall, from time to time when required, render his accounts
thereof.
Section 6. Such proprietors may sue and be sued as a body cor-
Proprietorg
may sue and be
i694-5!'i5, § 1. porate; and an action brought by the corporation for trespass on the
i783"39'f'4^ 1- common property may be pleaded in abatement or answered in bar of
1824; 74.' an action for the same trespass brought by any of the proprietors in his
G. s. 67', § s. ' individual capacity. p. s. 111, §8. r. l. 123, §6. 153 Mass. 42.
Proprietors
may make
by-laws.
1727,9, I 1.
1783,39, § 1.
R. S.43, § 11.
G.S. 67, §9.
P.S. Ill, §9.
R. L. 123, § 7.
Section 7. They may make by-laws consistent with law for the
orderly conducting of their business, with penalties for the breach thereof
not exceeding three dollars for each ofTence; but by-laws with penalties
annexed shall be approved by the coimty commissioners for the county
where the estate lies.
modlrator. Section S. The moderator of a meeting of the proprietors shall have 1
R^l'll'lfs ^'^^ same power as the moderator of a town meeting, except the power 2
G. s. 67, i 10. of confining a person or causing him to be removed from the meeting. 3
Chap. 179.] proprietors of re.\l est.\te lying in common. 2061
4 Whoever resists or disobeys his orders shall be subject to the pecuniary p. s. in, § lo.
5 penalties provided for the like offences at a town meeting. • i- . § s.
1 Section 9. The proprietors may, at a legal meeting, exercise any of ^°ieto7s'at'"^°'
2 the powers granted to them in this chapter; but no business shall be J7^f9_"3''9°f2
3 acted on unless set forth in the notice for the meeting. 1753-4, 1, § 1. '
1783, 39, § 1. G. S. 67, § 11. R. L. 123, § 9.
R. S. 43, |5. P. S. Ill, §11. 143Ma3s.no.
1 Section 10. Each proprietor may vote according to the number of p^oxf,;,
2 his shares or the amount of his interest, if known; and if not known, }7*j'??'c^|-
o 1 • 1 11 n A 1 • . H. b. 43, § fa.
3 the proprietors shall vote equally. Absent proprietors may vote by g. s. 67, § 12.
4 WTitten proxy. p. S. 111, §12. R. L. 123, §10. 119 Mass. sss.
1 Section 11. . The proprietors may by vote adopt such measures and ^°^^^°l°"
2 levy such assessments in proportion to their respective rights and in- ^""J'y- <;'?• , ,
o-i 11 «.. . 172b-7, 15, § 1.
S terests in the property as they deem proper tor managing, improving or 1753-4, 1, § 2.
4 dividing their common property and carrying on their business. r. s.'43,'§7.'
G. S. 67, §13. R. L. 123, §11. 10 Mass. 5.
p. S. Ill, §13. 2 Mass. 475. Ill Mass. 454.
1 Section 12. If a proprietor fails to pay an assessment for six months Assessments,
2 after demand therefor by the collector or other proper officer, or after a 1753.^. ^§2!
. 3 notice of such assessment posted and published in the manner prescribed r.^I.'Is,' ^ ^'
4 for the first meeting, the committee of the proprietors or other officers ff 1 1^
5 authorized by them for that purpose may sell by public auction and give i^ !*;??•
6 to the purchaser a deed of so much of the right or share of such proprietor H 14, 1^5'.
7 as is sufficient to pay the amount so due from him and all the reasonable
8 charges of the sale, first giving thirty days' notice of the time and place
9 appointed for such sale in the manner prescribed for notifying the first
10 meeting.
1 Section 13. The proprietor of the share or part sold may, witloin one Redemption
2 year after the sale, redeem it by paying to the purchaser or his assigns 1753 "^T, § 2.
3 the purchase price with interest at the rate of twelve per cent a year from r *|; |f; | f^.
4 the time of the sale. g. s. 67, § le. p. s. 111, § 16. r. l. 123, § 13.
1 Section 14. If there are ten or more proprietors, they may, by vote of proprietors.
2 more than two thirds both in number and interest at a legal meeting, sell rf^|'67°i 17
3 their estate and divide the proceeds thereof. p. s. 111, § 17.
R.L. 123. §14. 3 Pick. 396. 8 Allen, 11.
2 Mass. 476. 8 Piclc. 455. 143 Mass. 110.
IO.Mhss. 146. 8 Gush. 21. 218 Mass. 487.
12 Mass. 415.
1 Section 15. After the final division of their common property, the Deposit of
2 proprietors may deposit their records with the clerk of the town nss, 39. § 9.
3 where the land or any part of it lies; and the clerk may make and certify r.^I.' «,' 1 17.
4 copies from the records as the clerk of the proprietors might have done. g.^s.'67?§\s.'
p. S. Ill, §18. R. L. 123, § 15.
1 Section 1G. A final di\-ision of the common property shall not dis- Corporate
2 solve the corporation until the expiration of ten years thereafter; but to remain
powers, etc.,
to remain.
3 the proprietors at the time of the division and their heirs shall retain their n.°s.'4.?,' I i^s.
4 corporate powers for the purpose of collecting all assessments, debts and p.l.ni, § ?g.
5 effects due or belonging to the corporation, and shall be liable for its J^- ^- 1-^' ^ ^'^•
6 debts.
2062
PROPRIETORS OF GENERAL FIELDS.
[Chap. 179.
After division
meetings may
be held. etc.
1790, 40, § 1.
R. S. 43. 5 19.
G. S. 67, § 20.
P. S. 111. §20.
R. L. 123, I 17.
Section 17. The proprietors may, within ten years after such divi-
sion, call and hold meetings and vote and raise money by assessments,
as before provided, for the payment of their debts and all other charges
and demands against them, and may do all other law^ful acts necessary
for closing their business.
Meetings, etc.
1785, 53, § 1.
R. S. 4.3, § 20.
G. S. 67. § 21.
P. S. Ill, §21.
R. L. 123, § 18.
GENERAL FIELDS.
Section 18. If several distinct lots or parcels of land are enclosed 1
and fenced in one common field, or if all the proprietors of such lands 2
agree so to enclose them, the proprietors, if not less than five, may, in the 3
manner hereinafter pro\dded, hold regular meetings for the purpose of 4
managing their common concerns. 5
Meetings, etc.,
how called.
Votes.
1712-13, 9, § 1.
1753-1, 1, § 1.
1758-9. 33, § 1.
1785. 53,
§§ 1, 10.
1820, 1.
R. S. 43,
§1 21-23.
G. S. 67,
§§ 22-24.
Section 19. On application of two or more proprietors to a justice of 1
the peace, he shall issue his warrant for a meeting, as provided in section 2
one, which shall be called either in the manner prescribed in section two 3
or by personal notice served on each proprietor fourteen days at least 4
before the time appointed for the meeting. Each proprietor may vote 5
according to the relative amount or value of his interest, if kno^-n; other- 6
wise, in accordance with section ten. 7
p. S. Ill, |§ 22-24. R. L. 123, § 19. 3 Gray, 487. 119 Mass, 583.
Clerk,
assessors, etc.
Oath.
1727-8, 13, § 2.
1741-2, 3, § 1.
175.3-4. 1, § 1.
1785, 53, § 3.
R. S. 43, I 24.
G. S. 67, I 25.
Section 20. The proprietors may from time to time choose a clerk,
three or more assessors, a collector and such other officers as they find to
be necessary; each of whom shall continue in office until removed by the
proprietors or until his successor is qualified. The clerk and assessors
shall be sworn. p. s. hi, § 25. r. l. 123, § 20.
i727-8"rr§2 Section 21. They may choose one or more field drivers, who shall 1
R*s'4^3'|34 hfi'^'e' and exercise the same powers M-ith respect to the general fields as 2
g; s: 6?; § 26: geld drivers chosen by a town. p. s. 111, § 26. r. l. 123, § 21. 3
n^53°ri Section 22. They may adopt such rules as to pastm-ing the land and 1
G 1 67' 1 27 as to other matters in which they have a common interest as they consider 2
p.s.iii, |27. just and equitable and most for the general good; but in all other respects 3
each proprietor may manage and cultivate his land as he tliinks best. 4
rndosriTand' Section 23. At meetings of proprietors for adopting rules or regu- 1
isse^lzie'"' lations as to pastiu-ing, land of a proprietor enclosed for liis exclusive 2
G. s.'67, §28. benefit shall not be valued or reckoned in determining his right to vote 3
R. L. 123, §"23. on questions relative to pasturing his land. 4
Trespass.
C L.
211
, §1.
1698,
12,
§3.
1758-9, 33, § 2.
1785,
53,
§ 5.
R. S.
43,
§35.
G.S.
07,
§29.
P. S.
111,
§ 29.
R. L.
123
1, § 24.
Assessment
of money
Section 24. If a proprietor puts horses, cattle or other beasts into
the general field contrary to the regulations of the proprietors, either by
putting in more than the number allowed him, or by putting them in be-
fore the day fixed therefor, or by keeping them therein longer than the
time limited, he shall be considered a trespasser, and his beasts may be
impounded as taken doing damage.
1
2
3
4
5
6
Section 25. The proprietors may from time to time raise money for 1
i?27^8' if' § 3' defraying their common charges and managing their affairs, which shall 2
be assessed by the assessors upon the several proprietors in proportion to 3
1741-2, 3.
ClIAP. 179.] PROPRIETORS OF GENERAL FIELDS. 2063
4 their respective interests; and a proprietor aggrieved by such assessment 1153-4 i § 2.
5 may apply for an abatement to the comity commissioners, ■nho shall r. s.'43.'§25.
6 hear and determine the case, and whose judgment thereon shall be final, p.s. ii'i, § so.
E. L. 123, § 25.
1 Section 26. The clerk shall issue his warrant to the collector, re- cierk to issue
2 quiring him to collect all amounts so assessed and to pay them o^'e^ to eou"ctiiig!"^
3 the clerk or other proper officer according to the orders of the proprietors. 1726-7, 15, § 1.
4 The collector shall collect said amounts in the same manner as collectors J7I1II; af §\^
5 of towns are authorized to collect town taxes.
1753-4, l.§ 2. R. S.43. §2fi. P. S. Ill, § 31.
1785, 53, § 3. G. S. 67, § 31. R. L. 123, § 26.
1 Section 27. A proprietor injured in his lands by the beasts of a Proprietor
2 stranger shall have the same remedy therefor as if his land had been iTeas'tsof^
3 enclosed and used separately. i698, 6, § s. i785, 53, § 6. stranger.
R. S. 43, § 37. G. S. 67, § 32. P. S. Ill, § 32. R. L. 123, § 27.
1 Section 28. Tlie whole fence enclosing such general field shall, so Apportion-
2 far as found convenient, be apportioned among the proprietors according "t™ ° '""'^'
3 to tlie number of acres held and cultivated or otherwise used by each ; and u\9s, 12. 1 3.
4 the part to be maintained by each proprietor shall be apportioned to him R^i'Ji^^h.
5 by two or more fence viewers, unless the proprietors agree on such ap- pfni V33
6 portionment. The proportion of fence of each proprietor shall be re- k- ^- 123, § 28.
7 corded in the books of the proprietors by the clerk, if any; otherwise, by
8 the clerk of the town where the general field is situated.
1 Section 29. A proprietor shall not, so long as he declines to cultivate Proprietors,
2 his land or use it for pasturing, for the growth of wood or otherwise, be mafntJin fence.
3 required to maintain any part of the fence or to pay any assessment on u^s! H,' i 29.'
4 account of his land. g. s. 67, § 34. p. s. 111, § 34. r. l. 123, § 29.
1 Section 30. The expense of apportioning the fence and also of apporlion^ing
2 making and maintaining such part thereof as cannot be conveniently ^^"ofitl'3 5 1
3 and justly apportioned to any one proprietor shall be borne by all the !p*'|^'
4 proprietors liable to be assessed in proportion to their respective interests; R. s'. 43, § 30.
5 and the part apportioned to each proprietor shall be made and main- rV.s.ni. §.3.5.
6 tained by him so long as he uses his part of the general field for pasturing,
7 planting, mowing or otherwise.
R. L. 123, § 30.
1 Section 31. If the part of the fence apportioned to a proprietor be- Proceedings
2 comes deficient and he does not repair it within three days after notice f^nce assigned
3 of such deficiency has been given to him by a fence viewer of the town, no4^3s,°§'i.
4 it may be repaired by any other proprietor. Two or more fence viewers § g ^f I g,,-
5 may examine such repairs, and, if they adjudge them sufficient, may p- '^ ^^'^ § 36.
6 ascertain and determine the cost of the same and make a signed statement
7 thereof and of the amount of their fees.
1 Section 32. The person making such repairs may demand of the pro- Party ncgiect-
2 prietor bound to make them, or of the tenant holding under him, double luibieVoXubie
3 the cost of the repairs and of the fees of tlie fence viewers so ascertained; ns^l^'ss;'!' 2.
4 and if they are not paid within one month after notice and demand, he {™|'4|'|32
5 may recover them in tort. g. s. 67, § 37. p. s. 111, § 37. r. l. 123, § 32.
2064
PROPRIETORS OF GENERAL FIELDS.
[Chap. 179.
repa^r'mcase SECTION 33. If a part of tlic feiice is Suddenly blown down or carried
stro"tfo™etc". away by a flood or tempest at a time when the crops of grain or grass in
R^s'll'lls *^® ^^'^ ^^^ thereby exposed to immediate destruction or injury, the
G.s 67! §38 proprietor to whom such part of the fence was assigned shall repair it
R. L. 123, § 33. within twenty-four hours after notice thereof given to him by a fence
viewer; and if he fails so to do, the fence may be repaired by any other
proprietor, who may recover double the cost of the repairs and fees, as
provided in the preceding section.
Proprietor
may enclose
his land.
1796, 13.
R. S. 43, § 36.
1855,418. § 1.
Ci. S. 67, § 39.
P. S. 111. § 39.
R. L. 123, § 34.
Section 34. A proprietor may enclose his land at his own expense;
and, so long as he keeps it enclosed with a sufficient fence, may cultivate
and use it as he thinks fit; and during such period, so far as such enclosed
land is concerned, he shall neither be assessed for any expenses incident
to the common field nor exercise any control over the portion thereof not
enclosed.
Proprietors to
run lines once
in two years,
etc.
1692-3. 28, § 2.
1785, S3, § 7.
R. S. 43, § 38.
G. S. 67. § 40.
P. S. in. §40.
R. L. 123, § 35.
Section 35. Every proprietor of land lying unfenced in a general
field shall once in every two years, if requested by the owner of the ad-
joining land, run lines with such owner between their lots and make and
keep up the boundaries between them by suflScient bound stones, at their
joint expense. If he fails so to do after seven days' notice by the ad-
joining owner, he shall forfeit two dollars to the use of such adjoining
owner.
Superior court
may order pro-
prietors to
fence land as
general field.
1818, 11.
R. S. 43,
§§ 39, 40.
G. S. 67.
§§41,42.
P.S. Ill,
§§ 41. 42.
After order,
proprietors to
nave powers as
if enclosed by
consent.
1818, 11.
R. S. 43, 5 41.
G. S. 67, § 43.
P. S. Ill, § 43.
R. L. 123, § 37.
Section 36. If it is for the interest of the proprietors of five or more 1
parcels of land to enclose them in one common field, the superior court 2
for the county where the land or any part of it lies may, upon the ap- 3
plication of a majority in interest of the proprietors, after notice to all 4
other persons interested and a hearing, order it to be so enclosed, if it 5
appears to be for the common benefit of the parties. R. l. 123, § 36. 6
Section 37. After a common or general field is so established by an 1
order of the court, the further proceedings in relation thereto shall be 2
the same as are provided when a field is so enclosed by the consent of 3
the proprietors; and the proprietors shall be entitled to the privileges 4
and be subject to the duties before provided in this chapter relative to 5
the proprietors of fields enclosed by consent. G
Division of
general field
upon petition.
1(85, 53, § 13.
R.S. 43, § 43.
G.S. 67, §44.
P.S. Ill, §44.
R. L. 123, § 38.
Section 38. Three or more proprietors of lots in a general field lying 1
within one general fence or enclosure may, by a written petition to the 2
proprietors of such field at a meeting of said proprietors legally warned 3
for the purpose, request to have their lots, either alone or jointly with 4
any other lots in such field, divided from the remainder of the field in 5
order to be enclosed by one common fence and occupied by them as an 6
entire field separately from the other proprietors. If the majority of 7
proprietors in interest present at such meeting withhold or refuse their 8
assent to such division, the superior court may, upon like application, 9
appoint five disinterested and suitable persons M-ithin the county where 10
the general field is situated, to be a committee to make the division, if 11
they deem it expedient, and to assign to each field its proportion of the 12
partition fence which by reason of such division should be kept up and 13
maintained by the proprietors of the said general fields respectively. 14
CiL\p. ISO.]
CHARITABLE, ETC., CORPORATIONS.
2065
1 Section 39. The committee shall, as soon as may be after their ap- same
2 pointment, make retm-n of their doings under their hands to the court; u.s'.
3 and after its acceptance by the court, the fields so divided shall be deemed p ; |;
4 separate general fields and the proprietors of the field set off, and the ^- ^
5 remaining proprietors of the original field, respectively, shall be distinct
6 and separate proprietary bodies, having like powers and privileges and
7 subject to like duties 'and liabilities as the proprietors of the original
8 general field before the division; but no order for such division shall
9 be made, and no such committee appointed, until the other proprietors
10 have had notice of the petition for such division. Such notice shall be
1 1 given by serving upon the clerk of the proprietors a copy of the petition
1 2 at least thirty days before such order or appointment is made.
subject.
53. § 13.
43, § 43.
67, § 45.
Ill, i 45.
123. § 39.
Section 40. A majority in interest of the proprietors of a common Discontinu-
field, whether established by consent or by order of court, may discon- IraTfidls*!"
tinue it at a legal meeting warned for the purpose; but the discontinu- nil; 53; 1 1;
ance shall not take effect until the expiration of six months after such §; |; gf; 1 4I;
vote. p. S. Ill, § 40. R. L. 123, § 40.
CHAPTER 180.
CORPORATIONS FOR CHARITABLE AND CERTAIN OTHER PURPOSES.
Sect.
general provisions.
1. Formation.
2. Purposes.
3. Organization.
4. Encouraging agriculture, horticulture,
etc.
5. Investigation of proposed corporation.
6. Investigation of proposed charitable
corporations.
7. By-laws. Officers.
8. Increase of capital.
9. Corporations may hold property. Limit
of amount.
10. Change of purpose of corporation.
11. Change of name,
12. Reports to department of public wel-
fare.
MEDICAL CORPORATIO.V.
13. Medical corporation forbidden to con-
fer degrees.
HORSE BREEDING CORPORATIONS.
14. Horse breeding corporations may hold
exhibitions.
Sect.
labor or trade organizations.
15. Labor or trade organizations.
16. Commissioner to be satisfied that pur-
pose is lawful.
17. By-laws.
IS. Rights of members.
19. Fines on members of unions.
MEDICAL MILK COMMISSION.
20. Incorporation.
21. Name.
22. Compensation to members forbidden.
23. Contracts for milk.
24. Power of department of public health.
25. Penalty for breach of five preceding
sections.
MISCELLANEOUS PROVISIONS.
26. Change of location of certain associa-
tions.
27. Illegal liquor selling, etc., makes char-
ter void.
28. Illegal boxingmatchmakeschartervoid.
GENERAL PROVISIONS.
1 Section 1. Seven or more persons, a majority of whom are residents Formation.
2 of the commonwealth, may form a corporation for any of the purposes g.^'Jo'.II:
3 named in the following section. isog, 276. is73, itg.
1874, 375, §1. P..S. 115, §1. R. L. 125, §1.
2066
CHARITABLE, ETC., CORPORATIONS.
[Chap. 180.
Purposes.
1857
.56,:
5 1.
G. S.
32, § 1.
1869,
,276.
1873,
, 176.
1874,
,375,
§ 2.
1875,
,107,
§ 2!
1877,
204,
§ 1-
1878,
153.
P. S.
115,
§2.
R. L.
125,
§2.
1915,
213.
204 Mass.
487.
205 Mass.
219,
261.
212 Mass.
219.
lOp.
A. G
i.468,
505, 548, 579.
3 Op,
, A. G. 12.
4 Op.
A. G
1. 352.
Op. A. G.
(1918) 21.
Organization.
1857,
SB, § 2.
G.S.
32, §
2
1874,
375,
§§3-
5.
P.S.
115.
§§3,4.
1888,
177.
1890,
191.
R.I,.
125.
§3.
1919,
333,
§ 11.
1920,
2.
Section 2. Such corporation may be formed for any civic, educa-
tional, charitable, benevolent or religious purpose; for the prosecution
of any antiquarian, historical, literary, scientific, medical, artistic, mon-
umental or musical purpose; for establishing and maintaining libraries;
for supporting any missionary enterprise having for its object the dis-
semination of religious or educational instruction in foreign countries;
for promoting temperance or morality in the commonwealth; for en-
couraging athletic exercises or yachting; for encouraging the raising 8
of choice breeds of domestic animals and poultry; for the association 9
and accommodation of societies of Free Masons, Odd Fellows, Knights of 10
Pythias or other charitable or social bodies of a like character and pur- 11
pose; for the establishment and maintenance of places for reading rooms, 12
libraries or social meetings; for establishing boards of trade, chambers 13
of commerce and bodies of like nature. 14
Section 3. The corporation shall be formed in the manner prescribed 1
in and subject to section nine of chapter one hundred and fifty-five and 2
sections six and eight to twelve, inclusive, of chapter one hundred and 3
fifty-six, except as follows: 4
The capital stock, if any, shall not exceed five hundred thousand dollars. 5
The agreement of association of a corporation having no capital stock 6
may omit the statement of the amount of the capital stock and the par 7
value and number of its shares. The par value of its shares, if any, may 8
be ten, twenty-five, fifty or one hundred dollars. The fee to be paid to 9
the state secretary upon the filing of the certificate of organization shall 10
be five dollars. 1 1
Section 4. Ten or more persons, in any county, city or town may
Encouraging
agriculture,
horticulture, form a corporatiou under section three for the purpose of encouraging
G ^I'le^j 17 agriculture or horticulture, or for improving and ornamenting the streets
P^gS. n4,§i|. and public scjuares of any city or town by planting and cultivating
R. l! 124] § 19. ornamental trees therein.
Investigation
of proposed
corporation.
1890, 439, § 1.
1893. 226, § 1.
R. L. 125, § 4.
1906,291, § 10.
Section 5. Before making and issuing a certificate of incorporation 1
to a corporation formed for any of the purposes described in section two, 2
the state secretary may forward a statement to the aldermen of the 3
city, except Boston, or to the selectmen of the town, where such society 4
is to have its principal office or rooms, and, if such office or rooms are to 5
be in Boston, to the police commissioner, giving a list of the applicants 6
for incorporation, the purpose thereof as stated by them, the location 7
proposed to be occupied and all other facts which may be stated in the 8
application for incorporation. The mayor and aldermen, selectmen or 9
police commissioner, upon the receipt of such statement, shall immediately 10
make an investigation and ascertain whether any of the proposed in- 11
corporators have been engaged in the illegal selling of intoxicating liquor 12
or in keeping places or tenements used for illegal gaming, or whether they 13
have been engaged in any other business or vocation prohibited by law, 14
and shall forthwith report to the state secretary all the facts ascertained. 15
If, in his opinion, it appears from said report or otherwise that the probable 16
purpose of the formation of the proposed organization is to cover an 17
illegal business, he shall refuse to issue a certificate of incorporation. 18
of pfoposed" Section 6. Before making and issuing a certificate for the incor- 1
corporations, poratiou of a charitable corporation the state secretary shall also forward 2
Chap. ISO.] ch.\eitable, etc., corporations. \ 2067
§5.
3 the statement described in the preceding section to the department of i^l'i^s'
4 public welfare, which shall immediately make an investigation as to the j-jjo- pj' ^
5 applicants for incorporation and as to the purposes thereof, and any
6 other material facts relative thereto, and shall give them a public hearing,
7 notice of which shall be published once a week for three successive weeks
8 in some paper published in the county where the corporation is to have
9 its principal office or rooms, and if said office or rooms are to be in Boston,
10 in some Boston daily paper, the last publication to be at least three days
1 1 before the day set for the hearing, and shall forthwith report to the state
12 secretary all the facts ascertained by it. If it appears to him from said
13 report or otherwise that the probable purpose of the formation of the
14 proposed corporation is to cover any illegal business, or that the persons
15 asking for incorporation are not suitable persons, from lack of financial
16 ability or from any other cause, he shall refuse to issue his certificate.
17 If he refuses, the applicants may appeal to the superior court, which
18 shall hear the case and finally determine whether or not the certificate
19 of incorporation shall be issued.
1 Section 7. The corporation may prescribe by its by-laws the manner By-iaws.
2 in which, and the officers and agents by whom, its purposes may be ac- ?s74!37s, § e.
3 complished, and, instead of the directors and other officers to be chosen p*s^'A\^ ^'
4 at the first meeting, it may have a board of other officers with the powers f^^ f • ^25 § e
5 of directors, and presiding, financial and recording officers with the IP? ^J"^'- i?°-
„ .> • I . , 111 1 • .^ n • 2O0 Mass. 2hl.
0 powers 01 president, treasurer and clerk ; and its certificate of organiza- 209 m.iss. 48.
7 tion may be made, signed and sworn to by its presiding, financial and 214 mJJss! 2S6.
8 recording officers and a majority of its other officers ha\ing the powers uois)' 21.
9 of directors; and the certificate issued by the state secretary under sec-
10 tion twelve of chapter one hundred and fifty-six shall be modified to
11 correspond with the facts in each case.
1 Section 8. Such corporation, if organized under general laws, at a increase of
2 meeting called for the purpose may increase the amount of its capital isss.^'iV?.
3 stock and the number of shares therein to an amount not exceeding five ^' ^' ^^^' ^ ^"
4 hundred thousand dollars.
1 Section 9. Any corporation organized under general or special laws Corporations
2 for any of the purposes mentioned in this chapter may hold real and mopeHyl
3 personal estate to an amount not exceeding two million dollars, which amoun"!
4 shall be devoted to the purposes set forth in its charter or agreement of g^s'I^'I*'
5 association, and it may receive and hold, in trust or otherwise, funds \F*-?i?'^J-
6 received by gift or bequest to be devoted by it to such purposes. This is^''. 96.'
7 section shall not limit the amount of property which may be held by a 1901)96;
8 corporation untler the authority of any special law. R. l. 125, § s.
1915. 209, §§ 1, 2. 153 Mass. 77. 212 Mass. 555.
1917,45, §§ 1-3. 194 Mass. 2S0. 3 Op. A. G. 12, 31.
1 Section 10. Such corporation may, at a meeting duly called for the change of
2 purpose, by vote of all its members, add to or change the purpose for ?OTpo/ation.
3 which it was incorporated, if the additional or new purpose is authorized ^^l[ fasi § o.
4 by section two. The presiding, financial and recording officers and a
5 majority of its other officers having the powers of directors shall forth-
6 with make, sign and swear to a certificate setting forth such addition
7 to or change of purpose, which, having been submitted to the commis-
8 sioner of corporations and taxation and approved by him, shall there-
9 upon be filed and recorded in the office of the state secretary.
2068
CH.'\.RITABLE, ETC., CORPORATIONS.
[Ch.\p. ISO.
Change of
name.
1915, 205.
Section 11. A corporation organized under general or special laws
for any of the purposes specified in section two, if unable to comply with
section ten of chapter one hundred and fifty-five, may petition the com-
missioner of corporations and taxation for a change of name. The pe-
tition shall contain a list of the officers and stockliolders or members of
the corporation, so far as they are known, with their addresses; shall
state why the said section cannot be complied with and the name pro-
posed to be adopted by the corporation. It shall be signed and sworn to 8
by the president or one member of the board of directors. The commis- 9
sioner may require the petitioner to give him information as to what 10
attempt, if any, has been made to secure the approval of two thirds of 1 1
the stockholders or members, or of such proportion thereof as the by- 12
laws of the corporation may prescribe, for the proposed change of name. 13
The commissioner may also require any other information which may 14
assist in determining the matter before him. He may direct the pe- 15
titioner or the officers of the corporation to give any further notice to 16
the members thereof of the proposed change of name and to report to 17
hira the result of such notice. If the commissioner is satisfied that the 18
proposed name of the corporation is approved by such members or stock- 19
holders thereof as have expressed an opinion in relation thereto, or of 20
a reasonable proportion thereof, he shall endorse his approval on the 21
petition, and thereupon it shall be filed in the office of the state secretary, 22
who shall direct publication thereof and grant a certificate of name as 23
provided in said section. ^ 24
Reports to
dep-artnient
of public
welfare.
1899, 2.59.
1901, 179.
R. L,84, § 14.
1903, 402.
1913,82.
1919, 350. § 87
Section 12. A charitable corporation whose personal property is 1
exempt from taxation shall annually, on or before November first, make 2
to the department of public welfare a written report for its last finan- 3
cial year, showing its property, its receipts and expenditures, the whole 4
number and the average number of its beneficiaries and such other in- 5
formation as the department requires. If any corporation subject to 6
this section fails for two successive years to file said report, the supreme 7
judicial court, upon application by the department, after notice and 8
hearing, may decree a dissolution of the corporation. 9
Medical cor-
poration for-
bidden to
confer degrees.
1S83, 268.
R. L. 125, § 10.
218 Mass. 1G7.
MEDICAL corporation.
Section 13. A corporation organized under this chapter for medical 1
purposes shall not confer degrees, or issue diplomas or certificates con- 2
ferring or purporting to confer degrees, unless specially authorized 3
thereto by the general court. An officer, agent or servant of such cor- 4
poration or any other person who confers degrees, or signs, issues or 5
authorizes the signing or issuing of any diploma or certificate purporting 6
to confer any degree of medicine or surgery, in violation hereof, shall 7
be punished by a fine of not less than five hundred nor more than one 8
thousand dollars. 9
Horse breeding
corporations
may hold
exhibitions.
1900, 409.
K. L. 125, § 11.
HORSE breeding CORPORATIONS.
Section 14. Corporations formed under this chapter for encouraging 1
the raising of choice breeds of horses may establish and maintain grounds 2
suitable for exhibitions and trials of the speed or strength of horses; 3
may arrange for and advertise such exhibitions and trials upon such 4
grounds, may collect admission fees thereto and may award purses or 5
Ch.\P. ISO.] CHAKITABLE, ETC., CORPORATIONS. 2069
6 premiums to the participants therein, if such purses or premiums are
7 raised only from voluntary subscriptions to the funds of the corporation,
8 admission fees or fees for entering horses in such exliibitions or trials.
LABOR OR TRADE ORGANIZATIONS.
1 Section 15. Corporations may be formed under this chapter for Labor or trade
2 improving the condition of any employees in any one or more trades or i8S8?T34!Ti.
3 employments, either relative to their employment or to the promotion f op; ]^%^ ^^■
4 of education, temperance, morality or social intercourse among them, or ^^■
5 for paying benefits to sick or unemployed members, or to persons de-
6 pendent upon deceased members or otherwise.
1 Section 16. The commissioner of corporations and taxation shall ^"b'J^atj^"^"^"
2 not endorse his approval upon the certificate of organization of any such fg''5'*,?;'i'jP°''*
3 corporation, unless satisfied that the purposes thereof are lawful, that isss.isi. §2.
4 its by-laws are consistent with law and conform to the requirements of ' ' " '
5 the two following sections.
1 Section 17. The by-laws shall contain clear and distinct provisions By-iaws.
2 relative to the election, admission and expulsion of members; the titles, §§3,'4. '
3 duties, powers and tenure of the officers of the corporation and their ^- ^- ^^^' ^ '^•
4 election and removal; the number of members required for a quorum;
5 the call for special meetings; the adoption, amendment and repeal of
6 by-laws; the purposes to which the funds of the corporation may be
7 applied and for which assessments may be laid upon the members; the
8 conditions upon which a member or persons dependent upon a deceased
9 member shall be entitled to benefits, if any are to be given by the cor-
10 poration; the imposition of fines and forfeitures, if any; the deposit,
11 investment and custody of the funds of the corporation; the periodical
12 audit of the accounts of the treasurer and the method of voting on
13 shares of stock, if any are issued by the corporation. A by-law shall
14 not be repealed or amended, or an additional by-law adopted, unless
1.5 notice of such proposed action shall have been given at a previous meet-
16 ing; and such repeal, amendment or adoption shall not take effect
17 until it has been approved by the commissioner of corporations and
18 taxation as conformable to law.
1 Section 18. No member of such corporation shall be expelled by vote Rights of
2 of less than a majority of all the members thereof, nor by vote of less Tsss, 134, § 4.
3 than three quarters of the members present and voting upon such expul- ^' ^' '""■ ^ ^^
4 sion. Every member of such corporation and every person who has an
5 interest in its funds shall be entitled to examine its books and records.
1 Section 19. No fine or notice of intention to impose a fine by any Fines on
, ... , . ill, members of
2 union or any other association, incorporated or unincorporated, or by unions.
3 any authorized representative thereof, upon any member, according to the 227 Mass! 3,S2.
4 rules to which such member has agreed to conform, shall be held to be
5 unlawful or coercive as to such member or as to any other person ; pro-
6 vided, that such fine is reasonable in amount and is for a legal purpose.
medical milk commission.
1 Section 20. For the purpose of supervising the production of 595^7'5o'6,*§°i:
2 milk, any five or more registered physicians may form a corporation
2070
CHARITABLE, ETC., CORPORATIONS.
[Ch.\p. 180.
Name.
1911, 506, § 2.
under this chapter. The members of the board of health of any town 3
where such corporation is formed shall be ex officiis members of the 4
corporation. 5
Section 21. The name of any such corporation shall be "Medical 1
Milk Commission of ", designating the name of the 2
town where such corporation is established, and, if more than one such 3
corporation shall be organized in any town, the subsequent corpora- 4
tions shall use the name designated herein, but shall indicate in such 5
name its proper sequence in incorporation by adding thereto the words 6
"Number Two" or "Number Three" and so forth. 7
Compensation
to members
forbidden.
1911, 506, § 3.
Contracts
for milk.
1911,506, § 4.
Power of
department of
public health.
1911,. we, § 5.
1914, 792, § 1.
Penalty for
breach of five
preceding
sections.
1911,506, I 6.
Section 22. No member of any such corporation shall receive di- 1
rectly or indirectly therefrom, or from any dairymen producing milk 2
under agreement w ith the corporation, any salary or emolument or any 3
compensation of any kind for any services rendered as a member of 4
such corporation, or for any services rendered under sections twenty to 5
twenty-five, inclusive. Whoever violates this section shall be punished 6
by a fine of one hundred dollars, and shall be removed from his office as 7
a member of said corporation and thereafter be disqualified from be- 8
coming a member of any such corporation. 9
Section 23. Every such corporation may enter into written agree- 1
ments with any dairymen for the production of milk under the super- 2
vision of such corporation and prescribe in such agreements the con- 3
ditions under which such milk shall be produced, w'hich, however, shall 4
not fall below the standards of purity and cjuality for certified milk as 5
fixed by the American Association of Medical Milk Commissions and 6
the standards for milk fixed by law. 7
Section 24. The working methods of any such corporation and the 1
dairies in which milk is produced under contract with it shall at all times 2
be subject to investigation by the department of public health. 3
1919, 350, I 90.
Section 25. Whoever sells or exchanges, or offers or exposes for
sale or exchange as and for certified milk any milk not conforming to the
regulations prescribed by and bearing the certification of a corporation
organized under sections twenty to twenty-five, inclusive, shall be pun-
ished bv a fine of not more than one hundred dollars.
Change of
location of
certain associ-
ations.
1907, 337,
J§ 1-3.
miscellaneous provisions.
Section 26. No corporation organized under general laws for the 1
purpose of fostering, encouraging or engaging in athletic exercises or 2
for the establishment and maintenance of places for reading rooms, 3
libraries or social meetings shall change its location from the town where 4
it is located to another town within the commonwealth until written 5
consent therefor has been obtained from the police commissioner in Bos- 6
ton, the aldermen in any other city or the selectmen in the town where 7
the corporation proposes to acquire a new location. 8
Such consent shall not take effect until a copy thereof, duly attested 9
by the clerk or secretary of the board or officer consenting thereto, has 10
been filed in the office of the state secretary. 11
A change of location by a corporation contrary to this section shall be 12
sufficient cause for the revocation of its charter by the state secretary. 13
Chap. 181.]
FOREIGN CORPORATIONS.
2071
1906, 291.
1 Section 27. If any liquor, casks or other vessels or implements of J"f,^fg 'j.'J"°''
2 sale and furniture used or kept and provided to be used in the illegal mj»jjfs charter
3 keeping or sale of liquor, or implements of gaming, are seized on the prem- 1902', 524.
4 ises occupied by any club or organization described in section two, and
5 are forfeited under chapter one hundred and thirty-eight, the selectmen,
6 or the aldermen, in the place where such club or organization is situated,
7 except Boston, and in Boston the police commissioner, shall immediately
8 give notice to the state secretary, who, upon receipt thereof, shall declare
9 the charter of guch club or organization void, and shall publish a notice
10 in at least one newspaper published in the county where such club or
11 organization is located that such incorporation is void.
1 Section 28. If any person is convicted of illegally engaging in, giving illegal boxing
2 or promoting a public or private boxing match or sparring exhibition, Siarur"™!."
3 the contestants in which have received or have been promised any pe- l9?9;3|o;
4 cuniary reward, remuneration or consideration whatsoever, directly or ^ 1°"-
5 indirectly, under the auspices of or on the premises occupied by any club
6 or organization described in section two, the commissioner of public
7 safety, the selectmen or the aldermen in the town where such club
8 or organization is situated, except in Boston, and in Boston the police
9 commissioner, shall immediately give notice to the state secretary, who,
10 upon receipt thereof, shall declare the charter of such club or organiza-
11 tion void, and shall publish a notice in at least one newspaper published
12 in the county where the club or organization is situated that such in-
13 corporation is void.
REFERENCE.
Railroad, street railway and steamboat relief corporations, Chap. 1.59, §§ S6-S8.
CHAPTER 181.
FOREIGN CORPORATIONS.
Sect.
1. Definitions.
2. Foreign corporations forbidden to do
business which domestic corpora-
tions may not do.
3. Commissioner to be appointed attorney
for service of process.
4. Notice of service of process to be given
by commissioner.
5. Copy of charter, etc., to be filed.
6. Commissioner, etc., shall refuse to re-
ceive papers for filing from a foreign
corporation doing an illegal business.
7. Names of certain foreign corporations
regulated.
8. Suits against foreign corporations.
9. Foreign corporations may hold real
estate.
10. Issue of stock based on property, etc.,
of domestic corporations regulated.
11. Certificate of increase or reduction of
capital stock.
Sect.
12. Annual certificate of condition.
13. Approval of certificate.
14. Liability of officers and stockholders of
certain foreign corporations.
Liability of officers and stockliolders
of certain foreign corporations as to
issuing stock for property.
Enforcement of liability.
17. Liability of officers of foreign business
corporations.
18. Notice of change of date of annual
meeting to be filed.
19. The supreme judicial court may restrain
corporations from doing business not
authorized by their charter, etc.
20. Penalty for false reports.
21. Penalties for neglect to file certificate
of condition.
22. Recovery of penalties and forfeitures.
23. Filing fees.
15.
16.
2072
FOREIGN CORPORATIONS.
[Chap. 181.
Definitions.
R L. 126, § 1.
1903.437, § 56.
1914,742,
§172.
1919,333, § 16;
350, § 53.
1920, 2.
168 Mass. 564.
196 Mass. 603.
Section 1. The following words as used in this chapter shall, except
when otherwise specifically prescribed, have the following meanings :
"Commissioner", the commissioner of corporations and taxation.
"Foreign corporation", a corporation, association or organization, ex-
cept an insm-ance company, which has been established, organized or
chartered under laws other than those of the commonwealth.
Foreign cor-
E orations for-
idden to do
business which
domestic cor-
porations may
not do.
Section 2. A foreign corporation, including an insurance company,
shall not engage or continue in any kind of business in this common-
wealth the transaction of which by domestic corporations is not per-
mitted by the laws of this commonwealth. is94, ssi. r. l. i26, § 2.
1903,437, §57.
1919, 333, § 16.
1920. 2.
173 Mass. 252:
1 Op. A. G. 304.
2 0p. A. G. 31, 55,401.
Commissioner
to he appointed
attorney for
service of
process.
1871,371, § 1.
P. S. 73, § 3.
1882, 106, § 1.
1884, 330, § 1.
1895, 311, § 1.
1901, 23S.
R. L. 126, § 4.
1903, 437,
§§ 3, 58.
1905, 242.
1909, 490,
III, § 2.
1913, 792, § 1.
1918, 103;
257, § 345.
1919, 5: 333,
§ 10; 350, § 53.
1920, 2.
12 Gray, 201.
10 Allen, 231.
14 Allen, 330.
105 Mass. 141.
132 Mass. 432.
137 Mass. 252.
139 Mass. 294.
149 Mass. 24.
150 Mass. 550.
167 Mass. 28.
172 Mass. 154.
175 Mass. 400.
180 Mass. 270.
188 Mass. 239.
Section 3. Every foreign corporation, which has a usual place of 1
business in this commonwealth, or which is engaged therein, perma- 2
nently or temporarily, and with or without a usual place of business 3
therein, in the construction, erection, alteration or repair of a building, 4
bridge, railroad, railway or structure of any kind, shall, before doing 5
business in this commonwealth, in writing appoint the commissioner and 6
his successor in office to be its true and lawful attorney upon whom all 7
lawful processes in any action or proceeding against it may be served, 8
and in such WTiting shall agree that any lawful process against it which is 9
served on said attorney shall be of the same legal force and validity as if 10
served on the corporation, and that the authority shall continue in force 1 1
so long as any liability remains outstanding against the corporation in 12
this commonwealth. The power of attorney and a copy of the vote 13
authorizing its execution, duly certified and authenticated, shall be filed 14
in the office of the commissioner, and copies certified by him shall be 15
sufficient evidence thereof. Service of such process shall be made by 16
leaving a copy of the process with a fee of two dollars in the hands of the 17
commissioner, or of his deputy or second deputy when acting under sec- 18
tion six of chapter fourteen, or in the office of the commissioner, and 19
such service shall be sufficient service upon the corporation. 20
195 Mass. 432.
196 Mass. 458.
198 Mass. 212.
201 Mass. 557.
204 Mass. 327.
214 Mass. 363.
215 Mass. 204.
216 Mass. 171.
94 U. S. 535.
231 U. S. 68.
lOp. A. G. 181, 339.
2 Op. A. G. 221, 440.
3 0p. A. G. 187, 255.
Notice of
service of
process to be
given by
commissioner.
1884, 330, § 2.
R. L. 126, § 5.
1903, 437, § 59.
1919,333, § 16.
1920, 2.
215 Mass. 204.
Section 4. When legal process against any such corporation is
served upon the commissioner, he shall immediately give notice to the
corporation of such service by mail, postage prepaid, directed, in the
case of a corporation established in a foreign country, to the resident
manager, if any, in the United States; and shall, within two days after
such service, forward in the same manner a copy of the process served
upon him to such corporation or manager, or to any other person desig-
nated by the corporation by a writing filed in the office of the commis-
sioner. The fee of two dollars paid by the plaintiff to the commissioner
at the time of the service shall be taxed in his costs, if he prevails in the 10
suit. The commissioner shall keep a record of all such processes, which 1 1
shall show the day and hour of service. 12
diTrtofetc, Section 5. Every foreign corporation of the classes described in 1
1884° 33o'' ' section three, before transacting business in this commonwealth, shall, 2
§§ 3,'4. ■ upon payment of the fee provided by section twenty-three, file with the 3
Chap. 181.] foreign corporations. 2073
4 commissioner a copy of its charter, articles or certificate of incorporation, is95, 157.
5 certified under the seal of the state or country where such corporation is r. l! 120,' § 6.
6 incorporated by the secretary of state thereof or by the officer having }9?i;ni'.^'^°'
7 charge of the original record therein, a true copy of its by-laws, and j^^-J' l^^- § ^^■
8 a certificate in such form as the commissioner requires, setting forth: (a) ]H J1'"'^??S-
9 the name of the corporation; (0) the location 01 its principal otnce; (c) 157 Mass. 1.
10 the names and addresses of its president, treasurer, clerk or secretary 175 Mass! 406.
11 and of the members of its board of directors; (d) the date of its annual i9SMas3!432;
12 meeting for the election of officers; (e) the amount of its capital stock, 214 MaSsia!
13 authorized and issued, the number and par value of its shares, the amount 5JI ^^aS i7l
14 paid in thereon to its treasurer, and, if any part of such payment has ^^p- ■*•• g. 31,
1.5 been made otherwise than in money, the details of such payment, so
16 far as practicable, in accordance with section ten of chapter one hun-
17 dred and fifty-six. Said certificate shall be subscribed and sworn to by
18 its president, treasurer and a majority of its directors or officers having
19 the powers usually exercised by directors. The officers and directors of
20 such corporation shall be subject to the same penalties and liabilities for
21 false and fraudulent statements and returns as officers and directors of
22 a domestic corporation subject to said chapter. Every officer of such
23 a corporation which fails to comply with the requirements of this section
24 and of sections three and twelve, who authorizes or transacts, and every
25 agent thereof who transacts business in behalf of such corporation in
26 this commonwealth, shall, for such failure, be punished by a fine of not
27 more than five hundred dollars, and shall also be liable, jointly and
28 severally, in contract, without prior proceedings against the corporation,
29 for all debts and contracts of the corporation, except such as relate to
30 interstate commerce, contracted or entered into within this common-
31 wealth or for the purpose of being performed therein, so long as such
32 failure continues. Such failure shall not affect the validity of any con-
33 tract with such corporation, but no action shall be maintained or rc-
34 covery had in any of the courts of this commonwealth by any such foreign
35 corporation so long as it fails to comply with said sections.
1 Section 6. The commissioner, the commissioner of insurance and ^t°"^|ii°°^''"
2 any other officer of this commonwealth whose duty it is to examme and refuse to re-
,' . ,, p. • 'ii* • ceive papers for
3 determine whether a foreign corporation, mcluding an insurance com- filing from a
4 pany, is entitled to file any papers under section three or five, section portion "oing
5 forty-one of chapter one hundred and seventy-six, or chapter one hun- bSs'ineS.
6 dred and seventy-five or one hundred and seventy-seven, shall refuse to ^^l' ffei § 7.
7 accept or file the charter, financial statement or other papers of, or ac- \^°l- 13^' | ^J-
8 cept appointment as attorney for service for, any such corporation 1920! 2.
9 which does a business in this commonwealth the transaction of which 339.
10 by domestic corporations is not then permitted by the laws of this
1 1 commonwealth.
1 Section 7. A foreign corporation which carries on a banking, mort- J^f^fo^dgn'^'^'
2 gage, loan and investment or trust business shall indicate in letters corporations
3 equally conspicuous with its name, upon all signs, advertisements, cir- issg, 452',
4 culars, letterheads and other documents which contain its name, the isod, 329.
5 state or country where it is chartered or incorporated. No such corpora- fia^/a'ss'. 27*1.
6 tion and no person who is engaged in such business shall carry it on in or
7 under a name which, previous to such use, was in lawful use by a cor-
8 poration established under the laws of this commonwealth and carrying
2074
FOREIGN CORPORATIONS.
[Chap. ISl.
on the same or a similar business or in or under a name so similar thereto 9
as to be likely to be mistaken for it. The supreme judicial or superior 10
coiu-t shall have jm-isdiction in equity to enforce the foregoing p^o^-isions 11
of this section. "Whoever violates any provision of this section shall be 12
punished by a fine of not more than one thousand dollars. 13
Suits against
foreign cor-
porations.
1839, 158.
G. S. 68. § 15.
P. S. 105, § 28.
R. L. 126, § 9.
1903. 437, § 62.
1919,333, § 16.
1920, 2.
10 Mass. 91.
16 Pick. 274.
3 Met. 420.
Section 8. Foreign corporations having property in this common-
wealth shall be liable to be sued and to have theu- property attached in
the same manner and to the same extent as mdi\-iduals -who are residents
of other states and who have property in this commonwealth. The serv-
ice of the writ shall be made in the manner provided in chapters two
hundred and twenty-three and two hundred and twenty-seven, with
such further service as the court to which the ■^Tit is returnable orders.
6 Met. 391.
10 Gray, 164.
15 Gray, 491.
150 Mass. 550.
215 Mass. 341.
220 Mass. 285.
Foreign
corporations
may hold
real estate.
1888,321.
1895, 387.
Section 9. Foreign corporations which have complied with sec- 1
tions tliree and five may purchase and hold such real estate in tliis com- 2
monwealth as may be necessary for conducting their business. 3
R. L. 126, § 10.
1903, 437, § 63.
1919. 333, § 16.
1920, 2.
Issue of
stock based
on property,
etc., of domes-
tic corpora-
tions regulated.
1894,476.
R. L. 126, §11.
1903, 437, § 64.
1906, 463. Ill,
§§ 58. 158.
1914, 742,
§§ 172, 199.
1919, 333, §16.
1920, 2.
Section 10. If a foreign corporation which owns or controls a ma- 1
jority of the capital stock of a domestic street railway, gas or electric 2
company issues stock, bonds or other evidences of indebtedness based 3
upon or secured by the property, franchise or stock of such domestic 4
company, unless such issue is authorized by the law of this common- 5
wealth, the supreme judicial court shall have jurisdiction in equity to 6
dissolve such domestic company. If it appears to the attorney general 7
that such issue has been made, he shall institute proceedings for such 8
dissolution and for the proper disposition of the assets of such company. 9
This section shall not affect the right of foreign corporations, their officers 10
or agents to issue stock and bonds in fulfilment of contracts existing on 11
July fourteenth, eighteen hundred and ninety-four. 12
Certificate of
increase or re-
duction of
capital stock.
1891,341,
HI, 3, 4.
1895,311, § 1.
R. L. 126. § 12.
1903, 437, § 65.
1919,333,1 16.
1920, 2.
1 Op. A. G. 583.
Section 11. All foreign corporations of the classes described in 1
section three, and foreign corporations engaged in the business of sell- 2
ing or negotiating bonds, mortgages, notes or other choses in action shall, 3
within thirty days after the payment into its treasury for an increase of 4
capital stock, upon paying the fee provided in section twenty-tliree, file 5
in the office of the state secretary a certificate of the amount of such in- 6
crease and the fact of such payment, signed and sworn to by its presi- 7
dent, treasurer and a majority of its directors or officers having the 8
powers usually exercised by directors. ^Yithin thirty days after the vote 9
of such corporation authorizing a reduction of its capital stock, a copy 10
of such vote, signed and sworn to by the clerk of the corporation, shall, 11
upon paying the fee provided in section twenty-tliree, be filed in the 12
office of the state secretary. 13
,\nnual
certificate
of condition.
1891,341, § 1.
1895,311, § 1.
R. L. 126, § 13.
1903, 437, § 66.
1905, 233.
1909, 490,
III, §54.
1915, 167.
Section 12. Every foreign corporation shall annually, witliin thirty 1
days after the date fixed for its annual meeting, or witliin tliirty days 2
after the final adjournment thereof, but not more than three months 3
after the date so fixed for said meeting, prepare and file in the office of 4
the state secretary, upon payment of the fee provitled in section t\\cnty- 5
three, a certificate signed and sworn to by its president, treasurer, and by 6
Chap. 181.] ' foreign corpor.\tions. 2075
7 a majority of its board of directors, showing the amount of its authorized ll\f |g-
8 capital stock, and its assets and liabilities as of a date not more than JU}|' J||.
9 ninety days prior to said annual meeting, in such form as is required of 355, '§§28, 29.
10 domestic business corporations under section forty-seven of chapter one iss Mass! 239!
11 hundred and fifty-six, and the changes, if any, in the other particulars 232 Mass! 22. '
12 included in the certificate required by section five of this chapter, made sSpiA.'afw.'
13 since the filing of said certificate or of the last annual report.
1 Section 13. A certificate required to be filed imder the preceding Apr.rovai of
2 section shall be accompanied by a written statement on oath by an isgl.sif.S 5.
3 auditor as provided in section forty-nine of chapter one hundred and k'l.' 120! § u.
4 fifty-six, except that such auditor shall in all cases be chosen by the Jgol; 300 1 2!'
5 board of directors. Before the certificate is filed as required by the J??8;t?0'
• • I 11 1 1-1 • • 1 1 11 III. § 65.
6 precedmg section it shall be submitted to the commissioner, who shall isa Mass. 530.
7 endorse his approval thereon if he finds that it complies with the pre-
8 ceding section.
1 Section 14. The officers and members or stockholders of all foreign Liability of
2 corporations which have a usual place of business in this commonwealth, stockifoiders of
3 except those mentioned in section seventeen, and except such as had corporatroM^"
4 such place of business on IVIay twelfth, eighteen hundred and ninety-six, ^^^- J|i' | ^^
5 shall be jointly and severally liable for its debts and contracts on the 195 Mass'. 46i.
6 same conditions and in the same manner as is provided for domestic
7 corporations by sections forty-four to fifty-four, inclusive, of chapter
8 one hundred and fifty-eight, except the fourth clause of section forty-four.
1 Section 15. If the capital stock of a foreign corporation subject to Liability of
2 the preceding section has been paid in by a conveyance to the corpora- stockifofders of
3 tion of property, real or personal, at an unfair valuation, the officers, corporationsTs
4 members or stockliolders who participate in such conveyance or in the for'pro'pfrty"'^''
5 taking of such property at such unfair valuation, or who have purchased \^^f ^91, § 2.
6 or received shares with knowledge of said fact, shall be jointly and sever- k- l' 126, § is.
7 ally liable for its debts or contracts. 190 Mass. as.
1 Section 16. The extent, conditions and manner of enforcing the Enforcement
2 liability imposed by either of the two preceding sections shall be the iso'e^'sgif'
3 same as is provided by sections forty-four to fifty-four, inclusive, of chap- HgV, 423
4 ter one hundred and fifty-eight, except the fourth clause of section forty- fgo^j/^^' 35^'
5 four. No officer, member or stockholder shall be liable under any
6 pro^'ision of the two preceding sections for any bonded or mortgage
7 debt of a foreign corporation.
1 Section 17. The officers of foreign corporations organized for the Liability of
2 purposes for which domestic corporations may be organized under sec- f^eignbLi-
3 tion six of chapter one hundred and fifty-six, and coming within the Ss''"'^"''"
4 classes described in section three, shall be jointly and severally liable jj^^^' 126 I li
5 for all the debts and contracts of the corporation contracted or entered isq3,437,'§ 70.
G into while they are officers thereof, if any statement or report which is
7 required by this chapter is made by them which is false in any material
8 representation and w'hich they know to be false; but only the officers
9 who sign such statement or report shall be so liable. Such liability shall
10 be enforced upon the conditions and in the manner prescribed by sec-
11 tions thirty-eight and thirty-nine of chapter one hundred and fifty-six.
2076
FOREIGN CORPORATIONS.
[CiLiP. 181.
Notice of
change of date
of annual
meeting to
be filed.
1905, 222.
1918, 257,
5§ 356, 357.
1919, 5,
1920, 2.
Section 18. Whenever any change i.s made altering the date fixed 1
in the by-laws for the annual meeting of a foreign corporation organized 2
for the purposes for which domestic corporations may be organized under .3
section six of chapter one hundred and fifty-six, the corporation shall 4
forthwith file in the office of the commissioner a certificate of such change 5
signed and sworn to by the clerk of the corporation. Any corporation G
which omits to make and file a certificate as aforesaid within thirty 7
days after such a change has been made shall forfeit not more than one 8
hundred dollars, to be recovered in the manner prescribed by section 9
twenty-two. 10
The supreme
judicial court
may restrain
corporations
from doing
business not
autfiorized by
their charter,
etc.
Section 19. Upon an information in equity in the name of the
attorney general, at the relation of the commissioner, the supreme judicial
court may restrain any foreign corporation from assuming or exercising
any corporate rights, privileges or franchises in this commonwealth
until sections three and five have been complied with.
1906, 372.
196 Mass. 458.
197 Mass. 194.
198 Mass. 413.
201 Mass. 370.
220 Mass. 536.
Penalty for
false reports.
1914, 661,
§§1,2.
Section 20. Foreign corporations shall be subject to sections forty- 1
eight and forty-nine of chapter one hundred and fifty-five. 2
Penalties for
neglect to file
certificate
of condition.
1891,341, § 2.
1894, 541,
§§ 1-3.
R. L. 126,
§§ 15, 16.
1903, 437,
§§ 68, 69.
1906, 346, § 2.
1909, 490,
III, § 58.
196 Mass. 458.
231 U. S. 78.
Section 21. If a foreign corporation omits to file a certificate as 1
required by section twelve, the commissioner shall give notice by mail, 2
postage prepaid, to the corporation of its default, directed, in the case 3
of a corporation established in a foreign country, to the resident manager, 4
if any, in the United States, or to any other person designated by the 5
corporation by a writing filed in the office of the commissioner. The 6
notice shall contain a copy of this section and sections twelve and thir- 7
teen. If such foreign corporation fails to file such certificate ^^•ithin 8
thirty days after such notice of default has been given or mailed, it 9
shall forfeit to the commonwealth not less than five nor more than 10
ten dollars for each day for fifteen days after the expiration of the said 11
thirty days, and not less than ten nor more than two hundred dollars for 12
each day thereafter during which such default continues, or any other 13
sum, not greater than the maximum penalty of forfeiture, which the 14
court may deem just and equitable, which shall be recovered as pro- 1.5
vided in the following section. 16
Recovery of
penalties and
forfeitures.
1891, 341, § 2.
1894, 541,
§§ 1-3.
n.h. 126,515.
1903,437,150.
1909, 490,
III, § 58.
Section 22. Penalties and forfeitures incurred by a foreign corpora- 1
tion wMch omits to file a certificate required by section five or twelve 2
may be recovered in an action brought in Suffolk county in the name 3
of the commonwealth or they may be recovered by an information in 4
equity in the name of the attorney general at the relation of the com- 5
missioner brought in the supreme judicial court in Suffolk county. 6
Upon such information, the court may issue an injunction restraining 7
the further prosecution of the business of the corporation until such 8
penalties and forfeitures with interest and costs have been paid and until 9
the certificates required by said sections have been filed. 10
Filing fees.
18S2, 106,
§§3,5.
18S4, 330, § 3.
Section 23. Every foreign corporation shall pay for filing a copy of 1
its charter, by-laws and the certificate required by section five, fifty 2
Chap. 182.]
VOLUNTARY ASSOCIATIONS.
2077
3 dollars to the state treasurer, and for filing all other certificates and ligsJlT.'^ ""
4 statements, including the annual certificate of condition required by ""l.' 12°; § 20.
5 section twelve, ten dollars to the state secretary.
1903,437, § 91. 1919, 333, § 16. 1920, 2; 59S, § 4. 232 Mass. 22.
REFERENCES.
Service of trustee process. Chap. 246, § 6.
Taxation, Chap. 63, §§ 39^-43.
CHAPTER 182.
VOLUNTARY ASSOCIATIONS.
Sect.
1. Definitions.
2. Copy of declaration, etc., to be filed
with commissioner and town clerk.
3. Copy of declaration, etc., of association
owning gas or electric stock to be
filed with department. Penalty.
4. Annual statements. Penalty.
5. State secretary to print certain state-
ments, etc., as public documents.
0. Suits against associations.
Sect.
7. Examination by department.
S. Examination of corporation, etc., under
same management as public service
corporation.
9. Penalty for refusing to submit to exam-
ination, etc.
10. Enforcement of orders of department,
etc.
11. Shares owned by an association not to
be considered in fixing rates, etc.
1 Section 1. The following words, as used in this chapter, shall have Definitions.
., ,, J, ,, . . " 1909,441, § 1.
2 the loUowing meanings: 1914,471.
3 "Association", a voluntary association under a written instrument fnf^^"'
4 or declaration of trust, the beneficial interest under which is divided into
5 transferable certificates of participation or shares.
6 "Commissioner", the commissioner of corporations and taxation.
7 "Department", the department of public utilities.
1 Section 2. The trustees of an association shall file a copy of the Copy of
2 written instrument or declaration of trust creating it with the commis- erc.'^tobe'fiied
3 sioner and ^^•ith the clerk of every town where such association has a ^'on^lr and"*
4 usual place of business. Such trustees shall also, within thirty days after '1909. 44[|'§ 1.
5 the adoption of any amendment thereof, file a copy of said amendment i9". 471.
6 with said commissioner and said clerk.
1 Section 3. The trustees of an association who own or control a Copy of
2 majority of the capital stock of a gas or electric company shall also file a etc TS Lso-
3 copy of the written instrument or declaration of trust creating it with the gag'oTeKric^
4 department and shall also within thirty days after the adoption of any A^edVith"^
5 amendment of such instrument or declaration file a copy thereof with f,%^^Jy ™'-
6 the department. Every such trustee who fails to comply with the fore- lais. 454.
7 going requirements shall be punished by a fine of not more than five § us.
8 hundred dollars or by imprisonment for three months. i9i5, 20, § 2.
1 Section 4. The trustees of an association who own or control a Annuni
2 majority of the capital stock of a railroad, street railway, gas or elec- Penalty"^'
3 trie company shall annually on vt before April first file with the com- H"!^,' 2,^8.'
2078
VOLUNTARY ASSOCIATIONS.
[Chap. 182.
1913. 454.
1914, 742,
§ 14,S.
1915,20, § :
inissioner and with the department a statement showing the number 4
of shares of such company owned or controlled by them and the stock- 5
holders of record on the books of such company in whose names such 6
shares are held. Every such trustee who fails to comply with this section 7
shall be punished by a fine of not more than five hundred dollars or by 8
imprisonment for three months. 9
State secretary
to print cer-
tain state-
ments, etc.,
as public
documents.
1913, 396.
Section 5. The commissioner shall annually transmit to the state 1
secretary copies of all such written instruments or declarations of trust, 2
and any amendments thereof or additions thereto which were filed in his 3
office during the year ending November thirtieth. The secretary shall 4
annually cause such of said instruments, declarations of trust and amend- .5
ments as have not been previously printed under his direction, together 6
with such reports and information relating to the associations described 7
in section four as the department may transmit to him for the purpose, 8
to be printed as a public document. 9
f"sociatU)"l.' Section 6. An association may be sued in an action at law for debts 1
1916, 1S4. j^j^ff other obligations or liabilities contracted or incurred by the trustees, 2
or by the duly authorized agents of such trustees, or by any duly au- 3
thorized officer of the association, in the performance of their respective 4
duties under such written instruments or declarations of trust, and for 5
any damages to persons or property resulting from the negligence of 6
such trustees, agents or officers acting in the performance of their 7
respective duties, and its property shall be subject to attachment and 8
execution in like manner as if it were a corporation, and service of process 9
upon one of the trustees shall be sufficient. 10
Examination
by department.
1913, 509,
§§1.2.
1914, 742,
§§ 150, 199.
Section 7. The department may by its members or duly author- 1
ized employees investigate and examine the books, accounts, contracts, 2
records and memoranda of the trustees of any association, who own or 3
hold the capital stock or any part thereof of a railroad, street railway, 4
electric railroad or elevated railway corporation or gas or electric com- 5
pany, and may require said trustees to furnish such reports and informa- 6
tion as the department shall from time to time direct with respect to the 7
relations and dealings between such trustees and any such corporation or 8
company. 9
Examination of
corporation,
etc., under
same manage-
ment as public
service cor-
poration.
1913, 509.
§§3,4.
1914, 742.
§§ 151, 199.
Section 8. The department may by its members or duly author- 1
ized employees investigate and examine the books, accounts, contracts, 2
records and memoranda of any partnership, express trust, \oluntary 3
association or corporation which is under the same ownership, control 4
or management as a railroad, street railway, electric railroad or elevated 5
railway corporation or gas or electric company, in respect of the relations 6
and of any contracts and dealings between such railroad, street rail- 7
way, electric railroad or elevated railway corporation or gas or electric 8
company and such partnership, express trust, voluntary association or 9
corporation, and in relation thereto may require from such partnership, 10
express trust, voluntary association or corporation such reports and in- 11
formation as the department shall from time to time direct. 12
Telusingto"^ Section 9. A railroad, street railway, electric railroad, elevated 1
submit to railway, gas or electric company, or a partnership or corporation or the 2
etc. ' trustees of an express trust or Noluntary association, described in the 3
CH-IP. 182.] VOLUNTARY ASSOCIATIONS. 2079
4 two preceding sections, which refuses or neglects to submit its or their i9i3, sob, § s.
5 books, accounts, contracts, records and memoranda to the investiga- §§ is2, 199.
6 tion and examination of the department, or to furnish such reports and
7 information as it shall from time to time direct and require, shall be
8 punished by a fine of not more than five thousand dollars.
1 Section 10. The supreme judicial court shall have jurisdiction in Enforcement
2 equity to enforce compliance with the three preceding sections, and with department,
3 all orders of the department made under authority thereof. ig'js^ 509, 5 6
1914, 742. §§ 153, 199.
1 Section 11. Nothing contained in this chapter shall be construed shares ow-ned
... . . , . p . , , by an associa-
2 as authorizmg, requirmg or justiiymg the department in making any tionnottobe
3 recommendations, rulings or orders with respect to the rates charged fixing rates, etc.
4 or the service furnished by any corporation subject to its supervision, 19141742!
5 to take into consideration in any respect whatsoever any certificates of ^ ^^*'
6 participation or shares issued under a declaration of trust and repre-
7 senting the beneficial interest in the stock, bonds, notes or other securi-
8 ties of such corporation, or the investment in such certificates or shares.
2080
ALIENATION OF LAND.
[Chap. 183.
PART II
REAL AND PERSONAL PROPERTY AND DO:\IESTIC
RELATIONS.
TITLE I.
TITLE TO REAL PROPERTY.
Chapter 183. Alienation of Land.
Chapter 184. General Provisions relative to Real Property.
Chapter 185. The Land Court and Registration of Title to Land.
Chapter 186. Estates for Years and at Will.
Chapter 187. Easements.
Chapter 188. Homesteads.
Chapter 189. Dower and Curtesy.
CHAPTER 183
ALIENATION OF L.AND.
Sect. ,
conveyance by deed.
1. Sufficiency of deed.
2. Effect of quitclaim deed.
3. Estate created without writing to have
effect of estate at will.
4. Effect of unrecorded deed.
5. Record to be evidence of delivery.
6. Grantee's name, residence and post
office address to be contained in or
endorsed upon deed.
7. Effect of conveyance by disseisee.
SHORT FORMS.
8. General provisions as to statutory
forms.
9. Meaning of words and phrases.
10. Statutorj' form of warranty deed.
11. Statutory form of quitclaim deed.
12. Word "grant" to be a sufficient word
of convej'ance.
13. Word "heirs" or "assigns" not neces-
sary to convey a fee.
14. Uses and trusts.
15. Easements, appurtenances, etc., to pass
unless otherwise stated.
Sect.
16. Meaning of "warranty covenants."
17. Meaning of "quitclaim covenants" or
"limited covenants."
18. Statutory form of mortgage.
19. Meaning of "mortgage covenants."
20. Statutory condition in mortgage.
21. Statutory power of sale in mortgage.
22. Statutory form of co-operative bank
mortgage.
23. Statutory co-operative bank mortgage
condition.
24. Statutory co-operative bank power of
sale.
25. Holder of mortgage may purchase at
foreclosure sale.
26. Mortgagor entitled to possession until
default.
27. Disposition of proceeds of foreclosure
sale.
28. Assignment of mortgage.
acknowledgment and kecordinq of
DEEDS.
29. Acknowledgment of deed before record.
30. Acknowledgment, how made.
CIL4.P. 183.]
ALIENATION OF LAND.
2081
33.
34.
35
36,
Sect.
31. Acknowledgment by married woman.
32. Acknowledgment of powers of attorney
to convey real estate.
Certificate of authority of officer.
Proof of execution if grantor is dead or
non-resident.
Proof if witnesses are dead or non-
resident.
Proof if grantor refuses to acknowledge.
37. Proof if grantor refuses to acknowledge
and witnesses are dead or non-resi-
dent.
38. Copy of deed not acknowledged may be
filed in registry of deeds.
39. Unwitnessed deeds not to be so proved.
40. Endorsement of certificate of proof.
41. Proof of deed outside the common-
wealth.
42. Forms of acknowledgment, etc.
TITLE BY DECREE OF COURT.
43. Final decree in equity to vest title if
deed, etc., is not executed as directed.
44. Recording of certified copy of decree
to have same effect as recorded deed,
etc.
BARRING OF ESTATES TAIL.
45. Tenant in tail may convey in fee
simple.
46. Life tenant and remainderman in tail
may convey in fee simple.
47. Barring of equitable estates tail.
48. Trustee may be required to convey
legal estate.
CONVEYANCE OF ESTATES SUBJECT TO RE-
MAINOER, ETC.
49. Probate court may appoint trustees to
convey or mortgage.
50. Notice and appointment of guardian
ad litem or next friend.
51. Trustee to give bond, and hold or apply
proceeds of sale or mortgage.
Sect.
52. Sale of land subject to charges for pay-
ment of annuities, etc.
INSTRUMENTS OF DEFEASANCE.
53. Effect of unrecorded instruments of de-
feasance.
54.
55.
DISCHARGE OF MORTGAGES.
Discharge on margin of record or by
separate instrument, etc.
Mortgagee liable for refusing to dis-
charge.
SCHEDULE OF FORMS IN APPENDIX.
Statutory Forms of Instrumenta relating to
Real Estate.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(S)
(9)
(10)
(11)
(12)
Warranty Deed.
Quitclaim Deed. ■
Deed of Executor, Administrator,
Trustee, Guardian, Conservator,
Receiver or Commissioner.
Release.
Mortgage Deed.
Co-operative Bank Mortgage.
Extension of Mortgage.
Partial Release of Mortgage.
Assignment of Mortgage.
Discharge of Mortgage.
Foreclosure Deed under Power of Sale
in Mortgage.
Affidavit of Sale under Power of Sale
in Mortgage.
Forms of Acknowledgments^ etc.
(13) Acknowledgment of Individual acting
in his Own Right.
(14) Acknowledgment of Individual acting
by Attorney.
(15) Acknowledgment of a Corporation or
Joint Stock Association.
(16) Certificate of Authority of Officer tak-
ing Acknowledgment.
CONVEYANCE BY DEED.
1 Section 1. A deetl executed and delivered by the person, or by the Sufficiency
2 attorney of the person, having authority therefor, shall, subject to the i69772i, § i.
3 limitations of section four, be sufficient, without any other act or cere- r.^I.'Io.'Ii.'
4 mony, to convey land. G. s. 89, § i. p. s. 120, § 1.
R. L. 127. § 1.
6 Mass. 24.
14 Pick. 224.
12 Met. 157.
13 Met. 79.
4 Gush. 345.
16 Gray, 309.
137 Mass. 684.
Section 2. A deed of ciuitclaim and release shall be sufficient to Effect of quit-
im deed.
S. 59, § 5.
2 convey all the estate which could lawfully be conveyed by a deed of jj'^™ '''^<'''
3 bargain and sale.
R. L. 127, 5 2.
7 Mass. 3S1.
G. S.
8 Pick. 143.
15 Pick. 82.
P. S. 120, § 2.
131 Mass. 200.
1(18 Mass. 201.
187 Mass. 315.
211 U. S. 208.
1 Section 3. An estate or interest in land created without an instru- Estate created
2 ment in writing signed by the grantor or by his attorney shall have the uig'to^'have"
•<
2082
effect of es'
at will.
C. L. 32. 5
1692-3, 15
1783.37, §
R. S. 59, §
1.
, § 1
1.
29.
ALIENATION OF L.-USTD.
[Chap. 183.
force and effect of an estate at will only, and no estate or interest in land
shall be assigned, granted or surrendered unless by such writing or by
operation of law.
G. S. 89. § 2.
P. S. 120, § 3.
II Mass. 533.
I Pick. 43.
9 Met. 462.
II Met. 251.
1 Gray, 571.
1 Allen. 133.
117 Mass. 351.
150 Mass. 19.
171 Mass. 329.
178 Mass. 172.
185 Mass. 607.
186 Mass. 14.
189 Mass. 285.
190 Mass. 101.
213 Mass. 380.
R. L. 127, § 3.
220 Mass. 186, 324.
221 Mass. 326.
223 Mass. 550.
225 Mass. 510.
227 Mass. 175.562.
233 Mass. 127, 234.
235 Mass. 156.
Effect of
unrecorded
deed.
C. L. 32. § 4.
1697,21, § 2.
1783, 37, § 4.
R. S. 59,
§§ 1,28.
G. S. 89,
§§ 1,3.
P. .S. 120, § 4.
R. I,. 127, 5 4.
14 Mass. 29C.
Section 4. A conveyance of an estate in fee simple, fee tail or for
life, or a lease for more than seven years from the making thereof, shall
not be valid as against any person, except the grantor or lessor, his heirs
and devisees and persons having actual notice of it, unless it, or an office
copy as provided in section thirteen of chapter thirty-six, is recorded in
the registry of deeds for the county or district in which the land to which
it relates lies. 15 Mass. 439. I6 Mass. 406.
2 Pick. 184.
4 Pick. 253.
5 Pick. 280.
8 Pick. 329.
9 Pick. 105.
11 Pick. 193.
13 Pick. 460.
14 Pick. 224.
22 Pick. 295.
23 Pick. 80.
24 Pick. 221.
1 Met. 212.
2 Met. 258, 619.
3 Met. 405.
6 Met. 475.
11 Met. 244.
12 Met. 17. 157.
2 Gush. 494.
6 Gush. 163.
6 Gray, 520.
9 Gray, 306.
11 Gray, 267, 495.
15 Gray, 461.
16 Gray, 48.
1 Allen. 373.
2 Allen, 115.
3 Allen, 487.
4 Allen, 406.
5 Allen, 382.
7 Allen, 16.
8 Allen. 1.86, 5S4.
9 Allen, 80.
11 Allen, 134.
12 Allen, 472.
101 Mass. 179. 444.
102 Mass. 375.
103 Mass. 491.
Ill M,ass. 270.
113 Mass. 72.
129 Mass. 210.
130 Mass. 83. 128.
131 Mass. 510.
132 Mass.
133 Ma.ss.
140 Mass.
141 Mass.
146 Mass.
149 Mass.
162 Mass.
167 Mass.
168 Mass.
181 Mass.
183 Mass.
185 Mass.
197 Mass.
200 Mass.
209 Mass.
211 Mass.
225 Mass.
229 Mass.
232 Mass.
233 Mass.
235 Mass.
320.
511.
112.
181.489.
610.
310.
lOS, 473.
443.
118.
218.
382.
107.
267.
498.
359.
526.
97, 491.
4R7.
491.
158,
14.
Record to be
evidence of
delivery.
1892. 256.
R. h. 127, § 5.
161 Mass. 381.
Section 5. The record of a deed, lease, power of attorney or other
instrument, duly acknowledged or proved as provided in this chapter,
and purporting to affect the title to land, shall be conclusive evidence of
the delivery of such instrument, in favor of purchasers for value without
notice claiming thereunder.
Grantee's
Dame, residence
and post office
address to be
contained in or
endorsed upon
deed.
1917,62.
Section 6. Every deed presented for record shall contain or have
endorsed upon it the full name, residence and post office address of the
grantee, and shall also state whether the grantee is married or unmarried.
If the statements required are not contained in the body of the deed but
are endorsed upon it they shall be entered in the margin of the record.
Failure to comply with this section shall not affect the validity of any
deed or prevent it from being recorded.
Effect of con-
veyance by
disseisee.
1891,354.
R.L. 127, § 6.
101 Mass. 179.
172 Mass. 395.
175 Mass. 355.
Section 7. A conveyance of land, if otherwise valid, shall, notwith-
standing disseisin or adverse possession, be as effectual to transfer the
title of the grantor as if he were actually seized and possessed of such
land, and shall vest in the grantee the rights of entry and of action for
recovery of the estate incident to such title.
General pro-
visions as to
statutory
forms.
1912,502, 5 1.
225 Mass. 320.
SHORT FORiMS.
Section 8. The forms set forth in the appendix to this chapter may 1
be used and shall be sufficient for their respective purposes. They shall 2
be known as "Statutory Forms" and may be referred to as such. They .3
may be altered as circumstances require, and the authorization of such 4
Chap. 183.] alienation of land. 2083
5 forms shall not prevent the use of other forms. Wherever the phrase
6 " incorporation by reference" is used in the following sections, the method
7 of incorporation as indicated in said forms shall be sufficient, but shall
8 not preclude other methods.
1 Section 9. For the purpose of avoiding the unnecessary use of Meaning of
^ 1*11 1* !• 1 11 -i ^'ords and
2 words m deeds or other mstruments relatmg to real estate, whether said phrases.
3 statutory' form or other forms are used, the rules and definitions con- §§13,20"
4 tained in sections ten to twenty-eight, inclusive, shall apply to all such
5 instruments executed or delivered on or after January first, nineteen
6 hundred and thirteen.
1 Section 10. A deed in substance following the form entitled "War- statutory
2 ranty Deed" shall when duly executed have the force and effect of a deed ranty°deM"
3 in fee simple to the grantee, his heirs and assigns, to his and their own ^^^^' ^°^' ^ "•
4 use, with covenants on the part of the grantor, for himself, his heirs,
5 executors, administrators and successors, with the grantee, his heirs,
6 successors and assigns, that, at the time of the deli^•ery of such deed, ( 1)
7 he was lawfully seized in fee simple of the granted premises, ( 2) that the
8 granted premises were free from all encumbrances, (3) that he had good
9 right to sell and convey the same to the grantee and his heirs and assigns,
10 and (4) that he will, and his heirs, executors and administrators shall,
11 warrant and defend the same to the grantee and his heirs and assigns
12 against the lawful claims and demands of all persons.
1 Section 11. A deed in substance following the form entitled "Quit- statutory form
2 claim Deed " shall when duly executed have the force and effect of a deed deS?
3 in fee simple to the grantee, his heirs and assigns, to his and their own ^^^^' ^°^' ^ ^'
4 use, with covenants on the part of the grantor, for himself, his heirs,
5 executors, administrators and successors, with the grantee, his heirs,
6 successors and assigns, that at the time of the delivery of such deed the
7 premises were free from all encumbrances made by him, and that he will,
8 and his heirs, executors and administrators shall, warrant and defend the
9 same to the grantee and his heirs and assigns fore\'er against the lawful
10 claims and demands of all persons claiming by, through or under the
11 grantor, but against none other.
1 Section 12. In a conveyance of real estate the word "grant" shall word "grant"
2 be a sufficient word of conveyance without the use of the words " give, cient word of
3 bargain, sell and convey ", and no covenant shall be implied from the 1912, 502. § 14.
4 use of the word "grant".
1 Section 13. In a conveyance or reservation of real estate the terms word "heirs-
2 "heirs", "assigns" or other technical words of inheritance shall not be notnlcelSryto
3 necessary to convey or reser\"e an estate in fee. A deed or reservation of i9i2fso'2,'T'i9.
4 real estate shall be construed to convey or reserve an estate in fee simple,
5 unless a different intention clearly appears in the deed.
1 Section 14. When a conveyance or devise of real estate is made to Uses and trusts.
2 a grantee or devisee to a use intended to be executed by the statute of ^^^'' °°"' ^ '"'
3 uses, the word "use" shall be employed in declaring the use; and pro-
4 visions introduced by the words "in trust", or other expressions that
5 might otherwise create uses, shall be deemed to create trusts and not
2084
ALIENATION OF LAND.
[Chap. 183.
uses. If no use is declared in a conveyance or devise of real estate, the 6
same shall take effect as if it were expressed to be for the use of the grantee 7
or devisee. S
appurtenances, SECTION 15. In a Conveyance of real estate all rights, easements,
unTess°other- privilcgcs and appurtenances belonging to the granted estate shall be
r9i'^so'>'''§ 21 included in the conveyance, unless the contrary shall be stated in the
' deed, and it shall be unnecessary to enumerate or mention them either
generally or specifically.
"waS-Mt?^ Section 16. In a conveyance of real estate the words "warranty
i9i2"502*§ 16 covenants" shall have the full force, meaning and effect of the following
words: "The grantor, for himself, his heirs, executors, administrators
and successors, covenants with the grantee, his heirs, successors and
assigns, that he is lawfully seized in fee simple of the granted premises;
that they are free from all encumbrances; that he has good right to sell
and convey the same, and that he will, and his heirs, executors, adminis-
trators and successors shall, warrant and defend the same to the grantee
and his heirs, successors and assigns forever against the lawful claims
and demands of all persons".
1
2
3
4
5
6
7
8
9
10
Meaning of
" quitclaim
covenants" (
*' limited
covenants."
1912, 502, §
Section 17. In a convej'ance of real estate the words "quitclaim 1
covenants" or the words "limited covenants" shall have the full force, 2
meaning and effect of the following words: "The grantor, for himself, 3
his heirs, executors, administrators and successors, covenants with the 4
grantee, his heirs, successors and assigns, that the granted premises 5
are free from all encumbrances made by the grantor, and that he will, 6
and his heirs, executors, administrators and successors shall, warrant 7
and defend the same to the grantee and his heirs, successors and assigns 8
forever against the lawful claims and demands of all persons claiming 9
by, through or under the grantor, but against none other". 10
Statutory form
of mortgage.
1912, 502, § 6.
1913, 369.
Section 18. A deed in substance following the form entitled "Mort- 1
gage Deed" shall when duly executed have the force and effect of a 2
mortgage deed to the use of the mortgagee and his heirs and assigns 3
with mortgage covenants and upon the statutory condition and with 4
the statutory power of sale, as defined in the tliree following sections, to 5
secure the paj-ment of the money or the performance of any obligation G
therein specified. The parties may insert in such mortgage any other 7
lawful agreement or condition. 8
Meaning of
" mortgage
covenants."
1912, 502, § IS.
Section 19. In a conveyance of real estate the words "mortgage 1
co\'enants" shall have the full force, meaning and effect of the following 2
words, and shall be applied and construed accordingly: "The mort- 3
gagor, for himself, his heirs, executors, administrators and successors, 4
covenants with the mortgagee and his heirs, successors and assigns, that 5
he is lawfully seized in fee simple of the granted premises; that they 6
are free from all encumbrances; that the mortgagor has good right to 7
sell and convey the same; and that he will, and his heirs, executors, 8
administrators and successors shall, warrant and defend the same to 9
the mortgagee and his heirs, successors and assigns forever against the 10
lawful claims and demands of all persons; and that the mortgagor and 11
Ch.^P. 183.] ALIENATION OF LAND. 2085
12 his heirs, successors or assigns, in case a sale shall be made under the
1.3 power of sale, will, upon request, execute, acknowledge and deliver to
14 the purchaser or purchasers a deed or deeds of release confirming such
15 sale; and that the mortgagee and his heirs, executors, administrators,
16 successors and assigns are appointed and constituted the attorney or
17 attorneys irrevocable of the said mortgagor to execute and deli\er to
18 the said purchaser a full transfer of all policies of insurance on the build-
19 ings upon the land covered by the mortgage at the time of such sale".
1 Section 20. The following "condition" shall be known as the statutory
2 "Statutory Condition", and may be incorporated in any mortgage by mortgage'"
3 reference: llli; ig^! ^ ^'^
(condition.)
4 Provided, nevertheless, except as otherwise specifically stated in the
5 mortgage, that if the mortgagor, or his heirs, executors, administrators,
6 successors or assigns shall pay unto the mortgagee or his executors,
7 administrators or assigns the principal and interest secured by the
8 mortgage, and shall perform any obligation seciu-ed at the time provided
9 in the note, mortgage or other instrument or any extension thereof,
10 and shall perform the condition of any prior mortgage, and until such
11 payment and performance shall pay when due and payable all taxes,
12 charges and assessments to whomsoever and whenever laid or assessed,
13 whether on the mortgaged premises or on any interest therein or on
14 the debt or obligation secured thereby; shall keep the buildings on
15 said premises insured against fire in a sum not less than the amount
16 secured by the mortgage or as otherwise provided therein for insiu-ance
17 for the benefit of the mortgagee and his executors, administrators and
18 assigns, in such form and at such insurance offices as they shall approve,
19 and, at least two days before the expiration of any policy on said
20 premises, shall deliver to him or them a new and sufficient policy to
21 take the place of the one so expiring, and shall not commit or suffer
22 any strip or waste of the mortgaged premises or any breach of any -
23 covenant contained in the mortgage or in any prior mortgage, then the
24 mortgage deed, as also the mortgage note or notes, shall be void.
1 Section 21. The following "power" shall be known as the "Stat- statutoir
. , powpr ot sulo
2 utory Power of Sale", and may be incorporated in anv mortgage by in mortgage.
3 reference: i9i3,369.
(power.)
4 But upon any default in the performance or observance of the fore-
5 going or other condition, the mortgagee or his executors, administrators,
6 successors or assigns may sell the mortgaged premises or such portion
7 thereof as may remain subject to the mortgage in case of any partial
8 release thereof, either as a whole or in parcels, together with all improve-
9 ments that may be thereon, by public auction on or near the premises,
10 or at such place as may be designated for that purpose in the mortgage,
11 first complying with the terms of the mortgage and with the statutes
12 relating to the foreclosure of mortgages by the exercise of a power of sale,
13 and may convey the same by proper deed or deeds to the purchaser or
14 purchasers absolutely and in fee simple; and such sale shall forever bar
15 the mortgagor and all persons claiming under him from all right and
10 interest in the mortgaged premises, whether at law or in equity.
2086
ALIENATION OF LAND.
[Ch.\p. 183.
Statutory form
of co-operative
bank mortgage.
1913, 369.
Section 22. A co-operative bank mortgage follo-ning in substance 1
the form entitled "Co-operative Bank Mortgage" shall when duly exe- 2
cuted have the force and effect of a mortgage deed to the use of the .3
mortgagee and its successors and assigns, with mortgage covenants and 4
upon the statutory co-operative bank mortgage condition and with the 5
statutory co-operati\'e bank power of sale, as defined in the two follow- 6
ing sections, to secure the payment of the money or the performance of 7
any obligation therein specified. If any buildings on the mortgaged 8
premises shall be wholly or partly destroyed by a fire in respect to which 9
the company or companies insuring the same shall deny liability to the 10
insured, the mortgagee may at its option forfeit said shares, and, after 11
applying the withdrawal value thereof to the payment of said loan, in- 12
terest and fines, may assign the mortgage with the note and debt thereby 13
secured to such company or companies upon payment by it or them of l-t
the balance then owing to the mortgagee on account of said loan; where- 15
upon said note and mortgage shall forthwith become a note and mortgage 16
payable on demand with interest at the rate set forth in said mortgage, 17
payable semi-annually, the first payment of such interest to become due 18
SLK months after the date of such assignment. 19
The parties may insert in such co-operative bank mortgage any lawful 20
agreement or condition. 21
statutory
co-operative
bank mortgage
condition.
1913, 3li9.
Section 23. The following "co-operative bank mortgage condition" 1
shall be known as the "Statutory Co-operative Bank Mortgage Condi- 2
tion ", and may be incorporated in any co-operative bank mortgage by 3
reference : 4
(co-operative bank mortgage condition.)
Provided, nevertheless, that if the mortgagor or his heirs, executors, 5
administrators, successors or assigns shall pay unto the said mortgagee, 6
its successors or assigns, at its place of business, the monthly dues, 7
interest and premium, if any, together with all fines on payments in 8
arrears, montlily at or before the stated meetings of said bank, luitil 9
said shares shall reach their matured value, or, if the mortgagor or his 10
heirs, executors, administrators or assigns shall otherwise sooner pay 11
said loan unto the said mortgagee, its successors or assigns, together 12
with the said interest and fines to the time of the next stated montlily 13
meeting after such payment, and shall pay when due all taxes and as- l-l
sessments levied or assessed on the mortgaged premises, and all taxes 15
which the said mortgagee may be required to pay as holder of this 16
mortgage, shall keep the buildings thereon insured against fire in a 17
sum satisfactory to and for the benefit of the said mortgagee, its sue- 18
cessors or assigns, at such insurance office and by such insm-ance com- 19
pany as it or they shall approve, or, in default thereof, shall on demand 20
pay to the said mortgagee, its successors or assigns all such sums as it 21
shall reasonably pay for such taxes, assessments and insurance, with 22
interest, and shall not commit or suffer any strip or waste of the mort- 23
gaged premises, or any breach of any covenant herein contained or in 24
any prior mortgage, then the mortgage deed, as also the mortgage note, 25
shall be void. 26
c^opeSve Section 24. The following "co-operative bank power" shall be 1
bank power kuown as the "Statutory Co-operative Bank Power of Sale", and may 2
1913,309. be incorporated in any mortgage by reference: 3
ClL\P. 183.] ALIENATION OF L.\ND. 2087
(co-operative bank power.)
4 But in case of non-payment of the aforesaid monthly dues, interest or
5 fines and premiums, if any, for more than four months after any payment
6 thereof shall be due, or upon any other default in the performance or
7 observance of the foregoing or other condition, the mortgagee or its suc-
8 cessors or assigns may sell the mortgaged premises or such portion thereof
9 as may remain subject to the mortgage in case of any partial release
10 thereof, either as a whole or in parcels, together with all improvements
11 that may be thereon, by public auction on or near the premises, or at
12 such place as may be designated for that purpose in the mortgage, first
13 complying with the terms of the mortgage and with the statutes relating
14 to the foreclosure of mortgages by the exercise of a power of sale, and
15 may convey the same by proper deed or deeds to the purchaser or pur-
16 chasers absolutely and in fee simple; and such sale shall forever bar
17 the mortgagor and all persons claiming under him from all right and
18 interest in the mortgaged premises, whether at law or in equity.
1 Section 25. The holder of a mortgage of real estate, or any person HoWer of
2 acting in his behalf, may purchase at a foreclosure sale unless the con- puTchaJfat"^
3 trary is stated in the mortgage. 1912. 502, § 22. foreclosure sale.
1 Section 26. Until default in the performance or observance of the Mortgagor
2 condition of a mortgage of real estate, the mortgagor and his heirs and pSsseiion
3 assigns may hold and enjoy the mortgaged premises and receive the i9i2,'502"§*'23.
4 rents and profits thereof, unless otherwise stated in the mortgage.
1 Section 27. The holder of a mortgage of real estate, or his representa- Disposition of
2 tives, out of the money arising from a sale under the power of sale shall FoTeXsurf sale.
3 be entitled to retain all sums then secured by the mortgage, whether 1912. 502, § 24.
4 then or thereafter payable, including all costs, charges or expenses in-
5 curred or sustained by him or them by reason of any default in the per-
6 formance or observance of the condition of the mortgage or of any prior
7 mortgage, rendering the surplus, if any, to the mortgagor, or his heirs,
8 successors or assigns, unless otherwise stated in the mortgage. No person
9 other than the holder of the mortgage shall be bound to see to the ap-
10 plication of the money arising from such sale.
nment of
tgap:e.
1 Section 28. In an assignment of a mortgage of real estate the word ^,ojfj[
2 "assign" shall be a sufficient word to transfer the mortgage, without 1912. S02, § 20.
3 the words "transfer and set over".
acknowledgment and recording of deeds.
1 Section 29. No deed shall be recorded unless a certificate of its Aoknowiedg-
2 acknowledgment or of the proof of its due execution, made as herein- brforo°rccord.
3 after provided, is endorsed upon or annexed to it, and such certificate ilioV.lt.lt.
4 shall be recorded at length with the deed to which it relates; but this r*|'|9;|22
5 section shall not apply to conveyances from the United States. t-gpl 8|'^s 28.
p. S. 120, §5. 4 Mass. 541. 22 Pick. 85. 2 Cush. 494.
It. L. 127, § 7. 10 Pick. 72. 23 Pick. SO. 215 Mass. 150.
1 Section 30. The acknowledgment of a deed or other written in- Acknowiedg-
2 strument reciuired to be acknowledged shall be by one or more of the made.''""
3 grantors or by the attorney executing it. The officer before whom the JUg; ?25,S'*i.
2088
ALIENATION OF L.VND.
[Chap. 183.
R. S. 59.
§§ 12. 1.-?. 22.
1856, 253, § 1.
14 Allen, 109.
13 Pick. 523.
11 Cush. 147.
208 Mass. 236.
acknowledgment is made shall endorse upon or annex to the instrument
a certificate thereof. Such acknowledgment may be made —
i 3, 4, 6.
G.S. 89. §§ IS. 19. 28.
1867. 250. § 1.
1875. 142.
P. S. 120. § 6.
1894. 253.
1895. 460.
R. L. 127. §§ 8. 19. 22.
1902. 289.
9 Grav. 56.
165 Mass. 359.
( a) If within the commonwealth, before a justice of the peace, notary 6
public or special commissioner. 7
(b) If without the commonwealth, in any state, territory, district or 8
dependency of the United States, before a justice of the peace, notary 9
public, magistrate or commissioner appointed therefor by the governor 10
of this commonwealth, or, if a certificate of authority in the form pre- 11
scribed by section thirty-three is attached thereto, before any other 12
officer therein authorized to take acknowledgments of deeds. 13
(c) If without the United States or any dependency thereof, before 14
a justice of the peace, notary, magistrate or commissioner as above pro- 15
vided, or before an ambassador, minister, consul, vice consul, charge 16
d'afTaires or consular ofBcer or agent of the United States accredited 17
to the comitry where the acknowledgment is made; if made before an 18
ambassador or other official of the United States, it shall be certified 19
by him under his seal of office. 20
Acknowledg-
ment by
married
woman.
1894,253. § 2.
Section 31. The acknowledgment by a married woman may be taken 1
in the same form as if she M'ere sole, and without any examination sepa- 2
rate and apart from her husband. R. l. 127, 1 9. 3
Acknowledg-
ment of
powers of
attorney to
convey real
estate.
Section 32. The law relative to the acknowledgment and recording 1
of deeds shall apply to letters of attorney for the conveyance of real 2
estate. is49, 205. o. s. S9, § 29. 3
1879. 86. p. S. 120, § 14. R. L. 127. § 17. 22 Pick. 85.
Certificate of
authority of
officer.
1S94. 253. § 4.
R. L. 127, § 20.
Section 33. Whenever, under clause {b) of section thirty or under 1
section forty-one, a certificate of authority is required to be attached, 2
there shall be subjoined or attached to the certificate of proof or ac- 3
knowledgment a certificate of the secretary of state of the state where 4
the officer taking the acknowledgment resides, under the seal of such 5
state, or a certificate of the clerk of a court of record of such state in 6
the county where said officer resides or where he took such proof or 7
acknowledgment, under the seal of the court, stating that said officer 8
was, at the time of taking such proof or acknowledgment, duly author- 9
ized thereto in said state, and that said secretary of state or clerk of 10
court is well acquainted with his hand^Titing and verily believes the 11
signature affixed to such certificate of proof or acknowledgment is genuine. 12
Proof of
execution if
grantor is dead
or non-resident.
1697,21. 4 2.
178.3, 37, § 4.
R. S. 59, § 14.
Section 34. If the grantor dies or removes from the commonwealth
without having acknowledged his deed, the due execution thereof may be
proved before any court of record in this commonwealth by the testi-
mony of a subscribing witness thereto. g. s. s9, § 20. p. s. 120. § 7.
R.L. 127, §10. 1 Mass. 58. 174 Mass. 292. 185 Mass. 107.
Section 35. If all the subscribing witnesses to the deed are also
Proof if wit-
nesses are dead
°^J'y°°g''«'^''«"*- dead or out of the commonwealth, the due execution thereof may be
RS.M, |i5. proved before such court by proving the handwriting of the grantor
p.s.'i26.§"'8.' and of a subscribing witness.
R. L. 127, § 11. S Met. 355. 174 Mass. 292. 1S5 Mass. 107.
Chap. 183.] alienation of l.\nd. 2089
1 Section 36. If a grantor refuses to acknowledge his deed, the Proof if
2 grantee or any person who claims luider him may apply to a court of to'ack'nowkdge-
3 record in the county where the land lies or where the grantor or a sub- fgjf, |i' 1 1;
4 scribing witness to the deed resides, and such court shall thereupon ^'^^J'lJ' ^ ^■
5 issue a summons to the grantor to appear at a certain time and place plK^-
6 to hear the testimony of the subscribing witnesses. Such summons, §'§22,23.
7 with a copy of the deed annexed, shall be served seven days at least r'. l. i'27, § i2.
8 before the time therein assigned for proving the deed, and at such hear-
9 ing its due execution may be proved by the testimony of one or more
10 of the subscribing witnesses.
1 Section 37. If a grantor refuses to acknowledge his deed and the Proof if
2 subscribing witnesses thereto are all dead or out of the commonwealth, foreknowledge
3 its execution may be proved before any court of record in this common- aJ'^deadof'^
4 wealth by proving the handwriting of the grantor and of a subscribing R°g'^|9'^!°ij
5 witness, the court first summoning the grantor for the purpose and in p|f?A^-^*A
6 the manner provided in the preceding section. R. l. 127, § 13.
1 Section 38. A person interested in a deed which has not been Copy of deed
2 acknowledged may, before or during proceedings before a court for ?dge'd may be
3 proof of its execution, file in the proper registry of deeds a copy thereof, of^deeds^^^^'^''^
4 compared with the original by the register; and the filing of such copy legV.li', I3
5 shall for thirty days thereafter have the same efYect as the recording r*|'|J'^^-
6 of the deed, if the deed is within that time duly proved and recorded; pi^-^o-
7 or if, at the expiration of said thirty days, such proceedings are pending, §§ 25, 26.
8 the eft'ect of filing such copy shall continue until the expiration of seven r.l. r27, § li.
9 days after the termination of such proceedings.
1 Section 39. The execution of a deed shall not be proved in the Unwitnessed
2 manner before provided unless it has at least one subscribing witness. brsoprmld.
R. S. 59, § 21. G. S. 89, § 27. P. S. 120, § 12. R. L. 127, § 15.
1 Section 40. A certificate of proof of the execution of a deed shall Endorsement
^ ^ ot certificate
2 be endorsed upon it or annexed thereto by the clerk or register of the ?7Po°Sl-
3 court or by the judge before whom such proof is made, and the certificate R- s.'sg,'
4 shall state whether the grantor was present at the hearing.
G. S. 89, §§ 23, 28. P. S. 120, § 13. R. L. 127, § 16. 185 Mass. 107.
1 Section 41. The proof of a deed or other instrument, if made with- Proof of deed
2 out the commonwealth in some state, territory, district or dependency of commonwealth.
3 the United States, may be made before any of the persons enumerated in gf"3,'4.^6.'
4 clause (6) of section thirty; provided, however, that a certificate of au- f5 5'9/|J;22
5 thority as provided in section thirty-three shall be attached thereto; if
6 withovit the United States or any dependency thereof, such proof may
7 be made before any of the persons enumerated in clause (c) of said section
8 thirty.
1 Section 42. The forms set forth in the appendix to this chapter for Forms of
2 taking acknowledgments to deeds and other instruments and for certi- ment? et?. ^'
3 fying the authority of officers taking proofs or acknowledgments may §u*,'|.^^'
4 be used; but this shall not prevent the use of any other forms heretofore jf^L'to'?'
5 lawfully used. §§ is,2'i,'2.3.
2090
ALIENATION OF LAND.
[CtL^P. 1S3.
Final decree
in equity to
vest title if
deed, etc.. is
not executed
as directed.
1910. 376. § 1.
216 Mass. 420,
500.
TITLE BY DECREE OF COURT.
Section 4.3. Wlienever a final decree in equity shall be made by the 1
supreme judicial or superior court directing that a deed, conveyance or 2
release of any real estate or interest therein shall be made, and the party 3
directed to make such deed, con\-eyance or release does not duly execute 4
it within the time specified in the decree, the decree itself shall operate 5
to vest title to the real estate or interest in the party entitled thereto by 6
the decree as fully and completely as if such deed, conveyance or release 7
had duly been executed by the party directed to make it. 8
Recording of
certified copy
of decree to
have same
effect as
recorded deed,
etc.
1910. 370,
§§2,3.
Section 44. The recording or registration of a duly certified copy of 1
such decree, attested by the clerk or assistant clerk of the court where 2
made, in the registry of deeds of the district where said real estate is 3
situated, shall ha\'e the same force and effect as if a duly executed deed, 4
conveyance or release had so been recorded or registered. 5
barring of estates tail.
Tenant in tail
may convey in
fee simple.
1791.60, § 1.
R. S. 59, 5 3.
G. S. 89, I 4.
P. S. 120, § 1.5.
Section 45. A person seized of land as tenant in tail may convey
such land in fee simple by a deed in common form, as if he were seized
thereof in fee simple; and such conveyance shall bar the estate tail and
all remainders and reversions e.xpectant thereon.
R. L. 127, § 24.
9 Mass. 161.
15 Pick. 104.
10 Met. 366,
3 Gray, 162.
5 Gray, 523.
4 Allen, 400.
99 Mass. 364.
102 Mass. 202.
138 Mass. 376.
147 Mass. 17.
158 Mass. 74.
1.59 Mass. 424.
212 U. S. 208.
Life tenant
and remainder-
man in tail
may convey in
fee simple.
1804, 59.
R. S. 59. §4.
G. S. 89, § 5.
P. S. 120. § 16.
R. L. 127, § 25.
147 Mass. 17.
Section 46. If land is held by one person for life with a vested re-
mainder in tail in another, the tenant for life and the remainderman may
convey such land in fee simple by their deed or deeds in common form, as
if the remainder had been limited in fee simple; and such deed or deeds
shall bar the estate tail and all remainders and reversions expectant
thereon.
S'lStabiels- Section 47. Equitable estates tail, in possession or remainder, and 1
1I5T *i4'§ 1 ^'1 remainders and reversions expectant thereon, may be barred in the 2
§f ?oA^<:'';, same manner as legal estates tail and the remainders and reversions 3
Jr. O. IJU, s 17. ^
R. L. 127, § 26. expectant thereon. 4
Trustee may
be required to
convey legal
estate.
1851. 14, § 2.
G. S. 89. § 7.
P. S. 120, § IS.
Section 4S. The person to whom an equitable fee simple is conveyed
pursuant to the preceding section shall, upon request therefor, be en-
titled to a con\-eyance of the outstanding legal estate from the person in
whom such legal estate is then or thereafter vested in trust.
R. L. 127, § 27.
Probate court
may appoint
trustees to
convey or
mortgage.
1868. 287.
§51,2.
1869,331.
1871,322,
5§ 1-3.
1873, 280, 5 2.
P. S. 120. § 19.
1895, 183, § 1.
conveyance of estates subject to rem.\inder, etc.
Section 49. If land is subject to a vested or contingent remainder,
executory devise or power of appointment, the probate court for the
county where such land is situated may, upon the petition of any
person having an estate or interest therein, either present or future,
vested or contingent, and after notice and other proceedings as herein-
after required, appoint one or more trustees and authorize him or them
to sell and convey such land or any part thereof in fee simple, if such
Chap. 183.] alienation of land. 2091
8 sale and conveyance appears to the court to be necessary or expedient, jf^/'J??'
9 or to mortgage the same for such an amount, on such terms and for such §§28.29.'
10 purposes as may seem to the court judicious or expedient; and such ihr'.soe.
1 1 con^•eyance or mortgage shall be valid and binding upon all parties. 122'Mass. 243.
123 Mass. 280. 233 Mass. 547.
1 Section 50. Notice of a petition under the preceding section shall ^p°po^nt'm^nt
2 be given in such manner as the court may order to all persons who are of guardian
1 1 • 1 • 1 1 1 1 • 1 1 ■ ■ '"* litem or
3 or who mav become mterested m the land to which the petition relates, ne='t friend.
1868 287 § 2
4 and to all persons whose issue, not in being, may become interested i87i! 322! § 2.
5 therein; and the court shall of its own motion in every case appoint a 189.5. Tss. § 2 '
6 suitable person to appear and act therein as the next friend of all minors, fgu. soe,' 1 3°'
7 persons not ascertained, and persons not in being, who are or may be- "^^ ^'^^^- ^^*-
8 come interested in such land; and provisions of sections thirty-four and
9 thirty-five of chapter two hundred and one consistent herewith shall
10 apply in the case of such appointment.
1 Section 51. A trustee appointed under section forty-nine shall give Trustee to
2 bond in such form and for such amount as the court appointing him hold orappt"'^
3 may order, and he shall receive and hold, invest or apply the proceeds saTe"r''^°'
4 of any sale or mortgage made by him for the benefit of the persons who J^eg^Sff
5 would have been entitled to the land if such sale or mortgage had f |,V \' , ,
/>! Till (• 1 lo71, OZZ, § 1.
b not been made, and the probate court 01 any county where any part p s. 120. § 21.
7 of such land is situated shall have jurisdiction of all matters thereafter R. l! 127', § 31.
8 arising relative to such trust. i9i7, 306, § 4. 233 Mass. 547.
1 Section 52. If land is charged with the payment of money, either Saie of land
2 in fixed amounts or in annuities for a life or lives or for years, the supreme oLrges for
3 judicial court for the county where any part of such land is situated annuiti"el.°itc.
4 may upon the petition of the persons holding title thereto subject to the l^'^f.'j.^^"
5 charge of such payment, and after notice and a hearing, authorize them ^- ^ ^2^7 V32
6 to sell and convey by private sale or pubhc auction the whole or any
7 portion of such land in fee simple and free from such charges, whether
8 present or future, certain or contingent; and it shall in such case provide
9 by its decree for the payment of the amounts charged upon such land by
10 placing the whole or any portion of the proceeds of the sale thereof in
11 the hands of a trustee appointed by it, by the purchase of annuities for
12 the persons entitled to receive the amounts so charged, or by any other
13 means which shall be considered just and reasonable. Such trustees
14 .shall give bond in such sum as the court may order, shall, under the
15 direction of the court, manage and account for the trust fund and shall
IG distribute the income thereof according to its decree.
instruments of defeasance.
Effect of
nrecorded
1 Section 53. If a deed purports to contain an absolute conveyance of J
2 land, but is made defeasible by a deed, bond or other instrument, the instruments
..,,,,,, 1 I I «. 1 • 1 of defeasance.
.3 original deed shall not be therebv affected, as against anv person other 1802. 33.
4 than the maker of the instrument of defeasance and his heirs and dev- g! s! 89! | is!
5 isees and persons having actual notice of it, unless such instrument is r. l. r27, §'33.
6 recorded in the registry of deeds for the county or district where the f pick! 15?;
7 land to which it relates is situated.
12 Met. 157. 6 Gush. 170. 130 Mass. 50.
2 Gush. 494. 5 Gray, 505. 145 Mass. 389.
2092
ALIENATION OF LAND.
[Ch.\p. 183.
Discharge on
margin of
record or by
separate in-
strument, etc.
1697,21. § 4.
1783, 37, I 6.
R. S. 69, § 33.
G. S. 89, § 30.
1870, 171.
P. S. 120,
§§ 24, 26.
R. L. 127. I 34.
1907, 294.
1908, 149.
15 Gray, 461.
8 Allen, 165.
134 Mass. 680.
226 Mass. 682.
231 Mass. 270.
235 Mass. 14.
DISCHARGE OF MORTGAGES.
Section 54. A mortgage may be discharged by an entry acknowl- 1
edging satisfaction thereof, made on the margin of the record of the 2
mortgage in the segistry of deeds and signed by the mortgagee, his 3
executor, administrator, successor or assignee, and his signature wit- 4
nessed by the register of deeds or by the assistant register of deeds, or 5
by some person employed in the registry of deeds designated by the 6
register for that purpose by a writing which shall be recorded in said 7
registry; and such entry shall have the same effect as a deed of release 8
duly acknowledged and recorded. One of two or more joint holders of 9
a mortgage may so discharge it or he may discharge it by a deed of 10
release duly acknowledged and recorded. A mortgage may also be 11
discharged by a written acknowledgment of payment or satisfaction 12
of the debt thereby secured, or of the conditions therein contained, 13
signed and sealed by the mortgagee, his executor, administrator, sue- 14
cessor or assignee. Such instrument shall have the same effect as a 15
deed of release, shall be valid if executed by one of two or more 16
joint holders of a mortgage and may be recorded when duly acknowl- 17
edged or on proof of its execution in accordance with sections thirty- 18
four to forty-one, inclusive. 19
Mortg.agee
liable for
refusing to
discharge.
1697,21, §4.
1783,37, § 6.
R. S. 59, § 34.
G.S. 89, § 31.
P. S. 120, § 25.
R. L. 127, § 35.
225 Mass. 75.
Section 55. If a mortgagee, his executor, administrator, successor
or assignee, after full performance of the condition of his mortgage,
whether before or after breach of such condition, refuses or neglects for
seven days after request therefor and after a tender of his reasonable
charges, to make such discharge or to execute and acknowledge a deed
of release of the mortgage, he shall be liable in tort for all damages
caused by such neglect or refusal.
Appendix.
statutory forms of instruments relating to real estate.
(1) Warranhj Deed.
(being unmarried), for
with warranty
1912, 502, § 2. of , County,
consideration paid, grant to of
covenants the land in
(description and encumbrances, if any)
wife of said grantor, release to said grantee all rights of
dower and homestead and other interests therein.
Witness hand and seal this daj' of
(Seal.)
(Here add acknowledgment.)
1912, 502, § 3.
of
(2) Quitclaim Deed.
County,
(being unmarried),
with quitclaim
for consideration paid, grant to of
covenants the land in
(description and encumbrances, if any)
wife of said grantor, release to said grantee all rights of
dower and homestead and other interests therein.
Witness hand and seal this day of
(Seal.)
(Here add acknowledgment.)
Ch.\P. 183.] ALIENATION OF L.USTD. 2093
(3) Deed of Executor, Administrator, Trustee, Guardian, Conservator, Receiver
or Commissioner.
executor of the will of administrator of the estate I9i2, 502
of trustee under guardian of conserva-
tor of receiver of the estate of conunissioner
by the power conferred by , and every other power, for
dollars paid, grant to the land in
(description)
Witness hand and seal this day of
(Here add acknowledgment.)
(Seal.)
(•1) Release.
of , County, for consideration paid, re- I9i2, 502, § 5.
lease to of the land in
(description)
wife of said release to said all
rights of dower and homestead and other interests therein.
Witness hand and seal this day of
(Seal.)
(Here add acknowledgment.)
(5) Mortgage Deed.
of , County, for consideration paid, grant i9i2. 5(12, § 6.
to of with mortgage covenants, to secure the pay-
ment of dollars in years with per cent
interest per annum, payable semi-annually, as provided in note of
even date, the land in
(description and encumbrances, if any)
This mortgage is upon the statutory condition, for any breach of which the mort-
gagee shall have the statutory power of sale.
wife of said mortgagor, release to the mortgagee all
rights of dower and homestead and other interests in the mortgaged premises.
Witness hand and seal this day of
(Seal.)
(Here add acknowledgment.)
(6) Co-operative Bank Mortgage.
of , County, Massachusetts (being unmarried), for con.sidera- 1913, 369.
tion paid, grant to Co-operative Bank, situated in County,
Massachusetts, with mortgage covenants, to secure the payment of
dollars, and interest and fines as provided in note of
even date, the land in (description and encumbrances, if any) .
hereby transfer and pledge to the said mortgagee
shares in the series of its capital stock as collateral security for the per-
formance of the conditions of this mortgage, and said note upon
which shares said sum of dollars has been advanced to
by the mortgagee. The monthly pajTnents under this mortgage are
dollars. In the event of an assignment of this mortgage, interest on the unpaid
balance of the principal shall be at the rate of per cent per annum.
This mortgage is upon the statutory co-operative bank mortgage condition, for
any breach of which the mortgagee shall have the statutory co-operative bank
power of sale.
I, , wife of said mortgagor, release to the mortgagee all rights of dower
and homestead and other interests in the mortgaged premises.
Witness hand and seal this day of
(Seal.)
(Here add acknowledgment.)
2094 ALIENATION OF L.\ND. [ChAP. 183.
(7) Extension of Mortgage.
1912, 502, § 7. holder of a mortgage by to dated re-
corded with Deeds, book , page ,
and owner of the equity of redemption of the mortgaged premises,
agree each for sel , heirs, representatives and assigns,
that the time provided in said mortgage for pajTnent of the principal sum now
secured thereby, namely dollars, is hereby extended to ,
and the rate of interest hereafter shall be per cent per annum, and
said owner agrees to perform and obser\'e the condition and covenants of said
mortgage as so extended, and to pay the principal and interest secured thereby
W'hen due hereunder.
Witness hand and seal this dav of
(Seal.)
(Here add acknowledgment.)
(8) Partial Release of Mortgage.
1912,502, §8. the holder of a mortgage by to dated re-
corded with Deeds, book , page , for con-
sideration paid, release to all interest acquired under said mortgage
in the following described portion of the mortgaged premises:
(description)
Witness hand and seal this day of
(Here add acknowledgment.)
(9) Assignment of Mortgage.
(Seal.)
1912, 502, §9. holder of a mortgage from to dated re-
corded with Deeds, book , page , assign
said mortgage and the note and claim secured thereby to
Witness hand and seal this daj' of
(Here add acknowledgment )
(10) Discharge of Mortgage.
(Seal.)
1912, 502, § 10. holder of a mortgage from to dated
corded with Deeds, book , page
acknowledge satisfaction of the same.
Witness hand and seal this day of
(Here add acknowledgment.)
(11) Foreclosure Deed under Power of Sale in Mortgage.
(Seal.)
1912, 502, § 11. holder of a mortgage from to dated re-
corded with Deeds, book , page , by the
power conferred by said mortgage and everj^ other power, for dol-
lars paid, grant to the premises conveyed by said mortgage.
Witness hand and seal this day of
(Seal.)
(Here add acknowledgment.)
(12) Affidavit of Sale wider Poicer of Sale in Mortgage.
named in the foregoing deed, make oath and say that
1912, 502, § 12. the principal interest obligation men-
tioned in the mortgage above referred to was not paid or tendered or performed
when due or prior to the sale, and that I published on the day of
Chap. 183.] alienation of l.and. 2095
19 , in the , a newspaper published or by its title
page purporting to be published in aforesaid and having a circula-
tion therein, a notice of which the following is a true copy:
(Insert advertisement.)
Pursuant to said notice at the time and place therein appointed, I sold the
mortgaged premises at public auction by , an auc-
tioneer, to , above named, for dollars, bid by him,
being the highest bid made therefor at said auction.
Sworn to by the said 19 , before me
FORMS OF ACKNOWLEDGMENTS, ETC.
(13) Acknowledgment of Individual acting in his Own Right.
(Caption specifying the state and place where the acknowledgment is taken.)
On this day of 19 , before me personally appeared ^^^' ^^y' | \g
A B (or A B and C D), to me known to be the person (or persons) described in ' ' " '
and who executed the foregoing instrument, and acknowledged that he (or thej')
executed the same as his (or their) free act and deed.
(Signature and title of officer taking acknowledgment. Seal, if required.)
(14) Acknowledgment of Individual acting by Attorney.
(Caption specifying the state and place where the acknowledgment is taken.)
On this day of 19 , before me personally appeared ^^f- ^53. 1 1.
A B, to me known to be the person who executed the foregoing in.strument in •■-'•»
behalf of C D, and acknowledged that he executed the same as the free act and
deed of said C D.
(Signature and title of officer taking acknowledgment. Seal, if required.)
(15) Acknowledgment of a Corporation or Joint Stock Association.
(Caption specifying the state and place where the acknowledgment is taken.)
On this day of 19 , before me appeared A B, to me 1S94, 253, § 1.
personally known, who, being by me duly sworn (or affirmed), did say that he is ^- ^- ^-'^' ^ ^^■
the president (or other officer or agent of the corporation or association) of (de-
scribing the corporation or association) and that the seal affixed to said instru-
ment is the corporate seal of said corporation (or association), and that said
instrument was signed and sealed in behalf of said corporation (or association) by
authority of its board of directors (or trustees), and said A B acknowledged said
instrument to be the free act and deed of said corporation (or association) .
(Signature and title of officer taking acknowledgment. Seal, if required.)
[If the corporation or association has no corporate seal, the words " the seal affixed to said instrument
is the corporate seal of said corporation (or association), and that" shall lie omitted, and at the end of
the affidavit shall be added the words " and that said corporation (or association) has no corporate seal ".]
(16) Certificate of Authority of Officer taking Acknowledgment.
(Caption specifying the state, county or place where the authentication is made.)
I, , clerk of the in and for said county, which court is is94, 253, § 5.
a court of record having a seal (or, I, , the secretary of state of such K. L- i27, § 21.
state or territory), do hereby certify that , by and before whom the
foregoing acknowledgment (or proof) was taken, was, at the time of taking the
same, a notary public (or other officer) residing (or authorized to act) in said
county, and was duly authorized by the laws of said state (territory or district)
to take and certify acknowledgments or proofs of deeds of land in said state (ter-
ritory or district), and further that I am well acquainted with the handwriting of
said , and that I verily believe that the signature to said certificate
of acknowledgment (or proof) is genuine. In testimony whereof, I have hereunto
set my hand and affixed the seal of the said court (or state) this day
of , 19 .
(Signature and title of officer certifying. Seal.)
REFERENCE.
§ 30. Acknowledgment of deeds, etc., by persons in amiy and navj' during world
war, 1917, 342, §§ 14-16.
2096
GENERAL PROYISIOXS EEL-^TRE TO REAL PROPERTY. [Ch.VP. 184.
CHAPTER 184.
GENERAL PROVISIONS RELATIVE TO REAL PROPERTY.
Sect.
1. Aliens may take and convey real prop-
erty.
2. Contingent estates to be alienable.
Limitation of taking effect of contin-
gent remainders.
Estates tail liable for debts, etc.
Conveyances, etc., for life, w-ith re-
mainder to heirs.
Effect of words "die without issue,"
etc.
7. Conveyances and de\'ises to two or
more persons.
8. Conveyances to grantor and another
jointly.
9. Deed of tenant for Ufe or years.
10. Expectant estate not to be defeated by
act of owner of precedent estate, etc.
11. Effect of two preceding sections.
3.
6.
Sect.
12. Removal of fixtures by life tenant.
Conditional sales of fixtures.
Pro^-ision for sale of standing wood
during life estate, etc.
Proceedings affecting title to realty
binding on third parties, when.
16. Record of certificate of final disposition
of proceedings.
Judgments affecting land.
Forcible entry forbidden.
Entry for breach of condition.
Effect of descent or discontinuance.
Grantor to make encumbrances known
to grantee.
Grantor liable for damages in removing
apparent encumbrance.
Restrictions or conditions, etc., on real
property.
1.3.
14.
1.5.
23
Aliens may
take and
convey real
property.
1852, 29; 86.
Section 1. Aliens may take, hold, transmit and convey real prop- 1
erty, and no title to real property shall be invalid on account of the 2
alienage of a former owner. g. s. 90, § .ss. 3
p. S. 126, § 1. R. L. 134, § 1. 15 Pick. 345. 100 JIass. 527.
Contingent
estate-s to be
alienable.
R. S. 60. § 30.
G. S. 90. § 37.
P. S. 126, § 2.
R. L. 134. § 2.
7 Met. 363.
3 Gray, 398.
Section 2. If a contingent remainder, executorj'^ devise or other
estate in expectancy is so granted or limited to a person that in case of
his death before the happening of the contingency the estate would
descend to his heirs in fee simple, he may, before the happening of the
contingency, sell, assign or devise the land subject to the contingency.
S .\llen. 425.
12 .\!len. 345.
101 Mass. 336.
109 Mass. 513.
121 Mass. 198.
122 Mass. 535.
123 Ma.ss. 356.
126 Mass. 230.
132 Mass. 205.
139 Mass. 262.
150 Mass. 168.
161 Mass. 506.
1S2 Mass. 106.
200 Mass. 498.
Limitation of
tsking effect
of contingent
remainders.
1916, 108,
§5 1.2.
199 Mass. 552.
Section 3. A contingent remainder shall take effect, notwithstand- 1
ing any determination of the particular estate, in the same manner in 2
which it would have taken effect if it had been an executory devise or 3
a springing or shifting use, and shall, as well as such limitations, be 4
subject to the rule respecting remoteness known as the rule against per- 5
petuities, exclusive of any other supposed rule respecting limitations 6
to successive generations or double possibilities; but this section, ex- 7
cept so far as declaratory of existing law, shall apply only to instru- 8
ments executed on or after April sixth, nineteen hundred and sixteen, 9
and to wills and codicils revived or confirmed by a will or codicil exe- 10
cuted on or after said date. 11
Estates tail
liable for
debts, etc.
1791, 60, § 2.
R. S. 60, § 29.
G. S. 90, § 36.
P. S. 126, § 3.
R. L. 134, § 3.
1915, 23.
Section 4. Land held in fee tail, except an estate tail in remainder, 1
shall be liable for the debts of the tenant in tail, both in his lifetime 2
and after his decease, as if held in fee simple; and if taken on execution 3
or sold by executors, administrators, guardians or conservators, the 4
creditor or purchaser shall hold such land in fee simple. 5
4 Mas.s. 189. 3 Gray, 162.
Chap. 1S4.] general provisions relative to real property. 2097
1 Section 5. If land is granted or devised to a person and after his Conveyances,
2 death to his heirs in fee, however the grant or devise is expressed, an with remainder
3 estate for life only shall vest in such first taker, and a remainder in fee iVo.'r. 219.
4 simple in his heirs. i79i, eo, § 3. r. s. .59, § 9. g. s. sq, § 12.
p. S. 12fi. § 4. 7 Met. 169. 10 Gray, 568. 157 Mass. S2.
R. L. 134, § 4. 13 Met. 486. 99 Mass. 454. 103 Mass. 69.
9 Pick. 136. 4 Grav, 353. 131 Mass. 321. 214 Mass. 172.
I Met. 281. 12 Gray, 49. 149 Mass. 200.
1 Section 6. In a limitation of real or personal property by deed, will -ffe'^wUhour''
2 or other instrument in writing, executed after April thirtieth, eighteen '{"Igl' 273°'
.3 hundred and eighty-eight, the words "die without issue", or "die with- JV,^;,'^"*' lA
4 out leavmg issue , or have no issue , or die without heirs of the i»3 Mass. los.
5 body", or other words importing either a want or failure of issue of 201 Mass! 495!
6 any person in his lifetime or at the time of his death, or an indefinite °'
7 failure of his issue, shall, unless a contrary intention clearly appears
8 by the instrument creating such limitation, mean a want or failure of
9 issue in the lifetime or at the time of the death of such person, and not
10 an indefinite failure of his issue.
1 Section 7. A conveyance or devise of land to two or more persons Conveyances
2 or to husband and wife, except a mortgage or a devise or conveyance two ormore °
3 in trust, shall create an estate in common and not in joint tenancy, 1735° m. § 4.
4 unless it is expressed in such conveyance or devise that the grantees or f^ ^- ^^' ^^ ^°-
5 devisees shall take jointly, or as joint tenants, or in joint tenancy, or to ^'^ s. 89, §§ 13,
6 them and the survivor of them, or unless it manifestly appears from the Pj^i.^^^
7 tenor of the instrument that it was intended to create an estate in joint 1885, 237.
8 tenancy. R- L. 134, § e. 5 Mass. 521. 7 Mass. 131.
8 Mass. 274. 4 Gush. 111. 2 Allen, 115. 154 Mass. 537.
II Mass. 469. 5 Gush. 153. 13 Allen, 213. 158 Mass. 11.
16 Mass. 59. 6 Gray. 428. 108 Mass. 254. 182 Mass. 363.
16 Pick. 491. 8 Grav, 1.54. 110 Mass. 273, 396. 213 Mass. 50.
22 Pick. 656. 16 Gray, 308. 141 Mass. 219. 216 Mass. 405.
1 Section 8. Real estate, including any interest therein, may be conveyances
2 transferred by a person to himself jointly with another person in the inot'her'joiStb'.
3 same manner in which it might be transferred by him to another person. '^'*' ^^•
1 Section 9. A conveyance by a tenant for life or years which pur- Deed of tenant
2 ports to grant a greater estate than he possesses or can lawfully convey yrars." ""^
3 shall not work a forfeiture of his estate, but shall pass to the grantee all the q\ f; It', § t'.
4 estate which such tenant can lawfully convey. R. l. 134, § 7. ^- s- 126, § 7.
1 Section 10. No expectant estate shall be defeated or barred by an Expectant
2 alienation or other act of the owner of the precedent estate, nor by the be'de^fe°°ed by
3 destruction of such precedent estate by disseisin, forfeiture, surrender of precedent
4 or merger. R. s. 59, § 7. estate, etc.
G. S. 89, § 10. p. S. 126, § 8. R. L. 134, § 8. 171 Mass. 504.
1 Section 11. The two preceding sections shall not prevent the Effect of two
2 barring of estates tail in the manner provided in chapter one hundred ^eTt'ions!^
3 and eighty-three, nor an expectant estate from being defeated in a §! s! m. | ii.
4 manner provided for or authorized by the person creating such estate. ^- f; ^i^i I g
1 Section 12. Fixtures annexed to the freehold by a life tenant or by Removal ot
2 his assigns may be removed during the continuance of the life estate ufe'tenanf.
3 or within a reasonable time thereafter; and in determining what are p*s°'i26'§§ lo
4 fixtures, the common law rules prevailing between a landlord and a l}-, ,,, , ,„
* "^ R. J.. 134, 8 lU.
2098
GENERAL PROVISIONS RELAXm; TO REAL PROPERTY. [ChAP. 184.
tenant for years shall govern. This section shall not affect the right of 5
the owner of land to make a different provision by will or otherwise as 6
to the removal of fixtures, nor impair or affect the provisions of any 7
will or other instrument by which an estate for life in land is created 8
or limited. 9
Conditional
sales of
fixtures.
1912, 271.
1918, 257,
§ .382.
1919, 5.
1920, 2.
228 Mass. 205.
Section 1.3. No conditional sale of heating apparatus, plumbing 1
goods, ranges or other articles of personal property, which are after- 2
ward wrought into or attached to real estate, whether they are fixtures 3
at common law or not, shall be valid as against any mortgagee, pur- 4
chaser or grantee of such real estate, unless not later than ten days 5
after the delivery thereon of such personal property a notice such as is 6
herein prescribed is recorded in the registry of deeds for the county or 7
district where the real estate lies. The notice shall be signed by the 8
vendor or a person claiming under him and shall contain the names 9
of the contracting parties, the name of the record owner of the real 10
estate at the time of recording the notice, the fact that it is agreed that 11
title to such personal property shall remain in the vendor until the 12
purchase price is paid, the terms of payment and the amount of such 13
purchase price remaining unpaid, and descriptions, sufficiently accu- 14
rate for identification, of such real estate and the personal property 15
delivered or to be delivered thereon. If the sale is of several articles 16
for a lump sum greater than the \-alue of the personal property de- 17
livered or to be delivered on the real estate, the notice shall also state 18
such lump sum and such value. The notice shall be indexed under the 19
name of such record owner, and a release of title in any such article of 20
personal property may be recorded at any time. 21
Provision for
sale of standing
wood during
life estate, etc.
1818, 96.
R. S. 60, |§ 33-
37.
G.S. 90, §§39-
43.
1869, 249.
P. S. 126. § 12.
R. L. 134, § 11.
3 0p. A.G. 531.
Proceedings
affecting title
to realty bind-
ing on third
parties, when.
1877, 229,
§§ 1,3.
Section 14. If the supreme judicial court or the probate court for 1
the county where the land lies finds that wood or timber, standing on 2
land the use and improvement of which belongs, for life or otherwise, 3
to a person other than the owner of the fee therein, has ceased to im- 4
prove by growth, or ought for any cause to be cut, it may appoint a 5
trustee to sell and convey said wood or timber to be cut and carried 6
away within a time to be limited in the order of sale, to hold and invest 7
the proceeds thereof after paying therefrom the expenses of such sale, 8
to pay over the income, above the taxes and other expenses of the 9
trust, to the person entitled to such use and improvement M'hile his 10
right thereto continues, and thereafter to pay the principal of the fund 11
to the owner of such land. If wood or timber has been cut as aforesaid, 12
no more thereof shall be cut on such land by the person entitled to such 13
use and improvement without permission from said court. Such sale, if 14
authorized by a probate court, shall be made in the manner provided by 15
law for the sale of real property by guardians; and if such sale is au- 16
thorized by the supreme judicial court, the trustees shall give to such 17
person as the court shall designate a bond, for the use and benefit of the 18
persons interested in the proceeds of the sale, conditioned on the faith- 19
ful discharge of the trust; and the court may remove the trustee, and 20
appoint another in his stead. 21
Section 15. A writ of entry or other proceeding, either at law or in
equity, which affects the title to real property or the use and occupation
thereof or the buildings thereon, shall not have any effect except against
the parties thereto, their heirs and devisees and persons having actual
Chap. 18-i.] general provisions relatr^e to real property. 2099
5 notice thereof, until a memorandum containing the names of the parties p s.. 126, § 13.
C to such proceeding, the court in which it is pending, the date of the r. l. 134, § 12.
7 WTit or other commencement thereof, the name of the town where the ^^^ ^*^' ^*^"
8 real property liable to be affected thereby lies and a description of such
9 real property sufficiently accurate for identification is recorded in the
10 registry of deeds for the county or district wliere such real property
11 lies; but this section shall not apply to attachments, levies of execution
12 or proceedings in the probate courts.
1 Section 16. At any time after final judgment or a decree in favor of J^rtifica°i of
2 the defendant, or after the discontinuance, dismissal or other final dis- 6?''' disposition
^.., f, . i*c T ' T ^^ proceedings.
3 position, by consent of parties or otherwise, of a proceeding mentioned is??. 229 § 2.
4 in the preceding section, or in case of the non-entry of the writ, petition R. l. la-i, 5 ij.
5 or bill of complaint, the clerk of the court wherein such judgment, decree,
6 discontinuance, dismissal or other final disposition is recorded, or out
7 of which such writ issued or to which such petition or bill of complaint
8 was addressed, shall upon demand give a certificate of the fact of such
9 judgment, decree, discontinuance, dismissal, final disposal or non-entry,
10 and such certificate may be recorded in the registry in which the original
11 record mentioned in said section was made.
1 Section 17. A judgment or decree, at law or in equity, rendered affe^Sfgilnd.
2 after June eighth, eighteen hundred and ninety-two, affecting the title ^^^' ^|9- ^^
3 to real property, shall not have any effect except against the parties
4 thereto, their heirs and devisees and persons having actual notice thereof,
5 unless a certified copy of the record thereof has been recorded in the
6 registry of deeds for the county or district where the land lies, with a
7 memorandum of the town where the land lies and a description thereof
8 sufficiently accurate for identification if the record of the judgment or
9 decree does not give those particulars. If a notice of the pendency of
10 the action has been duly recorded in the registry of deeds, the record
11 of the judgment or decree may be made within sixty days after its
12 rendition, and the entry of an ordinary attachment of real property in
13 the registry of deeds shall be considered notice of the pendency of the
14 action.
1 Section 18. No person shall make an entry into land or tenements Forcible entry
2 except in cases where his entry is allowed by law, and in such cases he i7oo-i,''ii, § 1.
3 shall not enter by force, but in a peaceable manner.
1784, 8, § 1. G. S. 137, § 1. 5 Met. 343. 121 Mass. 309.
R. S. 104. § 1. P. S. 120, § 15. 4 Gush. 141. 170 Mass. 29.
1851, 233, § 76. R. L. 134, § 15. 1 Allen, 213.
1 Section 19. If real property has been conveyed by deed on a con- Entry for
2 dition therein expressed, which is not a mortgage, the grantor, his heirs condition.
3 and devisees upon breach of such condition may enter on the granted r.°l'. ^34, § ig.
4 premises in order to revest the title; and a certificate of such entry, j^ils.^*"'
5 made and sworn to before any officer duly qualified to administer oaths 59.^0' 2
6 by two competent witnesses and recorded within thirty days after such
7 entry in the registry of deeds for the county or district where the land
8 lies, or a duly certified copy of the record of such certificate, shall, after
9 the expiration of three years from such entry, be prima facie evidence
10 of such breach and entry. If a grantor, his heirs or devisees made
1 1 such entry and certificate and filed the certificate as herein required prior
2100
THE L.^VKD COURT AND REGISTRATION OF TITLE. [Ch,\P. 185.
to June ninth, eighteen hundred and ninety-eight, said certificate or a 12
duly certified copy of the record thereof shall have like force and efi^ect. 13
de^Mnror Section 20. No descent or discontinuance shall take away or defeat 1
discontinuance, any right of entry or of action for the recovery of real property. 2
R. S. 101, § 5; 119, § 13. P. S. 120, § 16.
G. S. 134, § 4 ; 154, I 13. R. L. 134, § 17.
mlke'en-'° Section 21. If real property upon which any encumbrance exists is
kno'wn''to''^ convcycd by deed or mortgage, the grantor, in whatever capacity he
fsM^rr? 1 ™*y ^^'*'' shall before the consideration is paid, by exception in the
G. .s.'so, I i(i.' deed or otherwise, make known to the grantee the existence and nature
18. of such prior encumbrance so far as he has knowledge thereof.
Section 22. Whoever conveys real property by a deed or mortgage
which contains a covenant that it is free from all encumbrances shall, if
it appears by a public record that an actual or apparent encumbrance,
known or unlvnown to him, exists thereon, be liable in an action of con-
tract to the grantee, his heirs, executors, administrators, successors or
assigns, for all damages sustained in removing the same.
p. S. 126,
§ 17.
R. L. 134
§18.
Grantor liable
for damages in
removing ap-
parent en-
cumbrance.
1855. 177,
§3.
G. S. 89, § 17.
P. S. 126,
§ IS.
R. L. 134
§ 19.
136 Mass
504.
138 Mass
439.
Restrictions or
conditions
, etc..
on real
property.
1887, 418.
R. L. 134
5 20.
183 Mass
202.
185 Mass
589.
206 Mass
199
209 Mbss.
217.'
234 Mass.
516,
1-18 Mass. 102.
151 Mass. 237.
204 Mass. 563.
Section 2.3. Conditions or restrictions, unlimited as to time, by
which the title or use of real property is afl^ected, shall be limited to the
term of thirty years after the date of the deed or other instrument or
the date of the probate of the will creating them, except in cases of
gifts or devises for public, charitable or religious purposes. This section
shall not apply to conditions or restrictions existing on July sixteenth,
eighteen hundred and eighty-seven, or to those contained in a deed, gift
or grant of the commonwealth.
REFERENCES.
Husband and wife may convey one to the other. Chap. 209, § 3.
Payment of legacy tax on estates where there is an intervening estate for life or
years. Chap. 6,5, §§ 14, 15.
Short forms for deeds and mortgages. Chap. 183, §§ 8-28, and appendix.
Sale of real estate within the commonwealth by certain non-resident married
women. Chap. 209, § 31,
Tax titles, Chap. 60, § 64 et seq.
§ 13. Provision relative to recording notices, etc, on registered land, Chap.
185, § 78.
CHAPTER 185.
THE LAND COURT AND REGISTRATION OF TITLE TO LAND.
Sect.
.Sect.
THE LAND COURT.
7. Duties and powers of recorder.
1. Land court, jurisdiction, sittings, rules,
8. Recorder to act in any county.
forms, etc.
9. Use of facsimile signature.
2. Judges.
10. Register of deeds, duties.
3. iSessions.
11. Oath and bond of recorder.
4. Citations.
12. Examiners of title.
5. Associate judge to act, when.
13. Court officers.
6. Recorder.
14. Salaries and expenses of judges, etc
CaiP. 185.] THE L.USrD COURT AND REGISTRATION OF TITLE.
2101
Sect.
procedure.
15. Issues to superior court and remedies
in supreme judicial court.
16. Appeal in certain cases.
17. Certification of verdict.
18. Certification of decision.
19. Failure to prosecute appeal.
20. Enforcement of decrees.
21. Costs.
22. Filing of writs and pleadings.
23. Copies of final decrees to be trans-
mitted to assistant recorder.
24. Order of reference to examiner.
25. General law and equity powers of court.
ORIGINAL REGISTRATION.
26. Petition for registration.
27. Record of memorandum of petition.
28. Form and contents of petition.
29. Petition as to land bounding on way.
30. Petition subject to mortgage or lease.
31. Petition may include several parcels.
32. Amendments to petition.
33. Filing of plans and muniments.
34. Additional facts.
35. Agent for non-resident.
36. Record of transfers pending petition,
etc.
37. Reference to examiner.
38. Publication of notice of petition.
39. Return day of notice.
40. Guardian ad litem.
41. Answer.
42. Order of general default. Effect.
43. Hearing. Reference to master.
44. Dismissal, etc., of petition.
45. Decree of confirmation and registra-
tion.
46. Tenure of holder of certificate of title.
47. Contents of decree.
48. Transcription of decree in registry.
49. Transcription, certificate effective from
date of.
50. Duplicate certificate of estates in com-
mon.
51. Surrender of certificate, issue of sub-
stitute.
52. Certificate an agreement running with
land.
53. Prescription, etc., not to affect regis-
tered land.
54. Evidence, what to be.
55. Contents of certificate.
56. Indexes, record books, etc.
VOLUNTARY DEALING WITH LAND AFTER
ORIGINAL REGISTRATION.
57. Owner of registered land may convey,
etc.
Notice of encumbrances.
Estate less than fee simple, how regis-
tered.
Reference of doubtful questions.
58,
59,
60.
61. Grantee's residence, etc., to be stated.
Sect.
62. Presentation of owner's duplicate on
entry of new certificate, etc.
63. Entry book. Duplicates and certified
copies.
CONVET.\NCE IN FEE.
64. Conveyance in fee of registered lands.
65. Deed of portion of registered fee.
66. Statement of encumbrances.
MORTGAGES.
67. Mortgage of registered land.
68. Registration of mortgage.
69. Assignment, etc., of mortgage
70. Foreclosure of mortgage.
LEASES.
71. Leases of registered land.
TRUSTS.
72. Trusts in registered land.
73. Trusts ^N-ith power of sale, etc., how ex-
pressed.
74. Proceedings on appointment of new
trustee.
75. Implied, etc., trusts, how established.
76. Petition by trustee for registration of
land.
LEGAL INCIDENTS OF REGISTERED LAND.
77. Incidents of registered land.
ATTACHMENTS AND OTHER LIENS.
78. Attachment of registered land.
79. Memorandum on owner's duplicate.
80. Dissolution, etc., of attachments, etc.
81. Provisions applicable to attachments to
apply.
82. Endorsement of plaintiff's attorney
upon writ.
83. Registration of orders of court, etc.
84. Enforcement of liens on registered land.
85. Application for certificate by execution
creditors, etc.
PENDING SUITS, JUDGMENTS, DECREES AND
PARTITIONS.
86. Registration of notice of proceedings,
etc., required to bind third parties.
87. Registration of certificate of judgment,
etc.
88. Registration of judgment for demand-
ant.
89. Registration of writ of seisin, etc., and
return.
90. Registration of certificate of judgment
in writ of dower, etc.
91. Registration of decrees.
92. Proceedings on judgment for partition,
etc.
93. Registration of prior registered mort-
gage or lease with decree for parti-
tion.
2102
Sect.
bankruptcy and insolvency.
94. Registration of notice of warrant in
insolvency.
95. Registration of discharge, etc.
BEVERTER.
96. New certificate upon reverter of land.
TRANSFER BY DESCENT AND DEVISE.
97. Transfer by descent or devise.
98. Executor'sright to sell, etc., unaffected.
ASSURANCE FUND.
99. Assurance fund.
100. Custody and investment of fund.
101. Action for compensation from fund.
102. Action against treasurer.
103. Judgments, how satisfied.
104. Proceedings if assurance fund is in-
sufficient.
105. Subrogation of commonwealth to
plaintiff's rights, when.
106. Assurance fund, application of in-
come.
107. When fund not liable. Limit of com-
pensation.
108. Limitation, etc., of actions.
109. Assessors' valuation to be evidence.
THE L\ND COLTIT,
Sect.
[Chap. 185.
POWERS OF ATTORNEY.
110. Powers of attorney.
LOST DUPLICATE CERTIFICATES.
111. Lost duplicate certificates.
ADVERSE CLAI.MS.
112. Adverse claims.
SURRENDER OF DUPLICATE CERTIFICATES.
113. Surrender of duplicate certificates.
AMENDMENT AND ALTERATION OF CERTIFI-
CATES OF TITLE.
114. Amendment, etc., of certificates.
PETITIONS, MOTIONS AND NOTICES AFTER
REGISTRATION.
115. ruing of petitions and motions after
registration.
116. Ser\'ice of notice after registration.
SECTIONAL PLANS.
117. Sectional plans and employment of as-
sistance therefor.
PENALTY.
118. Penalty for fraudulent conveyance.
Land court,
jurisdiction,
sittings, rules,
forms, etc.
212 Mass. 135.
215 Mass. 76.
THE LAND COURT.
Section 1. The land court shall be a court of record,
exclusive original jurisdiction of the following matters:
It shall have 1
2
1898, 562, § 2.
1899, 131, § 1.
1900, 354, § 1.
R. L. 128, § 1.
1904, 448, §§ 1, 5,
1905, 249, §§ 1. 5.
1906, 50, § 1;
344, § 1.
10.
1910. .MO, § 3.
1915, 112, § 1;
237, § 3.
1919, 262, § 1.
175 Mass. 68.
192 Mass. 220.
198 Mass. 172.
201 Mass. 97.
212 Mass. 547.
215 Mass. 7fi.
221 Mass. 372.
224 Mass. 424.
225 Mass. 217.
226 Mass. 582.
228 Mass. 242.
179 U. S. 405.
(a) Petitions for the registration of title to land and easements or
rights in land held and possessed in fee simple within the common-
wealth, with power to hear and determine all questions arising upon such
petitions, and such other questions as may come before it under this
chapter, subject to all rights to jury trial and of appeal provided by law.
The proceedings upon such petitions shall be proceedings in rem against
the land, and the decrees shall operate directly on the land and vest and
establish title thereto.
{b) Proceedings to foreclose tax titles, under chapter sixty.
(c) Writs of entry, under chapter two hundred and thirty-seven.
(d) Petitions to require actions to try title to real estate, under sec-
tions one to five, inclusive, of chapter two hundred and forty.
(e) Petitions to determine the validity of encumbrances, under sec-
tions eleven to fourteen, inclusive, of chapter two hmidred and forty.
(/) Petitions to discharge mortgages, under section fifteen of chapter 17
two hundred and forty. 18
(g) Petitions under section twenty-seven of chapter two hundred 19
and forty to establish power or authority to transfer an interest in real 20
estate. 21
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Chap. 185.] the land court. 2103
22 (/j) Petitions to determine the boundaries of flats, under section nine-
23 teen of chapter two hundred and forty.
24 (0 Petitions under sections sixteen to eighteen, inchisive, of chapter
25 two hundred and forty to determine whether or not equitable restric-
26 tions are enforceable.
27 (j) Petitions under section twelve of chapter forty-two to determine
28 county, city, town or district boundaries.
29 The coiu-t shall hold its sittings in Boston, but may adjourn from time sittings.
30 to time to such other places as public convenience may require. In
31 Suffolk county, the board of aldermen of Boston, and in other counties,
32 the county commissioners, shall provide suitable rooms for the sittings
33 of said court in the same building with, or convenient to, the probate
34 court or the registry of deeds, and shall provide necessary books and
35 such printed blanks, forms and stationery as the court may order.
36 The court shall have jurisdiction throughout the commonwealth, shall ^^f' ""^ders,
37 always be open, except on Sundays and legal holidays, and shall have a
38 seal with which all orders, processes and papers made by or proceeding
39 from the court and requiring a seal shall be sealed. Its notices, orders
40 and processes may run into any county and be returnable as it directs.
41 The court shall from time to time make general rules and forms for Rules and
42 procedure, which, before taking effect, shall be approved by the supreme °™^'
43 judicial court or by a justice thereof.
1 Section 2. There shall be two judges of the court, one of whom Judges.
2 shall be appointed, commissioned and qualified as judge and the other §'i?Lt.9; '
3 as associate judge. (Const. Rev. arts. 123, 140.) '^' ^' "'''■ ^'
1898, 562, § 3. 1900, 3M, § 1. R. L. 128, § 2.
1 Section 3. The court may be held by one judge and simultaneous Sessions.
2 sessions may be held, either in the same county or in different counties, r*^l.' vll] 1 1'.
3 and shall be so arranged as to insure a prompt discharge of its business.
1 Section 4. Processes issuing from the court shall bear teste of the citations.
2 judge, shall be under the seal of the court and be signed by the recorder, r.^l! 123! 1 4.'
1 Section 5. In case of a vacancy in the office of judge, or of his in- Associate judge
2 terest, absence or inability to perform his duties, the associate judge shall is9s,'502!T6.
3 perform them. R. l. 12s, § 5.
1 Section 6. The governor, with the advice and consent of the council, fg9''s''5oo 5 7
2 shall appoint a recorder, who shall be clerk of the court and hold office R- l. 12s, § o.
3 for five years. He shall attend the sessions of the court, keep a docket
4 of all causes, and affix the seal of the court to all processes or papers
5 requiring it.
1 Section 7. The recorder shall be under the direction of the court. Duties and
2 shall have the custody and control of all papers and documents filed re°OTder°^
0 with him in any petition for registration, action or proceeding in said ]l°l] fif. I ?!
4 court, and shall carefully number and index them. Said papers and doc- ly^^f^ts' n'
5 uments shall be kept in Boston in the recorder's office, which shall be
6 near the land court. He may, with the court's approval, employ neces-
7 sary assistants and messengers.
2104
THE L\ND COURT.
[ClLiP. 185.
S'^any'^TOunty"* SECTION 8. The rccordcr may act in any county, and after land has 1
R °l' 12's' 1 8 been registered, he may make all memoranda affecting the title and enter 2
and issue certificates of title as provided in this chapter. 3
Use of facsimile
Bienature.
1885, 321.
1886, 13.
§11.2.
R. L. le.'S, § 20.
1907, 22.'>. § 3.
1910, 94.
Section 9. A facsimile of the signature of the recorder, imprinted 1
by him or by such office assistant as he in writing may designate, on any 2
paper which he is required by law to certify as a true copy, except a copy 3
of a decree for transcription in a registry of deeds, and such facsimile im- 4
printed by the recorder himself upon any writ, summons, order of notice 5
or order of attachment, except executions, shall have the same validity 6
as his written signature. 7
Register of
deeds,
duties.
1898. 5fi2, § 10.
R. L. 128, § 9.
Section 10. The register of deeds in each district where land has 1
been registered shall have the same autliority as the recorder to make 2
memoranda affecting the title of such land, and to enter and issue new 3
certificates of title, and to affix the seal of the court to such certificates 4
and duplicate certificates of title; but in executing the provisions of 5
this chapter, registers of deeds shall be subject to the general direction 6
of the recorder, in order to secure uniformity; and, in the performance 7
of their duties under this chapter, the official designation of registers of 8
deeds shall be assistant recorders for their respective registry districts. 9
In case of the death or disability of the recorder, the assistant recorder 10
for the Suffolk district shall perform the duties of the recorder. 11
Oath and bond
of recorder.
1898,562, 5 II.
R. L. 128, I 10.
1919, 350,
§§ 52, 54.
Section 11. The recorder and all assistant recorders shall be sworn 1
before the judge of the land court, and a record thereof shall be made. 2
They shall give bond in a sum to be fixed by the court, for the faithful 3
performance of their official duties, before entering upon the same. 4
They may administer oaths to persons appearing before them in matters 5
pertaining to the registration of land, if an oath is required. They shall 6
keep accurate accounts of all money received as fees or othenvise, which 7
shall be subject to examination by the director of accounts, in the same 8
manner as accounts of registers of deeds. The recorder shall pay over 9
cjuarterly to the state treasurer all such money received by him either 10
directly or through the assistant recorders. In case of the absence of 11
an assistant recorder, the assistant register for the district, or if there 12
is no assistant register, the person acting as clerk in the office of the 13
register of deeds, shall perform the duties of the assistant recorder, who 14
shall be responsible for him. 15
Examiners
of title
Section 12. The judge of the land court inay appoint one or more 1
r.^'l. 128, 1 u: examiners of title in each county, who shall be attorneys at law. They 2
may be remo\'ed by the supreme judicial court. 3
1904, 448, § 1.
?S98,'5°62,''fn. Section 13. Upon request of the judges, the sheriff of any county 1
ig'w.'lll'li''' other than Suffolk shall assign a deputy to attend the sittings of tl^e 2
!?'*• 698. land court in that county. The judges shall appoint an officer for at- 3
1919, 15.5,
1920] 573. tendance upon the sessions of said court in Suffolk county.
Section 14. The judge and associate judge of the land court shall
.Salaries and
expenses of
','in%''^iS^% ,0 each receive a salary of ten thousand dollars, and each shall annually
1898, 562, § 13. , i •/> p i • 1 l p i
1900, 354, 1 2. receive, upon the certificate oi the judge, the amount oi the expenses
1904,' 386.' ' incurred by him in the discharge of his duties, to be paid by the com-
1913; 738! monwealth; provided, that any judge or associate judge appointed
1
2
3
4
5
Chap. 185.] the l.\nd coctit. 2105
6 before June fourth, nineteen hundred and twenty, who has not accepted JgJI'aooss-
7 the increase in salary provided by chapter six hundred and twenty- 287, 51. '
8 seven of the acts of nineteen hundred and twentv, shall receive annually 1920', sV's;
9 two thousand dollars less than the salary above provided for. The
10 recorder shall receive a salary of sixty-five hundred dollars. The salaries
11 of the several assistant recorders, in lieu of compensation on the basis of
12 fees received, shall be equal to the compensation received by them or
13 their predecessors in their respective capacities as assistant recorders
14 for the year ending July first, nineteen hundred and seventeen, plus ten
15 per cent of such sum. The compensation and salaries of examiners of
16 title and all assistants and messengers shall be fixed by the governor and
17 council. The salary of the officer in attendance upon the court in Suf-
18 folk county shall be twenty-one hundred dollars, in full for all services
19 performed by him. All salaries and expenses of the court shall be paid
20 by the commonwealth, except the salaries of the assistant recorders and
21 the expenses incurred by them under this chapter, which shall be paid by
22 the respective counties. All fees collected by the assistant recorders,
23 except those received upon the filing of petitions, which shall be trans-
24 mitted with the petitions to the recorder, shall be paid to their respec-
25 tive counties.
PROCEDURE.
1 Section 15. Except as provided in the following section, all causes issues to su-
2 in the land court shall be tried and all questions of fact finally determined aSd'TemediL
3 by the court, unless a respondent or tenant with his ansM'er, or a peti- jucfi^mf"urt
4 tioner or demandant within ten days after the time limited by law for Jsgg'fsf I,*'
5 filing an appearance and answer, or within ten days after the time al- %V'i?8' ^"^^'
6 lowed by the court for filing an answer, claims a trial by jury. If trial isoi! 448,'
7 by jury is claimed, issues therefor upon any material question of fact 1905. mo', § 4;
8 shall, upon motion of either party, be framed in the land court, and tlo&.^sli, § 3.
9 within thirty days after the expiration of the time for claiming a trial H^^'l.^e'y.
10 by jiu-y, except as otherwise provided in section sixteen and in chapter J2|^jf^^g^' ||-
11 two hundred and thirty-seven, copies thereof and of all other material Joq m'''^- }?k-
12 papers in the case, certified by the recorder, shall be entered by the 192 Mass! 8,
13 moving party in the superior court for the county where the land lies for lisMass. 486.
14 a jury trial thereon. Failure to enter the copies and papers required by ^^^'-^^^-^o-
15 this or the following section or by section twenty-three of chapter Jqq Mass! 225!
16 two hundred and thirty-seven within the times limited by said sections, ^m Ma^s. 117,
17 respectively, shall constitute a waiver of the claim to a trial by jury, 205'Mass. 458,
18 and thereafter the superior court shall have no further jurisdiction of the 207'Mass. 133.
19 case. Upon the motion of either party in the superior court the cause 214 Mass! 329,'
20 shall be advanced for speedy hearing, but no matters shall be tried in lisMass. 76.
21 the superior court except those specified in the issues. Questions of law iisMass. S33.
22 arising in the superior court may be taken to the supreme judicial HI Wm- gjy-
23 court for revision by any party aggrieved by any opinion, ruling, 222 Aiass. 407,
24 direction or judgment of the court, in the same manner as in proceedings 223'Mass. 207.
25 at law in said court. Questions of law arising in the land court on any 225 Mass! 531!
26 decision or decree may be taken by any party aggrieved directly to the
27 supreme judicial court for revision in the same manner in which ques-
28 tions of law are taken to that coiu-t from the superior court. The land
29 court, after any decision or decree dependent upon questions of law, may
30 report such decision or decree, with so much of the case as is necessary
31 for understanding such questions of law, for the determination of the
■32 supreme judicial court.
2106 THE L,VND COURT. [Chap. 185.
Appeal m^^^ SECTION 16. At any time before the expiration of thirty days from 1
1898. 562, 1 14. ^he entry of a decree in a case, any party aggrieved by such decree 2
B. l! i'28', § 13. t^rliQ files an affidavit in court that he has not received notice of the 3
i9io! 5Ho! § 1. proceedings by registered mail and that any signature of his appearing 4
19S Mass. 521. ^^ ^^^ receipt for registered mail filed with the papers in the case is 5
neither his signature nor signed by one having authority so to do, and 6
that in no other way did he receive actual notice, or have knowledge, 7
of the pendency of the proceedings within the time allowed for filing an 8
appearance and answer, may appeal from said decree for a jury trial 9
on any question of fact. Within said thirty days after such decree, 10
issues shall be framed in the land court and the case entered in the 11
superior court for trial as provided in the preceding section. 12
of*verf^t.°" Section 17. The clerk of the superior court, after the determination 1
R^L lis I H of issues from the land court, shall certify to the land court such determi- 2
1904, 44S,' § 1. nation, which shall be conclusive upon said court as to such issues; but 3
the land court may hear evidence upon other material questions of fact, 4
and arguments upon the cause, before making its decision. 5
ofdeci^foi"" Section 18. The clerk of the supreme judicial court, upon the de- 1
1899' i3i' 1 3^' termination of proceedings pending therein upon appeal or exceptions 2
R. h. 128, 1 14. from the land court, shall certify to the land court the final decision, and 3
190 Mass! 90.' the land court shall enter the final decree in the cause, in accordance with 4
198 Mass. 172. ,,,•/? j. c
216 Mass. 324. the Certificate. i>
pr^erate Section 19. If an appellant docs uot duly prosccutc his appeal within 1
isgrkfi' 5 16 the time limited, the original order, decision or decree shall stand as if 2
R. l! 128, § 15. no appeal had been taken. i904, 448. 205 Mass. ,529. 3
Enforcement SECTION 20. The land court in all matters over which it has juris- 1
or decrees. .. . i i • i 7 rv
1898, 562, 1 17. diction may enforce its orders or decrees in the same manner as decrees 2
1904,' 448,' § 1. ' are enforced in equity. 3
1914, 696. 1919, 155. 1920, 573.
i89s^'5fi2, § 18. Section 21. Costs shall be taxed and the collection enforced as in 1
R. l! 128, § 17. .(-he superior court sitting in equity, unless a different provision is made. 2
fnd"pi°i!d'in"g? Section 22. Writs, petitions, bills and pleadmgs in proceedings in 1
1904, 448, § 2. tjig iajj(j court may be filed with the recorder of tlie land court, or with 2
the register of deeds for the district where the land or any part thereof 3
lies, who shall immediately index the proceedings in the general index by 4
the names of the parties, and transmit the papers to the recorder. The 5
recorder shall cause copies of said papers to be made and transmitted to 6
the said register of deeds, who shall file the same, and, if the original 7
papers were filed with the recorder, index the proceedings as above pro- 8
vided. Whenever such papers contain a reference to any instruments 9
recorded in the registry of deeds where they are filed, the register of deeds 10
shall cause a minute thereof to be made upon the margin of such record. 11
deTrerafo'ire''' Section 23. The recorder shall transmit copies of all final decrees 1
transmitted to aiid cxccutions in proceedings mentioned in the preceding section to the 2
recnrde"r. Tcgistcr of dccds for the district where the land or any part thereof lies, 3
who shall file and index the same in the manner provided in said section. 4
ClL\P. 185.] REGISTRATION OF TITLE TO LAND. 2107
1 Section 24. The court may refer any such proceeding to one of the Order of
2 examiners appointed under section twelve, who shall examine and report exlmlner.*"
3 on whatever matters of title or fact the court shall designate in its order \IqI[ \ll\ ^ ^^
4 of reference. Such reference, if made immediately upon the filing or entry
5 of the proceeding, shall be subject to section thirty-seven, so far as ap-
6 plicable, but if made after an appearance is entered for a defendant or
7 tenant, it shall be subject to section forty-three.
1 Section 25. In matters specified in paragraphs (c) to {{), inclusive. General law
2 of section one of this chapter or in section twelve of chapter forty-two, powlrTof^
3 the court shall have all the powers which the superior court has in i904''448, § i.
4 actions at law and suits in equity, except that it shall hold no trials by
5 jury.
original registration.
1 Section 26. Petitions for registration of title may be made by the Petition for
2fl 11 • registration.
following persons: isos, 562, § 19.
3 First, Persons who claim, singly or collectively, to own the legal estate r^^l'JIs, l^i's.
4 or easements or rights in land held and possessed in fee simple. loTua^s lis.
5 Second, Persons who claim, singly or collectively, to have the power |}i J^ass. 442.
6 of appointing or disposing of the legal estate or easements or rights in 226 Mass. 582!
7 land held and possessed in fee simple.
8 Third, Infants and other persons under disability, by their legally ap-
9 pointed guardians; but the person in whose behalf the petition is made
10 shall be named as petitioner.
11 Fourth, Corporations, by any officer duly authorized by a vote of the
12 directors.
13 One or more tenants for a term of years, which is regarded as a fee
14 simple in section one of chapter one hundred and eighty-six, shall not
15 petition except jointly with those who claim the reversionary interest
16 which makes up the fee simple at common law; nor shall a mortgagor,
17 except as hereinafter provided, petition without the written consent of
18 the mortgagee; nor shall a married woman petition without the written
19 consent of her husband, unless she holds the land as her separate prop-
20 erty or has a power to appoint the land in fee simple, or is living apart
21 from her husband for a justifiable cause which has been established by
22 a decree of court; nor shall one or more tenants petition who claim un-
23 divided shares less than a fee simple in the whole land described in the pe-
24 tition for registration. If the holder of a mortgage does not consent to
25 the petition, it may be entered nevertheless, and the title registered,
26 subject to the mortgage, which may be dealt with or foreclosed as if the
27 land subject to it had not been registered. The decree of registration
28 in such case shall describe the mortgage, and shall state that it has not
29 been registered and that registration is made subject to it, and shall pro-
30 vide that no subsequent certificate shall be issued and no further papers
31 registered relative to such land after a foreclosure of such mortgage.
1 Section 27. The petition may be filed with the recorder, or with Record of
2 the assistant recorder at the registry of deeds for any district where the of petition
3 land, or any part thereof, lies. Upon filing his petition, the petitioner Iggo! ili.' 1 4^. '
4 shall forthwith cause to be filed in the registry of deeds for each district ^- ^- ^-*' ^ ^''■
5 where any part of the land lies a memorandum stating that the petition
6 for registration has been filed, the date and place of filing, and a copy of.
2108 REGISTRATION OF TITLE TO L,\ND. [ChAP. 185.
the description in the petition of the land or of so much thereof as is 7
within the district. Such memorandiun shall be recorded and indexed 8
by the register with the records of deeds. Each assistant recorder shall 9
also keep an index of all petitions in his district, and in every case where 10
the petition is filed with him shall transmit the petition, the papers 11
and plans filed therewith and such memorandum, when recorded, to 12
the recorder. 13
rantSnta'if SECTION 28. The petition shall be in writing, signed and sworn to 1
1898' 562 § 21 ^y cach petitioner or by a person duly authorized in his behalf. It shall 2
R. h. 128, § 20. contain a description of the land, and shall state whether the petitioner 3
is married; and if married, the name of the wife or husband; and if 4
unmarried, whether he or she has been married, and if so, when and how 5
the marriage relation terminated; and if by divorce, when, where and by 6
what court the divorce was granted. It shall also state the name in full 7
and the address of the petitioner, and the names and addresses of the 8
adjoining owners and occupants, if known; and if not known, it shall 9
state what search has been made to find them. 10
Sid'b °undi*ng . Section 29. If the petition describes the land as bounded on a public 1
ligs^sM, § 25. or private way, it shall state whether or not the petitioner claims any 2
i92^Ma5s' 220*' ^°^ what land within the limits of the way, and whether the petitioner 3
desires to have the line of the way determined. 4
j^cttomo"rt- Section 30. If a petition is made subject to an existing recorded 1
i89s°562''r27 mortgage, the holder of which has consented thereto, or subject to a 2
n°T*'^9«'i OR recorded lease for a term exceeding seven years, or if the registration is 3
to be made subject to such a mortgage or lease executed after the time 4
of the petition and before the date of the transcription of the decree, the 5
petitioner, before a decree of registration is entered, shall, if required 6
by the court, file a certified copy of such mortgage or lease, and shall 7
cause the original, or, in the discretion of the court, a certified copy 8
thereof, to be presented for registration; and no registration fee shall be 9
charged for registering such original mortgage or lease or such certified 10
copy. 11
kidudTsCTerai SECTION 31. A petition may include two or more contiguous parcels 1
i898t562, § 24. of land, or two or more parcels which constitute one holding under one 2
R^L ilklts. ^^*i th^ same title, within the same registry district. But two or more 3
201 Mass. 158. persons, who claim in the same parcels different interests which col- 4
lectively make up the legal estate in fee simple in each parcel, shall not 5
join in one petition for more than one parcel unless their interests are 6
alike in each and every parcel. The court may at any time order a peti- 7
tion to be amended by striking out one or more of the parcels, or by a 8
severance of the petition. 9
toTetit^in"'^ Section 32. Amendments to the petition, including joinder, substi- 1
R^t 128, 1 11 tution, or discontinuance as to parties, shall be allowed by the court at 2
201 Mass. 158. j^j^y time upon just and reasonable terms; but all amendments shall be 3
in ■WTiting, signed and sworn to, like the original. 4
sxnd'munF- ^"^ Section 33. The petitioner shall file with the petition a plan of the 1
i898'''562, land, and all original muniments of title within his control. Such original 2
§§ 26, 36. ,mununents as aft'ect land not included in the petition may be withdrawn 3
R. L. 128, § 26.
Chap. 185.] registration of title to land. 2109
4 upon filing certified copies thereof. If a petition is dismissed or discon- n. l. 128,
5 tinned, the petitioner may, with the consent of the court, withdraw such 204 Mass. 540.
6 original muniments of title. The court may, in any case before decree,
7 require a further survey to be made for the purpose of determining bound-
8 aries, and may order durable bounds to be set, and referred to in the
9 petition, by amendment. The expense of survey and bounds shall be
10 taxed in the costs of the case and may be apportioned among the parties
11 as justice may require. If no persons appear to oppose the petition, such
12 expense shall be borne by the petitioner.
1 Section 34. The court may by general rule require additional facts Additional
2 to be stated in the petition and may require the filing of additional papers, isos,' 562, § 23.
R. L. 128, § 27.
1 Section 35. If the petitioner is not a resident of the commonwealth, Aeentfomon-
2 he shall file with his petition a paper appointing an agent residing in the isgsfse^, § 22.
3 commonwealth, giving his name in full and post office address, and shall ^' ^' ^'^' ^ ~^'
4 therein agree that the service of any legal process in proceedings under
5 or growing out of the petition shall be of the same legal effect if made on
6 said agent as if made on the petitioner within the commonwealth. If the
7 agent dies, or removes from the commonwealth, the petitioner shall
8 forthwith make another appointment; and if he fails so to do, the court
9 may dismiss the petition.
1 Section 36. After the filing of a petition and before registration, the Record of
2 land therein described may be dealt with, and instruments relating thereto peTding^peti-
3 shall be recorded in the same manner, as if no such petition had been isos.^sei, § 29.
4 filed; but all instruments left for record which relate to such land shall ^- ^- ^^''' ^ ^^•
5 be indexed in the usual manner in the registry indexes and in the index
6 of petitions. As soon as a petition is disposed of, the recorder shall make
7 a memorandum stating the disposition of the case, and shall send the
8 same to the register of deeds for the proper district or districts, who shall
9 record and index it with the records of deeds and in the index of petitions.
10 If a decree of registration of title is entered the land included in the
1 1 decree shall, when the decree is transcribed as provided in section forty-
12 eight, become registered land, and thereafter no deeds or other instru-
1:5 ments which relate solely to such land shall be recorded with the records
14 of deeds, but shall be registered in the registration book and filed and
15 indexed with the records and documents relating to registered land.
1 Section 37. Immediately after the filing of a petition, the court shall Reference to
cxii miner.
2 enter an order referring it to one of the examiners of title, who shall search isas, 662, § 30.
. ... . R L. 128 I 29.
3 the records and investigate all facts stated in the petition, or otherwise i904.' 448,' § 6. '
4 brought to his notice, and shall file in the case a report thereon, conclud-
5 ing with a certificate of his opinion upon the title. The recorder shall
6 give notice to the petitioner of the filing of such report. If the opinion of
7 the examiner is adverse to the petitioner, he shall be allowed by the court
8 a reasonable time in which to elect to proceed further or to withdraw his
9 petition. The election shall be made in writing and filed with the recorder.
1 Section 38. If, in the opinion of the examiner, the petitioner has a Publication
2 good title as alleged, and proper for registration, or if the petitioner, after petition? °
2110 REGISTRATION OP TITLE TO L.\ND. [Ch.\P. 185.
1898, 562, 1 31. an adverse opinion of the examiner, elects to proceed further, the recorder 3
1904,' 448,' § 1. ■ shall, immediately upon the filing of the examiner's opinion, or upon 4
the filing of the petitioner's election, as the case may be, cause notice of 5
the filing of the petition to be published in a newspaper published in the 6
district where any portion of the land lies. The notice shall be issued 7
by order of the court, attested by the recorder, and shall be in form sub- 8
stantially as follows : 9
Commonwealth of Massachusetts.
Land Court.
To {here insert the names of all persons known to have an adverse interest, a7}d
the adjoining owners and occwpants, so Jar as known), and to all whom it maij
concern:
Whereas a petition has been presented to said court by (name or names and
address in full) to register and confirm his (or their) title in the following de-
scribed land (insert description).
You are hereby cited to appear at the land court to be held at ,
in the county of , on the day of A.D.
, at o'clock in the forenoon, to show cause, if any you
have, why the prayer of said petition should not be granted. And unless you
appear at said court at the time and place aforesaid your default will be re-
corded, and the said petition will be taken as confessed, and you will be forever
barred from contesting said petition or any decree entered thereon.
Witness , Esquire, judge of said court, this day of
in the year nineteen hundred and
Attest :
Recorder.
S^noUce*'' Section 39. The return day of said notice shall be not less than 1
JS?' S^?' I }'^- twenty nor more than sixty days after the date of issue. The court shall 2
190U, o54, §5. , ... , p ,,. . p . ^ ■•
R. L. 128. § 31. also, within seven days after publication of said notice in a newspaper, 3
192 Mass.' 22o! causc a copy thereof to be sent by the recorder by mailing a registered 4
letter to every person named therein whose address is known. The 5
court shall also cause a duly attested copy of the notice to be posted in 6
a conspicuous place on each parcel of land included in the petition, by a 7
sheriff or deputy sheriff, fourteen days at least before the return day 8
thereof, and his return shall be conclusive proof of such service. If the 9
petitioner requests to have the line of a public way determined, the court 10
shall order notice to be given by the recorder, by mailing a registered letter 1 1
to the mayor of the city or to one of the selectmen of the town or towns 12
where the land lies, or, if the way is a highway, to one of the county 13
commissioners of the county or counties where the land lies. If the land 14
borders on a river, navigable stream or shore, or on an arm of the sea 15
where a river or harbor line has been established, or on a great pond, 16
or if it otherwise appears from the petition or the proceedings that the 17
commonwealth may have a claim adverse to that of the petitioner, notice 18
shall be given in the same manner to the attorney general. The court may 19
also cause other or further notice of the petition to be given. The court 20
shall, so far as it considers it possible, require proof of actual notice to all 21
adjoining owners and to all persons who appear to have any interest in 22
or claim to the land included in the petition. Notice to such persons by 23
mail shall be by registered letter. The certificate of the recorder that 24
he has served the notice as directed by the court, by publishing or mail- 25
ing, shall be filed in the case before the return day, and shall be con- 26
elusive proof of such service. 27
Chap. 185.] eegistration of title to land. 2111
1 Section 40. Upon the return of the notice, and upon proof of service Guardian
2 of all orders of notice issued, the court may appoint a disinterested person isqs, 502, § 33.
3 to act as guardian ad litem for minors, and for persons under disability, r. l'. 12s § 32.
4 and for all persons not in being, unascertained, unknown or out of the i9°^'''52. § i-
5 commonwealth, who may have an interest. The compensation of the
6 guardian shall be determined by the court and paid as part of the expenses
7 of the court.
1 Section 41. Any person who claims an interest, whether named in Answer.
2 the notice or not, may appear and file an answer on or before the return r. l! 12s', § 33.
3 day, or within such further time as the court may allow. The answer shall
4 state all objections to the petition, shall set forth the interest claimed by
5 the person who files it, and shall be signed and sworn to by him or by a
6 person in his behalf.
1 Section 42. If no person appears and answers within the time al- °a'i"e°l5™'
2 lowed, the court may at once upon motion of the petitioner, no reason fg^'=g''*jg2 s 35
3 to the contrary appearing, order a general default to be recorded and the k. l'. 128, § -a'.
4 petition to be taken for confessed. By the description in the notice,
5 "to all whom it may concern", all the world are made parties defendant
6 and shall be concluded by the default and order. After such default
7 and order, the court may enter a decree confirming the title of the peti-
8 tioner and ordering registration thereof. The court shall not be bound
9 by the report of the examiner of title, but may require other or further
10 proof.
1 Section 43. If, in any case, an appearance is entered and answer Hearing.
2 filed, the case shall be set down for hearing on the motion of either party, SalTe'r!"^'' *°
3 but a default and order shall first be entered against all persons who do r ^l. 12^! 1 35!
4 not appear and answer, in the manner provided in the preceding section. jg^JI' tot' ^ ''
5 The court may refer the case or any part thereof to one of the examiners 203 iiass. es.
6 of title, as master, to hear the parties and their evidence, and make report
7 thereof to the court. His report shall have the same effect as that of a
8 master appointed by the superior court in equity, and he shall proceed
9 according to the rules of said court applicable to masters, except as the
10 same may be modified by the rules of the land court. The compensation
11 of a master appointed under this section, and of an examiner under sec-
12 tion twenty-four, shall be awarded by the land court, and shall be paid
13 by the county where the land involved in the proceedings is situated,
14 except that said compensation may be awarded by the land court in its
15 discretion as a part of the taxable costs of the proceedings, in which case
16 the compensation shall be paid as decreed by said court.
1 Section 44. If the court finds that the petitioner has not title proper Dismissal,
2 for registration, a decree shall be entered dismissing the petition, and petition.
3 such decree may be ordered to be without prejudice, in whole or in part, r^^l. 12I', | II'.
4 but unless so ordered it shall bind the parties, their privies and the land Jgg^jvi^jfi,^' fyo.
5 in respect of any issue of fact which has been tried and determined. The S2i Ji""^ Jo?-
6 petitioner may withdraw his petition at any time before final decree, 208 Mass. 510.
7 upon terms fixed by the court. The court may require a petitioner who
8 moves to withdraw his petition or to substitute some other person as
9 petitioner, to stipulate that he shall be bound by the result of any issue
10 of fact which has been tried and determined, and such stipulation shall
11 bind the parties, their privies and the land itself.
2112
REGISTRATION OF TITLE TO L.iND.
[Chap. 185.
Decree of con-
firmation and
registration.
1898, 562, § 38.
R. L. 128, 5 37.
1910, 560, 5 4.
175 Mass. 71.
194 Mass. 40.
198 Mass. 172.
213 Mass. 128.
228 Mass. 385.
179 U. S. 405.
Section 45. If the court, after hearing, finds that the petitioner has 1
title as stated in his petition, and proper for registration, a decree of 2
confirmation and registration shall be entered, which shall bind the land 3
and quiet the title thereto, subject only to the exceptions stated in the 4
following section. It shall be conclusive upon and against all persons, 5
including the commonwealth, whether mentioned by name in the peti- 6
tion, notice or citation, or included in the general description "to all 7
whom it may concern". Such decree shall not be opened by reason 8
of the absence, infancy or other disability of any person affected thereby, 9
nor by any proceeding at law or in equity for reversing judgments or 10
decrees; subject, however, to the right of any person deprived of land, 11
or of any estate or interest therein, by a decree of registration obtained 12
by fraud to file a petition for review within one year after the entry of the 13
decree, provided no innocent purchaser for value has acquired an in- 14
terest. If there is any such purchaser, the decree of registration shall not 15
be opened but shall remain in full force and effect forever, subject only to 16
the right of appeal as provided by law from time to time. But any per- 17
son aggrieved by such decree in any case may pursue his remedy in tort 18
against the petitioner or against any other person for fraud in procuring 19
the decree. 20
Section 46. E\'ery petitioner receiving a certificate of title in pur-
suance of a decree of registration, and every subsequent purchaser of
a certificate of title for value and in good faith,
1911,9.
1
2
3
4
5
6
7
8
9
10
11
Tenure of
holder of
certificate
of title. . , , , , .
i|9|. 5R2, 1 39. registered land takin,
R. l! 128', § 38. shall hold the same free from all encumbrances except those noted on
the certificate, and any of the following encumbrances which may be
existing:
1915. 290. First, Liens, claims or rights arising or existing under the laws or con-
stitution of the United States or the statutes of this commonwealth which
are not by law required to appear of record in the registry of deeds in
order to be valid against subsequent purchasers or encumbrances of
record.
Second, Taxes, within two years after they have been committed to 12
the collector. 13
Third, Any highway, town way, or any private way laid out under 14
section twenty-one of chapter eighty-two, if the certificate of title does 15
not state that the boundary of such way has been determined. 16
Fourth, Any lease for a term not exceeding seven years. 17
Fifth, Any liability to assessment for betterments or other statutory 18
liability, except for taxes payable to the commonwealth, which may 19
attach to land in the commonwealth as a lien prior to, or independent 20
of, the recording or registering of any paper; but if there are easements 21
or other rights appurtenant to a parcel of registered land which for any 22
reason have failed to be registered, such easements or rights shall remain 23
so appurtenant notwithstanding such failure, and shall be held to pass 24
with the land until cut off or extinguished by
servient estate, or in any other manner.
the registration of the 25
26
Contents of Section 47. Every decree of registration shall bear date of the year,
189S. 562. 1 40. month, day, hour and minute of its entry and shall be signed by the
198 Mass.' 172.' rccordcr. It shall state whether the owner of the land registered is
224 Mass.' 424! married or unmarried, and if married, the name of the husband or wife.
22.3 Mass! 242: If such owncr is under disability it shall state the nature thereof, and if
CbL^P. 1S5.] REGISTRATION OF TITLK TO LAND. 2113
6 a minor, shall state his age. It shall contain a description of the land
7 as finally determined by the court, shall set forth the estate of the owner
8 and also, in such manner as to show their relative priority, all particu-
9 lar estates, mortgages, easements, liens, attachments and other encum-
10 brances, including rights of husband or wife, if any, to which the land
11 or the owner's estate is subject, and may contain any other matter
12 properly to be determined in pursuance of this chapter. The decree shall
13 be stated in a form convenient for transcription upon the certificates of
14 title hereinafter mentioned.
1 Section 48. Immediately upon the entry of the decree of regis- Transcription
2 tration, the recorder shall send a certified copy thereof, under the seal Registry""'
3 of the court, to the register of deeds for the district or districts where r.^l! 12s', § to.
4 the land lies, and the register, as assistant recorder, shall transcribe
5 the decree in a book to be called the registration book, in which a leaf
6 or leaves in consecutive order shall be devoted exclusively to each title,
7 and note therein the day, hour and minute when said decree is tran-
8 scribed. The entry made by the assistant recorder in this book in each
9 case shall be the original certificate of title, shall be signed by him and
10 sealed with the seal of the court. All certificates of title shall be num-
11 bered consecutively, beginning with number one. The assistant recorder
• 12 shall in each case make an exact duplicate of the original certificate,
13 including the seal, but putting on it the words "Owner's duplicate
14 certificate", and deliver it to the owner or to his duly authorized at-
15 torney. In case of a variance between the owner's duplicate certificate
16 and the original certificate, the original shall prevail. The certified
17 copy of the decree of registration shall be filed and numbered by the
18 assistant recorder, with a reference noted on it to the place of record of
19 the original certificate of title. If, however, a petition includes land
20 lying in more than one district, the court shall cause the part lying in
21 each district to be described separately by metes and bounds in the
22 decree or decrees of registration, the recorder shall send to the assistant
23 recorder for each registry district a copy of the decree containing a
24 description of the land within that district, and the assistant recorder
25 shall register the same and issue an owner's duplicate therefor; and there-
26 after, for all matters pertaining to registration, the portion in each dis-
27 trict shall be treated as a separate parcel of land.
1 Section 49. The certificate first registered in pursuance of a decree Tranfcription.
2 of registration in regard to any parcel of land shall, in the registration effectiv^e from
3 book, be entitled " Original certificate of title, entered pursuant to isol "lia, § 42.
4 decree of the land court, dated at" (stating time and place of entry of ^■^- ^-*' ^*^-
5 decree and the number of the case). The certificate shall take effect
6 from the date of the transcription of the decree. Subsequent certificates
7 relating to the same land shall be in like form, but shall be entitled
8 "Transfer from No. " (the number of the last previous certificate
9 relating to the same land), and also the words "Originally registered"
10 (date, volume and page of registration).
1 Section 50. If two or more persons are registered owners as tenants Dupiirate
2 in common, or otherwise, one owner's duplicate certificate may be esta'tcriir °
3 issued for the whole land or a separate duplicate may be issued to each isos^'ms, § 43.
4 for his undivided share. R. L. 128, 1 42.
2114
REGISTRATION OF TITLE TO LAND.
[Chap. 185.
certificate,"^ SECTION 51. A registered owner holding one duplicate certificate
sttt'ute* ^"''" for several distinct parcels of land may surrender it, with the approval of
189S. 562, 1 44. the court, and take out several certificates for portions thereof, or if he
holds separate duplicate certificates for several distinct parcels, he may
surrender them and, with like approval, take out a single duplicate
certificate for the whole land, or several certificates for dift'erent portions
thereof. An owner who subdivides a tract of registered laud into lots
shall file with the recorder a plan thereof, when applying for a new
certificate or certificates, and the court, before issuing the same, shall
cause the plan to be verified, and require that all boundaries, streets 10
and passageways shall be distinctly and accurately delineated thereon. 11
S agreement SECTION 52. The obtaining of a decree of registration and the entry
fand"^ "'*'' of a certificate of title shall be regarded as an agreement running with
R ^L 128 1 44' *^^® ^^"'^ ^^^^ binding upon the petitioner and his successors in title
that the land shall be and forever remain registered land and subject
to this chapter and all acts in amendment thereof.
Prescription
etc.. not to
Section 53. No title to registered land, or easement or other right 1
falfd."^"^'""^'^'^'' therein, in derogation of the title of the registered owner, shall be ac- 2
189S, 562, § 4G. quiped by prescription or adverse possession. R. l. 12s, § 45. 3
Evidence,
what to be
Section 54. The original certificate in the registration book, any 1
r.^l'.T2^8,|46 copy thereof duly certified under the signature of the recorder or an 2
assistant recorder and the seal of the court, and also the owner's dupli- 3
cate certificate, shall be received as evidence in all courts of the com- 4
monwealth, and shall be conclusive as to all matters contained therein, 5
except as otherwise provided in this chapter. 6
Section 55. Every certificate of title shall set forth the names of
Contents of
certificate.
1898, 502. § 48. ^\\ the persous whose estates make up the estate in fee simple in the
R. L. 128, § 4/. ,,,, 111- -f !• 1 1
whole land, and duplicate certificates may be issued to each person, but
the recorder or assistant recorder shall note in the registration book and
on each duplicate, to whom such duplicate was issued.
Indexes, rec-
ord books, etc.
189S, 562, § 49.
R. L. 128, § 48.
Section 56. The recorder, under the direction of the court, shall 1
make and keep indexes of all petitions and of all decrees of registration, 2
and shall also index and classify all papers and instruments filed in his 3
office relating to petitions and to registered titles. The recorder shall 4
also, under the direction of the court, cause forms of indexes and regis- 5
tration and entry books to be prepared for the use of the assistant re- 6
corders. The court shall prepare and adopt convenient forms of certifi- 7
cates of title and shall also adopt general forms of memoranda to be used 8
by the assistant recorders in registering the common forms of conveyance 9
and other instruments to express briefly their eft'ect. 10
Owner of reg-
istered land
may convey,
1898, 562, I 5
R, L. 128, § 4
VOLUNTARY DEALING WITH LAND AFTER ORIGINAL REGISTR.\TI0N.
Section 57. An owner of registered land may convey, mortgage, 1
lease, charge or otherwise deal with it as fully as if it had not been regis- 2
tered. He may use forms of deeds, mortgages, leases or other voluntary 3
instruments, like those now in use, sufficient in law for the purpose m- 4
tended. But no deed, mortgage or other voluntary instrument, except 5
a will and a lease for a term not exceeding seven years, purporting to G
Ch.\P. 185.] REGISTRATION OF TITLE TO L.iND. 2115
7 convey or affect registered land, shall take effect as a conveyance or bind
8 the land, but shall operate only as a contract between the parties, and as
9 evidence of authority to the recorder or assistant recorder to make regis-
10 tration. The act of registration only shall be the operative act to convey
11 or affect the land, and in all cases the registration shall be made in the
12 office of the assistant recorder for the district or districts where the land
13 lies.
1 Section 58. Every conveyance, lien, attachment, order, decree. Notice of
2 instrument or entry affecting registered land, which would under other !S9s°562.°rii.
3 provisions of law, if recorded, filed or entered in the registry of deeds, ^'- ^- ^-^' ^ ^°-
4 affect the land to which it relates, shall, if registered, filed or entered in
5 the office of the assistant recorder of the district where the land to which
6 such instrument relates lies, be notice to all persons from the time of
7 such registering, filing or entering.
1 Section 59. No new certificate shall be entered or issued upon any Estate ies3
2 transfer of registered land which does not divest the title in fee simple sfrnpie^ow
3 from the owner or some one of the registered owners. All interests in isls's^lo,' § 52.
4 registered land less than an estate in fee simple shall be registered by ^- ^- ^-®' ^ si.
5 filing with an assistant recorder the instrument which creates or transfers
6 or claims such interest and by a brief memorandum thereof made by an
7 assistant recorder upon the certificate of title, and signed by him. A
8 similar memorandum shall also be made on the owner's duplicate. The
9 cancellation or extinguishment of such interests shall be registered in the
10 same manner.
1 Section 60. If the assistant recorder is in doubt upon any question. Reference of
2 or if any party in interest does not agree as to the proper memorandum qSestiona.
3 to be made in pursuance of any deed, mortgage or other voluntary in- r.^l. 128, § 52!
4 strument presented for registration, the question shall be referred to the
5 court for decision, either on the certificate of the assistant recorder stating
6 the question in doubt, or upon the suggestion in writing of any party in
7 interest; and the court, after notice to all parties and a hearing, shall
8 enter an order prescribing the form of memorandum to the assistant
9 recorder, who shall make registration in accordance therewith.
1 Section 61. Every deed or other voluntary instrument presented for Orantee's res!-
2 registration shall contain or have endorsed upon it the full name, resi- to besLted.
3 dence and post office address of the grantee or other person acquiring or r^'l. 12!', | Is.
4 claiming an interest under such instrument, and every deed shall also
5 state whether the grantee is married or unmarried, and if married, the
6 name in full of the husband or wife. Any change in the residence or post
7 office address of such person shall be endorsed by an assistant recorder
8 on the original instrument, upon receiving a sworn statement of such
9 change. All names and addresses shall also be entered on all certifi-
10 cates. Notices and processes issued in relation to registered land may be
11 served upon any person in interest by mailing them to the address so
12 given, and shall be binding, whether he resides within or without the
13 commonwealth.
1 Section 62. No new certificate of title shall be entered, and no Presentation ot
2 memorandum made upon any certificate of title by the recorder or any °7"eon e"uy'
3 assistant recorder, in pursuance of any deed or other voluntary instru- rate?etc!'"'^'
2116 REGISTRATION OF TITLE TO LVND. [ChAP. 185.
IS98, 562, § 55. mcnt, unlcss the owner's duplicate certificate is presented with such in- 4
' ■ ' ' strument, except in cases expressly provided for in this chapter or upon 5
the order of the court, for cause shown, and whenever such order is made, 6
a memorandum thereof shall be entered on the new certificate of title and 7
on the owner's duplicate. The production of the owner's duplicate cer- 8
tificate, whenever a voluntary instrument is presented for registration, 9
shall be conclusive authority from the registered owner to the recorder 10
or an assistant recorder to enter a new certificate or to make a memoran- 11
dum of registration in accordance with such instrument, and the new 12
certificate or memorandum shall be binding upon the registered owner 13
and upon all persons claiming under him, in favor of every purchaser for 14
value and in good faith. In all cases of registration procured by fraud, 15
the owner may pursue all his legal and equitable remedies against the 16
parties to such fraud, without prejudice however to the rights of any 17
innocent holder for value of a certificate of title. After the transcrip- 18
tion of the decree of registration on the original petition, any subsequent 19
, registration procured by the presentation of a forged duplicate certificate, 20
or of a forged deed or other instrument, shall be null and void. In case 21
of the loss or theft of an owner's duplicate certificate, notice shall be sent 22
by the owner or by a person in his behalf to the assistant recorder for the 23
district where the land lies, as soon as the loss or theft is discovered. 24
DupHcate'"' Section 63. Each assistant recorder shall keep an entry book in 1
andcertified which hc shall enter, in the order of their reception, all deeds and other 2
COP16S.
1898, 562, 1 56. voluutary instruments, and all copies of writs or other processes filed 3
' with him relating to registered land. He shall note in such book the year, 4
month, day, hour and minute of reception of all instruments, in the order 5
in which they are received. They shall be regarded as registered from 6
the time so noted, and the memorandum of each instrument, w^ien made 7
on the certificate of title to which it refers, shall bear the same date. 8
Every deed or other instrument, voluntary or involuntary, so filed 9
with the recorder or assistant recorder, shall be numbered and indexed, 10
and endorsed with a reference to the proper certificate of title. All 11
records and papers relative to registered land in the office of the recorder 12
or of an assistant recorder shall be open to the public in the same manner 13
as probate records, subject to such reasonable regulations as the recorder, 14
under the direction of the court, may make. 15
Duplicates of all deeds and voluntary instruments filed and registered 16
may be presented with the originals, shall be attested and sealed by the 17
recorder or an assistant recorder, endorsed with the file number and other IS
memoranda on the originals and may be taken away by the person pre- 19
senting them. 20
Certified copies of all instruments filed and registered may also be ob- 21
tained at any time upon payment of the assistant recorder's fees. 22
CONVEYANCE IN FEE.
^Terofregis- Section 64. Au owHcr desiring to convey his registered land or any 1
1S9S, S62l'§ 57. portion thereof in fee shall execute a deed of conveyance, which the grantor 2
R^Li^s lie o^ grantee may present to the assistant recorder in the district where 3
the land lies. The grantor's duplicate certificate shall be produced and 4
presented at the same time. The assistant recorder shall thereupon, in 5
accordance with the rules and instructions of the court, make out in tiie <>
ClLiP. 185.] REGISTRATION OF TITLE TO LAND. 2117
7 registration book a new certificate of title to the grantee, and shall prepare
8 and deliver to him an owner's duplicate certificate. The assistant re-
9 corder shall note upon the original and duplicate certificates the date of
10 transfer, the volume and page of the registration book in which the new
11 certificate is registered and a reference by number to the last preceding
12 certificate. The grantor's duplicate certificate shall be surrendered and
13 the word "cancelled" stamped upon it. The original certificate shall
14 also be stamped "cancelled". The deed of conveyance shall be filed and
1.5 endorsed with the number and place of registration of the certificate of
16 title of the land conveyed.
1 Section 65. If a deed in fee is for a part only of the land described ?ortfon'ofreg-
2 in a certificate of title, the assistant recorder shall also, in accordance 'f'jlg'^'^gf/-. gg
3 with the rules and instructions of the court, enter a new certificate and isoo! 354.' § 6.
4 issue an owner's duplicate to the grantor for the part of the land not
5 included in the deed. In every case of transfer, the new certificate or
6 certificates shall include all the land described in the original and surren-
7 dered certificates; but no new certificate to a grantee of a part only of
8 the land shall be invalid by reason of the failure of the assistant recorder
9 to enter a new certificate to the grantor for the remaining imconveyed
10 portion. If the land described in a certificate of title is divided into lots,
11 designated by numbers or letters, with measurements of all the bounds,
12 and a plan of said land has been filed with the recorder and verified pur-
13 suant to section fifty-one, and a certified copy thereof is recorded in the
14 registration book with the original certificate when the registered owner
15 makes a deed of transfer in fee of one or more of such lots, the assistant
16 recorder may, instead of cancelling such certificate and entering a new
17 certificate to the grantor for the part of the land not included in the deed
18 of transfer, enter on the original certificate and on the owner's duplicate
19 certificate a memorandum of such deed of transfer, with a reference to
20 the lot or lots thereby conveyed, as designated on said plan, and stating
21 that the certificate is cancelled as to such lot or lots. Every certificate
22 with such memorandum shall be as effectual for the purpose of showing
23 the grantor's title to the remainder of the land not conveyed as if the old
24 certificate had been cancelled and a new certificate of such land entered;
25 and such process may be repeated so long as there is convenient space
26 upon the original certificate and the owner's duplicate certificate for
27 making such memorandum of sale of lots.
1 Section 66. If, at the time of any transfer, encumbrances or claims statement of
2 adverse to the title of the registered owner appear upon the registration isQsTsfiz.TM.
3 book, they shall be stated in the new certificate or certificates, except so ^' ^" ^^*' ^ **'
4 far as they may be simultaneously released or discharged.
mortgages.
1 Section 67. The owner of registered land may mortgage it by execut- Mortgage of
2 ing a mortgage deed. Such deed may be assigned, extended, discharged, land."'
3 released in whole or in part, or otherwise dealt with by the mortgagee by r^'I'. 12s', 1 59!
4 any form of deed or instrument sufficient in law for the purpose. But
5 such mortgage deed, and all instriunents which assign, extend, discharge
6 and otherwise deal with the mortgage, shall be registered, and shall take
7 effect upon the title only from the time of registration.
2118 REGISTRATION OF TITLE TO L.\ND. [ChaP. 185.
of^SoH^ag? Section 68. Registration of a mortgage shall be made in the follow- 1
R^L i^l ieo '^'"■S manner: The owner's duplicate certificate shall be presented to the 2
assistant recorder with the mortgage deed, and he shall enter upon the 3
original certificate of title and also upon the owner's duplicate certificate 4
a memorandum of the purport of the mortgage deed, the time of filing 5
and the file number of the deed, and shall sign the memorandum. He 6
shall also note upon the mortgage deed the time of filing and a reference 7
to the volume and page of the registration book in which it is registered. 8
The assistant recorder shall also, at the request of the mortgagee, make 9
out and deliver to him a duplicate of the certificate of title like the 10
owner's duplicate, except that the words " Mortgagee's duplicate " shall be 11
stamped upon it in large letters diagonally across its face. A memoran- 12
dum of the issue of the mortgagee's duplicate shall be made upon the 13
original certificate of title. 14
9
et?'^"™""*' Section 69. If a mortgage upon which a mortgagee's duplicate has 1
1898^562 62 ^^^^ issucd is assigucd, extended or otherwise dealt with, the mortgagee's
R. l! 128", § 6i! duplicate shall be presented with the instnunent -uhich assigns, extends 3
or otherwise deals with the mortgage, and a memorandum of the instru- 4
ment shall be made upon the mortgagee's duplicate certificate. When 5
the mortgage is discharged or othen\-ise extinguished, the mortgagee's 6
duplicate certificate shall be sm-rendered and stamped "cancelled". 7
The production of the mortgagee's duplicate certificate shall be con- 8
elusive authority to register the instrument therewith presented, subject, 9
however, to all the provisions and exceptions contained in section sLxty- 10
tliree, so far as applicable. 11
A mortgage on registered land may be discharged by the mortgagee 12
in person on the registration book in the same manner as a mortgage on 13
unregistered land may be discharged by an entry on the record book in 14
the registry of deeds, and such discharge shall be attested by an assistant 15
recorder. 16
morr'rr^°' Section 70. Mortgages of registered land may be foreclosed like 1
189S, 5G2, 1 63. mortgages of unregistered land; but in case of foreclosure by entry and 2
1905', 29b; § 1." possession, the certificate of entry required by section two of chapter 3
two hundred and forty-four shall be filed and registered by an assist- 4
ant recorder within thirty days after the entry, in lieu of recording. 5
After possession has been obtained by the mortgagee or his assigns, by 6
entry or by action, and has continued for the tmie required by law to com- 7
plete the foreclosure, he or his assigns may petition the land court for 8
the entry of a new certificate, and the court, after notice to all parties in 9
interest, shall have jurisdiction to hear the case, and may order the entry 10
of a new certificate on such terms as equity and justice may requu-e. 11
In case of foreclosure by action as pro\'ided in chapter two hundred 12
and forty-four, and by exercising the power of sale in the mortgage 13
under the direction of the court as pro^'ided therein, a certified copy of 14
the final decree confirming the sale may, after the time for appeal there- 15
from has expired, be filed with the assistant recorder, and the purchaser 16
shall thereupon be entitled to the entry of a new certificate. 17
In case of foreclosure by exercising the power of sale without a pre^^ous 18
decree of court, the affidavit required by section fifteen of chapter two 19
hundred and forty-fom- shall be filed and registered Mith the assistant 20
recorder, in lieu of recording. The purchaser at the foreclosure sale or 21
his assigns may thereupon at any time present the deed under the power 22
Chap. 185.] registration of title to land. 2119
23 of sale to the assistant recorder for filiiii; and registration, and obtain a
24 new certificate, after the mortgagee's duplicate, if any, has been delivered
25 up and cancelled; but this chapter shall not prevent the mortgagor or
26 other person in interest, prior to the entry of a new certificate of title,
27 from directly impeaching, by bill in equity or otherwise, any foreclosure
28 proceedings affecting registered land. ■
29 After a new certificate of title has been entered, no judgment recov-
30 ered on the mortgage note for any balance due thereon shall operate
31 to open the foreclosure or affect the title to registered land.
LEASES.
1 Section 71. Leases of registered land for a term of seven years or Leases of reg-
2 more shall be registered in lieu of recording. A lessee's duplicate cer- i^898';'562°t 64.
3 tificate may be issued to the lessee upon his request, subject to the pro- ^' ^' '^^' ^ ''^'
4 visions hereinbefore made relative to a mortgagee's duplicate certificate,
5 so far as applicable.
TRUSTS.
1 Section 72. If a deed or other instrument is filed in order to transfer Trusts in
2 registered land in trust, or upon any equitable condition or limitation fand."''^*''*
3 expressed therein, or to create or declare a trust or other equitable in- ^^l\ ill', 1 64^
4 terest in such land without transfer, the particulars of the trust, condi-
5 tion, limitation or other equitable interest shall not be entered on the cer-
6 tificate; but a memorandum thereof shall be entered by the words "in
7 trust", or "upon condition", or other apt words, and by a reference by
8 number to the instrument authorizing or creating the same. A similar
9 memorandum shall be made upon the duplicate certificate. The as-
10 sistant recorder shall note upon the original instrument creating or de-
ll daring the trust or other equitable interest a reference by number to
12 the certificate of title to which it relates, and to the volume and page
13 in the registration book in which it is registered. If the instrument creat-
14 ing or declaring a trust or other ecjuitable interest is already recorded in
15 the registry of deeds or of probate, a certified copy may be filed by the
16 assistant recorder and registered.
1 Section 73. If the instrimient creating or declaring a trust or other Trusts with
2 equitable interest contains an express power to sell, mortgage or deal ^tT.^how^''^'
3 with the land in any manner, such power shall be stated in the certificate ilgsfl^', 5 66.
4 of title by the words "with power to sell", or "power to mortgage", R-L-128, §65.
5 and by apt words of description in case of other powers. No instruilaent
6 which transfers, mortgages or in any way deals with registered land held
7 in trust shall be registered, unless the power thereto enabling is expressly
8 conferred in the trust instrument, or unless the decree of a court of
9 competent jurisdiction on a bill for instructions or other proceeding has
10 construed the instrument in fa\or of the power. In such case a certified
1 1 copy of such decree may be filed with the assistant recorder, and he shall
12 make registration in accordance therewith.
1 Section 74. If a new trustee of registered land is appointed by the Proceedings
2 supreme judicial court, the superior court or the probate court, a new rfTOwTr^urte^"'
3 certificate shall be entered to him upon presentation to the assistant r.^l. 128, 1 tl'.
4 recorder of a certified copy of the decree and the surrender of the dupli-
5 cate certificate.
2120
REGISTRATION OF TITLE TO L.\ND.
[Ch.\p. 185.
trusKow"" Section 75. Whoever claims an interest in registered land by reason
iMs'tol'^j 68 °^ ^^y implied or constructive trust shall file for registration with the
R. L. 128, § 67. assistant recorder a statement thereof containing a description of the
land, and a reference to the number of the certificate of title and the
volume and page of the registration book in which it is entered. Such
claim shall not affect the title of a purchaser for value and in good faith
before its registration.
trastee'for' SECTION 76. A trustce mav petition for registration of any land held 1
o^l'and'*'"'' ill trust by him, unless expressly prohibited by the instriunent creating 2
1898, 562, 5 69. the trUSt. ' R. L. 128, | OS. 3
Incidents of
registered
land,
1898, 562, 5 70.
R. L. 128, § 69.
LEGAL INCIDENTS OF REGISTERED L.AND.
Section 77. Registered land, and ownership therein, shall in all 1
respects be subject to the burdens and incidents attaching by law to 2
unregistered land. This chapter shall not relieve registered land or the 3
owners thereof from any rights incident to the relation of husband and 4
wife, or from liability to attachment on mesne process or le\y on execu- 5
tion, or from liability to any lien of any description established by law 6
on land and the buildings thereon, or on the interest of the owner in such 7
land or buildings, nor shall it change the laws of descent, or the rights of 8
partition between co-tenants, or the right to take the same by eminent 9
domain, or relieve such land from hability to be recovered by an as- 10
signee in insolvency or trustee in bankruptcy under the laws relative to 11
preferences, or change or affect in any way any other rights or liabilities 12
created by law and applicable to unregistered land, except as otherwise 13
expressly provided in tliis chapter. 14
Attachment
of registered
land.
1898. 562, I 71.
R. L. 128, § 70.
1915. 120, § 2;
292. § 2.
1916, 306, 5 1.
233 Mass. 314.
ATTACHMENTS AND OTHER LIENS.
Section 78. A writing of any description or a copy of any vrrit re- 1
quired by law to be filed or recorded in the registry of deeds in order to 2
create or preserve any lien, right or attachment upon unregistered land, 3
if intended to affect registered land shall, in lieu of recording, be filed 4
and registered in the office of the assistant recorder for the registry dis- 5
trict where the land lies, and, in addition to any particulars required in 6
such papers for recording with records of deeds, shall also, except in the 7
case of attachment on mesne process, contain a reference to the number .8
of the certificate of title of the land to be affected, and the volume and 9
page of the registration book in which the certificate is registered, and 10
also, if the attachment, right or lien is not claimed on all the land in any 11
certificate of title, shall contain a description sufficiently accurate for 12
identification of the land intended to be affected. 13
^^OT°n?"f"™ Section 79. If an attacliment or other lien or adverse claim of any 1
isgs.^sel § 72 description is registered, and the duplicate certificate is not presented 2
E. L. 12S, § 71. at the time of registration to the assistant recorder, he shall, within 3
twenty-four hours thereafter, send notice by mail to the registered 4
owner, stating that such paper has been registered, and requesting him 5
to send or produce his duplicate certificate so that a memorandum of 6
the attachment or other lien or adverse claim may be made thereon. 7
If the owner neglects or refuses to comply within a reasonable time, 8
the assistant recorder shall suggest the fact to the court, and it shall, 9
Chap. 185.] eegistration of title to land. 2121
10 after notice, enter an order to the owner to produce his certificate at
11 a time and place named therein, and may enforce the order by suitable
12 process.
1 Section 80. Attachments on mesne process and Hens of every Dissolution.
2 description upon registered land shall be continued, reduced, dis- mcn'ts, etc."'^ '
3 charged and dissolved by any method sufficient in law to continue, r^l. ^28'. 1 72!
4 reduce, discharge or dissolve like liens on unregistered land. All certifi-
5 cates or other instruments permitted or required by law to be recorded
6 in the registry of deeds to give effect to the continuance, reduction,
7 discharge or dissolution of attachments or other liens upon unregis-
8 tered land, or to give notice of such continuance, reduction, discharge
9 or dissolution, shall, in the case of like liens upon registered land, be
10 filed with the assistant recorder and registered in the registration book,
11 in lieu of recording.
1 Section 81. All laws relative to attachments of real estate and appiSwe to
2 leasehold estates on mesne process shall apply to registered land', except attachments
3 that the duties required to be performed by the register of deeds shall isas, sci. § 74.
4 be performed by the assistant recorder for the registry district where
5 the land lies, who, in lieu of recording, shall register the facts required to
6 be recorded, and for that purpose shall keep books similar to those
7 required to be kept for attachments by registers of deeds, and the fees
8 for registering attachments shall be the same as for recording them.
1 Section 82. If an attachment is made, the name and address of of^pUimjA'"'
2 the plaintiff's attorney shall be endorsed upon the writ, and he shall s^t^tomey upon
3 be deemed to be the attorney of the plaintiff until written notice that isos. 562. § 75.
4 he has ceased to be such shall have been filed for registration by the
.5 plaintiff.
1 Section 83. If an attachment on mesne process is continued, re- Registration
2 duced, dissolved or otherwise affected by an order, decision or judgment ?nurt,e?o.°
3 of the court where the action or proceeding in which said attachment u^t', ill', 1 75!
4 was made is pending, or by an order of a court having jurisdiction in
5 insolvency or bankruptcy, a certificate of the entry of such order, de-
6 cision or judgment from the clerk or register and under the seal of the
7 court, shall be entitled to be registered on presentation to the assistant
8 recorder. A like certificate of the allowance by the court of an amend-
9 ment which a subsequent attaching creditor or purchaser contends had
10 the effect of dissolving an attachment may be registered as an amend-
11 ment allowed, but shall not be conclusive of dissolution, unless the
12 court where the action or suit is pending adjudicates that the amend-
13 ment dissolved the attachment, whereupon a certificate of the order,
• 14 when it becomes absolute, shall be registered as a dissolution of the
15 attachment.
1 Section 84. Any lien on registered land shall be enforced in the Enforcement
2 same manner as a like lien on unregistered land. If registered land Registered"
3 is set off or sold on execution, or taken or sold for taxes or for any as- fsos. 562, 5 78.
4 sessment, or sold to enforce a lien for labor or materials, or the lien of ^- ^ ^^^' ^ ^^'
5 a mortgagee or co-tenant arising from a payment of taxes, or the lien for
6 an assessment under chapter eighty, or for costs and charges for taking
7 down dangerous structures under section nine of chapter one hundred
2122
REGISTRATION OF TITLE TO L.-USID.
[Chap. 185.
and forty-tlaree, or for erecting fences along the line of a railroad corpo- 8
ration under section ninety-foiir of chapter one hundred and sixty, or for 9
improving low land and swamps under section eight of chapter two hun- 10
dred and fifty-two, or for flowing land under section fourteen of chapter 11
two hundred and fifty-three, or for any costs and charges incident to 12
such liens, any execution, or copy of the execution, any officer's return, 13
or any deed, demand, certificate or affidavit or other instrument made 14
in the course of proceedings to enforce such liens and required by law 15
to be recorded in the registry of deeds in the case of unregistered land, 16
shall be filed -with the assistant recorder for the district where the land 17
lies and registered in the registration book, and a memorandum made 18
upon the proper certificate of title in each case as an adverse claim or 19
encumbrance. 20
fo?Mrtificate SECTION 85. When the time has expired for redemption after regis- 1
credUo'rs.'S". tcred land has been set off or sold on execution, or taken or sold for 2
R ^L 1^1 1 7s ^'^^ enforcement of a lien of any description, the person claiming under 3
an execution or a deed or other instrument made in the course of pro- 4
ceedings to levy such execution or enforce any lien may petition for 5
the entry of a new certificate to him, which may be granted. Every such 6
new certificate shall contain a memorandum of the nature of the pro- 7
ceeding on which it is based. Before the entry of a new certificate, the 8
registered owner may pursue all legal and equitable remedies to im- 9
peach or annul proceedings under executions or to enforce liens of any 10
description. 11
Registration
of notice of
proceedings,
etc., required
to bind third
parties.
1898, 562, 5 80.
R. L. 128, § 79.
PENDING SUITS, JUDGMENTS, DECREES AND PARTITIONS.
Section 86. No writ of entry, petition for partition, or other pro- 1
ceeding at law or in equity affecting the title to land or the use and 2
occupation thereof or the buildings thereon, and no judgment or decree, 3
or any writ of error, bill of review or other proceeding to vacate or 4
reverse any judgment or decree, shall have any effect upon registered 5
land as against persons other than the parties thereto, unless a memoran- 6
dum like that described in section fifteen of chapter one hundred and 7
eighty-four, containing also a reference to the number of the certificate 8
of title of the land affected and the volume and page of the registration 9
book in which it is entered, is filed and registered. This section shall 10
not apply to attaclmients, levies of execution, or to the probate of wills 11
or administration in the probate court. If notice of the pendency of the 12
proceeding has been duly registered, it shall be sufficient to register the 13
judgment or decree within sixty days after the rendition thereof. 14
Registration
of certificate
of judgment,
etc
Section 87. At any time after final judgment or decree in favor of
the defendant, or other disposition in the manner specified in section
R^t 128 I 80 s^^P^" of chapter one hundred and eighty-four, of any case where a
memorandum has been registered as provided in the preceding section,
a certificate of the clerk, stating the manner of disposal thereof, as pro-
vided in said section sixteen, shall be entitled to registration.
?fTudgment Section 88. If judgment is entered for the plaintiff or demandant 1
i898™'62.^"82. "1 ^ ^cal actiou affecting registered land, except in ejectment, and ac- 2
R. L. 128, 1 81. tions under chapter two hundred and thirty-nine relative to terms of less 3
than seven years, such judgment shall be entitled to registration on pres- 4
Ch.'VP. 185.] REGISTE.4.TI0N OF TITLE TO 'LAND. 2123
5 entation of a certificate of the entry thereof from the clerk of the court
6 where the action is pending to the assistant recorder, who shall enter
7 a memorandum upon the certificate of title of the land to which such
8 judgment relates. If the judgment does not apply to all the land described
9 in the certificate of title, the certificate of the clerk and the memorandum
10 entered by the assistant recorder shall contain a description of the land
11 affected by the judgment.
1 Section 89. If an execution or writ of seisin has been issued upon Reeistration
2 a writ of entry affecting registered land and served by the officer, he shall sei^n, etc,
3 cause an attested copy of the execution, with a return of his doings i89sr562r§ ss.
4 thereon, to be filed and registered within three months after the service ^- ^- ^^*' ^ *^-
5 and before the return of the execution into the clerk's ofhce, and the
6 demandant, if the judgment was that he was entitled to an estate in fee
7 simple in the demanded premises, or in any part thereof, and for which
8 execution issued, shall thereupon be entitled to the entry of a new certifi-
9 cate of title; but in informations under chapter two hundred and forty-
10 Hxe the commonwealth shall be entitled to have the certificate of the
11 registered owner cancelled by the land court as soon as judgment is
12 rendered in its favor.
1 Section 90. If, in a writ of dower, judgment is entered confirming Registration of
2 the report of the commissioners under section seven of chapter two j^udgm'ifnti'n
3 hundred and tliirty-eight, or if, in a writ of waste, judgment is entered ^".' °' '^°"^'^"
4 that the plaintiff recover the place wasted, a certificate of the entry of J^^^^' ils 1 83'
5 such judgment may be registered as an encumbrance.
1 Section 91. A decree of a court of competent jurisdiction affecting Registration
2 title or rights in registered land, whether made in the exercise of general isgl^sla,' § ss.
3 equity jurisdiction or in the exercise of jurisdiction conferred by statute, ^' ^' ^^^' ^ **'
4 may be registered in the same manner as a judgment at law. But every
5 court making such a decree shall, upon application of the plaintiff or
6 petitioner, order any parties before it to execute for registration any
7 deed or instrument necessary to give effect to its decree, and may require
8 the registered owner to deliver his duplicate certificate to the plaintiff
9 or petitioner to be cancelled or to have a memorandum entered upon it
10 by the assistant recorder. If the person recjuired to execute any deed or
1 1 other instrument for the purpose of giving effect to the decree is absent
12 from the commonwealth, or is a minor, or insane, or for any reason is not
13 amenable to the process of the court, it may appoint a trustee to execute
14 such instrument, which, when executed, shall be registered and shall have
15 full force and effect to bind the land to be affected thereby.
1 Section 92. In proceedings for partition of registered land, or for Proceedings
2 the assignment in fee of registered land claimed by husband or wife by ?or ^partition'
3 statutory right, after the entry of the final decree and the acceptance of fggg 5g2_ § gs
4 the report of the commissioners, a copy of the decree and of the return f^^- l^f 1 1^-
5 of the commissioners, certified by the register, shall be filed and registered ;
6 and thereupon, if the land is set off to the owners in severalty, any owner
7 shall be entitled to have a certificate entered of the share set off' to him
8 in severalty, and to receive an owner's duplicate therefor. If the land
9 lies in two or more registry districts, only so much of the decree or return
10 need be filed and registered in any district as relates to the land in that
11 district. If the land is ordered by the court to be sold, the purchaser or
2124 KEGISTRATION OF TITLE TO L.\ND. [ChAP. 185.
his assigns shall have a certificate of title entered to him or them upon 12
presenting the deed of the commissioners for registration; but any new 13
certificate entered in pursuance of partition proceedings, whether by 14
set-off or sale, shall contain a reference to the final decree of partition, 15
and shall be conclusive as to the title to the same extent and against the 16
same persons as such decree is made conclusive by the laws applicable 17
thereto. A person holding such certificate or a transfer thereof may IS
petition the court at any time to cancel the memorandum relative to such 19
decree, and the court, after notice and a hearing, may grant the petition. 20
Such certificate shall thereafter be conclusive in the same manner and 21
to the same extent as other certificates of title. 22
prif/rSs-" "' Section 93. If a certified copy of a decree for partition and of the 1
orTelse'^th^^ retuTU of the commissioners is presented for registration, and if a mortgage 2
"^artftlo" or lease aft'ecting a specific portion or an undivided share of the premises 3
1898. 562. 1 87. had prcvlously been registered, the tenant claiming under the mortgagor 4
or lessor shall cause the mortgage or lease and any duplicate certificate 5
of title issued to the mortgagee or lessee to be again presented for regis- 6
tration, and the assistant recorder shall endorse on each a memorandum 7
of such partition and a description of the land set off in severalty on which 8
such mortgage or lease remains in force. Such tenant shall not be en- 9
titled to receive his own duplicate certificate of title until such mortgage 10
or lease has been so presented for registration. 11
BANKRUPTCY AND INSOLVENCT.
of^otice*oT Section 94. Such notices in insolvency and copies of decrees in 1
insolvency. bankruptcy as are required in the case of unregistered land to be recorded, 2
1898. 562. 1 88. shall, if the debtor owns registered land, be filed with the assistant re- 3
corder and registered. 4
An assignee in insolvency or trustee in bankruptcy shall be entitled 5
to the entry of a new certificate of registered land of the debtor or bank- 6
rupt upon presenting and filing a certified copy of the assignment in 7
insolvency or decree of adjudication in bankruptcy with the insolvent's 8
or bankrupt's duplicate certificate of title; but the new certificate shall 9
state that it is entered to him as assignee in insolvency or trustee in 10
bankruptcy. 1 1
§^harg^°c°c°^ Section 95. If proceedings in insolvency or bankruptcy against a 1
R ^L 128 I is' registered owner, of which notice has been registered, are vacated by 2
decree, or if the court of insolvency or bankruptcy grants a discharge in 3
composition proceedings and orders a reconveyance of land to the debtor, 4
or bankrupt, a certified copy of the decree, or of such discharge and order, 5
may be filed and registered. If a new certificate has been entered in the 6
name of the assignee in insolvency or trustee in bankruptcy as registered 7
owner, the debtor or bankrupt shall be entitled to the entry of a new cer- 8
tificate in his name, and the certificate of the assignee or trustee shall 9
be surrendered. 10
REVERTER.
upon reverter* Section 96. If land taken for a public use reverts by operation of 1
1898? 562, § 91. law to the owner from whom it was taken or to his heirs or assigns, the 2
R. L. 128. § 90. court, upon petition of the person entitled to the benefit of the reversion, 3
after notice and a hearing, may order the entry of a new certificate of 4
title to him. 5
Ch.\P. 185.] REGISTRATION OF TITLE TO L.\ND. 2125
TRANSFER BY DESCENT AND DEVISE.
1 Section 97. Upon the death of a registered owner, his heirs at law Transfer by
2 or devisees, after twenty days from the granting of letters testamentary defj™' °'
3 or of administration, or in case of an appeal, at any time after the entry ^^f; ^2!', 1 91!
4 of a final decree, may file a certified copy of the final decree of the probate ^^'^' "•
5 court and of the will, if any, with the assistant recorder, and make appli-
6 cation for the entry of a new certificate.- The court shall issue notice to
7 the executor or administrator and to all other persons in interest, and may
8 also give notice by publication in such newspaper or newspapers as it
9 may consider proper, to all whom it may concern, and, after a hearing,
10 may direct the entry of a new certificate or certificates to the persons
11 entitled as heirs or devisees. Any new certificate so entered before the
12 final settlement of the estate of the deceased owner in the probate court
13 shall state expressly that it is entered by transfer from the last certificate
14 by descent or devise, and that the estate is in process of settlement. After
15 the final settlement of the estate, or after the time allowed for bringing
16 an action against an executor or administrator by creditors of the de-
17 ceased, the heirs at law or de\isees may petition the court for an order to
18 cancel the memorandum upon their certificate, stating that the estate is
19 in course of settlement, and the court, after notice and a hearing, may
20 grant the petition; but the liability of heirs or devisees of registered land
21 for claims against the estate of the deceased shall not in any way be
22 diminished or changed.
1 Section 98. This chapter shall not affect or impair the jurisdiction Executor's
2 of the probate court to license an executor, administrator, guardian or "tc .Vnafec'ted.
3 conservator to sell or mortgage registered land for any purpose for which ^^t. ill. 1 92!
4 a license, may be granted in the case of unregistered land. The pur- isis, 23, §1.
5 chaser or mortgagee taking a deed in pursuance of such license shall be
6 entitled to a new certificate of title, or memorandum of registration.
ASSURANCE FUND.
1 Section 99. Upon original registration, and also upon the entry of f^^^j^""'^^
2 a certificate under section ninety-seven, there shall be paid to the re- J^ss, S62, 1 94.
3 corder one tenth of one per cent of the assessed value of the land, on i905,' 249,' § 3. '
4 the basis of the last assessment for municipal taxation, or, in case of the p- • • •
5 registration of an easement or right, one tenth of one per cent of the
6 value thereof as found by the court, as an assurance fund.
1 Section 100. All money received by the recorder under the preceding Custody and
2 section shall be paid to the state treasurer, who shall keep it invested, S^fifnd!''"'
3 with the advice and approval of the governor and council, and shall make ^^l; i|g | H
4 an annual report of the condition and income thereof. 4 Op. a. g. is.
1 Section 101. A person who, without negligence on his part, sustains Action for
2 loss or damage, or is deprived of land or of any estate or interest therein f °o'm fund''""
3 after the original registration of land, by the registration of another Jj*'^l! ill' 1 95!
4 person as owner of such land or of any estate or interest therein, through ^-^ ^'''*^- *®-
5 fraud or in consequence of any error, omission, mistake or misdescription
6 in any certificate of title or in any entry or memorandum in the registra-
7 tion book, may recover in contract in the superior court compensation
8 for such loss or damage or for such land or estate or interest therein
2126
REGISTRATION OF TITLE TO L_\XD.
[ClLiP. 185.
from the assurance fund; but a person so deprived of land or of any 9
estate or interest therein, having a right of action or other remedy for 10
the recovery of such land, estate or interest, shall exliaust such remedy 11
before resorting to the action of contract herein provided. This section 12
shall not depri\"e the plaintiff of any action of tort which he may have 13
against any person for such loss or damage or deprivation of land or of any 14
estate or interest therein. But if the plaintiff" elects to piu-sue liis remedy 15
in tort, and also brings an action of contract under this chapter, the action 16
of contract shall be continued to await the result of the action of tort. 17
Action against
treasurer.
224 Mass. 16.
Section 102. If such action of contract is brought to recover for 1
1898, 56|, 1 97. jQgg Qj. damage or for deprivation of land or of any estate or interest 2
therein arising wholly through fraud, negligence, omission, mistake or 3
misfeasance of the recorder, assistant recorder or of any of the examiners 4
of title, in the performance of executive or ministerial duties, or of any 5
of the assistants or clerks of the recorder, in the performance of their 6
respective duties, the action shall be brought against the state treasurer 7
as sole defendant. If such action is brought to recover for loss or damage S
or deprivation of land or of any estate or interest therein arising whoUy 9
through fraud, negligence, omission, mistake or misfeasance of some 10
person other than the recorder, assistant recorder or the other officers 11
and assistants above named, or arising jointly through the fraud, negli- 12
gence, omission, mistake or misfeasance of such other person and the 13
recorder, assistant recorder or other officers and assistants above named, 14
such action shall be brought against both the state treasurer and such 15
other person, as joint defendants. 16
R. L. 128, § 97.
hot^Stfsfied Section 103. If there are defendants other than the state treasm-er
1898. 5fi2. 1 98. and judgment is entered for the plaintiff against the state treasurer and
against any of the other defendants, execution shall issue against such
other defendants and be lewd upon them. If the execution is returned
unsatisfied in whole or in part, and the officer returning the same certi-
fies that the amount due cannot be collected from the land or goods
of such other defendants, a justice of the superior com-t shall direct the
clerk to certify the amoimt due on the execution to the state auditor,
who shall thereupon audit and certify the amoimt of the execution in the
same maimer as claims against the commonwealth, and the state treasurer 10
shall pay the amount out of the assurance fund, ■without any further act 1 1
or resolve making an appropriation therefor. 12
If judgment in such action cannot for any reason be entered against 13
any of the other defendants it may be entered against the state treasurer 14
alone, or, if it cannot be entered against all the other defendants, it 15
may be entered against him and such of the other defendants as are 16
found liable, and against whom judgment can lawfully be entered. 17
If judgment is entered against the state treasurer alone, the justice of 18
the superior court before whom the action is tried shall direct the clerk 19
to transmit to the state auditor a certificate of the entry of judgment and 20
of the amount due, and the state treasurer shall pay the same upon the 21
certificate of the state auditor, as aboAe pro^"ided. 22
asTtSi^ce^und Section 104. If the assurance fund at any time is not sufficient 1
i898,'M2,™'99. *° ineet the amount called for by such certificate of the state auditor the 2
R. L. 128, § 98. state treasurer shall make up the deficiency from any funds in the treasury 3
CkAF. 1S5.] REGISTRATION OF TITLE TO L.\ND. 2127
4 not otiierwise appropriated; and, in such case, any amounts thereafter
5 received by the state treasurer on account of the assiu'ance fund shall be
6 transferred to the general funds of the treasury, until the amount paid
7 on account of the deficiencj' shall have been made up.
1 Section 105. In every case where pajTnent has been made by the subrogation of
2 state treasm-er under section one hundred and three, the commonwealth to nSimSrs
3 shall be subrogated to the rights of the plaintiff against any other parties isQs.^sei!'^'''
4 or securities, and the state treasurer shall enforce the same, and the ^.^^128, § 99.
5 amounts recovered shall be placed to the account of the assurance fund.
1 Section 106. The income of the assurance fund shall be added to Assurance
2 the principal and invested ; except that whenever said fund amounts to timi oHncome.
3 two hundred thousand dollars the income thereof shall be used to de- R.^Llils',^'*^''
4 fray, as far as may be, the expenses of the administration of this chapter. | Qpj^ q jg
1 ■ Section 107. The assurance fund shall not be liable for any loss, when fund
2 damage or deprivation occasioned by a breach of trust, whether express, L^ifof'^'
3 implied or constructive, by any registered owner who is a trustee, or by ilgs^'sfif''"'''
4 the improper exercise of any power of sale in a mortgage, nor shall any fsgg^ios.
5 plaintiff recover in contract as compensation under this chapter more Pjof^"*'
6 than the fair market value of the land at the time when he suffered
7 the loss, damage or deprivation thereof.
1 Section 108. Actions of contract for compensation under this Limitation,
2 chapter by reason of any loss or damage or deprivation of land or any is9s,°so2, '°°
3 estate or interest therein shall be begun within six years after the cause r^l^i28,
4 of action accrued ; but the plaintiff in an action for the recovery of the ^ '°-
5 land or estate or interest therein in accordance with section one hundred
6 and two may bring the action of contract for compensation within one
7 year after the termination of such action. Said action of contract shall
8 survive to the personal representative of the registered owner, unless
9 barred in his lifetime; but the proceeds thereof shall be treated as real
10 estate.
1 Section 109. In any action to recover damages for loss or damage Assessors-
2 or deprivation of land, or of any estate or interest therein, by the regis- be cridence"
3 tration of another person as owner of such land, or of any estate or in- i^i^'^'* •
4 terest therein, the assessed valuation for taxation of the land, or of the
5 estate or interest, if assessed separately, for the three years preceding
6 the loss, damage or deprivation may be introduced by any party as
7 evidence of the fair market value of such land, estate or interest; but
8 if the valuation for any one year is so introduced, the valuations for
9 all three years shall be introduced.
powers of attorney.
1 Section 110. Any person may, by attorney, procure land to be Powers of
2 registered and convey or otherwise deal with registered land, but the is98."5U2,
3 letters of attorney shall be acknowledged and filed with the recorder r'u 12s,
4 or the assistant recorder of the proper registry district and registered. ^ '°^-
5 Any instrument revoking such letter shall be acknowledged and regis-
6 tered in like manner.
2128
REGISTRATION OF TITLE TO L.UsD.
[ClL^. 185.
Lost duplicate
certificates.
189S, 562,
§ 105.
R. L. 128.
5 104.
LOST DUPLICATE CERTIFICATES.
Section 111. If a duplicate certificate is lost or destroyed, or cannot 1
be produced by a grantee, heir, devisee, assignee or other person applying 2
for the entry of a new certificate to him or for the registration of any 3
instrument, a suggestion of the fact of such loss or destruction may be 4
filed by the registered owner or other person in interest and registered. 5
The court may thereupon, upon the petition of the registered owner or 6
other person in interest, after notice and a hearing, direct the issue of 7
a new duplicate certificate, which shall contain a memorandum of the 8
fact that it is issued in place of a lost duplicate certificate, but shall in 9
all respects be entitled to like faith and credit as the original duplicate, 10
and shall thereafter be regarded as the original duplicate for all the 11
purposes of this chapter. 12
Adverse
claims.
1898, 562,
§106.
R. L 128,
§ 105.
234 Mass. 288.
ADVERSE CLAIMS.
Section 112. WTioever claims any right or interest in registered land 1
adverse to the registered owner arising after the date of original regis- 2
tration may, if no other provision is made in this chapter for registering 3
the same, make a written statement setting forth fully his alleged right 4
or interest, and how or under whom it was acquired, and a reference to 5
the volume and page of the certificate of title of the registered owner, and 6
a description of the land in which the right or interest is claimed. The 7
statement shall be signed and sworn to, and shall state the adverse claim- 8
ant's residence, and designate a place where all notices may be served 9
upon him. This statement shall be entitled to registration as an adverse 10
claim, and the court, upon the petition of any party in interest, shall 11
grant a speedy hearing upon the validity of such adverse claim, and shall 12
enter such decree thereon as justice and equity may require. If the 13
claim is adjudged to be invalid, the registration shall be cancelled. If 14
the court, after notice and a hearing, finds that a claim thus registered 15
was frivolous or vexatious, it may tax the adverse claimant double costs. 16
Surrender of
duplicate
certificates.
1898. 562,
§ 107.
E. L. 12S,
5106.
SURRENDER OF DUPLICATE CERTIFICATES.
Section 113. If the recorder or any assistant recorder is requested 1
to enter a new certificate in pursuance of an instrument purporting to 2
be executed by the registered owner, or by reason of any instrument or 3
proceedings which divest the title of the registered owner against his 4
consent, and the outstanding owner's duplicate certificate is not pre- 5
sented for cancellation when such request is made, the recorder or assist- 6
ant recorder shall not enter a new certificate, but the person claiming to 7
be entitled thereto may apply by petition to the court. The court, after a 8
hearing, may order the registered owner or any person withholding the 9
duplicate certificate to surrender it, and direct the entry of a new cer- 10
tificate upon such surrender. If the person withholding the duplicate 11
certificate is not amenable to the process of the court, or if for any reason 12
the outstanding owner's duplicate certificate cannot be delivered up, 13
the court may by decree annul it and order a new certificate of title to be 14
entered. Such new certificate and all duplicates thereof shall contain a 15
memorandum of the annulment of the outstanding duplicate. 16
If an outstanding mortgagee's or lessee's duplicate certificate is not 17
produced and surrendered when the mortgage is discharged or extin- 18-
ClL\P. 1S5.] REGISTRATION OF TITLE TO L.VND. 2129
19 guished or the lease is terminated, like proceedings may be had to obtain
20 registration as in the case of the non-production of an owner's duplicate.
AMENDMENT AND ALTERATION VDF CERTIFICATES OF TITLE.
1 Section 114. No erasure, alteration or amendment shall be made Amendment,
2 upon the registration book after the entry of a certificate of title or of a certificates.
.3 memorandum thereon and the attestation of the same by the recorder or j^fog.*''^'
4 an assistant recorder, except by order of the court. A registered owner ?-,ni^^^'
5 or other person in interest may apply by petition to the court upon the 230 Mass. i-r..
6 ground that registered interests of any description, whether vested, con-
7 tingent, expectant or inchoate, have terminated and ceased; or that new
8 interests not appearing upon the certificate have arisen or been created;
9 or that any error or omission was made in entering a certificate or any
10 memorandum thereon, or on any duplicate certificate; or that the name _
11 of any person on the certificate has been changed; or that the registered
12 owner has married, or if registered as married, that the marriage has
13 been terminated; or that a corporation which owned registered land
14 and has been dissolved has not conveyed the same within three years after
15 its dissolution; or upon any other reasonable ground; and the court
16 may hear and determine the petition after notice to all parties in interest,
17 and may order the entry of a new certificate, the entry or cancellation of
18 a memorandum upon a certificate, or grant any other relief upon such
19 terms, requiring security if necessary, as it may consider proper; but
20 this section shall not authorize the court to open the original decree of
21 registration, and nothing shall be done or ordered by the court which
22 shall impair the title or other interest of a purchaser holding a certificate
23 for value and in good faith, or his heirs or assigns, without his or their
24 written consent.
PETITIONS, MOTIONS AND NOTICES AFTER REGISTR.'^TION.
1 Section 115. Petitions and motions filed under this chapter after Filing of peti-
2 original registration shall be filed and entitled in the original case in mo^fonslfter
3 which the decree of registration was entered. registration.
1S98, 562, § 108. R. L. 128. § 107.
1 Section 116. All notices required by or given under this chapter by Service of
2 the recorder or any assistant recorder, after original registration, shall ^Ri'sTration.
3 be mailed to the person to be notified at the residence and post office ad- §*j'o9.^'^^'
4 dress stated in the certificate of title, or in any registered instrument ?ia§^^*'
5 under which he claims an interest, in the office of the recorder or assistant
6 recorder, relating to the parcel of land in question.
7 All notices and citations directed by special order of the court under
8 this chapter, after original registration, may be served in tlie manner
9 above stated, and the certificate of the recorder shall be conclusive proof
10 of such service; but the court may in any case order different or further
1 1 service, by publication or otherwise.
sectional plans.
1 Section 117. The court may make sectional plans sho-wing regis- Sctionai plana
2 tered lands, and in so doing mav employ competent draftsmen autl meUt ofassist-
3 assistants. " 101S,223,§2. ance therefor.
2130
ESTATES FOR YE.VRS AND AT WILL.
[CiLAP. 186.
Penalty for
fraudulent
conveyance.
1898. 5fi2,
§ 115.
R. L. 128,
S 110.
PENALTi'.
Section 118. Whoever, with intent to defraud, sells and conveys
registered land, knowing that an undischarged attachment or any other
encumbrance exists thereon not noted by memorandum on the duplicate
certificate of title, without informing the grantee of such attachment or
other encumbrance before the consideration is paid, shall be punished
by imprisonment in the state prison for not more than tliree years or
in jail for not more than one year.
REFERENCES.
Provisions as to eminent domain, Chap. 79, § 4.
Appointment of additional officers in Worcester county who may be assigned to
attend sessions of the land court, Chap. 221, § 70.
§ 37. Fees of examiner under this section, Chap. 262, § 39.
§§ 86, 87, 91. Effect of registering decree of court where no conveyance is made
pursuant to the decree, Chap. 183, § 44.
CHAPTER 186
ESTATES FOR YEARS AND AT WILL.
Sect.
1. Estates for long term of years deemed
estates in fee simple.
2. PajTnents when curtesy or dower is
assigned out of such estate.
3. Liability of tenant at sufferance for rent.
4. Liability of tenant for rent of part of
land demised.
6. Form of action to recover rent. Evi-
dence.
Sect.
6. Survival of action for rent.
7. Application of certain sections.
8. Recovery of apportionment of rent.
9. Recovery of rent paid in advance.
10. Rent deemed necessaries.
11. Termination of lease by notice to quit
for non-payment of rent.
12. Termination of tenancy at will by
notice to quit.
Estates for
long term of
years deemed
estates in fee
simple.
1834, 162,
§§1.2. .
E. S. 60,
§§ 18, 19.
G. S. 90,
§§ 20, 21.
P. S. 121, § 1.
R. L. 129, § 1.
1915. 23, § 1.
5 Mass. 419.
112 Mass. 247.
178 Mass. 76.
Section 1. If land is demised for the term of one hundred years or 1
more, the term shall, so long as fifty years thereof remain unexpired, be 2
regarded as an estate in fee simple as to every thing concerning the 3
descent and devise thereof, upon the decease of the owner, the right of 4
dower or of curtesy therein, the sale thereof by executors, administrators, 5
guardians, conserA'ators or trustees, the levy of execution thereon, and 6
the redemption thereof if mortgaged or taken on execution; and who- 7
ever holds as lessee or assignee under such a lease shall, so long as fifty S
years of the term remain unexpired, be regarded as a freeholder for all 9
purposes. 10
Payments
when curtesy
or dower is
assigned out of
such estate.
1834, 1(52, § 3.
R. S. 60, § 20.
Section 2. If curtesy or dower is assigned out of such lantl, the 1
husband or widow and his or her assigns shall pay to the owner of the 2
unexpired residue of the term one third of the rent reserved in the lease 3
under which the wife or husband held the term. 4
G.S. 90, § 22
P. S. 121, !
R. I,. 129,
Liability of
tenant at
sufferance for
rent.
G. S. 90. § 25.
Section 3. Tenants at sufferance in possession of land or tenements 1
shall be liable to pay rent therefor for such time as they may occupy or 2
detain the same. p. s. 121, § 3. r. l. 129, § 3. 3
4 Gush. 42.
1 Allen, 217.
10 Allen, 260.
105 Mass. 486.
132 Mass. 346.
134 Mass. 2S3.
156 Mass. 209.
ISl Mass. 218.
ISO Mass. 246.
202 Mass. 26.
229 Mass. 576.
232 Mass. 479.
Chap. 186.] est.\tes for yexus and at \vill. 2131
1 Section 4. A person in possession of land out of which rent is due LiabUity of
2 shall be liable for the amount or proportion of rent due from the land in 0!"?^^ oTiLnd'
3 his possession although it is only a part of that originally demised. demised.
R. S. 60, § 22. R. L. 129, § 4. 2 Met. 505.
G. S. 90, § 24. 17 Mass. 439. S Gray, 204.
P. S. 121, § 4. 22 Pick. 565.
1 Section 5. Such rent mav be recovered in contract, and the deed form of action
p., , . ." .„ 1.1 .. r» to recover rent.
2 of demise or other written instrument, if any, showing the provisions of ?,^o's^Sq°5 ^
3 the lease, may be used in evidence by either party to prove the amount R."s.'60.'§ 23.
4 of rent due from the defendant. g. s. 90, § 26.
p. S. 121, §5. R. L. 129, §5. 115 Mass. 367.
1 Section 6. Such action may be brought by or against executors and act'io'n f!)r°rent
2 administrators for any arrears of rent accrued in the lifetime of the de- }?2o,s9,§5
3 ceased parties, respectively, in the same manner as tor debts due from o. s. 90, § 27.
4 or to the same parties in their lifetime on a personal contract. r'. l. 129, § 6.
1 Section 7. The sbc preceding sections shall not deprive landlords Appiicatioii of
2 of any other legal remedy for the recovery of rents, whether secured by ii"s!'6o,''f a™''
3 lease or by law. g. s. 90, §28. ?. s. i2i,§7. r. l. 129, §7.
1 Section 8. If land is held by lease of a person having an estate Recovery of
2 therein determinable on a life or on a contingency, and such estate de- of?ent'°''™''°'
3 termines before the end of a period for which rent is payable, or if an jf^i^^***'
4 estate created by a written lease or an estate at will is determined before ^ f '■^^^ § ^^
5 the end of such period by surrender, either express or by operation of 3 Cush. 200.
6 law, by notice to quit for non-payment of rent, or by the death of any 6Aiien!2i5!
7 party, the landlord or his executor or administrator may recover in i32m^33:346:
8 contract, a proportional part of such rent according^ to the portion of HI mHI'. lla.
9 the last period for which such rent was accruing which had expired at 222 Mass. 327.
10 such determination.
1 Section 9. If, upon the determination of a tenancy, in any manner Recovery of
2 mentioned in the preceding section, before the end of a period for which advance"^ '"
3 rent is payable, the rent therefor has been paid before such determina- p^i^iii^^i;
4 tion, a proportionate part thereof, according to the portion of such period ^- ^- i^s. § 9-
5 then unexpired, may be recovered back in contract.
1 Section 10. Debts for the rent of a dwelling house occupied by the Rent deemed
2 debtor or his family shall be considered as claims for necessaries. is59?f27°'''
G. S. 90, § 29. 8 Gray, 220. 7 Allen. 264.
p. S. 121, § 10. 1 Allen, 219. 12 Allen, 366.
R. L. 129, § 10.
1 Section 11. Upon the neglect or refusal to pay the rent due under Termination
2 a written lease, fourteen days' notice to quit, given in writing by the notfcTto^quit
3 landlord to the tenant, shall be sufficient to determine the lease, unless J^enTSf'Jent.
4 the tenant, at least four days before the return day of the writ, in an \^y f^l' | },■
5 action by the landlord to recover possession of the premises, pays or i^^J'qosoo.
6 tenders to the landlord or to his attorney all rent then due, with interest i37,'§ 3.'
PS I'^l § 11
7 and costs of suit. R. L. 129, § 11. S Cush. 2S2. 137 Mass. 13. 219 Mass. 151. • • - •
1 Section 12. Estates at will may be determined by either party by Termination
2 three months' notice in writing for that purpose given to the other party; wufbyuTticl
3 and if the rent reserved is payable at periods of less than three months, isasl'sb, § 4.
2132
EASEMENTS.
[ClL\P. 187.
R. S. 60, § 26.
G.S. 90, § 31.
P. S. 121, § 12.
R. L, 129, § 12.
17 Mass. 282.
1 Pick. 43.
2 Pick. 70.
2 Met. 29.
13 Met. 275.
the time of such notice shall be sufficient if it is equal to the interval be- 4
tween the days of payment; and in case of neglect or refusal to pay the 5
rent due from a tenant at will, fourteen days' notice to quit, given in 6
writing by the landlord to the tenant, shall be sufficient to determine the 7
tenancy. scush. 133. u Cush. 93, 191. 8
6 Gray, 224.
11 Gray, ISl.
7 .A-llen. 4S7.
14 Allen, 43.
, 133.
103 Mass. 154.
107 Mass. 406.
108 Mass. 150, 553.
113 Mass. 531.
126 Mass. 143.
136 Mass. 532.
157 Mass. 439.
165 Mass. 351.
172 Mass. 145.
197 Mass. 325.
210 Mass. 55.
226 Mass. 430.
REFERENCES.
For temporary relief to tenants, 1920,538; 554; 555; 577; 578.
§ 6. Suit in equity by legatee or creditor where e.xeeutor or administrator wUl
not or cannot sue, Chap. 230, § 5.
CHAPTER 187
EASEMENTS.
Sect.
1. Easements of light and air not to be
acquired by use.
2. Easements by prescription only by
twenty years uninterrupted adverse
use.
Sect.
3. Prevention of easement by notice.
4. Notice as disturbance of easement.
Easements of
light and air
not to be ac-
quired by use.
1852, 144.
G. S. 90. § 32.
P. S. 122, § 1.
Section 1. Whoever erects a house or other building with windows 1
overlooking the land of another shall not, by the mere continuance of 2
such windows, acquire an easement of light or air so as to prevent the 3
erection of a building on such land. r. li3o, §i. lis Mass. 204. 4
Easements by
prescription
only by
twenty years
uninterrupted
adverse use.
R. S. CO, § 27.
Section 2. No person shall acquire by adverse use or enjoyment a
right or privilege of way or other easement from, in, upon or over the land
of another, unless such use or enjoyment is continued uninterruptedly
for twenty years. g. s. 90, 5 33. p. s. 122, § 2.
R. L. 130. § 2.
2 Cush. 191.
10 Allen, 557.
209 Mass. 542.
223 Mass. 544,
224 Mass. 256.
Prevention of
easement by
notice.
1824, 52.
R. S. 60, § 28.
G. S, 90. § 34.
1867, 302.
P. S. 122. § 3.
R. L. 130, § 3.
Section 3. If a person apprehends that a right of way or other ease- 1
ment in or over his land may be acquired by custom, use or otherwise by 2
any person or class of persons, he may give public notice of his intention 3
to prevent the acquisition of such easement, by causing a copy of such 4
notice to be posted in a conspicuous place upon the premises for six sue- 5
cessive days, and such posting shall prevent the acquiring of such ease- 6
ment by use for any length of time thereafter; or he may prevent a par- 7
ticular person or persons from acquiring such easement by causing a copy 8
of such notice to be served upon him or them as provided by law for the 9
service of an original summons in a civil action. Such notice from the 10
agent, guardian or conservator of the owner of land shall have the same 11
effect as a notice from the owner himself. A certificate, by an officer qual- 12
ified to serve civil process, that such copy has been served or posted by 13
him as above provided, if made upon the original notice and recorded 14
with it, within three months after the service or posting, in the registry 15
of deeds for the county or district in which the land lies, shall be con- 16
elusive evidence of such service or posting. 17
Ch-^p. 188.]
HOMESTEADS.
2133
1 Section 4. A notice given under the preceding section sliall be a Notice as
2 disturbance of the easement to which it relates entithng the person claim- easement*^'' "^
3 ing such easement to an action for the purpose of trying the right; and if §; |; }g4; | J|;
4 he prevails, he shall be entitled to full costs although he recovers only ^- ^ i^l^ 5 4-
5 nominal damages.
CHAPTER 188,
HOMESTEADS.
Sect.
1. Nature of homestead estate.
2. Mode of acquisition.
3. Wife or minor child may occupy in cer-
tain cases.
4. Continuance after death of householder.
5. Previous mortgage, etc., unaffected.
Sect.
6. Estate subject to prior mortgage.
7. Release of rights.
8. Sale of rights of widow, etc.
9. Set-off if holder insolvent.
10. Existing rights saved.
1 Section 1. A householder who has a family shall be entitled to ac- N.itureof
2 quire an estate of homestead to the extent of eight hundred dollars in es""'?''^'"'
3 value in the land and buildings thereon owned or rightly possessed by §§^i^'4*°'
4 lease or otherwise and occupied by him as a residence; and such estate ||^?'F^'
5 shall be exempt from the laws of conveyance, descent and devise and isst, 298,
6 from attachment, levy on execution and sale for the payment of his g. s'. ibi,
7 debts or legacies, except — p.s.'i23,
8 (1) Sale for taxes.
(2) Attachment, levy and sale in the following cases:
9
10
_. 1,4.
R. L. 131,
§§ 1,4.
1915, 28, § 1.
(a) For a debt contracted previous to the acquisition of said estate ?,'^;;^>'' *??;.
„ " ' , ^ ^ 16 Gray, 14b.
11 01 homestead. sAUen, ue.
12 (b) For a debt contracted for the purchase thereof. 42V. ''"'
13 (c) Upon an execution issued from the probate court to enforce its ' *""'
14 decree that a husband pay a certain amount weekly or otherwise to laiiicn.ao.
15 support his wife or minor children. loo^iiTs's^isi
16 (d) Where buildings on land not owned by the householder are at- joi M;'^^- ^is-
17 tached, levied upon or sold for the ground rent of the lot of land iss m^s! 542I
10 U 4.U i J lUl Mass. 276.
IS whereon they stand.
10 Allen. 425.
11 Allen, 194.
1 Section 2. To acquire such estate of homestead, the fact that it is Mode of
2 designed to be held as such shall be set forth in the deed of conveyance i85i|34o,°§ 3.
3 by which the property is acquired; or, after the title has been acquired, If^'iof'ti'
4 such design may be declared by a writing duly signed, sealed and ac- « f-'il^vtl
5 knowledged and recorded in the registry of deeds for the county or 6 Alien, 427. '
6 district in which the property is situated. The acquisition of a new
7 estate of homestead shall defeat and discharge any such previous estate.
1 Section 3. In a case in which the probate court has entered a wife or minoi
2 decree that the wife is living apart from her husband for justifiable occupy mcer-
3 cause, or the custody of his minor children or minor child has been jg^J^g'^ol'^^i 2
4 decreed to some person other than him, and the husband owns or holds
5 a homestead estate, the probate court may by its decree grant to his
6 wife or minor children, or to both, the right to use, occupy and enjoy
7 such homestead estate until the further order of the court. The recortl-
8 ing of the order of the probate court granting to the wife or minor
2134
HOMESTE.-VDS.
[Ch.\p. 188.
children, or to both, the right to use, occupy and enjoy said homestead 9
estate, together with the description thereof, in the registry of deeds 10
for the county or district where the land lies, shall operate to prevent 11
the husband from disposing of said estate until such time as the probate 12
court mav revoke said decree 13
Continuance
after death of
householder.
1851. 340. § 2.
1855, 23S, § 2.
1857, 298, §1 2,
14.
G. S. 104. §§12,
13.
P.S.123.§§S.9.
R. L. 131,
§§ 8. 9.
5 AHen. 77,
146.
8 Allen, 5*5.
9 Allen, 239,
242
H Allen, 194.
97 Mass. 136,
392.
Section 4. The estate of homestead existing at the death of a 1
householder shall continue for the benefit of his widow and minor 2
children, and shall be held and enjoyed by them, if one of them or a 3
purchaser under section eight occupies the premises, until the youngest 4
child is twenty-one and until the marriage or death of the widow; and 5
if a widow or minor children are entitled to an estate of homestead as 6
provided herein, it may be set off to them in the same manner as dower. 7
But all the right, title and interest of the deceased in the premises in 8
which such estate exists, except the estate of homestead thus continued, 9
shall be subject to the laws relating to devise, descent, dower and sale 10
for the payment of debts and legacies. loo Mass. 234. 11
131 Mass. 1S6. 44G. HI Mass. 187. 161 Mass. 276.
mon°age etc SECTION 5. No estate of liomcstcad shall affect a mortgage, lien 1
"??P:?i^^v , or other encumbrance previously existing. iS55, 238, 1 4. 1857, 298, is. 2
I80I, 340, § 5. „ * _ "
G. S. 104, |6. P. S. 123. §5. R. L. 131,§5.
Estate subject
to prior
mortgage.
G. S. 104, § 4.
P. S. 123, § 6.
R.L. 131, §6.
Section 6. Property which is subject to a mortgage executed before 1
an estate of homestead was acquired therein, or executed afterward and 2
containing a release thereof, shall be subject to an estate of homestead, 3
except as against the mortgagee and those claiming under him, in the 4
same manner as if there were no such mortgage. If the owner of the 5
equity in such property redeems the mortgage, he shall not be allowed 6
to claim under it against the owner of the estate of homestead, his 7
widow, heirs or assigns; but if said owner of the estate of homestead, his 8
widow, heirs or assigns offers to redeem the residue above the home- 9
stead estate and the mortgage from a sale or set-off on execution and 10
the judgment creditor has redeemed the mortgage, the amount paid 11
for such redemption of the mortgage, with interest and expenses, shall 12
be included in the amount to be paid for the redemption of said residue. 13
Release of
rights.
1851, 340,
§§ 1, 6.
1855, 23S,
§§ 1.5.
1857, 298. 55 1,
3, 6-8, 10, 12,
13.
G. S. 10-J.
§§7,8.
P. S. 123, § 7.
R. L. 131. I 7.
2 Gray, 3S3.
11 Gray, 214,
332
15"Grav, 139.
16 Gray, 144,
146.
Section 7. No conveyance of property in which an estate of home- 1
stead exists, and no release or waiver of such estate, shall convey the 2
part so held and exempted, or defeat the right of the owner or of his 3
wife and children to a homestead therein, unless such conveyance is by 4
a deed in which the wife of the owner joins for the purpose of releasing 5
such right in the manner in which she may release her dower, or unless 6
such right is released as provided in chapter two hundred and nine; 7
but a deed duly executed without such release shall be valid to pass, 8
according to its terms, any title or interest in the property beyond the 9
estate of homestead. 2 Alien, 202, 390. 4 Alien, 516. 10
6 Allen, 71, 401, 510.
12 Allen, 30.
14 Allen, 1.
99 Mass. 7. '
100 Mass. 234.
101 Mass. 426.
121 Mass. 19.
130 Mass. 368.
137 Mass. 30.
140 Mass. 64.
156 Mass. 114.
161 Mass. 27G.
Sale of rights
of widow, etc.
G. S. 104, § 14.
P. S. 123. § 10.
R. L. 131. § 10.
11 AUen, 194.
Section 8. The widow and the guardian of the minor children, if he 1
has obtained a license therefor from the probate court as in the sale of 2
land of minors, may join in a sale of an estate of homestead; or if there 3
is no widow entitled to rights therein, the guardian may, upon obtaining 4
CiL\p. 189.]
DOWER AND CURTESY.
2135
5 such license, make sale of such estate; and the widow may make such
6 sale if there are no minor children. The purchaser shall enjoy and
7 possess the premises for the full time that the widow and children or
8 either of them might have continued to hold and enjoy them if no sale
9 had been made. The probate court may apportion the proceeds of the
10 sale among the parties entitled thereto.
Section 9. If the property of a debtor is assigned under the laws Set-offjf
relative to insolvent debtors, and such debtor claims, and it appears to soiveEt'"'
the court wherein the proceedings in insolvency are pending, that he is G.%'.iot'iio.'
entitled to hold a part thereof as a homestead and that the property in ^- 1; ^^^^^ Mj-j
which such estate of homestead exists is of greater value than eight Jr/iien, so
'^ " 156 Mass. 114.
hundred dollars, the court shall cause the property to be appraised by
three disinterested appraisers, one of whom shall be appointed by the
insolvent, one by the assignee and the third by the court; or if either
9 the assignee or insolvent neglects to appoint, the court shall appoint
10 for him. The appraisers shall be sworn faithfully and impartially to
11 appraise the property, and shall appraise and set off an estate of home-
12 stead therein to the insolvent debtor in the manner prescribed in section
13 eighteen of chapter two hundred and thirty-six in case of a judgment
14 debtor; and the residue shall vest in and be disposed of by the assignee
15 in the same manner as property which is not exempt by law from levy
16 on execution. The appraisers shall be entitled to the same fees, to be
17 paid out of the estate in insolvency, as are allowed to an appraiser of
IS land seized upon execution.
1 Section 10. All existing estates of homestead which have been Existing rights
2 acquired under any law heretofore in force shall continue to be held ills, 238, § 7.
3 and enjoyed notwithstanding the repeal of such law. iss?, 29s, 55 1, is.
R. L. 131, I 3
13 Gray, 21.
G. S. 104, I 3.
P. S. 123, § 3.
6 Allen, 510.
161 Mass. 276.
REFERENCES.
Levy of execution upon property in which homestead exists, Chap. 235, § 34; Chap.
236, § 18.
Partition of homestead, Chap. 241.
§ 7. Release by married woman under age. Chap. 189, § 6.
CHAPTER 189,
DOWER AND CURTESY.
Sect.
1. Nature of estate. How claimed.
2. No curtesy as against purchase money
mortgagee.
Wife not dowable in wild land.
Dower in husband's right of redemp-
tion.
Release of dower.
6. Signing of instruments by married
women under twenty-one.
7. Dower barred by jointure before mar-
riage.
S. Dower barred by pecuniary provision.
3.
4.
5.
Sect.
9. Jointure made without wife's assent
or after marriage effective unless
waived.
10. Assignment of dower or other undivided
interest.
11. Manner of assignment.
12. Where husband is tenant in common.
13. Widow may claim her interest after
occupying in common with heirs.
14. Limitation for claim of interest in
realty.
15. Re-endowment of woman if evicted.
2136
DOWER AND CURTESY.
[ClLVP. 1S9.
Nature of
estate.
How claimed.
C. L. 42, § 1.
1692-3. 14. § 1.
1783,36,
5§4,5.
1805,90.5 1.
1812,93, § 1.
R. S. 60, 5§ 1,
17.
1845, 208.
1854. 400, § 4.
G. S. 90.
§§ 1.16.19.
1877, S3.
1880, 211, § 3.
P. S. 124,
§§1.3.
1885, 25!^. § 2.
1899,479,
5§ 1.2.
1900, 450. 5 5.
R. L. 132, § 1.
1902,482, § 1.
1915,134.
1918, 257,
§381.
1919, 5.
1920, 2.
1 Pick. 189.
3 Gray. 398.
7 Gray. 533.
2 Allen, 4.5.
4 Allen. 187.
113 Mass. 24C.
140 Mass. 92.
150 Mass. 84,
289.
167 Mass. 575.
169 Mass. 204.
171 Mass. 312.
173 Mass. 529.
174 Mass. 582.
181 Mass. 4.58.
187 Mass. 455.
192 Mass. 5.
201 Mass. 59,
218
216'Ma8s. 174.
222 Mass. 126.
Section 1. A husband shall upon the death of his ■nife hold for his 1
life one third of all land owned by her at any time during coverture. 2
Such estate shall be known as his tenancy by curtesy, and the law rela- 3
tive to dower shall be applicable to curtesy, and no conveyance by a 4
married woman of real property shall, except as provided in section 5
thirty-five of chapter two hundred and nine, extinguish or impair his 6
tenancy by curtesy in such property unless he joins in the conveyance 7
or otherwise releases his right. A wife shall, upon the death of her bus- 8
band, hold her dower at common law in her deceased husband's land. 9
Such estate shall be known as her tenancy by dower. To be entitled 10
to such curtesy or dower the surviving husband or wife shall file 11
his or her election and claim therefor in the registry of probate within 12
six months after the date of the approval of the bond of the executor 13
or administrator of the deceased, and shall thereupon hold instead of 14
the interest in real property given in section one of chapter one hun- 15
dred and ninety, curtesy or dower, respectively, otherwise such estate 16
shall be held to be waived. Such curtesy and dower may be assigned 17
by the probate court in the same manner as dower is now assigned, 18
and the tenant by curtesy or dower shall be entitled to the posses- 19
sion and profits of one undivided third of the real estate of the de- 20
ceased from her or his death until the assignment of curtesy or dower, 21
and to all remedies therefor which the heirs of the deceased have in the 22
residue of the estate. Rights of curtesy which existed on December 23
thirty-first, nineteen hundred and one, may be claimed and held in the 24
manner above provided, but in such case the husband shall take no other 25
interest in the real or personal property of his wife; and, except as pre- 26
served herein, curtesy as it existed prior to January first, nineteen hun- 27
dred and two, is abolished. 226 Mass. 297. 28
No curtesy
as against
purchase
money mort-
gagee.
1874, 184, § 2.
P. S. 124, § 2.
R. L. 132, § 2.
Section 2. If a deed of land is made to a married woman, who, at 1
the time of its execution, mortgages such land to the grantor to secure 2
the payment of the whole or a part of the purchase money, or to a third 3
person to obtain the whole or a part of such purchase money, her seisin 4
shall not give her husband an estate by the curtesy as against such 5
mortgagee. 6
Wife not
dowable in
wild land.
R. S. 60, § 12.
1854, 406. § 2.
G. S.90, §§ 12,
15.
Section 3. A widow shall not be entitled to dower in wild land of 1
which her husband dies seized, except woodlots or other land used 2
with his farm or dwelling house, nor in such land which is conveyed by 3
him although it is afterward cleared. p. s. 124, § 4. 4
R. L. 132. § 3.
15 Mass. 104.
1 Pick. 21.
7 Pick. 143.
17 Pick. 248.
208 Mass. 258.
Dower in
husband's right
of redemption.
R. S. 60, § 2.
G. S. 90, I 2.
P. S. 124. § 5.
R. L. 132, § 4.
13 Mass. 102.
15 Mass. 278.
3 Pick. 475.
12 Gush. 288.
4 Gray, 46.
6 Gray. 314.
7 Gray. 148.
100 Mass. 224.
101 Mass. 428.
105 Mass. 119.
Section 4. If, upon a mortgage made by a husband, his wife has 1
released her right of dower, or if a husband is seized of land subject to 2
a mortgage which is valid and effectual as against his wife, she shall 3
nevertheless be entitled to dower in the land mortgaged as against 4
every person except the mortgagee and those claiming under him. If 5
the heir or other person who claims under the husband redeems the 6
mortgage, the widow shall either repay such part of the money which 7
was paid by the person so redeeming as shall be equal to the proportion 8
which her interest in the land mortgaged bears to the whole value 9
thereof or, at her election, she shall be entitled to dower according to 10
the value of the estate after deducting the money paid for redemption. 11
CH-^P. 189.] DOWER AND CURTESY. 2137
1 Section 5. A married woman mav bar her riKht of dower in land Rf^'ease of
* . ,• . . . dower.
2 conveyed by her husband or by operation of law by joining in the deed joo?. 21, | 3
3 conveying the land and therein releasing her right to dower, or by re- 1S23! i46. § i.
4 leasing the land by a subsequent deed executed either separately or mid, im.
5 jointly with her husband. Her dower may also be released in the manner p.' f; m.Vc-
6 provided in chapter two hundred and nine. R. l. 132, § 5. 7 Mass. 14.
11 Mass. 29S. 3 Met. 40. 11 Gray, 332.
S Pick. 532. 6 Cush. 190. 107 Mass. 325.
18 Pick. 9. 4 Gray. 600. 137 Mass. 30.
1 Section 6. The signature of a married woman under twenty-one signing of in-
2 affixed by her to any instrument relating to the convej'ance of land of married women
3 her husband shall have the same effect as if she were over that age. twenty-one.
1902, 478.
1 Section 7. A woman may be barred of her dower in all the land of Py folnufre"'^
2 her husband by a jointure settled on her with her assent before her before mar-
3 marriage, if such jointure consists of a freehold estate in land for her R. s.'eo, § s.
4 life at least and is to take effect in possession or profit immediately upon p.'s.'i24, § 7.
5 the death of her husband. Her assent to such jointm-e shall be ex- 7 Mass. 153. '
6 pressed, if she is of full age, by her becoming a party to the conveyance gT^Mas's^igk
7 by which it is settled, or, if a minor, by her joining with her father or
8 guardian in such conveyance.
1 Section S. A pecuniary provision, made for the benefit of an in- Dower barred
2 tended wife and in lieu of dower, shall, if assented to as provided in the mo^fsbn!'"^''
3 preceding section, bar her dower in all the land of her husband. ciiigo! 1 10.
p. S. 124, § 8. 2 Cush. 407. 9 Allen. 234.
R. L. 132, § 7. 5 Allen, 1S7. 197 Mass. 195.
15 Mass. 106.
1 Section 9. Such jointure or pecuniary provision, if made after jointure made
2 marriage, or made before marriage and without the assent of the in- ^s'ent'or'after
3 tended wife, shall bar her dower, unless within six months after the rffectrnj"
4 death of her husband she makes her election to waive such jointure or g^s^eo^rro'
5 provision. If the husband dies while absent from his wife, she shall pfjoiMi-
6 have six months after notice of his death within which to make such r'. l. 132, § s.
7 election; and she shall in all cases have six months after notice of the
8 existence of such jointui-e or provision within which to make such
9 election.
1 Section 10. If a widow is entitled by law, by deed of jointure, or Assignment of
2 under the will of her husband, to an undivided interest in his land either u°di"ic°cT"""^
3 for life or during widowhood, such interest may be assigned to her, in r's^oo, § 3.
4 whatever counties the land lies, by the probate court for the county Jljg'ss''
5 in which the estate of her husband is settled. Such assignment may be o-s. 90, §§ .3.
6 made upon her petition or, if she does not petition therefor within one i876, 89.
.. • PSl '"'4 S 1 fl
7 year after the decease of her husband, 'upon petition by an heir or devi- r'. l. 132, § 9.'
8 see of her husband, by any person having an estate in the land subject g^Mass^g.
9 to such interest, or by the guardian or conservator of any such heir, i^cuih.' 111.'
10 devisee or person, or by an executor or administrator if the probate }.iij{Jsg||7
1 1 court finds that the personal property w-ill probably be insufficient to ^^^ ^i'^'^- *o.
12 pay the debts and legacies of the decedent or charges of administration.
1 Section 11. Upon such petition, the court shall issue a warrant to Manner of
2 three disinterested persons as commissioners, who shall be sworn to per- i7oo^r,"22,' § 4.
2138
DOWER AXD CUKTESY.
[Ch.\p. 189.
1783. 40, § 3.
R. S. 60,
«3, 4.
G. S. 90, §§ 3. 5.
P. S. 124, § 11.
R. L. 132, I 10.
4 Mass. S33.
15 Mass. 164.
form their duty faithfully and impartially and who shall set off the widow's 3
interest by metes and bounds if it can be so done without damage to the 4
whole estate. But if the estate out of which a widow's interest is to be 5
assigned consists of a mill or other tenement which cannot be divided 6
without damage to the whole, such interest may be assigned out of the 7
rents or profits thereof, to be had and received by the widow as a tenant 8
in common with the other owners of the estate. 9
Section 12. If a widow is entitled to an undivided interest in land
which is owned by her husband as tenant in common, the probate court,
upon petition by her or by any person entitled to petition for assign-
ment of her interest in her husband's land, after notice as in case of
R. L. 132, § 11. Q^-jjpj. partitions, may empower the commissioners to make partition of
the land so owned in common, and then to assign to the widow her
interest in the portion set off to the estate of her husband.
Where husband
is tenant in
common.
1842, 73.
G. S. 90, § 4.
1876, 89.
P. S. 124, § 12,
Widow may
claim her inter-
est after occupy-
ing in common
with heirs.
1816, 84.
R. S. 60, § 6.
G. S. 90, § 7.
P. S. 124. i 13.
R. L. 132, § 12.
3 Pick. 475.
5 Pick. 146.
157 Mass. 499.
Section 13. If a widow is entitled to an interest in land of which 1
her husband died seized, she may, without having her interest assigned, 2
continue to occupy such land with the heirs or devisees of the deceased, 3
or to receive her share of the rents or profits thereof, so long as such 4
heirs or devisees do not object thereto; and when the heirs or devisees 5
or any of them desire to hold or occupy their share in severalty, the 6
widow may claim her interest and shall have it assigned to her. 7
161 Mass. 140. 170 Mass. 543.
Limitation for
claim of in-
terest in realty.
1858, 56.
G.S. 90. § 6.
P. S. 124, § 14.
1899, 479, § 4.
1900.450, § 6.
R. L. 132, § 13.
7 Met. 24.
157 Mass. 499.
161 Mass. 140.
Section 14. No surviving husband or widow of a deceased person 1
shall make claim for an interest in the real estate of such deceased, or 2
begin any proceeding for the recovery thereof, unless such claim or 3
action is made or begun within twenty years after the decease of the 4
wife or husband, or after he or she has ceased to occupy or receive the 5
profits of his or her share of such real estate, except that if at the time 6
of such decease the surviving husband or widow is absent from the 7
commonwealth, under twenty-one, insane or imprisoned, he or she may 8
make such claim or begin such proceeding at any time within twenty 9
years after such disability ceases. 10
Re-endowment
of woman if
evicted.
R. S. 60, § 13,
G. S. 90, § 13.
P. S. 124. § 15.
R. L. 132, § 14.
13 Mass. 162.
1 Met. 66.
Section 15. If a woman is lawfully evicted of land which has been 1
assigned to her as dower or settled upon her as jointure, or is deprived 2
of the provision made for her by will or otherwise in lieu of dower, she 3
may be endowed anew in like manner as if such assignment, jointure 4
or other provision had not been made. 5
REFERENCES.
Conveyance by husband or wife deserted and living apart, Chap. 209, §§ 30, 35, 36.
Dower where husband and wife are divorced. Chap. 20S, § 27.
Sale by e.xecutor or administrator free from dower or curtesy, Chap. 202, § 3.
§§ 10, 11. Partition in general, Chap. 241.
§§ 10-13. Writ of dower, Chap. 23S.
§ 11. Terms for one hundred years or more. Chap. 1S6, §§ 1, 2; land taken on
execution. Chap. 236, § 55.
CiL\p. 190.]
DESCENT AND DISTRIBUTION.
2139
TITLE II.
DESCENT AND DISTRIBUTION, WILLS, ESTATES OF DE-
CEASED PERSONS AND ABSENTEES, GUARDIANSHIP,
CONSERVATORSHIP AND TRUSTS.
190.
191.
192.
193.
194.
195.
196.
197.
198.
199.
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chai'ter
Chapter
Chapter 200.
Chapter 201.
Chapter 202.
Chapter 203.
Chapter 204.
Chapter 205.
Chapter 206.
Descent and Distribution of Real and Personal Property.
Wills.
Probate of Wills and Appointment of Executors.
Appointment of Administrators.
Public Administrators.
General Provisions relative to Executors and Administrators.
Allowances to Widows and Children, and Advancements.
Payment of Debts, Legacies and Distributive Shares.
Insolvent Estates of Deceased Persons.
Settlement of Estates of Deceased Non-Residents.
Settlement of Estates of Absentees.
Guardians and Conservators.
Sales, Mortgages and Leases of Real Estate by Executors, Ad-
ministrators, Guardians and Conservators.
Trusts.
General Provisions relative to Sales, Mortgages, Releases, Compro-
mises, etc., by Executors, etc.
Bonds of Executors, Administrators, Guardians, Conservators/ Trus-
tees and Receivers.
Accounts and Settlements of Executors, Administrators, Guardians,
Conservators, Trustees and Receivers.
CHAPTER 190.
DESCENT AND DISTRIBUTION OF REAL AND PERSONAL PROPERTY.
Sect.
1. Share of Burviving husband or wife.
2. Distribution of personal property.
3. Descent of real property.
4. Degrees of kindred.
5. lUegitimate child to be heir of his
mother.
Sect.
6. Mother to be heir of illegitimate child.
7. When illegitimate child to be deemed
legitimate.
8. Taking by right of representation.
Posthumous children.
1 Section 1. A surviving husband or wife shall, after the payment of share ot
2 the debts of the deceased and the charges of his last sickness and funeral husband^or
3 and of the settlement of his estate, and subject to chapter one hundred cI'l. iss. 1 3.
4 and ninety-six, be entitled to the following share in his real and per- nli'lh"'! ^'
5 sonal property not disposed of by will:
6
1789, 2. § 1.
(1) If the deceased leaves kindred and no issue, and it appears on de- R- s.'64.'§ i.
7 termination by the probate court, as hereinafter provided, that the whole is54! 406. 1 3.
G. S. 94, I 16.
2140
DESCE^^T .\ND DISTRIBUTION.
[Chap. 190.
1876. 220. § 1.
P. S. 135. § 3.
18S2. 141.
188.5, 270,
18<)9. 479, § 7.
1900. 450,
§§3,4.
R. L. 140, I 3.
1905. 256.
1917. 303.
1920, 468.
1 Met. 204.
5 Allen, 187.
9 Allen, 234.
137 Mass. 156.
139 Mass. 304.
146 Mass. 281.
lS6 Mass. 577.
194 Mass. 552.
200 Mass. 77.
201 Mass. 59,
218.
204 Mass. 471.
205 Mass. 350,
468.
206 Mass. 437.
210 Mass. 105.
213 Mass. 418.
214 Mass. 680.
215 Mass. 576.
218 Mass. 27.
222 Mass. 126.
226 Mass. 297.
228 Mass. 18.
231 Mass. 341.
183 Mass. 173.
estate does not exceed five thousand dollars in value, the su^^•i\^ng hus- 8
band or uife shall take the whole thereof; otherwise such sur\-i\-or shall 9
take five thousand dollars and one half of the remaining personal and 10
one half of the remaining real property. If the personal property is in- 11
sufficient to pay said five thousand dollars, the deficiency shall, upon 12
the petition of any party in interest, be paid from the sale or mortgage, 1.3
in the manner pro^^ded for the pajanent of debts or legacies, of any in- 14
terest of the deceased in real property wliich he could have conveyed at 15
the time of his death; and the sur\-i\-ing husband or v^iie shall be per- 16
mitted, subject to the approval of the court, to purchase at any such 17
sale, notwithstanding the fact that he or she is the administrator of the 18
estate of the deceased person. A further sale or mortgage of any real 19
estate of the deceased may later be made to provide for any deficiency 20
still remaining. Wlienever it shall appear, upon petition to the probate 21
court of any party in interest, and after such notice as the court shall 22
order, and after a hearing thereon, that the whole amount of the estate of 23
the deceased, as found by the inventory and upon such other e\adence as 24
the court shall deem necessary, does not exceed the sum of five thousand 25
dollars over and above the amount necessary to pay the debts and charges 26
of administration, the court shall itself by decree determine the value of 27
said estate, wliich decree shall be binding upon all parties. If additional 28
property is later discovered, the right or title to the estate covered by 29
such decree shall not be affected thereby, but the court may make such 30
further orders and decrees as are necessary to effect the distribution 31
herein pro\'ided for. 32
(2) If the deceased leaves issue, the survivor shall take one third of 33
the personal and one third of the real property. 34
(3) If the deceased leaves no issue and no kindred, the survivor shall 35
take the whole. 36
Distribution
of personal
propertv.
C. L. 158, § 3.
1692-3. 14, § 1.
1783, 36, § 2.
1789, 2, § 1.
1805, 90, § 2.
R. S. 64, § 1.
G. S. 94, § 16.
1876, 220, § 1.
Section 2. The personal property of a deceased person not lawfully
disposed of by will shall, after the payment of his debts and the charges
of his last sickness and funeral and of the settlement of the estate, and
subject to the preceding section and to chapter one hundred and ninety-
six, be distributed among the persons and in the proportions hereinafter
prescribed for the descent of real property.
p. S. 135, § 3.
1899, 479, § 7.
1900, 450, I 3.
R. L. 140, § 3.
1 Met. 204.
137 Mass. 156.
139 Mass. 304.
146 Mass. 281.
149 Mass. 502.
186 Mass. 577.
226 Mass. 388.
Descent of
real property.
C. L. 158. § 3.
1692-3.14.5 1.
1710-11, 2, §1.
1719-20.
10, § 4.
1734-5, 16.
1783,36, §§1,2
1789, 2, § 1.
1805,90, §§ 1,2,
R. S. 61,
§§1,12:64,51,
G. S. 91, §§1,
11: 94. §16.
1876, 220,
§U,3.
ISSO, 219.
P. S. 125, § 1;
135. § 3.
1899, 479, § 7.
1900, 450,.§ 3.
R. L. 1.33, I 1;
140, § 3.
Section 3. AVhen a person dies seized of land, tenements or heredita-
ments, or of any right thereto, or entitled to any interest therein, in
fee simple or for the life of another, not having lawfully devised the
same, they shall descend, subject to his debts and to the rights of the
husband or wife and minor children of the deceased as provided in this
and in the two preceding chapters and in chapter one hundred and
ninety-six, as follows:
(1) In equal shares to his children and to the issue of any deceased
child by right of representation; and if there is no siuviving child of
the intestate then to all his other lineal descendants. If all such de- 10
scendants are in the same degree of kindred to the intestate, they shall 11
share the estate equally; otherwise, they shall take according to the 12
right of representation. liMass. 8S. 20Pick. 5i4. 13
3 Met. 187.
7 Met. 303.
9 Met. 28.
6 Gush. 156.
129 Mass. 243.
)49 Mass. 39.
167 Mass. 499.
196 Mass. 389.
197 Mass. 273.
204 Mass. 570.
206 Mass. 437.
215 Mass. 299.
225 Mass. 66.
226 Mass. 396.
228 Mass. 537.
234 Mass. 540.
CiLiP. 190.] DESCENT AND DISTRIBLTTION. 2141
14 (2) If he leaves no issue, in equal shares to his father and mother. 204 Mass. 471.
15 (3) If he leaves no issue and no mother, to his father.
16 (4) If he leaves no issue and no father, to his mother.
17 (5) If he leaves no issue and no father or mother, to his brothers and \°l ^ilH jf^;
18 sisters and to the issue of any deceased brother or sister by right of \i^. H^^^- ^%
i.«i . .. , , • PI* Mass. J42.
19 representation; and, if there is no surviving brother or sister of the in- InSM^'^^ISi
20 testate, to all the issue of his deceased brothers and sisters. If all such
21 issue are in the same degree of kindred to the intestate, they shall share
22 the estate equally, otherwise, according to the right of representation.
23 (6) If he leaves no issue, and no father, mother, brother or sister, 6 Cush. ise.
24 and no issue of any deceased brother or sister, then to his next of kin 130 Mass! its!
25 in equal degree; but if there are two or more collateral kindred in equal 144 Mass! 135!
26 degree claiming through different ancestors, those claiming tlirough is9Mass!503!
27 the nearest ancestor shall be preferred to those claiming through an
28 ancestor more remote.
29 (7) If an intestate leaves no kindred and no widow or husband, his 16 Pick. 177.
30 estate shall escheat to the commonwealth.
1 Section 4. Degrees of kindred shall be computed according to the Degrees of
2 rules of the civil law; and the kindred of the half blood shall inherit i7S3^36, §1.
3 equally with those of the whole blood in the same degree. if °s.' Ii,' | s."
G. S. 91. § S. R. L. 133, § 2. 5 Cush. 232.
P. S. 125, §2. 12 Mass. 489. IIG Mass. 562.
1 Section 5. An illegitimate child shall be heir of his mother and of '"''S'timate
,,,„,. „ .,, . . chikl to be heir
2 any maternal ancestor, and the lawful issue or an illegitimate person of his mother.
3 shall represent such person and take by descent any estate which such R.'s.'ei, §2.
4 person would have taken if living.
1851,211. R. L. 133. §3. 113 Mass. 430.
G.S. 91, §2. U Met. 294. 172 Mass. 472.
P. S. 125, § 3. 108 Mass. 40. 236 Mass. 204.
1 Section 6. If an illegitimate child dies intestate and without issue Mother to be
2 who may lawfully inherit his estate, such estate shall descend to his nfate°chiidL' '"
3 mother or, if she is not living, to the persons who would have been r"s.'6\^,^§ 3.
4 entitled thereto by inheritance tlu-ough his mother if he had been a p.f.iis.^^i.
5 legitimate child. is82, 132, r. l. 133, § 4.
4 Pick. 93. 149 Mass. 502. 214 Mass. 223.
1 Section 7. An illegitimate child whose parents ha\'e intermarried mate^chifl'to
2 and whose father has acknowledged him as his child shall be deemed be deemed
. . " legitimate.
3 legitimate. 1832,147. r. s. ei, §4.
1853, 253. P. S. 125, § 5. 5 Allen, 257. 183 Mass, 448.
G. S. 91, § 4. R. L. 133, § 5. 8 Allen, 551. 196 Mass. 389.
1 Section 8. Inheritance or succession by right of representation is Taking by
2 the taking by the descendants of a deceased heir of the same share or sen'tat'io"'"^'^
3 right in the estate of another person as their parent would have taken ^hi!d^e"°"^
4 if living. Posthumous children shall be considered as living at the g|-|J'| Ji^-
5 death of their parent. p. s. 125, § 0. r. l. iss, § 6.
REFERENCES.
Descent and distribution in certain cases, see the following:
Cemetery lots, Chap. 114, § 31.
Issue of void marriages, Chap. 207, § 17.
Real estate of non-residents. Chap. 199, § 1.
Adopted children, Chap. 210, §§ 7, 8.
Aliens, Chap. 184, § 1.
§ 8. Posthumous children not provided for in will, Chap. 191, § 21.
2142
WILLS.
IChap. 191.
CHAPTER 191
WILLS.
Sect.
MAKING AND REVOCATION.
1. By whom and how wills may be made.
2. Competency of witness and devise or
legacy to witness.
3. Competency of witness.
4. Wills made in accordance with law at
time of e.xecution.
5. Wills made out of the commonwealth.
6. Nuncupative will.
7. Probate necessary.
8. Revocation.
9. Revocation by marriage.
CUSTODY AND PRODUCTION IN COURT.
10. Deposit of wills.
11. Custody and delivery of wills.
12. Will not called for, to be opened at first
probate court.
13. Possessor of will to present it for pro-
bate.
14. Proceedings against persons suspected
of concealing wills, etc.
RIGHTS OF SURVIVING HUSBAND OR WIDOW.
15. Right to waive will.
16. Appointment of trustees to hold hus-
band's or widow's share.
17. Husband not to have curtesy or widow
dowerin addition to provisions of will,
unless, etc.
Sect.
provisions for special cases.
18. Devise to give fee.
19. Land acquired after making of will to
pass by it.
20. Child not provided for in will.
21. Posthumous children.
22. Devisee or legatee dying before tes-
tator.
23. Devises of real estate subject to mort-
gage.
24. Devise of land to which testator has
only right of entry.
CONTRIBUTION AMONG DEVISEES AND LEG-
ATEES.
25.
28.
29.
30.
Contribution to make up portion of
posthumous or omitted child.
Contribution when property is taken
for the payment of debts.
Special appropriation of his estate made
by testator to be followed.
Posthumous or omitted child liable and
entitled to contribution.
Insolvency of devisee or legatee.
Contribution if estate is taken from
devisee for dower, etc.
By whom
and
how
wills
may
be made.
29 Car. II
c. 3,
§5.
B. L
11.
C. L
1, §
<>
1692
-3, IJ
'■§1;
15, § 3.
17S3
24. §51,2.
R. S
62, §§ 1,
5,6.
1842
74.
1850
200.
1855
304,
§5.
1857
249,
§4.
MAKING ANT) REVOCATION.
Section 1. Every person of full age and sound mind may by his 1
last will in writing, signed by him or by a person in his presence and by 2
his e.xpress direction, and attested and subscribed in his presence by 3
tliree or more competent witnesses, dispose of his property, real and 4
personal, except an estate tail, and except as is provided in this chapter 5
and in chapters one hundred and eighty-eight and one hundred and 6
eighty-nine and in section one of chapter two hundred and nine. A 7
married woman, in the same manner and with the same effect, may 8
make a will. g. s. 92, §§ 1, 2, 6; 10s, §§ 9, 10. 1864, i9S; 2-6. 9
147, i
P. S. 127, § 1
1884, 301.
1885, 265.
1887, 290, § 2.
1899, 479, §§ 8. 9.
1900, 450. § 7.
R. L. 135, § 1.
12 Mass. 488.
1 Pick. 239.
17 Pick. 134, 373.
23 Pick. 10.
1 Met. 349.
9 Met. 28.
10 Met. 54.
2 Cush. 433.
12 Cush. 332.
2 Gray, 524.
7 Gray, 42, 71.
16 Gray, 91.
10 Allen, 153, 155.
11 Allen, 49.
99 Mass. 79.
100 Mass. 234.
110 Mass. 157.
135 Mass. 238.
160 Mass. 140.
169 Mass. 74, 186.
176 Mass. 216.
187 Mass. 120.
199 Mass. 450.
205 Mass. 468,
218 Mass. 445,
221 Mass. 485.
222 Mass. 439.
223 Mass. 559.
225 Mass. 245.
226 Mass. 400.
229 Mass. 585.
230 Mass. 11.
553.
471, 531.
witness and SECTION 2. Any pcrson of sufficient understanding shall be deemed 1
devise or legacy to be a Competent witness to a will, notwithstanding anv common law 2
to witness. ^ o i
Competency of
witness and
Ch-^p. 191.] WILLS. 2143
3 disqualification for interest or otherwise; but a beneficial devise or 1783,24, §§ u,
4 legacy to a subscribing witness or to the husband or wife of such witness r.s. 62, § 8.
5 shall be void unless there are tliree other subscribing witnesses to the will ill?; los, 1 3°'
6 who are not similarly benefited thereunder. g. s. 92, § lo; isi, § 15.
1878,122. 1918, 257, §436. 106 Mass. 474.
P. S. 127, §§2,3; 1919,5. 172 Mass. 425.
109, § 21. 1920, 2. 205 Mass. 468.
R. L. 135, §§ 2, 3; 5 Met. 396. 209 Mass. 184.
175, § 23. 7 Gray, 42. 218 Mass. 445.
1 Section 3. If a witness to a will is competent at the time of his attes- Competency
2 tation, his subsequent incompetency shall not prevent the probate and r. sl'Sf,*"! 6.
3 allowance of such will. g. s. 92, § 6. p. s. 127, § 2.
R. L. 135, § 2. 12 Mass. 358. 9 Pick. 350. 10 Allen, 153.
1 Section 4. A will made and executed in conformity with law exist- '^ii's made in
2 ing at the time of its execution shall have the same efi'ect as if made pur- I'aw^atJ'tlme of
3 suant to this chapter. i838, 2. ''^'^"^^ ""'■
G. S. 92, § 7. P. S. 127, § 4. R. L. 135, § 4. 205 Mass. 472.
1 Section 5. A last will and testament executed in the mode pre- wiiismade
2 scribed by the law, either of the place where the will is executed or of commo'nweaith.
3 the testator's domicile, shall be deemed to be legally executed, and shall c^tgii^s.
4 be of the same force and effect as if executed in the mode prescribed by E|; ^^^^ |^-
5 the laws of this commonwealth; provided, that such last will and testa- 1911,240'.
6 ment is in WTiting and subscribed by the testator. 1919, 5. § sss.
1920, 2. 5 Cusli. 245. 13 Gray, 330. 13 Allen, 38.
1 Section 6. A soldier in actual military service or a mariner at sea Nuncupative
2 may dispose of his personal property by a nuncupative will. "'"■
1692-3. 15, § 11. G. S. 92, §9. 22 Law Rep. 110.
1783, 24, § 6. P. S. 127, § 6. 199 Mass. 450.
R. S. 62, § 7. R. L. 135, § 6.
1 Section 7. No will, except as provided in this chapter and in Probate
2 chapter two hundred and nine, shall pass any property, real or personal, r."'62T§ 32.
3 or charge or in any way affect the same; and no will shall take effect p.'l.illV*
4 until it has been duly proved and allowed in the probate court. Such fg Ma'ss^'433'!'
5 probate shall be conclusive as to its due execution. 1 Pick. 114.
6 Met. 360. 11 Cush. 519. 130 Mass. 91.
12 Met. 421. 12 Allen, 1. 140 Mass. 411.
1 Section 8. No will shall be revoked except by burning, tearing, Revocation.
2 cancelling or obliterating it with tlie intention of revoking it, by the §§ 4"',"ii. ^'
3 testator himself or by a person in his presence and by his direction; or r.^s.' g2,' I g^' "^^
4 by some other writing signed, attested and subscribed in the same Rf.'^li,?".'
5 manner as a will; or by subsequent changes in the condition or cir- fp^et ms^^'
6 cumstances of the testator from which a revocation is implied by law. 5£!'^!=- 'i--
9 Pick 350
15 Pick. 3SS. 123 Mass. 102. 204 Mass. 383.
4 Gray, lfi2. 138 Mass. 45, 116. 215 Mass. 164.
114 -Mass. 610. 141 Mass. 75. 222 Mass. 283.
1 Section 9. The marriage of a person shall act as a revocation of a Revocation
2 will made by him previous to such marriage, unless it appears from the iso'irns!^'''
3 will that it was made in contemplation thereof. If the will is made in 54i^M''a^stl7^5'.
4 the exercise of a power of appointment and the real and personal JyoMassloi'
5 property subject to the appointment would not, without the appoint- iS4 Mass! sm.
6, ,.1 , 111 , .11 ..„.,, 214 Mass. 620.
ment, pass to the persons who would have been entitled to it it it had 233 Mass. 408.
2144 WILLS. [CiL\p. 191.
been the estate and property of the testator makhig the appointment 7
and he had died intestate, so much of the will as makes the appointment 8
shall not be revoked by the marriage. 9
CUSTODY AND PRODUCTION IN COURT.
R*s°6*°§rw' Section 10. A will enclosed in a sealed wrapper, with an endorse- 1
11. ' ' ment thereon of the name and residence of the testator and of the day 2
13. ' ' ' when and the person by whom it is deposited, and with or without the 3
10. ' ' ' name of a person to whom the will is to be delivered after the death of 4
f§ io/n.' the testator, shall, on the payment of one dollar, be received by the 5
register of probate in the county where the testator lives, who shall 6
give a certificate of the receipt thereof, and shall keep such will; and 7
the same shall not be opened until it is delivered to a person entitled 8
to receive it or is otherwise disposed of as hereinafter provided. 9
Custody and SECTION 11. During the life of the testator such will shall be de- 1
aeuvery oi ... .... ,. ....
wills. livered only to him or m accordance with his order in writing duly 2
g! s! 92! § 14! verified by the oath of a subscribing witness ; and after his death it 3
R. L. 135, § 12. shall be delivered to the person named in the endorsement, if such 4
1902, 160. J 1 -J. r
person demands it. 5
f^r'tote'^''"*''' Section 12. If the will is not called for by the person, if any, named 1
opened at first Jn the endorsement, it shall be publicly opened at the first probate 2
R. s. 62, § 13.' court held after notice of the testator's death, and shall be retained in 3
P.S.127, § 12. the registry until so opened. If the jurisdiction of the case belongs 4
R. . 1 5, § 1 . ^^ another court, it shall be delivered to the executors or other persons 5
entitled to the custody thereof, to be by them presented for probate in 6
such other court. 7
w?ifto^°rescnt Section 13. A pcrson having custody of a will, other than a register 1
i692-ri4T2 ^^ probate, shall, within tliirty days after notice of the death of the testa- 2
1783,24. §16.' tor, deliver such will into the probate court having lurisdiction of the 3
1817 190 § 32 . .
R. s.'62, § 14. ' probate thereof, or to the executors named in the will, who shall them- 4
1S75, 2T0. *"' selves deliver it into such court within said time; and if a person neg- 5
R. L.\?5,Vi4. lects without reasonable cause so to deliver a will, after being duly cited 6
4 Kef ■33^'^' ^or that purpose by such coiu-t, he may be committed to. jail by warrant 7
200 iiass. 382. of the court until he delivers it as above provided, and shall be liable to a 8
230 Mass. 342. , . ^ „ .^ '^ • ^ i i • i
person who is aggrieved tor the damage sustained by him by reason of 9
such neglect. 10
Tgainst'^persons Section 14. If a pcrsou ckimiug to be interested in the estate of a 1
suspected of persou dcceascd makes complaint on oath to a probate court against 2
concealing ^ ip •• t •• .71
mils, etc any one suspected ot retaining, concealing, or conspiring with others to 3
G. s.'92, §§ 17, retain or conceal, a will or testamentary instrument of the deceased, the 4
p.'s. 127, § 14. court may cite the suspected person to appear before it and be examined 5
loo^Mass'. Isi'' on oath upon the matter of the complaint. Upon such examination 6
all interrogatories and answers shall be iu writing, signed by the person 7
examined, and shall be filed in the court. If the person cited refuses to 8
appear and to answer such interrogatories as are lawfully propounded to 9
him, or to obey any lawful order of tlie court, he may be committed 10
to jail by warrant of the court until he submits to its order. The court 11
may award costs to be paid by either party, and may issue execution 12
therefor. 13
ClL\P. 191.] WILLS. 2145
RIGHTS OF SURA-R'ING HUSB.USfD OR WIFE.
1 Section 15. The surviving husband or wife of a deceased person, Right to
2 except as provided in section thirty-five or thirty-six of chapter two rTssf^Il'is.
3 hundred and nine, within six months after the probate of the will of such r.^I.Io. § ii.
4 deceased, may file in the registry of probate a writing signed by him or by Jf ^I'H^j ^4
5 her, waiving any provisions that may have been made in it for him or jss}. im. § i-
6 for her, or claiming such portion of the estate of the deceased as he or she is^s! ss.
• • P S 1 27 Sis
7 would have taken if the deceased had died intestate, and he or she shall isqq, 479, § 16.
8 thereupon take the same portion of the property of the deceased, real r.*l.' ils,' f 16.
9 and personal, that he or she would have taken if the deceased had died §^384.^*^'
10 intestate; except that if he or she would thus take real and personal }|'o'2
11 property to an amount exceeding ten thousand dollars in value, he or she J p'^i' for'
12 shall receive in addition to that amount only the income during his or 6 Gray! so?;
13 her life of the excess of his or her share of such estate above that amount, 12 Gray. 227,
14 the personal property to be held in trust and the real property vested in i^Aiien, 490.
15 him or her for life, from the death of the deceased; and except that if the i Alien! ire!
16 deceased leaves no kindred, he or she upon such waiver shall take the joiMassIo*'
17 interest he or she would have taken if the deceased had died leaving 102 Mass. 49,
IS kindred but no issue. If the real and personal property of the deceased log'Mass. i46.
19 which the surviving husband or widow takes under the foregoing pro- 133 Mass! 413. '
20 visions exceeds ten thousand dollars in value, the ten thousand dollars Itl mIII'. 511!
21 above given absolutely shall be paid out of that part of the personal }85Mas3!i96!
22 property in which the husband or widow is interested; and if such part IggMassisQ!
23 is insufficient the deficiency shall, upon the petition of any person in- 205 Mass. le,
24 terested, be paid from the sale or mortgage in fee, in the manner provided 210'Mass. 105.
25 for the payment of debts or legacies, of that part of the real property in 221 Mass! 31.5.
26 which he or she is interested. Such sale or mortgage may be made either 236 Mass! 77.'
27 before or after such part is set oflF from the other real property of the de-
28 ceased for the life of the husband or widow. If, after probate of such will,
29 legal proceedings have been instituted wherein its validity or effect is
30 drawn in question, the probate court may, within said six months, on
31 petition and after such notice as it orders, extend the time for filing the
32 aforesaid claim and waiver until the expiration of six months from the
33 termination of such proceedings.
1 Section 16. The probate court may upon application of a person Appointment
2 interested appoint one or more trustees, who shall be subject to chapter hoid"husband's
3 two hundred and three so far as applicable, to hold during the life of a "haTe^"""^
4 husband or widow any personal property to the income of which he or jp^' 2^2' | f
5 she may be entitled under the preceding section.
p. S. 127. §19. 1899, 479, § 11. 1900, 450, § 8. R. L. 135, § 17.
1 Section 17. A husband shall not be entitled to his curtesy in ad- to'ha?"'^ "°'
2 dition to the provisions of his wife's will, nor a widow to her dower in curtesy or
1 !• • 1 • • i» 1 1 1 i» 'II 1 1 1 . 1 Widow clower in
3 addition to the provisions or her husband s will, unless such plainly addition to
4 appears by the will to have been the intention of the testator. wiuyuniess?
1783, 24, § 8. R. L. 135, § IS. 135 Mass. 326.
R. S. 80, § 11. 12 Pick. 146. 140 Mass. 662.
G. S. 92, § 24. 5 Met. 277. 144 .Mass. 564.
1861, 164, § 1. 4 Gush. 174. 186 Mass. 14.
P. S. 127, § 20. 113 Mass. 246.
etc.
2146
WILLS.
[Chap. 191.
PROVISIONS FOB SPECIAL CASES.
Devise to
give fee.
R. S. 62, § 4.
G. S. 92, § 5.
P. S. 127, § 24.
Section 18. A devise shall convey all the estate which the testator
coukl lawfully devise in the land mentioned, unless it clearly appears by
the will that he intended to convey a less estate. R. L. 135, § 22.
1 Gush. 93.
4 Gray, 348.
12 Gray, 37(1.
97 Mass. 413.
9S Mass. 75.
108 Mass. 529.
140 Mass. 92.
147 Mass. 570.
168 Mass. 144.
170 Mass. 403, 540.
183 Mass. 251.
184 Mass. 169.
192 Mass. 486.
202 Mass. 512.
225 Mass. 311, 380.
236 Mass. 182.
Land acquired
after making
of will to pass
by it.
R. S. 62. § 3.
G. S. 92, § 4.
P. S. 127. § 25.
Section 19. An estate, right or interest in land acquired by a tes- 1
tator after the making of his will shall pass thereby in like manner as 2
if possessed by him at the time when he made his will, unless a different 3
intention manifestly and clearly appears by the will. R. l. 135, § 23. 4
6 Mass. 149.
5 Pick. 112.
1 Met. 390.
7 Met. 141.
12 Met. 169, 262.
1 Cush. 107, 118.
3 Cush. 366.
4 Cush. 369.
106 Mass. 578.
128 Mass. 41.
170 Mass. 403.
192 Mass. 596.
Child not
provided for
in will.
1700-1, 4, § 2.
1783, 24, § 8.
R. S. 62, 5 21.
G. S. 92, I 25.
P. S. 127, § 21.
R. L. 135, § 19.
11 Met. 294.
2 Gray, 535.
Section 20. If a testator omits to provide in his will for any of his 1
children or for the issue of a deceased child, they shall take the same 2
share of his estate which they would have taken if he had died intes- 3
tate, unless they have been provided for by the testator in his lifetime 4
or unless it appears that the omission was intentional and not occa- 5
sioned by accident or mistake. 6
3 Gray, 367.
4 Allen, 512.
5 Allen, 257.
8 Allen, 551.
11 AUen, 47.
97 Mass. 439.
101 Mass. 125.
106 Mass. 320.
112 Mass. 184.
123 Mass. 8.
126 Mass. 135.
132 Mass. 131.
137 Mass. 86.
164 Mass. 38.
170 Mass. 403.
182 Mass. 293.
194 Mass. 40.
222 Mass. 140.
133 U. S. 216.
Posthumous
children.
Section 21. If a child of a testator, born after his father's death, 1
i7S3~2'4*'§V" ^^^ "^ provision made for him by his father in his will or otherwise, 2
he shall take the same share of his father's estate which he would have 3
taken if his father had died intestate. R. l. 135, § 20. 137 Mass, 527. 4
R. S. 62, § 22.
G. S. 92, § 26.
P. S. 127, § 22.
Sgatirdy^ing Section 22. If a devise or legacy is made to a child or other relation
i78"'24^^l'8°'^' °^ ^'^^ testator, who dies before the testator, but leaves issue surviving
R- 1 'p.' 1 24. the testator, such issue shall, unless a different disposition is made or
p.'s.'i27, § 23. required by the will, take the same estate which the person whose issue
18 pick. 41. ' they are would have taken if he had survived the testator.
5 Met. 396. 108 Mass. 382. 195 Mass. 520. 212 Mass. 432, 454.
7 Met. 141. 145 M.-iss. 517. 196 Mass. 562. 214 Mass. 520.
9 Cush. 122. 155 Mass. 415. 206 Mass. 289. 222 Mass. 283.
16 Gray, 305. 162 Mass. 448. 210 Mass. 115. 229 Mass. 267.
101 Mass. 36. 189 Mass. 266.
Devises of
real estate
subject to
mortgage.
1909, 198,
§§1.3.
Section 23. In all wills made subsequent to January first, nineteen 1
hundred and ten, a specific devise of real estate subject to a mortgage 2
given by the testator, unless the contrary shall plainly appear by his 3
will, shall be deemed to be the devise of the interest only which the 4
testator had at the time of his decease in such real estate over and above 5
such mortgage, and if the note or obligation of the testator secured by 6
such mortgage be paid out of his other property after his decease, the 7
executor of his will or the administrator with the will annexed of his 8
estate shall, at the request of any person interested and by leave of the 9
probate court, sell such real estate specifically devised for the purpose 10
of satisfying the estate of the testator for the amount so paid, together 11
with the costs and expenses thereof. 12
ion
P
Chap. 191.] wills. 2147
1 Section 24. If a testator devises land of which he is not seized, but Devise of land
2 in which he has a right of entry, or if, after making a will, he is dis- testator has
3 seized of land de\ised thereby, such land shall ne\ertheless pass to the eStry.'^'" "'
4 devisee in like manner as it would have descended to the testator's o. s. tf. § f.
5 heirs if he had died intestate, and the devisee shall have the same remedy ^ f; ^^j' |||-
6 for the recovery of such land as such heirs might ha\'e had. lo Mass. isi.
15 Mass. 115. 15 Pick. 1S5. 12 Met. 501.
CONTRIBUTION AMONG DEVISEE.S AND LEGATEES.
1 Section 25. If a posthumous child or a child, or the issue of a child, fo°n*a[!'e"ui
2 omitted in the will takes under section twentv or twenty-one a portion port;"" °'
0 p 1 p 1 • T *ii 1 1 i» 11 1 posthumous or
6 01 the estate oi a testator, such portion shall be taken from ail the omitted child.
4 devisees and legatees in proportion to and not exceeding the value of r. s.'62,'i 23.
5 what they respectively receive under such will, unless in consequence p.s.'i27, § 27.
6 of a specific devise or legacy or of some other provision of the will a m^Ma^ss'. mt^'
7 different apportionment is found necessary to give effect to the testa-
8 tor's intention relative to that part of his estate which passes by his will.
1 Section 26. If property which is given by will is taken from a Contribution
2 devisee or legatee for the payment of the debts of the testator, all the i^ tlkra°fCr'the
3 other devisees and legatees shall, subject to the following section, con- SebtT°' °^
4 tribute their respective proportions of the loss to the person from whom Jyll'l'/^j Is'
5 such property is taken, so that the loss may fall on all the devisees and g- 1 p' 1 15.
6 legatees in proportion to and not exceeding the value of the property P- s. 127. § 2s.
7» i T 1 R. L. 135, § 26.
received by eacli.
6 Mass. 149. 1 Cush. 107. 192 Mass. 79, 596. 213 Mass. 117.
1 Section 27. If the testator, by making a specific devise or bequest. Special appro-
2 has virtually exempted a devisee or legatee from liability to contribute estate made by
3 with the others for the payment of the debts, or if by any other pro- fono''»°d. °
4 visions in his will he has prescribed or required an appropriation of his 27.^' ^"' ^^ '^'
5 estate different from that prescribed in the preceding section, his property 2i ^' ^"' ^^ ^°'
6 shall be appropriated and applied in conformity with his will, so far as ^- ^ ^^^^ § 2^-
7 such appropriation and application can be made without afi'ecting the 22>ick.288.
8 liability of his whole estate for the payment of his debts. 4 Alien', 179'.
13 Allen. 252. 122 Mass. 282. 127 Mass. 64.
106 Mass. 100. 124 Mass. 228. 213 Mass. 117.
1 Section 28. If a posthumous child or a child, or the issue of a child, on'i',teT°h,id°''
2 omitted in the will takes under section twenty or twentv-one a portion iiaWeanden-
•^ ■■ ^ titled to con-
3 of the estate of a testator, such portion of the estate shall, for the pur- tribution
4 poses of the two preceding sections, be considered as if it had been de- c'. s. 92. § 32!
5 vised or bequeathed to such child or other descendant; and he shall r.l. 135, §28.
6 contribute with the devisees and legatees, and be entitled to claim
7 contribution from them, as before provided.
1 Section 29. If a person who is liable to contribute according to the insolvency of
2 three preceding sections is insolvent or unable to pay his just proportion feg™!!.""^
3 of the contribution required, the other persons so liable to contribute oil 92! §33!
4 shall be severally liable for the loss occasioned bv such insolvencv, each £•?• Wr\?,n'
r • • 1 !• 1 1 t 1 R. L. 135, § 29.
5 one in proportion to and not exceeding the value or the property re-
6 ceived by him from the estate of the deceased; and if a person who is
7 so liable dies without having paid his proportion, his executors and ad-
8 ministrators shall be liable therefor in like manner as if it had been his
9 own debt and to the extent to which he would have been liable if living.
2148
PROBATE OF WILLS, APPOINTMENT OF EXECUTORS. [ChAP. 192.
Contribution if
estate is taken
from devisee
for dower, etc.
1839, 96, § 1.
G. S. 92, § 36.
P. S. 127. § 32.
R. L. 135. § 30.
1 Cush. 107.
137 Mass. 527.
Section 30. If the estate of a devisee under a will is taken for the
curtesy of the husband or dower of the widow of the testator, all the
other devisees and legatees shall contribute their respective proportions
of the loss to the person from whom the estate is so taken, so that the
loss may fall upon all the devisees and legatees in proportion to and not
exceeding the value of property received by them under the will; but no
devisee or legatee shall contribute if exempted therefrom by the will.
REFERENCES.
Agreement to make will, Chap. 259, § 5.
Cemetery lots, Ch.ap. 11-1, § 31.
Construction of word "will" to include codicil, Chap. 4, § 6, cl. 37.
Witnesses, Chap. 233.
Hospital records to prove soundness of mind, Chap. 233, § 79.
Appointing guardian of minor child by will, Chap. 201, § 3.
§ 14. Disclosures under this section not to be used as evidence in certain prosecu-
tions, Chap. 266, § 39.
§ 15. Share of surviving husband or widow. Chap. 190, § 1.
§§ 20, 21. Jurisdiction over these matters, Chap. 215, § 6.
CHAPTER 192.
PROBATE OF WILLS AND .\PPOINTlMENT OF EXECUTORS.
Sect.
1. Affidavits to be annexed to certain pe-
titions in the probate court.
2. Proof of will, etc.
3. Certain decrees conclusive after one
year.
4. Letters to issue.
5. If one executor does not accept, letters
may be granted to the others.
Sect.
6. If one executor is a minor, the others
may act during minority.
7. Appointment of judge or register of
probate as executor, etc.
8. Executor of executor.
9. Allowance of foreign wills.
10. Same subject.
11. Settlement of estate in such cases.
Section 1. A petition for the probate of a will, letters of adminis-
Affidavits to be
annexed to cer- ^ . « ,
thifr*^ bat°°^ '° tration or letters testamentary shall have annexed an affidavit of the
court. petitioner or of one of the petitioners that the statements therein made
1891,414. s. 1 t- _ f _ . . _. .
r.'l! i3g! § L are true to the best of his knowledge and belief.
1905, 90.
Proof of will,
etc.
1817, 190, § 33.
R. S. 62, § 15.
G.S. 92, § 19.
P. S. 129, § 1.
1901,242.
R. I.. ISfi, § 2.
1912, 493.
3 Mass. 236.
Section 2. If it appears to the probate court, by the consent in 1
writing of the heirs, or by other satisfactory evidence, that no person 2
interested in the estate of a deceased person intends to object to the 3
probate of an instrument purporting to be the will of such deceased, 4
the court may grant probate thereof upon the testimony of one only of the 5
subscribing witnesses; and the affidavit of such witness, taken before 6
the register of probate, may be received as evidence. If the probate 7
of such instrument is assented to in writing by the widow or husband of 8
the deceased, if any, and by all the heirs at law and next of kin, it may 9
be allowed without testimonv. 10
Certain decrees
conclusive
after one vear.
1889, 435.
R. L. 136, § 3.
1917,22.
1918, 257,
§386.
1919, 5.
1920, 2.
3 Allen, 87.
Section 3. A decree allowing a will, or compromise of a will, or ad- 1
indicating the intestacy of the estate of a deceased person, in any court 2
in the commonwealth having jurisdiction thereof, shall, after one year 3
from the rendition thereof, or, if proceedings for its reversal are had, 4
after one year from its establishment, be final and conclusive in favor of 5
purchasers for value, in good faith, without notice of any adverse claim, 6
Ch.\P. 192.] PROBATE OF WILLS, APPOINTMENT OF EXECUTORS. 2149
7 of any property, real or personal, from devisees, legatees, heirs, execu- 144 Mass. 415.
8 tors, administrators, guardians or conservators; and in favor of execu- 225 Mass! 12.'
9 tors, administrators, trustees, guardians and conservators, who have
10 settled their accounts in due form and have in good faith disposed of the
11 assets of the estate in accordance with law; and also in favor of persons
12 who have in good faith made payments to executors, administrators,
13 trustees, guardians or conservators. If a subsequent decree reverses or
14 qualifies the decree so originally rendered, heirs, devisees, legatees and
15 distributees shall be liable to a subsequent executor, administrator or
16 other person found entitled thereto, for any proceeds or assets of the
17 estate received by them under the former decree, and in such case pro-
18 ceeds of real property shall be treated as real property. This section
19 shall not make an adjudication of the fact of death conclusive.
1 Section 4. If a will has been duly proved and allowed, the probate Letters to
2 court shall issue letters testamentary thereon to the executor named R^aes. § 1.
3 therein, if he is legally competent and a suitable person and accepts the p.f.'^fg.Vi
4 trust and Muthin thirty days gives bond to discharge the same; other- fgoV I'so ^ *"
5 wise said court may grant letters of administration on the estate as pro- Pofi^*'''
6 vided in the following chapter. 1919, 5. 1920. 2.
6 Mass. 149. Ill Mass. 331. 152 Mass. 24.
1 Section 5. If a person named as executor in a will has deceased or if one executor
2 refuses to accept the trust, or, after being duly cited for the purpose, w1er°°4ay'^be''
3 neglects to accept the same or neglects for twenty days after the pro- oSera.'' '° ""*
4 bate of the will to give bond according to law, the court shall grant R^l'la'fi^"
5 letters testamentary to the other executors, if there are any competent Jf^|' 93^56
6 and willing to accept the trust. p. s. 129, § 3. r. l. ise, § 5.
Ill Mass. 331. 172 Mass. 496. 1S3 Mass. 575,
1 Section 6. If a person named as executor in a will is at the time of ." one executor
1 1 1 P • 1 1 .« IS a minor, the
2 the probate thereof a minor, the other executor or executors, if any, others may act
iiii«» I *ii • • pii 1 during mi-
3 shall administer the estate until the minor arrives at full age, when, nonty.
4 upon giving bond according to law, he may be admitted as a co-executor r. s.'es.'s 6. '
5 of such will. G. S. 93, § 7. p. S. 129, § 4. R. L. 136, § 6.
1 Section 7. If a judge or register of probate desires to be appointed „/'? j°g™r"'
2 executor of the will or administrator, or administrator with the will an- register of pro-
3 nexed, of the estate of his wife, child, father or mother, who at the time ecutor, etc
4 of their decease were inhabitants of or resident in his county, such will §§ i,'2. '
5 may be proved and allowed and appointment made and all subsequent §§7,'8.'^^'
6 proceedings relative to the estate may be had in the probate court of
7 any adjoining county, and the register thereof shall forthwith transmit
8 to the register of the county where the deceased resided, or of which said
9 deceased was an inhabitant, a true and attested copy of all papers relat-
10 ing thereto filed and entered on the docket, which shall be recorded by
1 1 the register to whom they are transmitted.
1 Section 8. The executor of the will of an executor shall not, as such, Executor of
2 administer on the estate of the first testator. ""''^ °^'
1783, 24, § 19. G. S. 93, § 9. R. L. 136, § 9. 156 Mass. 313.
R. S. 63, § 10. P. S. 129, § 10. 131 Mass. 408. 157 Mass. 160.
1 Section 9. A person interested in a will which has been proved and Allowance of
2 allowed in any other of the United States or in a foreign country accord- I'ss. 12,
2150
APPOINTMENT OF ADMINISTRATORS.
[Ch.\p. 193.
R. S. 62. §§ 17,
IS.
G. S. 92. § 21.
1878,201.
1879- 185, I 1.
P. S. 127, § 15.
R. L. 136, § 10.
204 Mass. 394.
210 U. S. 82.
ing to the laws of such state or country, or in a will which, by the laws 3
of the state or country in which it was made, is valid without probate, 4
may produce to the probate court in any coimty where there is any 5
property, real or personal, on which such will may operate, a copy of 6
such will and of the probate thereof, duly authenticated, or, if such will 7
is valid without probate as aforesaid, a copy of the will or of the official 8
record thereof duly authenticated by the proper officer having custody 9
of such will or record in such state or country; and the court shall there- 10
upon assign a time and place for a hearing and cause notice thereof to 11
be given to all persons interested by publication in a newspaper three 12
weeks successively, the first publication to be thirty days at least before 13
the time assigned for the hearing. 14
Section 10. If at such hearing the court finds from the copies be-
fore it and any additional proof as to the authenticity and execution of
the will that the instrument ought to be allowed in this commonwealth
Same subject.
1785, 12, § 2.
R. S. 62, § 19.
G. S. 92, I 22.
1879, 185, § 1.
R. L. 136, § li. as the last will of the deceased, it shall order the copv to be filed and re-
12 Met. 421.
11 Cush. 519.
10 Gray, 162.
13 Gray, 330.
corded, and the will shall then have the same effect as if it had been
originally proved and allowed in the probate court in the usual manner.
Ill Mass. 331. 204 Mass. 394. 210 U. S. 82.
fstatlTn"u?h Section 11. After allowing a will under the two preceding sections,
1785^' 12 5 1 *^^® probate court shall grant letters testamentary on such will or letters
R.s.'62,'§ 20. of administration with the will annexed, and shall proceed in the settle-
p.'s."i27, § 17. ment of the estate which may be found in this commonwealth in the
id Gush. i7. ■ manner pro^'ided in chapter one hundred and ninety-nine relative to
204Mfss.i4. such estates. 2iou.s.82.
REFERENCES.
§ 4. Right of trust company or national bank to be appointed executor, Chap.
172, § 52, and note at end of chapter.
§ 6. Failure to give bond as required, Chap. 20.5, § 8. As to this section, see also
Chap. 193, § 8.
§ 9. Waiver of notice by assent. Chap. 21.5, § 47.
Service of citation by registered mail, Chap. 215, § 46.
CHAPTER 193.
APPOINTMENT OF ADMINISTRATORS.
Sect.
ordinabt administration.
1. Administrafion, to whom granted.
2. To next of kin without notice.
3. Right of commissioner of corporations
and taxation.
4. Administration not to be granted after
twenty years.
5. Exception.
6. Letters of administration to be revoked
on probate of a will.
ADMINISTR.ITION WITH THE WILL ANNEXED.
7. Administration with the will annexed.
8. Administration with the wUl annexed
may be granted when executor is a
Sect.
administration db bonis non.
9. De bonis non.
SPECIAL ADMINISTRATION.
10. Appointment of special administrators.
1 1 . Powers and duties.
12. Same subject.
13. Advancements to widow or children.
Appeal.
14. PajTnent of certain debts and expenses.
15. Effect of special administration on
claims of creditors.
16. Powers of special administrator to
cease on appointment of executor,
etc.
CH.iP. 193.] APPOINTMENT OF ADMINISTRATORS. 2151
ORDINARY ADMINISTRATION.
1 Section 1. Administration of the estate of a person deceased intes- Administratiou,
2 tate shall be "rranted to one or more of the persons hereinafter mentioned sranteT
3 and in the order named, if competent and suitable for the discharge of i692-3^i4;m.
4 the trust and willing to undertake it, unless the court deems it proper to \l^f^ isbf^u.
5 appoint some other person: r^s'64°§4
6 First, The widow or surviving husband of the deceased. isso, 142 § 1.
7 Second, The next of kin as the court shall determine. i853!4i9.
8 Third, If none of the above are competent or if they all renounce the p.' I.' 136, § i.
9 administration or without sufficient cause neglect for thirty days after ^^°[ 137; | f
10 the death of the intestate to take administration of his estate, one or }|p;p^^®^/°^"
11 more of the principal creditors, after public notice upon the petition. JV'.fh'so^^'
12 Fourth, If there is no widow, husband or next of kin within the com- 4 Cush! 40s.'
13 monwealth, a public administrator. 195 Mass. 133.
222 Mass. 102. 223 Mass. 540. 225 Mass. 487. 235 Mass. 33.
1 Section 2. Administration of the estate of an intestate may be To next of kin
2 granted to one or more of the next of kin or any suitable person, if the ^85?26o.°"''^'
3 husband or widow and all the next of kin resident in the commonwealth, Jf ^l; 137; | 2;
4 who are of full age and legal capacity, consent in writing thereto. Notice
5 of the petition may be dispensed with as if all parties entitled thereto
6 had signified their assent or waived notice.
1 Section 3. If a person dies leaving an estate which may be liable to Right of
2, 1 1 j_ * j_ j_ 1 • J commissioner
an income tax under chapter sixty-two or a legacy or succession tax ot corpora-
3 under chapter sixty-five, and a will disposing of such estate is not offered tSion''
4 for probate, or an application for administration made, within four months ^^l\ t5^'§Vs''
5 after his decease, the probate court, upon application by the commis- J^^J- |g^' 5 '■^-■
6 sioner of corporations and taxation, may appoint an administrator. iv, § 22. '
1911, 551. 1915, 04. 1919, 349, § 6; 350, § 53.
1 Section 4. Administration shall not be originally granted after the Administration
2 expiration of twenty years from the death of the testator or intestate, g°ant°d after
3 except in cases expressly authorized by law. i7S3, 36, § lo. twenty years.
1817, 190. § 17. G. S. 94. § 3. R. L. 137, § 3. 146 Mass. 155.
R. S. 64, § 13. P. S. 130, § 3. 6 Gush. 493. 208 Mass. 501.
1 Section 5. If administration has not been taken on the estate of a Exception.
2 testator or intestate within twenty years after his decease, and any g. s.'94,§4.
3 property or claim or right thereto remains undistributed or thereafter 188^^,2^2.^^'
4 accrues to such estate and remains to be administered, original adminis- ^^l' Jp . ^
5 tration may for cause be granted, but it shall afi'ect no other property. Joq^/"^' g,
6 Before granting such administration the court shall require the petitioner sbs Mass! soi.
7 to furnish evidence of the death of the intestate and such other e\idence
8 as the court may require. In the absence of satisfactory evidence of
9 death and of interest on the part of the petitioners, the probate court
10 shall refer the matter to the attorney general, or to any district attorney,
1 1 who shall investigate and report thereon for the advice and assistance of
12 the court.
1 Section 6. If, after the granting of letters of administration as Letters of ad-
2 upon an intestate estate, a will of the person deceased is duly proved berevoked" '°
3 and allowed, such letters shall be revoked; and the executor or an admin- Sifh*'* °' ^
on
2152
APPOINTMENT OF .UJMINISTRATORS.
[Chap. 193.
r^'m^s 16''*' istrator with the will annexed may demand, collect and sue for all the 4
Sf?oA^/; personal property of the deceased which remains unadministered. 5
r, a. \i\j, so.-' Ait
R. L. 137, § 5.
Administration
with the will
annexed.
1692-3, 14, § 2.
1783, 24, § 16.
R. S. 63, § 5.
1855, 111.
G. S. 93. § 6.
P. S. 130, § 6.
R. L. 137, § 6.
1911, 588.
1919,208, § 1.
Ill Mass. 331.
172 Mass. 490.
191 Mass. 96.
ADMINISTR-^TION WITH THE WILL ANNEXED.
Section 7. If no executor is named in a will, or if all the executors 1
therein named are dead or incompetent or refuse to accept the trust, 2
or if, after being duly cited therefor, the executor neglects to accept the 3
trust, or if he neglects for thirty days after the probate of the will to give 4
bond according to law, the court shall commit administration of the estate, 5
with the will annexed, to any person interested in the will of said de- 6
ceased, to any creditor of the deceased or to any suitable person; but 7
after the expiration of said thirty days, and before letters of administra- 8
tion with the will annexed have been granted, the court may grant letters 9
testamentary to any person named as executor who gives the bond 10
required by law. If a person named as executor in a will petitions for the 1 1
probate of the same and dies, declines or becomes unable to act before 12
final decree is entered on said petition, any person interested in the will 13
of said deceased, or any creditor of the deceased, or any suitable person, 14
may, on petition, be allowed to enter and to prosecute the original 15
petition for probate, to apply for letters of administration with the will 16
annexed, and to act and proceed in any proposed compromise under 17
sections fifteen and sixteen of chapter two hundred and four. If it ap- 18
pears that there are no known heirs of the deceased, a public administrator 19
of the county shall be appointed to the trust. 20
m^thfwin°° Section 8. If a person named as executor is at the time of the pro-
begranted"^ bate of the wiU under the age of twenty-one, administration with the
when executor -^vill annexed may be granted during his minority, unless there is another
1783, 24, § 17. executor who accepts the trust.
R. S. 63, § 6. G. S. 93, § 7. P. S. 130, § 7. R. L. 137. § 7.
De bonis non.
1723-4. 3.
1782, 25.
§§ 1-3.
1783, 24. § 19:
36, § 10.
1817, 190, § 17
R. S. 63,
§§ 7, 10; 64,
§§ 14, 15.
1843, 97.
G. S. 101,
§§1.2,5.
P. S. 130, § 9.
1890, 408, § 2.
R. L. 137. § 8.
1919, 208. § 1.
2 Mass. 168.
2 Pick. 360.
3 Met. 187.
7 Met. 20.
128 Mass. 5S7.
administr.\tion de bonis non.
Section 9. If a sole or surviving executor or administrator dies, re- 1
signs or is removed before having fully administered an estate, and there 2
is personal property of the deceased not administered to the amount of 3
twenty dollars, or debts to that amount remaining due from the estate, 4
or anjlhing remaining to be performed in execution of the will, or if 5
there is an order of distribution in accordance with section twenty-eight 6
of chapter two hundred and six, the probate court shall grant letters 7
of administration, with the will annexed, or othern-ise as the case may 8
require, to one or more suitable persons to administer the goods and 9
estate of the deceased not already administered. If it appears that there 10
are no known heirs of the deceased, a public administrator of the county 11
shall be appointed to the trust. 12
132 Mass. 326.
143 Mass. 320.
185 Mass. 22.
214 Mass. 132.
SPECI.^L ADMIXISTR.\TI0N.
Appointment
of special
administrators.
1834, 174, § 1.
R. S. 64, § 6.
G. S. 94, § 6.
1876, 200,
§§ 1,4.
P. S. 130, § 10.
Section 10. If the judge of probate deems it necessary or expedient,
he may, at any time and place, with or without notice, appoint a special
administrator who, in case of an appeal from the decree appointing him,
shall nevertheless proceed in the execution of his duties until it is other-
wise ordered by the supreme judicial court, and may in like manner dis-
CH-^P. 193.] APPOINTMENT OF ADMINISTRATORS. 2153
6 charge him. Such appointment and discharge shall be entered forthwith r l._i37. §9.
7 on the records of the
8 administrator, if any.
7 on the records of the court and notice thereof gi\'en to the executor or
1 Section 11. A special administrator shall collect all the personal J°j^|J^''°<'
2 property of the deceased and preserve the same for the executor or ad- Jf^f'i'^^i^-
3 ministrator when appointed, and for that purpose may commence, main- iss's, 122.
4 tain and defend suits. If he is appointed by reason of delay in granting p.'s.'iao. § 12.
5 letters testamentary, the court may authorize him to take charge of the wis,' 257,' ^ ^°'
6 real property of the deceased or of any part thereof, and collect rents, f/ig^s
7 make necessary repairs and do all other things which it may consider g^o'Ai'ass 32
8 needful for the preservation of such real property and as a charge thereon. 233 Mass. 62.
9 His compensation shall be such as the court allows.
1 Section 12. The probate court may, upon such notice as it considers same subject.
2 reasonable, authorize or require a special administrator to sell or do such r s.'64, §8. '
3 other acts relative to any property or estate in his charge as it may deem G.^l.'gl.^l s.
4 necessary; but this section shall not give to the special administrator ^^^^ ^^^^ ^ ^^■
5 other or greater powers than an administrator, except that he may be jsgg, 301,
6 authorized to continue the business of the deceased for the benefit of his 233 Mass! 62.
7 estate.
1 Section 13. Upon petition of the widow or of any child of the de- Advancements
2 ceased, the probate court may, after notice, make a reasonable allowance ch.id'ren" °^
3 out of the real or personal property in the hands of a special administra- i859!'i43,
4 tor appointed on account of the pendency of a petition relative to the ^ g"g^
5 probate of a will or the appointment of an administrator or of an ad- §§ 1. 10^
6 ministrator with the will annexed, as an advancement for the support of §§ 13, u.
7 such widow or children, not exceeding such portion of the estate as they r. l! 137'. § 12.
8 would finally be entitled to. An appeal from a decree relative to such Jeo Mass! 232!
9 allowance shall not prevent the payment of the allowance, if the peti- ^^^ ^^'^"^' *^^-
10 tioner gives bond to the special administrator, with sureties approved
11 by the court and conditioned to repay it if the decree is reversed.
1 Section 14. A special administrator may by lea\'e of the probate Payment of
2 court pay from the personal property in his hands the expenses of the and "expenses.
3 last sickness and funeral of the deceased, the expenses incurred by the a^s.'94.^§\i'.'
4 executor named in the will of the deceased, or by any other person pre- fgs^/291'.^ ^^'
5 senting the same for probate, in proving the will in the probate court or 1^97, 199. ^^
6 in sustaining the proof thereof in the supreme judicial court and also, isos, 153.'
7 after notice, such debts due from the deceased as the probate court may
8 approve.
1 Section 15. A special administrator shall not be liable to an action Effect of
2 by a creditor of the deceased; and the time of limitation for all actions mSration
3 against the estate shall begin to run only after the granting of letters c^d'to™ °^
4 testamentary or of administration in the usual form in like manner and R^s'el^s^o'
5 subject to the same conditions as if special administration had not been §-§?^Ai';\
II -p I'lZ-ll r-i 1 p. S. 130, §17.
b granted ; but 11 an appeal is taken from the decree ot the probate court R- l- i37, § is.
7 appointing an executor or administrator the time shall run in like manner
8 and subject to the same conditions if the decree is affirmed, from the
9 time of the affirmation if the bond has been filed, and, if not, from the
10 date of the filing of the bond; if the decree is reversed, from the time
1 1 when an appointment is finally made or affirmed and the bond is filed.
2154
PUBLIC ADMINISTRATORS.
[ClLiP. 194.
Powers of
special ad-
ministrator to
cease on ap-
pointment of
executor, etc.
1S34, 174, § 3.
R. S. 64, § 9.
G. S. 94. § 12.
P. S. 130, § Ifi.
R. L. 137, § 14.
Section 16. Upon the granting of letters testamentary or of ad- 1
ministration, the powers of the special administrator shall cease. Upon 2
the termination of his powers, the special administrator shall forthwith 3
deliver to the executor or administrator or to such person as is otherwise 4
lawfully authorized to receive it all the estate of the deceased in his 5
hands; and the executor or administrator may be admitted to prosecute 6
a suit commenced by the special administrator in like manner as an ad- 7
ministrator de bonis non may prosecute a suit commenced by a former 8
executor or administrator. ft
REFERENCES.
§ 1. Public administrators, Chap. 194.
Right of trust company or national bank to be appointed, Chap. 172, § 52,
and note at end of chapter.
Jurisdiction, Chap. 215, §§ 3, 7.
Conclusiveness of decree. Chap. 192, § 3; 215, § 2.
§ 5. Insolvent estates. Chap. 198, § 26.
I 8. Proceeding where one of two or more executors is a minor. Chap. 192, § 6.
§ 9. Public administrators, Chap. 194, § S.
§ 12. Power of the court to authorize executor or administrator to continue busi-
ness of deceased. Chap. 19.5, § 7.
§ 14. See § 11 of this chapter; also, on question of payment of debts, Chap. 197, § 1.
§ 15. Time within which suits must be brought. Chap. 197, § 9.
CHAPTER 194.
PUBLIC ADMINISTRATORS.
Sect.
1. Appointment.
2. Bond.
3. Annual accounts to be rendered if gen-
eral bond is given.
4. Duties.
5. Public administrators not to act when
heir, etc., claims the right.
6. Compensation in certain cases.
7. Powers to cease when will is proved or
heir claims administration.
8. Proceedings on death, etc., of public
administrator.
9. Provisions as to land.
10. Public administrators, etc., to deposit
balances with the treasurer.
12.
13.
14.
Sect.
11. Annual accounts.
Surrender of letters on appointment of
successor.
Completion of administration.
Heirs, etc., may take administration
after deposit in state treasury.
15. Treasurer to pay over to executor, etc.
16. District attorneys to prosecute in case
of neglect.
17. Disposition of estates of less than one
hundred dollars.
Accounts of estates of less than one
hundred dollars.
IS.
i839?'i42!'ri. Section 1. There shall be in each county one or more public ad- I
p' I' 131 S^i ministrators, not exceeding six in Middlesex or five in any other county, 2
R. L. 138, 1 1. appointed by the governor with the advice and consent of the council, 3
who shall hold office for five years from the time of their appointment. 4
1917, 12.
1908,
510,
§ 1.
1913,
246.
Bond
1839
'l42
§§ 1.
2.
1849,
123,
§§2.
3.
G. S
95,
§§ (
7,9.
P. S.
131,
§§f
7, 9.
R. L
138
§§(
7,9.
General bond.
Section 2. A public administrator shall give bond payable to the
judge of the probate court and his successors for the faithful perform-
ance of his duties in like manner as other administrators, with the
further condition to comply with section twelve.
Instead of a separate bond for each estate, a public administrator
may give a general bond for the faithful administration of all estates on
which letters of administration may be granted to him as such public
Chap. 194.] public administrators. 2155
8 administrator. The bond shall be given with sufficient surety or sure-
9 ties, in such sum as the probate court orders, payable to the judge of said
10 coiu-t and his successors, with condition substantially as follows:
11 First, To make and return to the probate court, within three months
12 from the time of granting to him, as public administrator, letters of
13 administration on the estate of a person deceased, a true inventory of all
14 the real and personal property of such person which at the time of
15 making thereof shall have come to his possession or knowledge.
16 Second, To administer according to law all personal property of every
17 such person which may come to his possession or of any person for him,
18 and also the proceeds of any of the real property of such person which
19 may be sold by him.
20 Thirtl, To render on oath a true account of his administration of
21 every such estate at least once a year until the trust is fulfilled, unless
22 excused therefrom in any year by the court; and also to render such ac-
23 count at such other times as the court may order.
24 Fourth, To pay the balance of every such estate remaining in his
25 hands upon the settlement of his accounts to such persons as the court
26 may direct; and when such estate has been fully administered to de-
27 posit with the state treasurer the whole amount remaining in his hands.
28 Fifth, Upon the appointment and qualification in any case of an
29 executor or administrator as his successor, to surrender into the probate
30 court his letters of administration in such case with an account on oath
31 of his doings therein and, upon a just settlement of such account, to pay
32 over and deliver to such successor all money remaining in his hands,
33 and all property, effects and credits of the deceased not then administered.
34 Periods of time which by law run in other cases from the time of giving Limitation
35 bond by an administrator shall, when such general bond is given, run generaftTond
36 as to each estate from the date of the letters of administration. "^ ^'^'°'
1 Section 3. A public administrator who gives a general bond shall, Annual
fliC counts to DG
2 at the probate court first held in his county after January first in each rendered if
3 year, render an account on oath of all balances of estates then remaining is given.
4 in his hands; and the court may at any time require additional sureties cl^s! 9l^'§ s^'
5 to be furnished upon such bond or may require a new bond. a l_ ils; 1 1;
1 Section 4. A public administrator shall, except as hereinafter Duties.
2 provided, take out letters of administration and faithfully administer if^l.' 64!'§ 4.
3 upon the estates of persons who die intestate within his county or else- If^l'.'a*^"
4 where, leaving property in his county to be administered, if there is no Jg^Jj' f°-^
5 known husband, widow or heir of such deceased living in the common- §§ 1 3. '
6 wealth at the time of filing the petition. The state treasurer shall be §§ 2,' 10'
7 made a party to a petition for administration by a public administrator, §§ 2, 10. "
S and shall be given due notice of all subsequent proceedings. He shall, ex- §§ 2^10.^*'
9 cept as otherwise provided in this chapter, administer estates and render mllHi^isld.
10 accounts in the same manner as other administrators. ig'ol'
128 Mass. 578. 182 Mass. 205. 191 Mass. 276. 223 U. S. 317.
1 Section 5. Administration shall not be granted to a public ad- admmistrators
2 ministrator when the husband, widow or an heir of the deceased, in ^°^ *V'
when iiGir
3 writing, claims the right of administration or requests the appoint- etc., claim's
4 ment of some other suitable person to the trust, if such husband, widow, i853, 419.
5 heir or other person accepts the trust and gi\-es the bond required. p.' s.' isi,' § 3.
R. L. 138, § 3.
2156 PUBLIC ADMINISTRATORS. [ClL^P. 194.
i^T?tairci°s?3. Section 6. If after citation has been issued by the probate court 1
1909, 114, § 1. to a public administrator upon the estate of a deceased person, admin- 2
istration shall not be granted to him for the reason set forth in the pre- 3
ceding section, or because of the finding of a will of the deceased, the 4
judge, if satisfied that the person taking out said citation has acted in 5
good faith and for the best interests of the estate, may allow him just 6
and reasonable compensation for his services, and reimbursement for ex- 7
peases actually incurred, out of the assets of said estate. 8
feale whm Section 7. If, after the granting of letters of administration to a 1
OThwr'damii pubHc administrator and before the final settlement of the estate, the 2
i8i7'"i9o''§T4 h'^'sband, widow or an heir of the deceased, in writing, claims the right 3
R s.' 64. § 16. of administration or requests the appointment of some other suitable 4
G. s.'95. §H. 5. person to the trust, or if a will of the deceased is thereafter proved and 5
R. L. 138, § 4^ allowed, the probate court shall grant letters of administration or letters 6
i4SMass. 594. testamentary; and when the person to whom such letters are so granted 7
gives the bond required by law the powers of the public administrator 8
over the estate shall cease. 9
M°dlafh?ltc., Section 8. Upon the death, resignation or removal of a public 1
administrator administrator, the probate court shall issue a warrant to some other 2
^S49, m. § 1. public administrator in the same county, upon his application there- 3
R i' 'Is' I 'e' ' ^^1"'^i"g ^™ to examine the accounts of such public adminis- 4
■ trator relative to the estates on which he has taken out letters of ad- 5
ministration, and to return to the probate court a statement of all of 6
such estates as are not fully administered and of the balance of each 7
estate remaining in the hands of such public administrator at the time 8
of his death, resignation or removal. And thereupon the court shall 9
issue to the public administrator making the return, upon his giving the 10
requisite bond, letters of administration upon such of said estates as are 11
not already administered, although the personal property remaining may 12
not amount to twenty dollars. 13
to°™d°"^ "^ Section 9. Public administrators may be authorized to take charge 1
§ri*'3^4" °^ *'^^ ^^^^ property of the deceased or of any part thereof situated any- 2
il*!' 123. where within the commonwealth, to lease the same, to collect the rents, 3
G. s'. 95, and to make such repairs, and do all other things which may be con- 4
isso,'i53. sidered necessary for the preservation of such real property and as a 5
§§ lb, n'. charge thereon. They may also be licensed by the probate court to 6
f§ io,\''f.' sell the real property for the same purposes and in the same manner 7
i9o| 12°; § 1 ^s other administrators. All laws relative to sales of land by adminis- 8
trators and the disposition of the proceeds shall govern such sales so far 9
as applicable, except as otherwise provided in this chapter; provided, 10
that the time limit imposed on sales by other administrators shall not 11
apply to sales by public administrators, but shall be in the discretion 12
of the court. The net proceeds of any sale after deducting the expenses 13
thereof and other administration expenses, and such amount as may be 14
required for the payment of debts in consequence of a deficiency in the 15
personal property, shall, after one year from the time of the filing of the 16
administrator's bond, or in case he has filed a general bond, after one 17
year from the date of his appointment, except as provided in the follow- 18
ing section, be distributed to the persons who would have been entitled 19
to said real property in the proportions to which they would have been 20
entitled had it not been sold. 21
Chap. 194.] public administrators. 2157
1 Section 10. TOien an estate has been fully administered by a Public
2 public administrator, or by the executor or administrator with the will etc°!'to^deposrt
3 annexed of a person who died leaving no known heirs, he shall deposit any theTrelsurer!
4 balance in his hands with the state treasurer, who shall hold it for the 8|^f''4^^'
5 benefit of those who may have lawful claims thereon. The probate coiu't g. s. 95 § 12
6 may, within six years thereafter, upon the application of such executor R- l iss, § 12!
7 or administrator, if it appears that there are reasonable grounds to be- i9i9!208. «2.
8 lieve that certain persons ha^•e lawful claims upon the said balance, enter ^°'
9 a decree directing that it be repaid to him; and the treasurer shall there-
in upon pay over to him all money deposited in the treasury to the credit
1 1 of the estate to be administered by him as a part of the estate of the
12 deceased.
1 Section 11. The probate court in each county shall require every Annual
2 public administrator in such county to render an account of his pro- i839™42,
3 ceedings under any letters of administration at least once a year until g. s. Is. § 13.
4 the trust is fulfilled. When, on final settlement of an estate, it appears ^ | \fg^ | \f
5 that money remains in the hands of such administrator which by law
G should have been deposited with the state treasurer, the court shall
7 certify that fact and a statement of the amount so witlilield to said
8 treasurer, who, imless such deposit is made within one month after
9 the receipt of such notice, shall cause the bond of the administrator to
10 be prosecuted for the recovery of such money.
1 Section 12. A public administrator shall, upon the appointment Surrender of
2 and qualification of an executor or administrator as his successor, sur- appointment
3 render into the probate court his letters of administration in such case isi?. i9o.°§ u.
4 with an account on oath of his doings therein, and, upon a just set- ^3!; 142,^ §'2!
5 tlement of such account, shall pay over and deliver to his successor all p; |; ^fi.^i^s.
(J money remaining in his hands, and all property, effects and credits of ^- ^- '^*' ^ *■
7 the deceased not then administered.
1 Section 13. Public administrators shall complete, as soon as they Completion of
2 lawfully may, the administration of estates in their hands of which the tion.""^ '^'^
3 administration is not complete at the date of the expiration of their 62if'§ l '
4 terms. 1913. 246, § 1. 1917, 12, § 1.
1 Section 14. If, within six years after a public administrator, or an Heirs, etc.,
2 executor or an aflministrator with the will annexed of a person who has ^"ministration
3 died leaving no known heirs, has deposited with the state treasurer the state trTa°sury.°
4 balance of an estate, any person petitions the probate court which granted J^-*!' 9"'5\4"
5 letters of administration or letters testamentary on such estate, and shows ?■ |- i|i' | J^-
G that he is legally entitled by the will of the deceased or otherwise to the i9i7. 90, § 2.
.... . ... 1919 20s § 3
7 administration thereof, the court shall grant administration thereof, or,
8 upon probate of such will, shall grant letters testamentary or of adminis-
9 trationwith the will annexed to such petitioner or at his request to some
10 other suitable person; but before granting such letters the court shall
1 1 order personal notice of the petition to be served, at least fourteen days
1 2 before the hearing, upon a public administrator of the county, who shall
13 appear in behalf of the commonwealth. In all such cases the public
14 administrator shall receive a reasonable allowance for his services and
] .5 expenses, to be determined by the probate court and paiti by the state
1 1 i treasurer out of the money deposited to the credit of such estate, but not
17 otherwise.
2158
PUBLIC ADMINISTRATORS.
[Chap. 194.
Treasurer to
pay over to
executor, etc.
1839. 142, I 6.
G. S. 95. § 15.
P. S. 131, § 15.
R. L. 138. § 15.
1917. 90, § 3.
1919, 17.
Section 15. After the expiration of twenty days from the appoint- 1
ment of an executor or administrator under the preceding section, if no 2
appeal is claimed by any person interested, the state treasurer, after pay- 3
ing such sums, if any, for services and expenses as may be allowed under 4
the preceding section, shall pay over to such executor or administrator 5
all money deposited to the credit of such estate, to be administered in 6
like manner as the estates of other deceased persons. 7
G. S. 95. § 17
1874, 105.
P. S. 131,
R. L. 138
?tto™eysto Section 16. If a public administrator neglects to return an inven- 1
rasTof'negiect ^^ry, Settle an account or perform any other duty incumbent on him in 2
1846. 211. relation to an estate, and there appears to be no heir entitled thereto, the 3
district attornev for the district where the administrator received his 4
17 . '
n'. letters shall, in behalf of the commonwealth, prosecute all suits and do 5
all acts necessary to insure a prompt and faithfid administration of the 6
estate and the payment of the proceeds thereof into the state treasury; 7
and if no heir has, within two years after the granting of letters of ad- 8
ministration, appeared and made claim in the probate court for his inter- 9
est in such estate, it shall be presumed that there is no such heir and the 10
burden of proving his existence shall be upon the public administrator. 11
Disposition of
estates of less
than one hun-
dred dollars.
1874. 254, § 1.
P. S. 131, § 18.
1883, 264.
R. L. 138. § 18.
1919,208. § 4.
1 Op. A. G. 536.
3 0p. A. G. 132.
Section 17. If the total value of an estate which has come into the 1
control of a public administrator is less than one hundred dollars, unless 2
the same is the balance of an estate recei\'ed from a prior public admin- 3
istrator, he shall forthwith reduce all such property into money, not 4
taking administration thereon, and deposit it, after deducting his reason- 5
able expenses and charges, with the state treasurer, who shall hold it 6
for the benefit of any persons who may have legal claims thereon. Such 7
claims may be presented to the state auditor within one year from such 8
payment to the treasurer, and the auditor shall examine such claims and 9
allow such as may be proved to his satisfaction, and upon the expiration 10
of the year shall forthwith certify the same to the governor and council 11
for payment of the whole of the claims or such proportion thereof as the 12
funds will allow. ' 13
^statraof fes3 Section 18. A public administrator, upon making such deposit, 1
than one hun- shall file with the state treasurer an itemized account, on oath, of all his 2
dred dollars. , ,. . , , p i o
1874, 254, 1 2. dealings, receipts, pajTnents and charges on account or the property 3
R. L. i3s', § 19] from which the money so deposited proceeds, including the name of the 4
intestate, if known to him, and the state treasurer shall thereupon deliver 5
to him a receipt for such money. Such deposit shall exempt the public 6
administrator from all responsibility for or on account of the money so 7
deposited. 8
references.
As to duty of medical examiner to take charge of property found with body of
decea.sed, see Chap. 3S, § 18.
As to the appointment of a pubHc administrator as administrator witli will
annexed or de bonis non, see Chap. 193, §§ 7, 9.
Ch.\P. 195.] EXECUTORS AJSTD ADMINISTRATORS, GENERAL PROVISIONS.
2159
CHAPTER 195.
GENERAL PROVISIONS RELATIVE TO EXECUTORS AND
ADMINISTRATORS.
Sect.
1. Notice of appointment.
2. Perpetuation of evidence of notice.
3. Notice may be given after proper time,
when.
4. Liability for omission to give notice.
5. Inventories.
6. Appraisers.
7. May be authorized to conduct the
business of the deceased.
8. Agent of non-resident executor or ad-
ministrator.
Sect.
9. New appointment of agent.
10. Failure to appoint agent.
11. Removal of executor or administrator.
12. Acts of executor or administrator be-
fore removal to be valid.
13. Resignation of executor or adminis-
trator.
14. Executors in their own wrong.
15. Liability of such executors.
1 Section 1. An executor or administrator shall, within three months Notice of
2 after giving bond for the performance of his trust, cause notice of his iTss.'eeTri.'
3 appointment to be posted in two or more pubHc places in the town where f^^' ''''' ^^ ^'
4 the deceased last dwelt; or he may be required by the probate court to j'g ^- ^'^ ^^ ^'
5 give notice by publication in a newspaper, or in such other manner as p |- i^^j, § i^
6 the court orders. 97 Mass. 401. ISO Mass. 27.
185 Mass. 455. 211 Mass. 282. 219 Mass. 40.
1 Section 2. An affidavit of the e.xecutor or administrator, or of a Perpetuation
2 person in his behalf, filed and recorded with a copy of the notice in norice^^""* °^
3 the registry of probate, or such affidavit made by any person and so }s|q' 1%^ ^■
4 filed and recorded with such copy by permission of the court upon f^^^ ^|,§ ^■
5 satisfactory evidence that the notice was given as ordered, shall be g.^s.'q?, § 2.
6 admitted as evidence of the time, place and manner in which the notice p. s.' 132, §2.
7 was given. isss, us, § i; sso. n. l. 139, § 2.
13 Gray, 336.
16 Gray. 363.
104 Mass. 277.
1 Section 3. If by accident or mistake the notice is not given, or if ^?en afTeT ^^
2 the evidence that it was given is not perpetuated as provided in the '^{^^" *''"^'
3 preceding section, the probate court may, upon petition of the executor R. s. 66. §25.
4 or administrator, order such notice to be given at any time thereafter, p. 8.132,53.
5 In such case the periods of time limited for the commencement of actions g Aiiei^494. '
6 against executors and administrators and for other purposes, which run
7 from the time of their giving bond, shall run from the date of such order.
1 Section 4. An order under the preceding section shall not exempt Liability for
2 an executor or administrator or his sureties from any liabilitv for e-ve notice.
3 damages which may be incurred by reason of the omission to give notice o! s! 97! § 4. '
4 within the three months.
p. S. 132, § 4.
R. L. 139, § 4.
6 Allen, 498.
1 Section 5. Every executor, except one who gives bond under sec- inventories.
2 tion three of chapter two hundred and five, and every administrator \ni^b!i6,n-
3 shall, within three months after his appointment, make on oath and i^^s.'el,"^ i.^*'
4 return to the probate court a true inventory of the real and personal p|'f|2 §5
5 property of the deceased which at the time of making such inventory i^.^- ^-^'^ ^•
6 has come to his possession or knowledge.
152 Mass. 412. 170 Mass. 506. 181 Mass. 320.
2160
EXECUTORS AND ADMINISTRATORS, GENERAL PROVISIONS. [ChaP. 195.
Appraisers.
1719-20,
10. § 1.
1783, 32, § 14.
1817, 190, § 14.
R. S. 65, § 2.
G. S. 96, § 2.
May be
authorized to
conduct the
business of the
deceased.
1910. 411.
226 Mass. 214.
229 Mass. 109.
Agent of
non-resident
executor or
administrator.
1S79, 180, §§ 1,
2,6.
P. S. 132, §§ 8,
9, 13.
1S93, lis.
1901,37.
R. L. 139, § 8.
193 Mass. 38.
209 Mass. 4.5('i.
219 Mass. 40.
235 Mass. 171.
Section 6. The property comprised in the inventory shall be ap-
praised by one or three suitable disinterested persons, as may be deemed
advisable, to be appointed by the court or by the register. They shall
be sworn to the faithful performance of their duties. p. s. 132, § 6.
R. L. 139, § 6; 162,
§ 46; 164, § 14.
1915, 26.
1918, 257, § 390.
1919, 5.
1920, 2.
Section 7. The probate court, upon such notice as it considers 1
reasonable, may authorize an executor or administrator to continue 2
the business of the deceased for the benefit of the estate for a period 3
not exceeding one year from the date of his appointment. 4
Section 8. An executor or administrator who is appointed in, but 1
resides out of, the commonwealth shall not enter upon tlie duties of his 2
trust nor be entitled to receive his letter of appointment until he shall, 3
by a writing filed in the registry of probate for the county where he 4
is appointed, have appointed an agent residing in the commonwealth, 5
and, by such writing, shall have agreed that the service of any legal process 6
against him as such executor or administrator, or tliat the service of 7
any such process against him in his individual capacity in any action 8
founded upon or arising out of any of his acts or omissions as such ex- 9
ecutor or administrator, shall, if made on said agent, have like effect as 10
if made on him personally within the commonwealth, and such service 11
shall have such effect. Said writing and also the notice of appointment 12
of such executor or administrator shall state the name and address of 13
the agent. An executor or administrator who, after his appointment, 14
removes from, and resides without, the commonwealth shall so appoint 15
a like agent. 16
Section 9. If an agent appointed under the preceding section dies 1
or removes from the commonwealth before the final settlement of the 2
accounts of his principal, another appointment shall be made and filed 3
as above provided, and the powers of an agent appointed under this 4
or the preceding section shall not be revoked prior to the final settle- 5
ment of the estate unless another appointment shall be made as before 6
provided. 7
fpp^S a°gent. SECTION 10. Failure by an executor or administrator to comply with 1
p*s^'i'3*2'M^> any provision of the two preceding sections shall be cause for removal. 2
R. L. 139, § 10.
New appoint-
ment of agent.
1879, ISO,
§§3,4.
P. S. 132, §§ 10,
11.
R. L. 139, § 9.
Removal ot
executor or
administrator.
1783, 24, § 19.
1808,98, § 1.
R. S. 63, § 7;
64, § 15.
G. .S. 101, § 2.
P. S. 132. § 14.
R. L. 139, § 11.
12 Mass. 198.
11 Met. 104.
1 Allen, 354.
10 Allen, 124.
137 Mass. 547.
148 Mass. 594.
188 Mass. 201.
Section 11. If an executor or administrator becomes insane or 1
otherwise incapable of performing the trust, or is unsuitable therefor, or 2
if an executor or administrator who resides out of the commonwealth, 3
having been duly cited by the probate court, neglects to render his 4
accounts and to settle the estate, the probate court may remove him; 5
and thereupon the other executor or administrator, if any, may pro- 6
ceed in performing the trust as if the one removed M-ere dead or, if there 7
is no other executor or administrator, the court may appoint an ad- 8
ministrator as provided in section nine of chapter one hundred and 9
ninety-three. 10
Mecutoror Section 12. If Eu cxccutor or administrator is removed or if letters 1
befSre'removai °^ administration are re^'oked, all previous sales, whether of real or 2
to be valid. persoiial property, made lawfully by the executor or administrator 3
Chap. 196.]
ALLOWANCES AND ADVANCEMENTS.
2161
4 and with good faith on the part of the purchaser, and all other lawfid ^ | l°i' | f^
5 acts done by such executor or administrator, shall remain valid and R- l. i39, § 12,
6 effectual.
1 Section 13. An executor or administrator may resign his trust when Resignation of
2 it appears to the probate coxu-t proper to allow him so to do. administrator.
1S43, 97.
G. S. 101, § 5.
P. S. 132. § 16.
R. L. 139, § 13.
12 Mass. 358.
1 Section 14. Whoever injuriously intermeddles with any personal fhdr"own '°
2 property of a deceased person, without being thereto authorized by law, YigE-s u § 3
3 shall be liable as an executor in his own wrong to the persons aggrieved. i7S3, 24, §'i6.
R. S. 64. § 11.
G. S. 94, § 14.
p. S. 132. § 17.
R. L. 139, § 14.
108 Mass. 379.
114 Mass. 420.
Section 15. An executor in his own wrong shall be liable to the Liability of
rightful executor or administrator for the full value of the personal r.^s.m^TiT'
property of the deceased taken by him and for all damages caused to p.' I. illVfs.
the estate by his acts; and he shall not be allowed to retain or deduct gj Malsl'lls'*'
any part of such estate, except for funeral expenses or debts of the de- 1°^ m^^^- ^''^■
6 ceased or other charges actually paid by him and which the rightful
7 executor or administrator might have been compelled to pay.
REFERENCES.
Authority of special administrator to conduct business of deceased, Chap. 193, § 12.
Business of deceased pharmacist, Chap. 112, § 36.
Giving bond, Chap. 20.5.
§ 5. Filing inventories with commissioner of corporations and taxation. Chap.
65, § 22.
Duty of public administrator to return inventory, Chap. 194, § 2.
§ 6. Power of court to revoke warrant of appraisal and to issue new, Chap. 215,
§35.
Compensation of appraisers. Chap. 215, § 39; 262, § 31.
§§ 10, 11. Removal of executor or administrator of insolvent estate. Chap. 198,
§27.
CHAPTER 196
ALLOWANCES TO WIDOWS AND CHILDREN, AND ADVANCEMENTS.
Sect.
allowances to widows and children.
1. Apparel of widow and children.
Quarantine.
2. Allowance of necessaries.
ADVANCEMENTS.
3. Advancements treated as estate of
intestate, when.
Sect.
4. Same subject.
5. Proof of advancement.
6. Value of advancement, how ascer-
tained.
7. Death of person receiving advancement
before intestate.
S. Determination of questions of ad-
vancements.
allowances to widows AND CHILDREN.
1 Section 1. Articles of apparel and ornaments of the widow and ^i'(fo''^''i°d
2 minor children of a deceased person shall belong to them respectively, children.
3 The widow may remain in the house of her husband for not more than I'ss, 36. § 3.
4 six months next succeeding his death without being chargeable for rent, isosl 00, § 2.
1816. 95, § 1.
R. S. 60. § 16; 05, § 4.
1838, 145, § 1.
G. S. 90, § IS; 96, § 4.
P. S. 124, §3; 135, § 1.
1899,479, §§ 2,5.
1900, 4.50. 5 1.
R. L. 140, I 1.
119 Mass. 596.
2162
ALLOWANCES AND ADVANCEMENTS.
[Ch.\p. 196.
Allowance of
necessaries.
1710-11, 2. § 2.
1783, 36, § 3.
1802, 93.
180.5. 90, § 2.
1816,95.
1833, 40.
R. S. 60, § 16;
65. §§ 4-6.
1838, 145, § 2.
1842, 15.
G. S. 96. § 5.
P. S. 135. § 2.
1899, 479, § 6.
1900. 450, § 2.
R. L. 140, § 2.
1914, 699.
1915, 61.
3 Pick. 375.
10 Pick. 374,
429.
10 Met. 170.
6 Cush. 20.
1 Gray, 518.
Section 2. Such parts of the personal property of a deceased person 1
as the probate court, having regard to all the circumstances of the case, 2
may allow as necessaries to his widow for herself and for his family 3
under her care or, if there is no widow, to his minor children, not exceed- 4
ing one hundred dollars to any child, and also such provisions and other 5
articles as are necessary for the reasonable sustenance of his family, and 6
the use of his house and of the furniture therein for six months next 7
succeeding his death, shall not be taken as assets for the payment of 8
debts, legacies or charges of administration. After exhausting the personal 9
property, real property may be sold to provide the amount of allowance 10
decreed, in the same manner as it is sold for the payment of debts, if a 1 1
decree authorizing such sale is made, upon the petition of any party in 12
interest, within one year after the approval of the bond of the executor 13
or administrator. 14
3 Gray, 521.
5 Gray, 24.
2 Allen, 310.
13 Allen, 120, 207.
110 Mass. 461.
117 Mass. 27.
123 Mass. 443.
127 Mass. 111.
130 Mass. 376.
139 Mass. 144.
155 Mass. 141, 153.
168 Mass. 228.
181 Mass. 37.
192 Mass. 555.
215 Mass. 576.
226 Mass. 459.
Advancements
treated as
estate of in-
testate, when.
1692-3, 14, § 1.
1805, 90, § 3.
R. S. 01, §§6,7;
64, § 2.
G. S. 91, § 6;
94, § 17.
P. S. 128,
§§1,6.
R. L. 140, § 4.
1 Pick. 157.
ADVANCEMENTS.
Section 3. Property, real or personal, which is given by an intestate 1
in his lifetime as an advancement to a child or other lineal descendant 2
shall be considered as part of the intestate's estate in the division and 3
distribution of such estate among his issue, and shall be taken by such 4
child or other descendant toward his share of such estate; but he shall 5
not be required to restore any part thereof, although it exceeds his share. 6
The widow shall be entitled only to her share in the residue after deduct- 7
ing the value of the advancement. 8
Same subject.
R. S. 61, § 8.
G. S. 91, § 7.
P. S. 128. § 2.
R. L. 140, § 5.
16 Mass. 200.
Section 4. If such advancement is made in real property, the value 1
thereof shall be considered as part of the real property to be divided; 2
if it is in personal property, it shall be considered as part of the personal 3
property; and if in either case it exceeds the share of real or personal 4
property, respectively, which would have come to the heir so advanced, 5
he shall not restore any part of it, but shall receive so much less out of 6
the other part of the estate as will make his whole share equal to the 7
shares of the other heirs who are in the same degree with him. 8
Proof of ad-
vancement.
1783. 36, § 7.
1805, 90, § 3.
R. S. 61, I 9.
G. S. 91, § 8.
P. S. 128, § 3.
Section 5. Gifts and grants shall be held to have been made as 1
advancements, if they are expressed in the gift or grant to be so made, 2
or if charged in writing as such by the intestate, or acknowledged in 3
writing as such by the party receiving them. r. l. i40, § 6. 4
1 Mass. 527.
4 Pick. 21.
10 Mass. 437.
5 Pick. 527.
2 Pick. 337.
14 Pick. 318.
22 Pick. 508.
1 Gray, 587.
10 Gray. 104.
13 AUen, 334.
103 Mass. 164.
120 Mass. 552.
Value of ad-
vancement,
how ascer-
tained.
1805, 90, § 3.
R. S. 61, § 10.
G.S. 91, § 9.
P. S. 128, § 4.
R. L. 140, § 7.
Section 6. If the value of an advancement is expressed in the con- 1
veyance, in the charge thereof made by the intestate or in the acknowl- 2
edgment by the person receiving it, such value shall be adopted in the 3
division and distribution of the estate; otherwise it shall be determined 4
according to the value when the property was given. i7 Mass. sse. 5
Death of
person receiv-
ing advance-
ment before
intestate.
Section 7. If a child or other lineal descendant who has received 1
an advancement dies before the intestate, leaving issue, the advance- 2
ment shall be considered as part of the intestate's estate in the division 3
Chap. 197.]
P.\YMENT OF DEBTS, LEGACIES, ETC.
2163
4 and distribution of such estate, and the value thereof shall be taken by R. s. ei, § n.
5 the representative of the heir to whom the advancement was made p.' s.' 128, §5.'
6 toward his share of the estate, as if the advancement had been made ' ^*°' *'
7 directly to him.
1 Section 8. The probate court in which the estate of a deceased S^queTtkina™
2 person is settled mav hear and determine all questions of advancements "f advance-
3 arising relative to such estate, or such questions may be heard and de- R- s. io3,
4 termined upon a petition for partition; but if such question arises upon g. s. i36, § 66.
5 a petition for partition, the court may suspend proceedings until the rl.ho.sq.
6 question has been decided in the probate court in which the estate of Je Masl^il?^''
7 the deceased is settled. 102 Mass. 355.
200.
REFERENCES.
§ 2. Allowance from estate in hands of special administrator, Chap. 193, § 13.
Time within which real estate of deceased shall be Uable for debts. Chap. 202,
§20.
§ 8. Jurisdiction generally of probate court of petition for partition. Chap. 241, § 2.
CHAPTER 197.
PAYMENT OF DEBTS, LEGACIE.S AND DISTRIBUTIVE SHARES.
Sect.
PAYMENT OF DEBTS.
1. Executor, etc., not liable to action for
BIX months after giWng bond.
2. When debts may be paid.
3. When payment is a defence against
further claims.
4. Extent of hability if residue is insuffi-
cient to meet new claims.
5. When payment to preferred creditors
bars actions by others.
6. Settlement of debts of deceased per-
sons due to executors, etc.
7. Same subject.
8. Liability of estate of deceased jointly
liable.
LIMITATION OF ACTIONS BY CREDITORS.
9. Time for bringing actions by creditors.
10. Supreme judicial court may relieve
after claim barred.
11. Extension of time for creditors' actions
by receipt of new assets.
12. Extension of time if action fails from
defect in form, etc.
13. Claims accruing after one year.
14. Same subject.
15. Same subject.
16. Same subject.
17. Limitations of actions against admin-
istrators de bonis non.
18. Liability upon receipt of new assets.
Sect.
payment of legacies and distributive
SHARES.
19. Actions to recover legacies.
20. Rate of interest.
21. Indemnity for payment of legacy, etc.,
if required within one year.
22. Partial distribution at any time.
23. Legacy to class.
24. How payment of distributive shares,
etc., may be enforced.
25. Set-off of debts due from legatees, etc.
26. Annuities, etc., payable from death of
testator.
27. Apportionment of annuities, etc.
LUBILITY OF HEIRS, ETC., AFTER SETTLE-
MENT OF ESTATE.
28. Liability of heirs, etc., after settlement
of estate.
29. Enforcement of liability.
30. Upon death of heir, etc., his executor,
etc., to be liable.
31. Suit in equity if more than one heir,
etc., is so liable.
32. Suit not to be dismissed for want of
proper defendants.
33. When one heir, etc., is un-ible to pay,
the others to be liable for whole
amount.
3d. If one heir, etc., fails to pay his just
proportion, he shall be liable to the
others.
2164
PAYMENT OF DEBTS.
[ClL^P. 197.
Executor, etc.,
not liable to
action for six
months after
giving bond.
178S, 66, § 2.
R. S. 66, § 10.
G.S. 97, § 16.
P. S. 136, § 1.
E. L. 141, § 1.
1914,699, § 1.
PAYMENT OF DEBT.S.
Section 1. An executor or administrator sliall not be held to answer 1
to an action by a creditor of the deceased commenced within six months 2
after his giving bond for the performance of his trust, unless such action 3
is brought for the recovery of a demand which would not be affected 4
by the insolvency of the estate or, after the estate has been represented 5
insolvent, for the purpose of ascertaining a contested claim. 6
555.
116 Mass. 435.
134 Mass. 155.
190 Mass. 522.
192 Mass. 511,
221 Mass. 587.
226 Mass. 224.
235 Mass. 171.
When debts
may be paid.
1823, 144, § 2.
R. S. 66, § II.
G. S. 97. § 17.
P. S. 130, § 2.
R. L. 141, § 2.
1904, 165.
1914,699, § 2.
Section 2. If an executor or administrator who has given due 1
notice of his appointment does not within six months thereafter have 2
notice of demands against the estate of the deceased sufficient to war- 3
rant him to represent such estate to be insolvent, he may, after the 4
expiration of said six months, pay the debts due from the estate and 5
shall not be personally liable to any creditor in consequence of such 6
payments made before notice of such creditor's demand; and if such 7
executor or administrator is in doubt as to the validity of any debt 8
which, if valid, he would have a right to pay under this section, he 9
may, with the approval of the probate court, after notice to all persons 10
interested, pay such debt or so much thereof as the court may authorize. 11
When payment
is a defence
against further
claims.
1823, 144, § 2.
R. S. 66, § 12.
G. S. 97. § 18.
P. S. 136, § 3.
R. L. 141. § 3.
9 Met. 180.
227 Mass. 303.
Extent of lia-
bility if residue
is insufficient
to meet new
claims.
1823. 144, § 3.
R. S. 66, § 13.
G. S. 97, § 19.
P. S. 136. § 4.
R. L. 141. § 4.
11 Met. 238.
4 Gray. 514.
7 Gray. 167.
9 Allen. 149.
130 Mass. 385.
Section 3. If an executor or administrator pays under the pre- 1
ceding section, bef^M^e notice of the demand of any other creditor, the 2
whole of the estate and effects of the deceased, he shall not be required 3
in consequence of such notice to represent the estate insolvent, but 4
in an action against him he shall be discharged upon proving such 5
payments. 6
Section 4. If an executor or administrator pays, under section 1
two, so much of the estate and effects of the deceased that the re- 2
mainder is insufficient to satisfy a demand of which he afterward has 3
notice, he shall be liable on such last mentioned demand for only so 4
much as may then remain. If two or more such demands are exliibited, 5
which together exceed the amount of assets remaining in his hands, 6
he may represent the estate insolvent, and shall, pursuant to a decree 7
of the probate court, divide and pay over what remains in his hands 8
among the creditors who prove their debts under the commission of in- 9
solvency; but the creditors of the deceased who have been previously paid 10
shall not be liable to repay any part of the amount received by them. 11
When payment
to preferred
creditors bars
actions by
others.
1823, 144, § 1.
R. S. 66. § 14.
G. S. 97. § 20.
P. S. 136, § 5.
R. L. 141, § 5.
142 Mass. 227.
160 Mass. 499.
173 Mass. 112.
195 Mass. 155.
221 Mass. 587.
Section 5. If it appears, upon the settlement of the account of an 1
executor or administrator in the probate court, that the whole estate 2
and effects which have come to his hands have been exhausted in paying 3
the charges of administration and debts or claims entitled by law to a 4
preference over the common creditors of the deceased, such settlement 5
shall be a bar to an action brought against him by a creditor who is 6
not entitled to such preference, although the estate has not been repre- 7
Sented insolvent. 226 Mass. 388. 227 Mass. 303. 8
debt'rTdt"^ Section 6. If a debt claimed by an executor or administrator as 1
«'"i^d persons (j^g ^q jjjjjj from the deceased is disputed by any person interested in 2
tors, etc. the estate, the claimant shall file in the probate court a statement of his 3
Chap. 197.] payment of debts. 2165
4 claim in MTiting, setting forth distinctly and fully the nature and grounds i789, ii, § i.
5 thereof; and the same may then be submitted under an order of the g! sis?! §26!
6 court to one or more arbitrators, if the claimant and the party objecting r. l. hl| 6.
7 agree upon the arbitrators to be appointed. The court shall have the J^Mass^lbo.
8 powers of courts of common law to discharge the rule by which the ?„'^',"i^ ^-f^,
I . . P , . 1 T n 11 • • 10 Allen, .ioJ.
9 claim IS reierred, to reject and disallow the award or to recommit it to i32 Mass. 536.
. 149 Mass 520
10 the arbitrators. The award of such arbitrators, if accepted by the pro- is? Mass! sss.
1 1 bate court, shall be final and conclusive. The said arbitrators shall be
12 awarded reasonable compensation by the probate court, which shall
13 be paid by the county where they are appointed.
1 Section 7. If the parties do not agree upon the arbitrators, or if |'"g'',?"''f fj-
2 the award is not confirmed by the probate court, the court shall decide '^- s- 87, 1 27.
3 upon the claim. p. s. ise, § 7.
R. L. 141, § 7. 1919, 274, § 10. 9 Met. 329. 195 Mass. 559.
1 Section 8. If one of two or more persons who are indebted upon a Liability of
2 joint contract, or upon a judgment founded on such contract, dies, his ceatedjoinUy
3 estate shall be liable therefor as if the contract had been joint and 1799^57.
4 several or as if the judgment had been against him alone.
R. S. 66, §27. R. L. 141, § 8. 11 Cush. 152. 120 Mass. 137.
G. S. 97, §28. 2 Mass. 572. 7 Allen. 112. 124 Mass. 219, 367.
P. S. 136, §8. 4 Met. 537. 119 Mass. 361. 214 Mass. 374.
limitation of actions by creditors.
1 Section 9. An executor or administrator, after having given due Time for
2 notice of his appointment, shall not be held to answer to an action by a b™fSftors'.°°^
3 creditor of the deceased which is not commenced within one year from nlf; 28,' 1 2!
4 the time of his giving bond for the performance of his trust, except as J^jl' |g4^ ^^j
5 provided in this chapter. The probate court may allow creditors fur- cf^|' gf^i 5
6 ther time for bringing actions, not exceeding two years from the time ps. 136, §9.
7 of the giving of his official bond by such executor or administrator, pro- 1914; 699! § 3.
8 vided that application for such further time be made before the expir- i6MaS429.
9 ation of one year from the time of the approval of said bond. 6°c^'s'iS'.'2^35.
12 Cush. 324. 121 Mass. 222. 175 Mass. 483.
4 Allen, 359. 123 Mass. 489. 180 Mass. 27.
8 Allen, 532. 134 Mass. 115, 275. 181 Mass. 109, 531.
11 Allen, 101. 140 Mass. 66. 185 Mass. 455.
12 Allen, 330. 142 Mass. 248. 207 Mass. 291.
13 Allen, 221. 149 Mass. 62. 211 Mass. 282.
104 Mass. 277. 157 Mass. 358. 214 Mass. 134.
112 Mass. 27. 161 Mass. 418. 215 Mass. 547.
115 Mass. 508. 172 Mass. 356. 219 Mass. 40, 199.
116 Mass. 447. 173 Mass. 233. 235 Mass. 171.
117 Mass. 222.
1 Section 10. If the supreme judicial court, upon a bill in equity Supreme judi-
2 filed by a creditor whose claim has not been prosecuted within the rcii'eve"af\e'r''^
3 time limited by the preceding section, deems that justice and equity fseJIm"^''^
4 require it and that such creditor is not chargeable with culpable neglect ^ |; ^4*^ MJ'g
5 in not prosecuting his claim within the time so limited, it may give s Alien, 121.
6 him judgment for the amount of his claim against the estate of the 365. '"''
7 deceased person; but such judgment shall not affect any payment or 12 Alien! 333!
8 distribution made before the filing of such bill. 103 Mass. 285. ^^ '^''"*^- ^'*''-
123 Mass. 489. 160 Mass. 580. 185 Mass. 22. 212 Mass. 416.
127 Mass. 268. 169 Mass. 97. 192 Mass. 241. 223 Mass. 359.
149 Mass. 253. 179 Mass. 336. 207 Mass. 207. 225 Mass. 635.
1 Section 11. If new assets come to the hands of an executor or ad- Smrfo'r°?red-
2 ministrator after the expiration of one year from the time of his giving b°''rec''ei't°of
3 bond, he shall account for and apply the same in like manner as if they ?<■"-, ''^='.'=tf.
2166 PAYMENT OF DEBTS. [ChAP. 197.
cf^l'97*§V' li^d been received within said one year, and shall be liable, on account 4
R L 'hi \^ii °^ ^^"^^ ^^^ assets, to an action at law or to a proceeding in the probate 5
1914! 699,' § 4. ■ court by or for the benefit of a creditor, in like manner as if such assets 6
3 Pick. 365. ' had been received within the one year, if such action or proceeding is 7
6 Allen! 372! commcnced within six months after the creditor has notice of the receipt 8
9 Allen! 365. of such assets, and within one year after they are actually received. 9
99 Mass. 616. 137 Mass. 547. 167 Mass. 536. 212 Mass. 248.
105 Mass. 229. 157 Mass. 358. 180 Mass. 223. 229 Mass. 448.
117 Mass. 222. 163 Mass. 491. 207 Mass. 207. 230 Mass. 514.
tiS^Uaction SECTION 12. If an action commenced against an executor or ad- 1
feet /^tenf" ministrator before the expiration of one year from the time of his giving 2
<="• , bond fails of a sufficient service or return by an unavoidable accident, 3
G. s.'97, § 7. if the viTit in such action is abated or defeated in consequence of a de- 4
R. L. 141, § r2. feet in the form thereof or of a mistake in the form of the proceeding, 5
nl^MaTs! 17^1. if, after a verdict for the plaintiff, the judgment is arrested, or, if a 6
judgment for the plaintiff is reversed on a WTit of error, the plaintiff 7
may commence a new action for the same cause within one year after 8
the abatement or other determination of the original action, or after 9
the reversal of the judgment therein. 10
afteTonl'^year!^ SECTION 13. A Creditor of the dcceascd, whose right of action does 1
R.^l.'ee.ls! not accrue within one year after the giving of the administration bond, 2
1879', n'; 243 or within such further time as may be allowed by any extension granted 3
R l\«V^3 ^nder section nine, or in the case of an administrator de bonis non, 4
1914! 699," § 6. within the period allowed by section seventeen, may present his claun 5
§ 392. ' to the probate court at any time before the estate is fully administered; 6
§25." ' ' and if, upon examination thereof, tlie court finds that such claim is or 7
i04°Mass. 577. may become justly due from the estate, it shall order the executor or 8
lis Mass 272 administrator to retain in his hands sufficient assets to satisfy the same. 9
?II'i??*- ,-, But if a person interested in the estate offers to give bond to the alleged 10
131 Mass. Sol. J^ . •(. 1 pi-i-ii
146 Mass. 36i;. creditor with sufficient surety or sureties tor the payment of his claim 11
154 Mass! 26ij! if it Is provcd to be due, the court may order such bond to be taken, 12
171 Mass! 386! iustcad of requiring assets to be retained as aforesaid. If because of 13
185 Mass! 22.'' partial distribution already made, or because of inability to sell the real 14
198 Mass! 70*' estate of the deceased, the executor or administrator is unable to retain 15
202 Mass. 270. sufficient assets to satisfy the claim in full as finallv established, the 16
21.-) Mass. 315. i-i-piii i" • i^
219 Mass. 40. Creditor may enforce his claim for the balance under section twenty- 17
nine, within one year from the final settlement of said estate or from 18
the time when the amount of said balance is finally determined. 19
R"s^66,''r6.'' Section 14. The decision of the probate court upon the claim of 1
?87U23'8^^' s^'^^ creditor shall not be conclusive against the executor or adminis- 2
R l^^uVh trator or other person interested to oppose the allowance thereof, and 3
172 Mass! 351).' he shall not be compelled to pay the same unless it is proved to be due 4
202 Mass! 270. in an action commenced by the claimant within one year after his claim 5
becomes payable, or, if an appeal is taken from the decision of the pro- 6
bate court, in an action commenced within one year after tlic final 7
determination of the proceedings thereon. 8
R'^^ie^'tr' Section 15. The action referred to in the preceding section shall be 1
p'l?36,Vi's brought against the executor or administrator, if he has been required 2
?„-,4,"^'il^- to retain assets therefor; otherwise, upon the bond given under section 3
127 Mass. 2o8. 7 / a o
185 Mass. 22. thirteen. 4
Chap. 197.] PA-iiiENT of legacies and distributive shares. 2167
1 Section 16. If the action is brought on such bond, the plaintiff shall |*s^|"''|'"g'-
2 set forth his original cause of action against the deceased in like manner p| fopVir,
3 as would be required in a declaration for the same demand against the R. l. 141, § le.
4 executor or administrator, and may allege the non-payment of the
5 claim as a breach of the condition of the bond; and the defendant
6 may answer any matter of defence which would be available against
7 the claim if prosecuted in the usual manner against the executor or
8 administrator.
1 Section 17. An administrator de bonis non shall be liable to an Limitations of
2 action by a creditor of the deceased for the same period as provided by admiSi'stnTtors
3 section nine for actions against an original executor or administrator, r;s°66.°°°'
4 less the period during which the statutory limitation provided by said i85f^294 § 2
5 section nine has run against previous executors or administrators of the f^- S- 97, §§ 12,
6 same estate, but in any event for not less than six months from the date P- s. i36, § 17.
7 of his appointment. The court may allow further time for bringing i9u' 699,' § 7. '
8 actions as provided in said section nine, provided application therefor us Mask 489.
9 is made before the expiration of the period herein provided. This sec- iasMass.tn!
10 tion shall not apply to claims already barred by said section nine at the
11 date of the appointment of the administrator de bonis non.
1 Section 18. If new assets come to the hands of such administrator Liability upon
2 after the time before limited for the commencement of actions against assets' ° °^"
3 him, he shall account for such new assets, and shall be liable on account §; |; 97; | ?!;
4 thereof to an action at law and to proceedings in the probate court by ^ ^ 'm.Vfs
5 or in behalf of a creditor, in like manner as is provided in this chapter ^29 Mass. 44.S.
. ... 1.. 230 Mass. 514.
6 relative to an origmal executor or admmistrator.
PAYMENT OF LEGACIES AND DISTRIBUTIVE SH.\RES.
1 Section 19. A legatee may recover his legacy and enforce all rights Actions to re-
2 in respect to the same by proceedings in equity in the probate court in mT. 8,^(2^^'
3 which the will was proved. Nothing in this chapter shall be construed 1783724^ §' iV°'
4 to hmit the time within which such proceedings may be brought. No R^l'ee'ffe
5 action at law shall be brought against the estate of the testator for such pfigg^^fg
6 recovery. R. L. 141, § 19. 1915, 151, § L 4 Mass. 2O8, 634.
2 Pick. 619. . 6 Allen, 500. 136 Mass. 138.
3 Pick. 213. 7 Allen, 64. 140 Mass. 502.
7 Pick. 296. 105 Mass. 431. 156 Mass. 313.
11 Pick. 603. 106 Mass. 586. 163 Mass. 381.
13 Pick. 393. 112 Mass. 110. 211 Mass. 178.
16 Pick. 62S. 114 Mass. 404. 221 Mass. 587.
5 Gray, 67. 121 Mass. 249. 224 Mass. 226.
1 Allen, 490. 134 Mass. 11. 228 Mass. 285, 318.
1 Section 20. The rate of interest upon pecuniary legacies, unless Rate of
2 otherwise provided in the will, shall be such as the supreme judicial i9'i5!'i5i, § 2.
3 court may by general rules establish, and in the absence of any such Hl.'^*^^' ^^^'
4 rules the rate shall be four per cent per annum. 229 Mass. 267.
1 Section 21. If an executor or administrator, within one year after indemnity for
2 giving bond for the performance of his trust, is required by a legatee or {^ga?y,"et°, if
3 next of kin to make payment, in whole or in part, of a legacy or dis- onTyral"'"""
4 tributive share, the probate court may require that such legatee or r^s'66,°§\5!^'
5 next of kin shall first give bond to the executor or administrator, with pfi'Jfi\^25
6 surety or sureties approved by the court, and conditioned to repay ^■'^- oil'' IP-
7 the amount so to be paid or so much thereof as may be necessary to i5i MasV. 595.
2168
PAYMENT OF LEGACIES AKD DISTRIBUTIVE SHARES. [ChAP. 197.
satisfy any demands which may be thereafter recovered against the 8
estate of the deceased, and to indemnify the executor or administrator 9
against all loss and damage on account of such payment. 10
but^inat^any SECTION 22. If thc court fiuds that partial distribution of the per-
i's73 ■>''4 5 2 sonal property of an estate in process of settlement therein can, without
p. s.'i36'§2i detriment to such estate, be made to the persons entitled thereto, the
151 Mass.' 695." court may, subject to the rights of creditors and after notice, order such
153 iMassl 228. partial distribution to be made. 221 Mass, 5S7.
cias^'' '° Section 2.3. If under a will a legacy is to be distributed in whole
1S95. 134. ^^ or in part among the heirs or next of kin of any person, or among persons
193 iviass.' 38. " of E Certain class, the probate court, upon the application of any person
interested, after notice, may order distribution among such persons as
according to the will seem to be entitled to the legacy.
How payment
of distributive
shares, etc..
may be en-
forced.
1915, 151,
l§4,5.
Section 24. ^Mien the amount due a person who is next of kin or
a distributee of an intestate estate on account of his share of the per-
sonal property has been ascertained by a decree of the probate court
for distribution or partial distribution, or whenever any real or personal
estate comprised in a tru^t or in the estate of a deceased person is
ordered by the probate court to be sold and distributed under section
nineteen of chapter two hundred and two, section twenty-five of chapter
two hundred and three or section twenty-one of chapter two hundred and 8
six, or any legacy or any surplus proceeds of sale are ordered by said 9
court to be distributed or disposed of pursuant to the preceding section 10
or section nine of chapter two hundred and foiu-, or whenever said court 11
in pursuance of any authority conferred on it orders the distribution 12
or disposal of any fund or moneys, payment of the same, by the execu- 13
tor, administrator, trustee or other person so ordered to pay or distrib- 14
ute, to the person entitled may, if the executor, administrator, trustee 15
or other person neglects upon demand to pay such amount, be en- 16
forced summarily by the probate court upon motion of the person en- 17
titled, in the same manner as a like payment under a decree in equity 18
may be enforced, and execution may also be issued therefor against the 19
executor, administrator, trustee or other person personally as upon a 20
judgment at law. 21
Set-off of
debts due from
legatees, etc.
1879,225, §§ 1,
2,4.
P. S. 136, §§22,
23.
R. L. 141, § 23.
114 Mass. 24.
136 Mass. 138.
109 Mass. 430.
179 Mass. 331.
196 Mass. 562.
Section 2.5. A debt due the estate of a deceased person from a 1
legatee or distributee of such estate shall be set off against and deducted 2
from the legacy to such legatee or from the distributive share of such 3
distributee; and the probate court shall hear and determine the validity 4
and amount of any such debt, and may make all necessary or proper 5
decrees and orders to effect such set-oft" or deduction; but this section 6
shall not prejudice any remedy of an executor or administrator for the 7
recovery of such debt or affect the liability of the legatee or distributee 8
for the excess of his indebtedness over the amount of his share in or 9
claim upon the estate to which he is indebted. 10
Section 26. If an annuity, or the use, rent, income or interest of 1
Annuities, etc.,
payable from , , .ii i • • i r*
death of property, real or personal, is given by will or by an mstrument in the 2
1848.310, § 1. nature thereof to or in trust for the benefit of a person for life or until 3
Chap. 197.] p.ayment of legacies and distributive shares. 2169
4 the happening of a contingency, such person shall be entitled to receive g. s. 97. § 23.
5 and enjoy the same from and after the decease of the testator, unless r. l. ui, § 24.
6 it is otherwise provided in such will or instrument.
11 Pick. 371. 102 Mass. 49. 131 Mass. 20. 1S4 Mass. 103. 4.
2 Gush. 377. 103 Mass. 297, 345. 137 Mass. 21, 18S Mass. 190.
9 Gush. 151. 121 Mass. 178. 138 Masa. 303. 208 Mass. 260.
6 Gray, 341. 128 Mass. 575. 163 Mass. 509. 209 Masa. 432.
1 Section 27. A person entitled to an annuity, rent, interest or in- Apportionment
2 come, or his representative, shall have the same apportioned if his right °^^^°°"'"^S'
3 or estate therein terminates between the days upon which it is payable, g*|'97''8 If'
4 unless otherwise provided in the will or instrument by which it was p- ^ ^^^- §25.
5 created ; but no action shall be brought therefor until the expiration of 22 pick. 299.
6 the period for which the apportionment is made. 14 Gray, 274.
9 Allen, 246. 113 Mass. 430. 171 Maaa. 42.
98 Mass. 462. 121 Mass. 178. 183 Masa. 165.
103 Masa. 297. 139 Mass. 449. 235 Masa. 298.
LIABILITY OF HEIRS, ETC., AFTER SETTLEMENT OF ESTATE.
1 Section 28. After the settlement of an estate by an executor or Liability of
2 administrator, and after the expiration of the time limited for the com- after 'set tie-
3 mencement of actions against him by the creditors of the deceased, nss'.eeTs**
4 the heirs, next of kin, devisees and legatees of the deceased shall be g- 1- ^°j § i|j
5 liable in the manner provided in the following sections for all debts for p s ise,' § 2^v
6 which actions could not have been brought against the executor or 12 Aiass. 395T '
7 administrator, and for which provision is not made in the preceding 20 Pick^'2.
S sections. 8 Alien, 259. 6 Gush. 235.
118 Mass. 369. 136 Maas. 174. 176 Maaa. 141.
124 Maaa. 560. 144 Masa. 135. 198 Masa. 76.
127 Masa. 268. 146 Masa. 366. 202 Mass. 270.
128 Mass. 271, 158 Mass. 418. 209 Mass. 388.
272, 277, 628, 555. 171 Masa. 386. ■ 215 Masa. 315.
1 Section 29. A creditor whose right of action accrues after the ex- Enforcement
2 piration of said time of limitation, and whose claim could not legally iT-ssi'cG.'is.
3 be presented to the probate court, or whose claim, if presented, has not §; |; 101,^/32
4 been allowed, may, by action commenced within one year next after j^- ^ i^e, § 27^
5 the time when such right of action accrues, recover such claim against ^ i^iaas. 395.
6 the heirs and next of kin of the deceased or against the devisees and 101 Mass.'506.
7 legatees under his will, each of whom shall be liable to the creditor to an 272, 277,'*628, "
8 amount not exceeding the value of the real or personal property which isI'Maas. 195.
9 he has received from the estate of the deceased. But if by the will of "eMasI'see;
10 the deceased any part of his estate or any one or more of the devisees JngMasa'?"'
11 or legatees is made exclusively liable for the debt in exoneration of the 202 Masa. 276.
_ _ . .'^ „ , nil- 1 I • • i> 2I0 Mass. 315.
12 residue or the estate or 01 otlier devisees or legatees, such provisions or
13 the will shall be complied with, and the persons and estate so exempted
14 shall be liable for only so much of the debt as cannot be recovered from
15 those who are first chargeable therewith.
1 Section 30. If an heir, next of kin, devisee or legatee dies without I'pon death of
2 having paid his just proportion of such debt, his executor or adminis- executor,' etc.,
3 trator shall be liable therefor, as for a debt of his decedent, to the extent 1788! e'e, §^5.
4 to which said decedent would have been liable if living. g; 1; 101,^/33.
p. S. 136, § 28. R. L. 141, § 28. 1 Met. 387. 202 Mass. 270.
1 Section 31. If, under the two preceding sections, more than one Suit in equity
2 person is liable for the debt, the creditor may recover such debt by a on™hc'ir!'!ft° ,
3 suit in equity in the supreme judicial or superior court against such R.''s.'7o'''ri6.
2170
INSOLVENT ESTATES OF DECEASED PERSONS.
[Chap. 198.
G. s. 101, § 34. persons so liable as are within reach of process. The court shall deter-
r'. l. 141, § 29. mine, by the verdict of a jury if either party requires it, what amount
i\Fet''387.^' is due to the plaintiff, and shall decide how much each of the defendants
15 Gray.*596. is liable to pay toward the debt.
16 Gray, 127, 136 Mass. 504.
Suit not to be
dismissed for
want of proper
defendants.
R. S. 70, § 18.
G. S. 101, § 36.
P. S. 136, § 30.
R. L. 141, § 30.
Section 32. Such suit shall not be dismissed or barred for not
making all the persons who might have been so included defendants;
but in any stage of the cause the court may, upon terms, award proper
process to bring in other parties, and may allow amendments in order to
charge them as defendants.
When one heir,
etc., is unable
to pay, the
others to be
liable for whole
amount.
1783, 24, § 18.
1788, 66.
R. S. 70, § 17.
Section 33. If an heir, devisee or other person who is liable for the 1
debt is insolvent, unable to pay his proportion thereof or beyond reach 2
of process, the others shall be liable to the creditor for the whole amount 3
of his debt, but not in excess of the amounts received by them respectively 4
from the estate of the deceased. 5
G. S. 101, § 35. P. S. 136, § 31. R. L. 141, § 31.
If one heir,
etc., fails to pay
his just pro-
portion, ne
shall be liable
to the others.
R. S. 70, § 19.
G. S. 101. § 37.
P. S. 136, § 32.
R. L. 141, § 32.
10 Mass. 450.
Section 34. If, in consequence of insolvency or bankruptcy, absence
or other cause, a person liable for such debt fails to pay his just propor-
tion thereof to the creditor, he shall be liable to indemnify all who, by
reason of such failure on his part, pay more than their just proportion
of the same. Such indemnity may be recovered by all of them jointly,
or in separate actions by one or more of them for his or their parts
respectively.
REFERENCES.
Attachments, Chap. 230, § 7.
Debts and claims which survive against executor and administrator. Chap. 228, § 1.
Limitation of actions against executor and administrator for their own acts. Chap.
260, §§4, 11.
Effect of death on the general statute of limitations, Chap. 260, § 10.
§ 3. Insolvent estates. Chap. 198.
CHAPTER 198.
INSOLVENT ESTATES OF DECEASED PERSONS.
Sect.
ohder of payment of debts.
1. Order of payment of debts.
PROOF OF CLAIMS.
2. Commissioners.
3. Duties.
4. Court to examine claims, when.
5. Notice to creditors.
6. Appointment of new commissioner.
7. Claimants to answer under oath.
8. Examination by court.
9. Limit of time for proof of claims.
10. Late claims barred. New assets.
Sect.
APPEALS.
11. Appeals.
12. Time for claiming appeal.
13. Proceedings on appeal.
14. Waiver of appeal and submission to
arbitration.
15. Costs on appeal.
16. Late entry of appeal.
17. Effect of allowance of appeal.
PAYMENT OF DIVIDENDS TO CREDITORS.
18. Distribution of assets among creditors.
whose claims are proved.
Chap. 198.]
INSOLVENT ESTATES OF DECEASED PERSONS.
2171
Sect.
19. Same subject.
20. Same subject.
21. Provisions for case of deceased partner.
22. Enforcement of claim for di\adend.
23. Proceedings if assets are sufficient
to pay all claims allowed. Other
claims.
24. Proceedings on such other claims.
25. Disposition of unclaimed dividends.
26. Same subject.
27. Removal of executor, etc., neglecting
to account.
Sect.
CONTINQENT CLAIMS.
28. Contingent claims.
29. Same subject.
30. Same subject.
.\CTIONS BY CREDITORS PENDING INSOL-
VENCY PROCEEDINGS.
31. Actions against an executor, etc., after
representation of insolvency.
32. Time for bringing such action.
33. Proceedings when judgment has been
rendered against an insolvent estate.
P. S. 137. § I.
1884, 293.
R. L. 142. § 1.
1909, 297.
ORDER OF PAYMENT OF DEBTS.
1 Section 1. If the estate of a person deceased is insufBcient to pay order of
2 all his debts, it shall, after discharging the necessary expenses of his ^ebtT"'"^
3 funeral and last sickness and the charges of administration, be applied feg^-sfi'efu
4 to the payment of his debts, which shall include equitable liabilities, in }^|^' |' ^ ^■
5 the following order: R- s'es. § i.
6 First, Debts entitled to a preference under the laws of the United issi', im
•' ■*■ V> Q 11-7
7 States.
8 Second, Public rates, taxes and excise duties.
9 Third, Wages or compensation, to an amount not exceeding one I'afe?^^' ^'^'
10 hundred dollars, due to a clerk, servant or operative for labor per- l^pl^^li^'
1 1 formed within one year last preceding the death of such deceasetl person l^j^^^Kp^-
12 or for such labor so performed for the recovery of pa^Tnent for which a 4 Alien, ui.
13 judgment has been rendered. 137 Mass' 412!
14 Fourth, Debts, to an amount not exceeding one hundred dollars, for ul Mass. 326'.
1.5 necessaries furnished to such person or his family within the sLx months illMSssz
16 last preceding his death, or for such necessaries so furnished for the 226 Mass. sss.
17 recovery of payment for which a judgment has been rendered.
18 Fifth, Debts due to all other persons.
19 If there is not enough to pay all the debts of any class, the creditors
20 of that class shall be paid ratably upon their respective debts; and no
21 payment shall be made to creditors of any class until all those of the
22 preceding class or classes, of whose claims the executor or administrator
2.3 has notice, have been fully paid.
PROOF OF CLAIMS.
1 Section 2. If the probate court finds from the representation of an Commissioners.
2 executor or administrator that the estate of the deceased will probably 1692-3, 1'e, § i.
3 be insufficient for the payment of his debts, it may appoint two or more nil; I' ^ ^'
4 commissioners to receive and examine all claims of creditors against §• f g|; | f
5 such estate, and to return a list of all claims presented to them, with ^ l\491|
6 the amount allowed on each. All debts of the estate of said deceased 1907,257!
2 Mass 49S
7 not at the time of such finding barred by any statute of limitations 120 Mass. sie.
8 may be allowed either by said commissioners or by said court. 132 Mass! sae!
139 Mass. 360.
140 Mass. 596.
143 Mass. 326.
149 Mass. 520.
183 Mass. 510.
195 Mass. 155.
204 Mass. 270.
214 Mass. 549.
216 Mass. 521.
221 Mass. 587.
228 Mass. 468.
1 Section 3. The commissioners shall be sworn. They shall appoint 5"f'^.„
2 convenient times and places for their meetings to receive and examine i6«2-3, 1'o. § i.
3 claims, and shall by mail or otherwise give to all knoMn creditors at 1752-3,' 12, §3.
2172
INSOLVENT ESTATES OF DECEASED PERSONS.
[Cha-p. 198.
17S4, 2.
E. S. 68,
§§2-4.
1854, 92.
G. S. 99,
§§2^.
P. S. 137, § 3.
R. L. 142, § 3.
1911, 177.
1910, IS.
4 Met. 317.
116 Mass. 447.
139 Mass. 3G0.
least seven days' written notice of the time and place of each meeting, 4
and such other notice as the court shall order. The executor or ad- 5
ministrator shall, fourteen days at least before the first meeting, give 6
to the commissioners the names and residences of all known creditors. 7
At the expiration of the time allowed for the proof of claims, the com- 8
missioners shall make their return to the court. They shall mail post- 9
paid within seven days thereafter, or within such further time as the 10
court orders, a WTitten notice to all known creditors and to the ad- 11
ministrator of the estate or the executor of the will of the deceased, and 12
to the heirs, legatees or devisees of the deceased, of the filing of said 13
return, and shall, within thirty days after said notice, file in the registry 14
of probate an affidavit of having given the same, with a copy thereof. 15
Court to
examine claims,
when.
1S73, 252,
§§1,4.
P. S. 137. § 4.
R. L. 142, § 4.
141 Mass. 509.
Section 4. If the court does not appoint commissioners under
section two, it shall receive and examine the claims of creditors, allow
such as should legally be allowed and cause a list of all claims pre-
sented for proof, with the amount allowed or disallowed on each claim,
to be made and certified by the register of said court.
Notice to
creditors.
1873, 252, § 2.
P. S. 137. § 5.
R. L. 142, § 5.
Section 5. The court shall in such cases order the executor or ad- 1
ministrator to give to creditors notice of the times when and places 2
where their claims will be examined, in the same manner as is required 3
of commissioners. 4
Appointment
of new com-
missioner.
1803. 217, § 2.
1868, 327, § 1.
P. S. 137. § 6.
R. L. 142, I 6.
Claimants to
answer under
oath.
1789, 50.
R. S. 68, §§ 15,
16.
G. S. 99, §§ 15,
16.
P. S. 137,
§§7,8.
Examination
by court.
1899, 81.
R. L. 142, § S.
Limit of time
for proof of
claims.
C. L. 250, § 4.
1692-3. 10, § 1.
1696, 8, § 1.
1784, 2.
R. S. 68, § 4.
G. S. 99. § 4.
1863,217, § 1.
1868,327, § 1.
1873, 252, § 4.
P. S. 137, § 9.
R. L. 142, § 9.
1915, 13.
6 Pick. 458.
16 Pick. 255.
104 Mass. 277.
Section 6. If a commissioner appointed under section two dies or 1
resigns before his duiies are fully performed, or, if for unreasonable 2
neglect to make the return required by law or for any other cause, is 3
removed, the probate court may fill the vacancy. i62 Mass. 450. 4
Section 7. The commissioners or the court may require a claimant 1
to make true answers under oath to all questions relative to his claim; 2
and if he refuses to take such oath or to answer fully all questions, his 3
claim may be disallowed. Any one of the commissioners may administer 4
the oath to claimants and witnesses. R l. 142, § 7. 5
Section 8. The probate court may, except while an appeal is pend- 1
ing, upon the application of the executor or administrator, examine 2
under oath any person whose claim has been allowed as aforesaid unless 3
such allowance has been made by the supreme judicial or superior court 4
on appeal, may summon any person to give evidence relati\e thereto, 5
and, upon notice, alter or expunge a claim which it finds is founded in 6
whole or in part in fraud, illegality or mistake. 7
Section 9. Six months after the appointment of the commissioners 1
or after the order of the court under section five shall be allowed for 2
creditors to present and prove their claims; and if a new commissioner 3
is appointed under section sLx, the time shall be extended until the ex- 4
piration of sLx months from his appointment. The court may allow 5
further time upon petition of the commissioners or any party in in- 6
terest, and during such extended time presentation of claims which 7
might have been pre^•iously presented shall not be barred by any law 8
limiting the time within which actions by a creditor of the deceased may 9
be brought against an executor or administrator. 10
116 Mass. 447. 212 Mass. 416.
Ch.\P. 198.] INSOLVENT ESTATES OF DECEASED PERSONS. 2173
1 Section 10. A creditor who does not present his claim for allowance Late claims
2 in the manner herein provided shall be barred from recovering the same; aS^ts.' ^"
3 but if new assets of the deceased come to the executor or administrator fggoilfihf/i.
4 after the decree of distribution, the claim may be proved, allowed and J^g^' |' ^ ^■
5 paid as provided in this chapter for contingent claims. g- 1- ^s. § 20.
p. S. 137, § 10. 15 Mass. 140. 104 Mass. 277. • • . S
R. L. 142, § 10. 1 Gush. 461. 207 Mass. 207.
APPEALS.
1 Section 11. Where commissioners are appointed, a person whose Appeals.
2 claim is disallowed in whole or in part, or an executor, administrator, 1734! 2!
3 heir, legatee, devisee or creditor who is dissatisfied with the allowance of a §! s! 99! | s.
4 claim, may appeal from their decision to the superior court for the county }g5|' ||| ^ ^
5 where the probate or administration was granted, and the claim shall p^^- ijj^^ § li-
6 thereupon be tried and determined in like manner as if an action at law R- l'. ii2', § 11 ;
• • 156 § 5
7 had been brought therefor by the supposed creditor against the executor 190.5, 263.
8 or administrator. If the court examines the claim, appeals shall be ne Mass. 125.
9 under chapter two hundred and fifteen. 127 Mass. 242. i9s Mass. ise.
1 Section 12. Such appeal shall be claimed and notice thereof given Time for
2 at the registry of probate within twenty days after the return of the appeal"^
3 commissioners. If the appeal is by an executor or administrator, he r^s'Is. §9.
4 shall give notice thereof to the creditor within said twenty days. The fs7||52 f's
5 appeal shall be entered at the return day next succeeding the ex-piration foo^- si^^' Vs"'
6 of said twenty days.
R. L. 142, § 12. 1919,17. 110 Mass. 229. 197 Mass. 128.
1 Section 13. Upon the entry of the appeal, the supposed creditor Proceedings
2 shall file a written statement of his claim, setting forth briefly and dis- usi^s^.^ '
3 tinctly all the material facts necessary in a declaration for the same ^^'^'^^'SS i"'
4 cause of action; and like proceedings shall thereupon be had in the ^j^-^^'^^ '°'
5 pleadings, trial and determination of the cause as in an action at law; ^''i'y^f'iii
6 but no execution shall be awarded against the executor or administrator Jlo^^/'*^' I,),'''
7 for a debt found due to the claimant. The final judgment shall be i97 Mass' 123!
8 conclusive, and the list of debts allowed shall be altered by the probate
9 court, if necessary, to conform thereto.
1 Section 14. After claiming such appeal, the parties may waive it Waiver of
2 and submit the claim to arbitrators agreed on by the parties and ap- submission to
3 pointed by the probate court, and thereupon the appeal shall not be 1784, 2. ° '
4i entered. The award of such arbitrators, if accepted by the court, shall Giilggil ii!
5 be as conclusive as a judgment at law.
p. S. 137, § 14. R. L. 142, § 14. 12 Gush. 220.
1 Section 15. The prevailing party shall be entitled to costs, which, Coats on
2 if recovered against the executor or administrator, may be allowed in FL&ros, § 12.
3 his account. o. s. 99, § 12. p. s. 137, § 15. r. l. 142, § 15.
1 Section 16. If a person whose claim has been disallowed in whole or Late entry
2 in part by the commissioners, or if the administrator of the estate or the mEl^bi.'
3 executor of the will of the deceased, or if an heir, legatee, devisee or §: i: 99! f if.
4 creditor who is dissatisfied with the allowance of a claim by them, omits, r. l.Y4''2,Vi%
5 for cause other than his own neglect, to claim or prosecute his appeal as J.^J^jji^'g § 1
6 before provided, the superior com-t in any county may, upon his petition I'Ji'^i 19. '
7 filed ^\'ithin two years after the return of the commissioners and within 121 Mass. ses.
2174 INSOLVENT ESTATES OP DECEASED PERSONS. [ChaP. 198.
four years after the date of the administration bond, allow him upon 8
terms to enter and prosecute his appeal. 9
Sfowlnceof SECTION 17. The allowance of such appeal and the judgment 1
is?6^62 thereon shall not affect any distribution ordered before WTitten notice of 2
r'l'gg'l 14 ^'^^ petition or of the intention to present the same has been given at 3
P.S.137, § 17. the registry of probate or to the executor or administrator; but any 4
' ■ ' ■ debt thus proved and allowed shall be paid only out of such assets as 5
remain in or come to the hands of the executor or administrator after 6
payment of the amounts payable on such prior decree of distribution. 7
payment OF DIVIDENDS TO CREDITORS.
£!fet1''among°' Section 18. After the expiration of the time allowed by section 1
creditors whose twclve, the probatc court shall make a decree for the distribution of 2
claims are , ■*■ , ,. . . ,,...
proved. the estate among the creditors in accordance with this chapter. If, 3
R. s.'es, § 17. before making the decree, the court has notice of an appeal then claimed 4
p.'l.'i37.\\^8. or pending, the decree may be suspended until the determination of the 5
?&ish"35o. ^*' appeal, or a distribution may be ordered among the creditors whose 6
debts are allowed, leaving an amount sufficient to pay to the claimant 7
whose demand is disputed a proportion equal to that of the other 8
creditors. 9
?t"8!327,^?2. Section 19. The court may before the expiration of the tune al- 1
R L ^i42,\^r9. low^cl for claiming appeals order dividends to be paid to creditors whose 2
claims have been allowed, if there is left an amount sufficient to pay 3
upon claims that may probably be proved afterward a proportion 4
equal to what is so paid to such creditors. Such amount shall remain 5
unappropriated until the final dividend is declared, or until a distribu- 6
tion is ordered. 7
R^T68.1M: Section 20. If all the assets are not distributed upon the first 1
p.'l.'iliVao. decree, or if new assets come to the executor or administrator, the court 2
R. L. 142, § 20. shall make further decrees for distribution. 3
ras°e"o7 d"^ '""^ Section 21. If the deceased was a member of a partnership, and 1
G.^s^ga.Ti'" partnership and individual claims are proved against his estate, separate 2
R L^^/iVai ^'**^ thereof shall be made, and in decreeing dividends the court shall 3
lOMet.sbs. order the joint and the separate estate to be distributed in the same 4
127 Mass. ill. manner and among the same classes of creditors as in the case of insol- 5
vent debtors under chapter two hundred and sixteen. 6
216 Mass. 521.
S^ckfrn^OT* Section 22. When the amount due a creditor has been ascertained 1
i9i5,T5i, §4. ^y ^ decree for distribution under this chapter, payment of the same 2
may be enforced in the same manner as is provided by section twenty- 3
four of chapter one hundred and ninety-seven. 4
TsTe'tf^refuffi- Section 23. If, aftcr the completion of the list of allowed claims, 1
ciai'msafiowed! ^^^ asscts prove sufficicut to pay all such claims, the executor or ad- 2
fsslS'sg™"' ministrator shall pay them in full; and if any other debt is afterward 3
R^s.'es, §§21, recovered against him, he shall be liable therefor only to the extent of 4
g"'s.99, §§22, the assets then remaining. If there are two or more such creditors, the 5
p. s. 137, §§ 22, assets, if insufficient to pay their demands in full, shall be divided among 6
R.L. 142, § 22. them pro rata. 120 Mass. 516. 139 Mass. 360. 17S Mass. 125. 7
Ch.\P. 198.] INSOLVENT ESTATES OF DECEASED PERSONS. 2175
1 Section 24. The executor or administrator, in an action brought Proceedings
2 against him on such demand, may prove the amount of assets in his claims.
3 hands, and thereupon judgment shall be rendered in the usual form; r. s.'es, §23.
4 but execution shall not issue for more than the amount of such assets; P.I.137V24.
5 and if there are two or more judgments, the court shall apportion the ^- ^- ^*^- ^ -^•
6 amount among them.
1 Section 25. After twenty years from the decree of distribution of unXimed" °^
2 an insolvent estate, the probate com-t, upon application by a creditor j^'f ""fl 5 j
3 whose claim was allowed, and after notice of such application pub- p|'^|a\^L
4 lished in one or more newspapers of the county for not less than two r'. l. 142, §"24.
5 years on such days as the court shall direct, may order any unclaimed
6 dividends, with the interest received thereon, after deducting all ex-
7 penses and charges of administration since the decree of distribution,
8 to be distributed anew among the creditors who have received their
9 dividends. If there is a surplus after satisfying the claims of such
10 creditors with interest, it shall be distributed to the persons legally
11 entitled thereto.
1 Section 26. If a creditor who has failed to receive his dividend as same subject.
2 aforesaid has died, the probate court for the county where adminis- G.s.'gg. §28.'
3 tration on his estate might have been granted shall, at any time before r.l.^^w.VIs.
4 a decree to distribute the unclaimed dividends is passed, grant ad-
5 ministration upon his estate, although more than twenty years may
6 have elapsed since his death, and the administrator may receive and
7 administer such dividend.
1 Section 27. If an executor or administrator neglects to render Removal of
2 and settle his accounts in the probate court within six months after the neglecting to"
3 final determination of the claims of creditors of an insolvent estate, or i794"5,'
4 within such further time as the court may allow, and thereby delays a §; |; 99; | i|;
5 decree of distribution, such neglect shall be unfaithful administration S- 'i- ^fjx i^L
' o R. L. 142, §26.
0 and he may be removed. 3 Met. loo. 129 Mass. 226.
contingent claims.
1 Section 28. If, at the ex-piration of the time allowed for the proof Sa.w^""*
2 of claims, a person is liable as a surety for the deceased, or has a con- jf^g'efs 5
3 tingent claim against his estate which could not have been proved as a pfify 5 2s
4 debt within said time, the court upon proof thereof shall, in ordering a R. l- 142, § 27.
5 dividend, leave an amount sufficient to pay to such contingent creditor le Gray, sia.
6 a proportion equal to what is then to be paid to the other creditors. 123 Mass. 4S9.
1 Section 29. If such contingent debt becomes absolute within four Same subject.
• • • • 1S21 72
2 years after the time of the giving of the executor's or administrator's r. s.'es.fe.
3 bond, it may be proved before the probate court, before the commis- p.' s.' 137. § 29.
4 sioners already appointed, or before others to be appointed therefor. ^' ^' ^^"' ^ ~^'
1 Section 30. Upon the allowance of such claim the creditor shall be same subject.
2 entitled to a dividend thereon equal to what has been paid to the other r. s.'es'i 7.
3 creditors, so far as the same can be paid without disturbing the former p.' |; 137, §30.
4 dividend ; and if the claim is not finally established, or if the dividend ^- ^- ^*^' * ^^•
5 upon it does not exhaust the assets, the residue shall be divided among
6 all creditors wliose claims have been allowed. Any surplus after satisfy-
2176 SETTLEMENT OF ESTATES OF DECEASED NON-RESIDENTS. [ClLAP. 199.
ing the claims of such creditors, with interest, shall be distributed to the 7
persons legally entitled thereto. 8
ACTIONS BY CREDITORS PENDING INSOLVENCY PROCEEDINGS.
^ainstan SECTION 31. Exccpt Es provided in the following section, no action 1
executor, etc., shall be maintained against an executor or administrator after an estate 2
alter repre- i-i , i. ,* -it
sentation of has bccu represented insolvent, unless for a clann entitled to a prefer- 3
msolvcncv
1696, 8, §i. ence which would not be affected by the insolvency of the estate or 4
R. s.'es, § 19. unless the assets prove more than sufficient to pay all the debts allowed. 5
p.'s.'i37, §3i. If the estate is represented insolvent while an action is pending for a 6
?Mai*502.^°' claim which is not entitled to such preference, the action may be discon- 7
iMer'333°' tinned without costs; or, if it is disputed, it may be tried and deter- 8
120 m"^^' 516' ™iri6d and judgment rendered thereon in the same manner and with the 9
142 Mass! 227! Same effect as is provided in the case of an appeal from the allowance or 10
184 Mass. 634! disallowaucc of the claim of a creditor; or it may be continued without 11
212 Mass! til costs uutil it appears whether the estate is insolvent, and, if it is not in- 12
214 Mass. 549. sQi^-pnt, the plaintiff may prosecute the action as if no such representa- 13
tion had been made. 14
briJJging'^such SECTION 32. If it is not ascertained at the end of nine months after 1
i833°i89 the granting of letters testamentary or of administration whether an 2
G'i'gg' i 25' estate represented as insolvent is or is not so in fact, any creditor whose 3
p. s. isi 5 32. claim has not been presented for proof may commence an action there- 4
lie Mass.' 447. ' for against the executor or administrator, and such action may be con- 5
tinned without costs for the defendant until it appears whether the 6
estate is insolvent; and if it is not insolvent, the plaintiff may prose- 7
cute the action as if no such representation had been made. 8
whe'ifi'udgment SECTION 33. If judgment has been rendered against an estate which 1
re^nd^red ^^s bccn represented insolvent, and a certified copy from the probate 2
solvent estate court, showiug such representation, has been filed in the clerk's office 3
i8«), 253. of the court in which the judgment was rendered, no execution shall 4
R. L. 142, § 32. be issued on such judgment; but such judgment may be presented for 5
221 Mass! 587! allowancc in the same manner as other claims of creditors, and other- 6
wise the proceedings relative to such judgment shall be the same as 7
those relative to judgments rendered on appeal under section thirteen. 8
REFERENCES.
Compensation of commissioners, Chap. 21.5, § 39 and Chap. 262, § 31.
Power of court to revoke appointment, Chap. 21.5, § 3.5.
Appeals where the court itself examines claims, Chap. 215.
Insolvent estates of deceased non-residents. Chap. 199.
Effect of the discovery of new assets. Chap. 197, § 11.
§ 1. Claims against officer for property taken or attached, Chap. 228, § 2.
CHAPTER 199.
SETTLEMENT OF ESTATES OF DECEASED NON-RESIDENTS.
Sect.
1. Administration of estates of deceased
non-residents.
2. Settlement of estates of deceased non-
residents.
Sect.
3. Settlement of such estates when insol-
vent.
4. Same subject.
5. Same subject.
Chap. 199.] settlement of estates of deceased non-residents. 2177
1 Section 1. If administration is taken in this commonwealth on the Administration
2 estate of a person who was an inhabitant of any other state or country, deceaseS^on-
3 his estate found here shall, after payment of his debts, be disposed of R^g.'^Ta § 21
4 according to his last will, if any; otherwise his real property shall descend q^I'^qJ .gg
5 according to the laws of this commonwealth, and his personal property pf\^^\^-
6 shall be distributed and disposed of according to the laws of the state 9 Mass. 337. '
7 or country of which he was an inhabitant.
11 Mass. 256. 3 Met. 109. IfiS Mass. 240. 214 Mass. 580.
6 Pick. 481. 147 Mass. 204. 204 Mass. 394. 215 Mass. 112.
1 Section 2. After the payment of all debts for which such estate is settlement ot
2 liable in this commonwealth, the residue of the personal property may deceased non-
3 be distributed and disposed of, as provided in the preceding section, by nf s.''7a'§ 22.
4 the probate court; or, in the discretion of the court, it may be trans- p.f.'ias.'ll^'
5 mitted to the executor or administrator, if any, in the state or country J^q^. 143, § 2.
G of which the deceased was an inhabitant, to be there disposed of accord- ips Mass. 245.
7 ing to the laws thereof. But nothing herein shall be construed to prevent isi Mass! eou
8 the distribution or transmission of part of the personal property of an iQSMaSiisa
9 estate in process of settlement when it can be done without detriment 214 Mass! ilol
10 to the estate or prejudice to the creditors. 225 Mass. 335.
1 Section 3. If such person dies insolvent, his estate found in this Settlement of
2 commonwealth shall, as far as practicable, be so disposed of that all ™henTnsofvent.
3 his creditors here and elsewhere may receive equal proportions of their §! s! loi.^Mo.
4 respective debts.
p. S. 138, § 3. R, L. 143, § 3. 3 Picli. 128. 8 Pick. 475.
1 Section 4. The estate shall not be transmitted to the foreign ex- Same subject.
2 ecutor or administrator until all the creditors who are citizens of this 25.^' ™' ^^ ^*'
3 commonwealth have received the proportion which would be due to p.'l.ias.'fl.''
4 them if the whole estate of the deceased, wherever found, which is ^- ^- ^*^' ^ *•
5 applicable to the payment of common creditors were divided without
6 preference among all the creditors in proportion to their respective
7 debts; and no creditor not a citizen of this commonwealth shall be paid
8 out of the assets found here until all those who are such citizens have
9 received the proportion provided in the preceding section.
1 Section 5. If there is a residue after such payment to the citizens Same subject.
2 of this commonwealth, it may be paid to any other creditors who have §! slim, §^42.
3 duly proved their debts here, in proportion to the amount due to each r. l.'hs.Vs.
4 of them, but no one shall receive more than would be due to him if the
5 whole estate were divided ratably among all the creditors as before pro-
6 vided. The remainder may be transmitted to the foreign executor or
7 administrator; or if there is none, it shall, after the expiration of four
8 years from the appointment of the administrator, be distributed ratably
9 among all creditors, both citizens and others, who have proved their
10 debts in this commonwealth.
2178
SETTLEMENT OF ESTATES OF ABSENTEES.
[CllAP. 200.
CHAPTER 200.
SETTLEMENT OF ESTATES OF ABSENTEES.
Sect.
1. Petition for appointment of receiver.
2. Warrant.
3.. Notice may be issued on return of war-
rant.
4. Same subject.
5. Appointment of receiver. Bond.
6. Transfer of property, etc.
7. Possession of additional property.
Debts.
Sect.
8. Intangible property.
9. Management and sale of property.
10. Allowance to widow and children, etc.
11. Arbitration and compromise of claims.
12. Compensation of receiver; accounts;
barring of suits.
1.3. Distribution of property.
14. Limitation if receiver is not appointed
within thirteen years.
Petition for
appointment
of receiver.
1894, 203.
1897, 447. § 1.
R. L. 144, I 1.
1902. 544, § 14.
1903, 241, I 1.
1906.224,1 1.
186 Mass. 426.
201 Mass. 23.
210 Mass. 1
211 Mass. 198.
223 Mass. 540.
Section 1. If a person entitled to or having an interest in property 1
within the jurisdiction of the commonwealth has disappeared or ab- 2
sconded from the place within or without the commonwealth where he 3
was last known to be, and has no agent in the commonwealth, and it is 4
not known where he is, or if such person, having a wife or minor child, 5
dependent to any extent upon him for support, has thus disappeared or 6
absconded without making sufficient provision for such support, and it 7
is not known where he is, or, if it is known that he is without tlie com- 8
monwealth, any one who would under the law of the commonwealth 9
be entitled to administer upon the estate of such absentee if he were 10
deceased, or if no one is known to be so entitled, any suitable person, or 11
such wife, or some one in her or such minor's behalf, may file a petition 12
under oath in the probate court for the county where any such prop- 13
erty is situated or found, stating the name, age, occupation and last 14
known residence or address of such absentee, the date and circumstances 15
of the disappearance or absconding, and the names and residence of 16
other persons, whether members of such absentee's family or otherwise, 17
of whom inquiry may be made, and containing a schedule of the property, 18
real and personal, so far as known, and its location within the common- 19
wealth, and praj'ing that such property may be taken possession of and 20
a receiver thereof appointed under this chapter. 21
Warrant.
1897, 447, § 1.
R. L. 144, § 2.
Section 2. The court may thereupon issue a warrant directed to 1
the sheriff or his deputy, which may run throughout the commonwealth, 2
commanding him to take possession of the property named in said 3
schedule and hold it subject to the order of the court and make return 4
of said warrant as soon as may be with his doings thereon with a schedule 5
of the property so taken. The officer shall post a copy of the warrant 6
upon each parcel of land named in the schedule and cause so much of 7
the warrant as relates to land to be recorded in the registry of deeds 8
for the county and district where the land is located. He shall receive 9
such fees for serving the warrant as the court allows, but not more than 10
those established by law for similar service upon a writ of attachment. 11
If the petition is dismissed, said fees and the cost of publishing and 12
serving the notice hereinafter provided shall be paid by the petitioner; 13
if a receiver is appointed, they shall be paid by the receiver and allowed 14
in his account. 15
Chap. 200.] settlement of estates of absentees. 2179
1 Section 3. Upon the return of such warrant, the court may issue a Notice may be
2 notice reciting the substance of the petition, warrant and officer's return, turo^f'^aTrant.
3 which shall be addressed to such absentee and to all persons who claim J^^l. illi 1 3'
4 an interest in said property, and to all whom it may concern, citing Jgof'llMs^
5 them to appear at a time and place named and show cause why a re-
6 ceiver of the property named in the officer's schedule should not be
7 appointed and said property held and disposed of under this chapter.
1 Section 4. The return day of said notice shall be not less than Same subject.
2 thirty nor more than sixty days after its date. The coiu-t shall order Il^l! i1a'. 1 1'.
3 said notice to be published once in each of three successive weeks in 1903; 241.' 1 3.^'
4 one or more newspapers within the commonwealth, and to be posted in }g°|' ^fj ^ ^'
5 two or more conspicuous places in the town within the commonwealth L^,^^-.
6 where the absentee last resided or was known to have been either 1020! 2!
7 temporarily or permanently and upon each parcel of land named in the - ^ *™- •
8 officer's schedule, and a copy to be mailed to the last known address
9 of such absentee. The court may order other and further notice to be
10 given within or without the commonwealth.
1 Section 5. The absentee or any person who claims an interest in Appointment
2 any of the property may appear and show cause why the prayer of the Bomif"'*'^'
3 petition should not be granted. The court may after hearing dismiss §§^','2^'''
4 the petition and order the property in possession of the officer to be fgji- \\\- 1 ^^
5 returned to the person entitled thereto, or it may appoint a receiver i^o^, 241. § 3.
6 of the property which is in the possession of the officer and named in his
7 schedule. If a receiver is appointed the court shall find and record the
8 date of the disappearance or absconding of the absentee; and such re-
9 ceiver shall give bond to the judge of probate and his successors in office
10 in such sum and with such condition as the court orders, with a company
11 named in section one hundred and five of chapter one hundred and
12 seventy-five and approved by the court as surety thereon.
1 Section 6. After the approval of such bond the court may order Transfer of
2 the sheriff or his deputy to transfer and deliver to such receiver the ^^.°l"i44,*§ 6.
3 possession of the property under the aforesaid warrant, and the receiver
4 shall file in the registry of probate a schedule of the property received
5 by him.
1 Section 7. Such receiver upon petition filed by him may be author- Possession of
2 ized and directed to take possession of any additional property within property.
3 the commonwealth which belongs to such absentee and to demand and r''l*.^44. § 7.
4 collect all debts due such absentee from any person within the common- Jgosjlli.'ls^
5 wealth, and hold the same as if it had been transferred and delivered to
6 him by the officer.
1 Section 8. If such absentee has left no corporeal property within intangible
2 the commonwealth, but there are debts and obligations due or owing to i906r224, § i.
3 him from persons within the commonwealth, a petition may be filed as
4 provided in section one, stating the nature and amount of such debts
5 and obligations, so far as known, and praying that a receiver thereof
6 may be appointed. The court may thereupon issue a notice as above
7 provided, without issuing a warrant, and may, upon the return of said
8 notice and after a hearing, dismiss the petition or appoint a receiver and
2180
SETTLEMENT OF ESTATES OF ABSENTEES.
[Chap. 200.
authorize and direct him to demand and collect the debts and obliga- 9
tions specified in said petition. The receiver shall give bond as pro- 10
vided in section five, and shall hold the proceeds of such debts and 11
obligations and all property received by him, and distribute the same 12
as hereinafter provided. He may be further authorized and directed as 13
provided in the preceding section. 14
Management
and sale of
propertv.
1897,447, § 3.
R. L. 114, § 8.
1902, 544. § 19.
1903, 241, § 3.
Section 9. The court may make orders for the care, custody, leasing 1
and investing of all property and its proceeds in the possession of the 2
receiver. If any of said property consists of live animals or is perishable 3
or cannot be kept without great or disproportionate expense, the court 4
may, after the return of the warrant, order such property to be sold at 5
public or private sale. After the appointment of a receiver, upon his 6
petition and after notice, the court may order all or part of said property, 7
including the rights of the absentee in land, to be sold at public or pri- 8
vate sale to supply money for payments authorized by this chapter or 9
for reinvestment approved by the court. 10
Allowance to
widow and
children, etc.
1897, 447, § 3.
R. L. 144, §9,
1906, 175.
192 Mass. 3S7.
196 Mass. 509.
Section 10. The court may order said property or its proceeds
acquired by mortgage, lease or sale to be applied in payment of charges
incurred or that may be incurred in the support and maintenance of
the absentee's wife and minor children, and to the discharge of such
debts and claims for alimony as may be proved against said absentee.
and compromise SECTION 11. The court may authorize the receiver to adjust by 1
i909?ri5. arbitration or compromise any demand in favor of or against the estate 2
of such absentee. 3
Compensation
of receiver;
accounts: bar-
ring of suits.
1897, 447, § 6.
R. L. 144, § 10.
197 Mass. 279.
223 Mass. 540.
222 U. S. 1.
Section 12. The receiver shall be allowed such compensation and 1
disbursements as the court orders, to be paid out of said property or pro- 2
ceeds. If within fourteen years after the date of the disappearance and 3
absconding as found and recorded by the court, such absentee appears, 4
or an administrator, executor, assignee in insolvency or trustee in bank- 5
ruptcy of said absentee is appointed, such receiver shall account for, 6
deliver and pay over to him the remainder of said property. If said 7
absentee does not appear and claim said property within said fourteen 8
years, all his right, title and interest in said property, real or personal, 9
or the proceeds thereof shall cease, and no action shall be brought by 10
him on account thereof. 11
Distribution
of property.
1897, 447,
§§4,5.
R. L. 144, § 11.
1903, 241, § 2.
197 Mass. 279.
223 Mass. 540.
222 U. S. 1.
Section 13. If at the expiration of said fourteen years said property 1
has not been accounted for, delivered or paid over under the preceding 2
section, the court shall order the distribution of the remainder to the 3
persons to whom, and in the shares and proportions in which, it would 4
have been distributed if said absentee had died intestate within the 5
commonwealth on the day fourteen years after the date of the dis- 6
appearance or absconding as found and recorded by the court. 7
J'e^fycri^Mt Section 14. If such receiver is not appointed within thirteen years 1
wu^un thirteen ^^t^^ ^hc date fouud by the court under section five, the time limited 2
FfTi44 5 1'' ^°^ accounting for, or fixed for distributing, said property or its proceeds, 3
1902, 644,' § 20. or for barring actions relative thereto, shall be one vear after the date 4
1904 206 § 2 • •
of the appointment of the receiver instead of the foiu-teen years pro- 5
vided in the two preceding sections. 6
Chap. 201.]
GUARDIANS AND CONSERVATORS.
2181
CHAPTER 201
GUARDIANS AND CONSERVATORS.
Sect.
jxrnisDicTioN.
1. Jurisdiction of probate court.
GUARDIANS OF MIN0K8.
2. Appointment.
3. Testamentary guardian.
4. Powers.
5. Custody and education of minors.
Effect of marriage.
GUARDIANS OF INSANE PERSONS AND
SPENDTHRIFTS.
6. Appointment of guardian of insane
person.
7. Notice.
8. Appointment of guardian of spend-
thrift.
9. Notice.
10. Effect on contracts, etc., of recording
petition.
11. Certain property of spendthrift may
be transferred to wife, etc.
12. Powers and bond of guardian of insane
person or spendtlirift.
13. Termination of guardianship.
TEMPORARY GUARDIANS.
14. Appointment, removal and discharge.
15. Powers and duties.
CONSERVATORS.
16. Appointment.
17. Notice.
18. Discharge.
19. Bond.
20. Powers.
21. Temporary conservator.
22. Allowance for defence.
GUARDIANS AND CONSERVATORS OF MAR-
RIED WOMEN.
Appointment.
Guardian not to have custody, etc., of
ward, except, etc.
Guardian, etc., not to apply property
to her support without leave of
probate court.
26. Guardian for insane married woman
having right of dower, etc.
23.
24.
25.
Sect.
guardians and conservators of non-
residents.
27. Appointment.
28. Powers and duties.
29. Bond.
30. Proceedings for non-resident guardian
of non-resident ward to receive ward's
estate here.
Guardian, etc., appointed here may
transfer property to foreign guardian,
etc.
Transfer of estate of ward who has no
guardian, etc., in the commonwealth.
31
32
REMOVALS, RESIGNATIONS, ETC.
33. Rgfloval, etc., of guardian, etc., and
appointment of successor.
GUARDIAN AD LITEM AND NEXT FRIEND.
34. Appointment. Effect.
35. Expenses.
36. Provisions of this chapter not to pre-
vent appointment of guardian ad
litem or next friend.
GENERAL POWERS AND DUTIES OF GUARD-
IANS AND CONSERVATORS.
37. To pay debts, etc., and represent ward
in suits.
38. Support of ward and familj'.
39. Partition.
40. Support of minor child by parents.
41. Application of minor's property to his
support during father's life.
42. Support of children of insane person
under guardianship.
43. Support of wife of insane person under
guardianship.
44. Purchase of release of dower, etc., in
ward's real property.
45. Election, waiver, or exercise of power
by guardian, etc.
46. Appraisal of estate.
47. Sale of personal property of ward.
48. Recovery of property of ward which
has been embezzled, etc.
AGENTS OF NON-RESIDENT GUARDIANS AND
CONSERVATORS.
49. Agent for non-resident guardian or
conservator.
JURISDICTION.
1 Section 1. The probate court may, if it appears necessary or con- jurisdiction of
2 venient, appoint guardians of minors, insane persons and spendthrifts ^°uh §T^''
3 and conservators of the property of persons by reason of advanced age \jj^f ^' ^ ^'
2182
GUARDIANS AND CONSERVATORS.
[Chap. 201.
1783, 38. I 1.
1817, 190, § 1.
R. S. 79, 5 1.
G. S. 109, § 1.
P. S. 139. § 1.
or mental weakness unable to properly care for their property, who are 4
inhabitants of or residents in the county or who reside out of the com- 5
monwealth and have estate within the county. i898. 527. § 1. 6
1901, 125, § 1.
R. L. 145. §§ 1. 40.
1903, 96.
1905, 127.
1907, 169, § 3.
5 Pick. 370.
128 Mass. 687.
219 Mass. 178.
221 Mass. 178, 315.
Appointment.
1752-3, 12,
5§ 6, 7.
1783, 38, § 1.
R. S. 79. §§2,3.
1837, 171, § 2.
G. S. 108, § 16;
109, §§2, 3.
P. S. 139.
§§ 2,3. 13.
1899, 178, § 2.
R. L. 145,
l§2, 3, 12.
1918, 257,
§394.
1919, 5.
1920, 2.
154 Mass. 378.
guardians of minors.
Section 2. If a minor is under fourteen the probate court may nomi- 1
nate and appoint his guardian. If he is above that age he may nominate 2
his own guardian, who, if approved by the court, shall be appointed 3
accordingly. Such nomination may be made before a justice of the 4
peace, notary public, special commissioner or city or town clerk within 5
the commonwealth who shall certify the fact to the probate court. If the 6
person nominated is not approved by the court, or if the minor resides 7
out of the commonwealth, or if the minor after being cited neglects to 8
nominate a suitable person, the court may nominate and appoint his 9
guardian in the same manner as if he were under fourteen. If the minor 10
is a married woman no guardian shall be appointed without such notice 11
to her husband as the court may order. 12
Testamentary
guardian.
R. .S. 79, § 6.
G. S. 109, § S.
1877, 128.
P. S. 139, § 5.
1898, 138.
R. L. 145, § 5.
8 Met. 127.
9 Allen, 618.
Section .3. A father, or, if he has died without exercising the power, 1
a mother may by will appoint, subject to the approval of the probate 2
court, a guardian for a minor child, whether born at the time of making 3
the will or afterward, to continue during minority or for a less time. Such 4
testamentary guardian shall have the same powers and perform the 5
same duties, relative to the person and estate of the ward, as a guardian 6
appointed by the probate court. 7
Powers.
C. L. 211, 5 4.
R. S. 79. § 4.
G.S. 109, § 4.
P. S. 139, §4,
Section 4. The guardian of a minor unless sooner discharged accord- 1
ing to law shall continue in office until the minor reaches twenty-one, 2
and shall have the care and management of all his estate. 3
R. L. 145. § 4. 1902, 474. 1904, 163.
Custody and
education of
minors. Effect
of marriage.
C.L. 211, §4.
R. S. 79,
IS 4, 23.
G. S. 109,
§§ 4, 26.
1871, 116.
1873, 367.
1880, 66.
P. S. 139,
5§4,41.
R. L. 145,
§§ 4, 37.
1902, 474.
1904, 163.
15 Gray, 445.
216 Mass. 71.
219 Mass. 178.
221 Mass. 108.
227 Mass. 77.
Section 5. The guardian of a minor shall have the custody of his 1
person and the care of his education, except that the parents of the 2
minor, jointly, or the surviving parent shall have such custody and said 3
care unless the court otherwise orders. The probate court may, upon 4
the written consent of the parents or surviving parent, order that the 5
guardian shall have such custody; and may so order if, upon a hearing 6
and after such notice to the parents or surviving parent as it may order, 7
it finds such parents, jointly, or the surviving parent, unfit to have such 8
custody; or if it finds one of them unfit therefor and the other files in 9
court his or her written consent to such order. The marriage of a female 10
under guardianship as a minor shall deprive her guardian of all right to 11
her custody and education, but not of the care and possession of her 12
property. If a corporation is appointed guardian of a minor, the court 13
may, subject to the right of his parents, or of the husband of a female 14
minor, as provided in this section, award the custody to some suitable 15
16
person.
guardians of insane persons and spendthrifts.
Section 6. Two or more relatives or friends of an insane person, or
Appointment of
guardian of .11 e ' ' l,' \
waS^^m°°' ^^^ mayor and aldermen of a city or the selectmen ot a town in which
172G-7; i2; § 1. he is an inhabitant or resident, or the department of mental diseases, 3
Chap. 201.] guakdlins m^d conservators. 2183
4 may file a petition in tlie probate court asking to have a guardian ap- 1731-2, 14, § 1.
5 pointed for him; and if after notice as provided in the following section 1783738, § 2. '
6 and a hearing the court finds that he is incapable of taking care of himself, §: i; io9,W
7 it shall appoint a guardian of his person and estate. A copy of such ap- r L.'/j'g ^g
8 pointment shall be sent bv mail bv the register to the said department. J^o^. ib9, § 1.
9 The court may require additional medical testimony as to the mental §§ 99. 107.
10 condition of the person alleged to be insane and may require him to submit s Mass. 129. '
1 1 to examination. It may also appoint one or more physicians, expert in \z ulll'. 222!
12 insanity, to examine such person and report their conclusions to the 7 Met. lis.
13 court. Reasonable expense incurred in such examination shall be paid jo2™i'a^^i4
14 out of the estate of such person or by the county as may be determined by 232 kasa. sob.
15 the court.
1 Section 7. Upon such petition the court shall cause not less than Notice.
2 seven days' notice of the time and place appointed for the hearing to be g^ s! los. § ie;
3 given to the alleged insane person and to the department of mental dis- p^s.^fg.
4 eases, except that the court may, for cause shown, direct that a shorter ^ J^ ^^^.
5 notice be given. No appointment shall be made without such notice to 5|6. 1^2.^ ^
6 the heirs apparent or presumptive of the alleged insane person, includ- 1909', 504^
7 ing the husband or wife, if any, as the court may order. i9ii, 206, § 1.
1916,285,5 1. 24 Pick. 115. 4 Grav, 03. 154 Mass. 378.
5 Picli. 490. 7 Met. 388. 102 Mass. 14. 224 Mass. 145.
99, 107
1 Section 8. A person who, by excessive drinking, gaming, idleness. Appointment
2 or debauchery of any kind, so spends, wastes or lessens his estate as to spemfthrift. "
3 expose himself or his family to want or suffering, or any town to charge r *|' ||' ^ ^'
4 or expense for his support or for the support of his family, may be f|4g''2\|
5 adjudged a spendthrift. The overseers of the poor of the town of which pfjol'll-
6 he is an inhabitant or resident, or upon which he is or may become i897, 173.
7 chargeable, or a relative of the alleged spendthrift, may file a petition 1907] 109! § 2!
8 in the probate court, stating the facts and circumstances of the case 12 p'icit^iM.
9 and praying that a guardian be appointed. In towns where selectmen ^^^ *^"^- '''^•
10 act as overseers of the poor they may file such petition. If after notice
11 as provided in the following section, and after hearing, the court finds
12 that he is a spendthrift, it shall appoint a guardian of his person and
13 estate.
1 Section 9. Upon such petition the court shall cause not less than Notice.
2 seven days' notice of the time and place appointed for the hearing to r. s.'79,§i2.
3 be given to the alleged spendthrift, except that the court may, for cause fcig^'g.*' ^ '®'
4 shown, direct that a shorter notice be given. If the alleged spendthrift Y:^ \^-
5 is a married woman, no guardian shall be appointed without such notice iso^'. 173.
6 to her husband as the court may order. 1907, i69, § 2. 12 Pick, 152. §§'7.12.'
1 Section 10. A copy of the petition, with the order of notice thereon. Effect on con-
2 may be recorded in the registry of deeds for the county and district rera'ding ' °'
3 where any land of the alleged spendthrift is located ; and if a guardian f^ls' 33 5 7
4 is appointed upon such petition, all contracts, except for necessaries or Jfl?'fo- , ,
-,. ,, 111*!. 1 [» (• I lo2b, b3, 8 1.
5 relative to land, and all guts, sales or transfers of personal property R- s. 79, § 13.
6 made by the spendthrift after an order of notice upon the petition has p.s.i39,'§9. '
7 been issued by the probate court, and all contracts relative to and sales fo picl'^isV*'
8 and conveyances of land made by the spendthrift after such record in 21 Pick! se"'
9 the registry of deeds for the county and district where the land lies, gy^'^^'glos
10 and before the termination of the guardianship, shall be void. los Mass. 4t>.
° ' 130 Mass. 458.
142 Mass. 505. 147 Mass. 15. 151 Mass. 354. 221 Mass. 108.
2184
GUARDLtNS AND CONSERVATORS.
[Chap. 201.
Certain
property of
spendthrift
may be trans-
ferred to wife,
etc.
1908, 75.
Powers and
bond of guard-
ian of insane
person or
spendthrift.
1783, 38,
§§ 2, 5. 7.
R. S. 79,
§§ 10, 16.
G. S. 109, § 12.
P. S. 139,5 11.
Section 11. Any probate court having jurisdiction of the property 1
of a person who is under guardianship as a spendthrift may, pn petition 2
of such ward, and after such notice as the court may determine, authorize 3
the guardian of tlie ward to pay or convey such portion of the ward's 4
real or personal estate, either principal or income, as the court may 5
designate, to the wife or any child, or children, or grandchildren, of the 6
ward; and such property, when so paid or conveyed, shall become the 7
property of the donee or grantee. 8
Section 12. The guardian of an insane person or spendthrift shall 1
have the care and custody of the person of his ward, except as provided 2
in section twenty-four, and the management of all his estate, and shall 3
give the bond prescribed in section one of chapter two hundred and five, 4
except that the conditions relative to the education of the ward shall be 5
omitted. R. l- hs, § lo. 6
5 Mass. 427.
5 Pick. 20.
106 Mass. 501.
149 aiass. 57.
155 Mass. 136.
162 Mass. 582.
Termination of
guardianship.
R. S. 79, § 23.
G. S. 109, § 26.
P. S. 139. § 12.
R. L. 145, § 11.
1909, 504,
§ 101.
1916, 285, § 1.
Section 13. The guardian of an insane person or spendthrift may 1
be discharged by the probate court, upon the application of the ward or 2
otherwise, when it appears that the guardianship is no longer necessary; 3
except that in the case of an insane person seven days' notice of the 4
petition shall be given to the department of mental diseases. 5
Appointment,
removal and
discharge.
1878, 230.
P. S. 139, § 6.
1897, ]35, § 1.
1900, 345,
§§1.3.
1901,213: 523.
R. L. 145, § 20;
1909, 504,
§§ 100. 107.
1911,206.
1916, 2S5. § 1.
179 Mass. 131.
TEMPORARY GU.4.RDIANS.
Section 14. Upon petition of a mayor or the selectmen, the over- 1
seers of the poor, the department of mental diseases, or other person in 2
interest, the court may, if it finds that the welfare of a minor, insane 3
person or spendthrift requires the immediate appointment of a temporary 4
guardian of his person and estate, appoint a temporary guardian of such 5
minor, insane person or spendthrift, with or without notice, and may 6
in like manner remove or discharge him or terminate the trust. A tempo- 7
rary guardian may proceed and continue in the execution of his duties, 8
notwithstanding an appeal from the decree appointing him, until it is 9
otherwise ordered by the supreme judicial court, or until the appoint- 10
ment of a permanent guardian, or un^il the trust is otherwise legally 11
terminated. 12
Powers and
duties.
1878, 230.
P. S. 139, § 6.
1897, 135, § 2,
1900, 345,
§§2,5.
R. L. 145, § 21.
Section 15. Such temporary guardian shall, until otherwise ordered, 1
or until his removal or the appointment of a permanent guardian, have 2
the same powers and duties relative to the person and estate of the ward 3
as permanent guardians, and may be decreed the custody of the person 4
of a minor, if the court finds the parent or parents unfit therefor or if 5
it finds one of them unfit therefor and the other consents to such cus- 6
tody by the temporary guardian or if a temporary guardian is serving or 7
appointed to serve in place of a temporary guardian removed. If such 8
temporary guardian of a minor is appointed pending proceedings for 9
an order for custody under section five or for the removal of a guardian 10
of a minor, he shall have the sole custody and control of the ward during 11
the pendency of such proceedings. Upon the termination of his powers, 12
a temporary guardian shall deliver to the guardian or such person as 13
is otherwise lawfully authorized to receive it the estate of the ward in his 14
hands. A guardian may be admitted to prosecute an action commenced 15
by a temporary guardian. 16
Chap. 201.] guaedl^ns and conservators. 2185
CONSERVATORS.
1 Section 16. If a person by reason of advanced age or mental weak- Appointment.
2 ness is unable to properly care for his property, the probate court may, Jgoi,' ill] 1 1;
3 upon his petition or upon the petition of one or more of his friends, if fggg; H^' ^ *"•
4 after notice as provided in the following section and after hearing it j^o|' J27. 1 1.
5 appears that such person is incapable of properly caring for his property, 204 Mass. 358.
6 appoint a conservator to have charge and management of his property, 216 Mass! 394!
7 subject to the direction of the court. 225 Mass. 22. 22s Mass. 225.
1 Section 17. Upon the filing of such petition the court shall appoint Notice.^
2 a time and place for a hearing, and shall cause not less than seven days' 1901! 125'. § 1'.
3 notice thereof to be given to the person for whom a conservator is to J^os! 9«^' ^ ^°'
4 be appointed, except that the court may for cause shown direct that a }ggf; J^g' 1 3;
5 shorter notice be given. No appointment shall be made without such gi^Ma^s' 394
6 notice to the heirs apparent or presumptive of such person, including
7 the husband or wife, if any, as the court may order. If the person for
8 whose property the conservator is to be appointed is himself the peti-
9 tioner or assents in writing to tlie petition, no notice shall be required.
1 Section 18. A conservator may be discharged by the probate court Discharge.
• • 1901 1*^5 § 2
2 upon the application of the ward, or otherwise, when it appears that r. l. ih'. § 40.
3 the conser\atorship is no longer necessary. But a conservator of the Hoi] ifv, § 1.
4 property of a married person shall not be discharged without such notice 216 Mass! 394.
5 as the court may order to the husband or wife of such person.
1 Section 19. A conservator shall give bond like that required of ?°"i^ -^o, , „
2 guardians of insane persons emitting the conditions relative to the R-L- us, §41.
3 custody of the ward.
1910,95. 225 Mass. 22. 228 Mass. 225. 3 Op. A. G. 252.
1 Section 20. A conservator shall have the same powers and duties, Powers.
2 except as to the custody of the person, as a guardian of an insane person; r. l! hs! | li.
3 and all laws relative to the jurisdiction of the probate court over the IgJsll'a
4 estate of a person under guardianship as an insane person, including the ^^^ '^^''*^- ^^s-
5 management, sale or mortgage of his property and the payment of his
6 debts, shall be applicable to the estate of a person under conservatorship.
1 Section 21. Upon tlie petition of a person of advanced age or mental Temporary
2 weakness or of a friend, the probate court may, if it finds that the wel- wis. 257,
3 fare of the person of ad\'anced age or mental weakness requires the im- 1919, 5.
4 mediate appointment of a temporary conservator of his property, appoint " ' '
5 such temporary conservator, with or without notice, and may in like
6 manner remove or discharge him or terminate the trust. Such tempo-
7 rary conservator shall, until otherwise ordered, or until liis removal or
8 the appointment of a permanent conservator or guardian, have the same
9 powers and duties as a permanent conservator. He shall be subject to
10 all laws relative to permanent conservators so far as applicable.
1 Section 22. If a conservator or a guardian for an insane person or Allowance for
2 spendthrift is appointed, the court shall make an allowance, to be paid 182^" 03, § 2.
3 by the conservator or guardian, for all reasonable ex-penses incurred by 2; 1; logfj'u.
4 the ward in opposing the petition.
p. S. 139, I 10. R. L. 145, § 9. 1915, 23.
2186
GUAKDL\NS AND CONSERVATORS.
[CUAP. 201.
Appointment.
G. S. 108, § 16.
P. S. 139. § 13.
R. L. 145, § 12.
1915, 23.
GTJ.ARDIANS AND CONSERVATORS OF MARRIED WOMEN.
Section 23. If a married woman owns property, real or personal, 1
a guardian or conservator may be appointed for her for the same causes, 2
in the same manner, and with the same powers and duties, as if she were 3
sole, except as otherwise provided in this chapter. 4
haTe'™s"t5?"° Section 24. The guardian of a married woman shall not have the 1
Ixcepf ItJ^' <^^^^> custody or education of his ward, except in case of the insanity of 2
G| 108. §17. her husband, or of his abandoning her by absenting himself from the 3
R. L. 145, § 13. commonwealth and making no sufficient provision for her. 4
noTto'appiy'^" SECTION 25. The guardian or conservator of a married woman shall
sulponJiiit" ^^^' except as provided in section ninety-six of chapter one hundred and
out leave of twenty-three, apply the property of his ward to the maintenance of her-
self and her family while she is married, unless he is thereto authorized
by the probate court on account of the inability of her husband suitably
to maintain her or them, or for other cause which the court considers
sufficient.
probate court.
G. S. 108. § 18.
P. S. 139. § 15.
R. L. 145, § 14.
1915, 23.
Ssane'mar^ied SECTION 26. If a married woman is by reason of insanity incompe-
HghTof do'S^?, t^"* to release her right of dower or of homestead, a guardian may be
fo'=<! ,cr, appointed for her in the same manner as if she were sole, with the powers
1856, 169, '^i-.. .. f, ., , '^-
§§ 1,. 2. and duties given to guardians oi married women who own property, and
§§ 8.' 9. ■ the husband or any suitable person may be appointed such guardian.
G. S. 108, 5 19. P. S. 139, § 16. 1890, 259. R. L. 145. § 15.
Appointment.
1783,38, § 1.
R. S. 79. § 28.
G. S. 109, § 13.
P. S. 139, § 17.
R. L. 145, § 16.
1915, 23.
4 Allen, 466.
GUARDIANS AND CONSERVATORS OF NON-RESIDENTS.
Section 27. If a person who is liable to be put under guardianship 1
or conservatorship under this chapter resides out of the commonwealth 2
and has any estate therein, a friend of such person or any one interested 3
in his estate, in expectancy or otherwise, may apply to the probate court 4
for a county where there is such estate, which, after notice to all persons 5
interested and a hearing, may appoint a guardian or conservator for him. 6
Powers and
duties.
R. S. 79, § 29.
G. S. 109, § 14.
P. S. 139. § 18.
R. L. 145, § 17.
1915, 23.
13 Met. 80.
2 Allen, 206.
Section 28. Such guardian or conservator shall have the same 1
powers and duties relative to any estate of the ward found within the 2
commonwealth, and also in the case of a guardian, relative to the person 3
of the ward if he comes to reside therein, as other guardians or conserva- 4
tors appointed under this chapter. 4 AUen, 321. 5
Bond.
R. S. 79, § 30.
G. S. 109, § 15.
1879, 184.
P. S. 139, § 19.
R. L. 145, § 18.
1915. 23.
Section 29. Such guardian or conservator shall give the same bond 1
as is required of other guardians and conservators appointed under this 2
chapter, except that the conditions relative to inventory, disposal of the 3
estate and effects, and the account to be rendered by him shall be confined 4
to such estate and effects as come to his hands in this commonwealth. 5
ToS^res.denV" Section 30. If & resident of another state is entitled to real or per-
ira-Side°nt sonal property of any description in this commonwealth, and is under
ward'8°e^Sti^^ the guardianship of a person, also resident in such other state, who pro-
1875 189 duces to the probate court of the county where such property or the
i88o! 154^ principal part thereof is situated a full and complete and duly exempli-
Chap. 201.] guardL'^ns and conservators. 2187
6 fied or authenticated transcript from the records of a court of competent P- sjsg, § 20.
• . 1900 232
7 jurisdiction in sudi other state, showing that he has there been appointed r. l' 145^ § 19.
8 such guardian, and has given a bond and security in double the vahie of ^^° ^^''^^' '^°'
9 the property of such ward, such transcript may be recorded in such pro-
10 bate court, and such guardian shall be entitled to receive from such
11 court letters of guardianship of the estate of such ward in this common-
12 wealth which shall authorize him to care for and manage the real and
13 personal property of such ward, to collect the rents and profits there-
14 from and to demand, sue for and recover any such property, and to remove
15 any of the movable property or estate of such ward out of this common-
16 wealth, if such removal will not conflict with the terms and limitations
17 attending the right by which the ward holds the same. Such probate
18 court may also order any resident guardian, executor or administrator
19 who has any of the estate of such ward to deliver the same to any person
20 who has taken out letters of guardianship as aforesaid.
1 Section 31. A guardian or conservator appointed within this Guardian, etc.,
2 commonwealth, whose ward removes from or resides out of this com- ma'ytransfe"^
3 monwealth, may transfer and pay over the whole or any part of the FoTiign'guard-
4 ward's personal property to a guardian, conservator, trustee, committee ^ig^sTii"!
5 or other ofiicial appointed by competent authority in the state or country o^gS. m § 23.
6 where the ward resides, upon such terms and in such manner as the 1862! 139.
7 probate court by which he was appointed may, after notice to all parties p. s.'is'g.'i 39.
8 interested, decree upon petition filed therefor.
R. L. 146, § 25. 1907, 219. 1915, 23. 149 Mass. 57.
1 Section 32. An executor, administrator or trustee who has in his Transfer of
2 hands personal property belonging to a person under guardianship resid- who has no "^
3 ing out of this commonwealth and having no guardian or conservator fn thl'TOmmon-
4 appointed therein may pay over and transfer the whole or any part of 7866!'i'22, § 2.
5 such personal property to a guardian, trustee or committee appointed p%^'/3|^§40
6 by competent authority in the state or country where such person R l. hs, § su.
7 resides, upon the same terms and in the same manner as provided in
8 the preceding section.
REMOVALS, resignations, ETC.
1 Section 33. If a guardian or conservator becomes insane or otherwise Removal, etc.,
2 incapable of performing his trust or is unsuitable therefor, the probate etc., and ap-
3 court, after notice to him and to all other persons interested, may remove suc?^°' °'
4 him. Upon the request of a guardian or conservator, the probate court Jgi?! 196, § 36.
5 may allow him to resign his trust. Upon such removal or resignation, g- 1- \^c,^?2^
6 and upon the death of a guardian or conservator, another may be ap- ps. 139,' §21.
7 pointed in his stead. R. l. 145, § 22. 1915, 23.
4 Pick. 283. 11 Met. 104. 105 Mass. .501. 155 Mass. 433.
8 Pick. 143. 4 Gray, 63. 128 Mass. 587. 227 Mass. 77.
GUARDIAN AD LITEM AND NEXT FRIEND.
1 Section 34. If, under the terms of a written instrument or other- Appointment.
2 wise, a minor or person under disability, or a person not ascertained or not i89g, 456, § i.
3 in being, may be or may become interested in any property real or per- fgoo, 452', 1 2^'
4 sonal, the court in which any action, petition or proceeding of any kind |^J? l\l^- HI
5 relative to or affecting any such estate is pending may, upon the repre- 227 Mass. 392.
6 sentation of any party thereto, or of any person interested, appoint a
2188
GUARDIANS AND CONSERVATORS.
[Chap. 201.
suitable person to appear and act therein as guardian ad litem or next 7
friend of such minor or person under disability or not ascertained or not in 8
being; and a judgment, order or decree in sucli proceedings, made after 9
such appointment, shall be conclusive upon all persons for whom such 10
guardian ad litem or next friend was appointed. 11
Expenses.
1S96, 456, § 2.
R. L. 145, § 24.
227 Mass. 392.
Section 35. The reasonable expenses of such guardian ad litem or 1
next friend, including compensation and counsel fees, shall be determined 2
by the court and paid as it may order, either out of the estate or by the 3
plaintiff or petitioner. If such expenses are to be paid by the plaintiff 4
or petitioner execution therefor may issue in the name of the guardian 5
ad litem or next friend. 6
Provisions of
this chapter not
to prevent ap-
pointment of
guardian ad
litem or next
friend.
R. S. 79, § S.
G. S. 109, § 7.
Section 36. Nothing in this chapter shall affect the power of a 1
court to appoint a guardian to defend the interests of a minor impleaded 2
in such court, or interested in a suit or matter there pending, nor the 3
power of such court to appoint or allow a person, as next friend for a 4
minor, to commence, prosecute or defend a suit in his behalf. 5
p. S. 139, § 43.
1896, 456, § 3.
R. L. 145, § 39.
1917, 326.
8 Gush. 506.
Ill Mass. 265.
116 Mass. 377.
To pa.v debts,
etc., and repre-
sent ward in
suits.
1726-7, 12, § 5.
1731-2, 14, § 5.
1737-8, 9, § 3.
1783, 38, § 4.
1806, 102.
R. S. 79, § 17.
G. S. 109, § IS.
P. S. 139, § 29.
R. L. 145, § 25.
1915,23.
4 Mass. 147.
5 Mass. 299.
GENERAL POWERS AND DUTIES OF GUARDIANS AND CONSERVATORS.
Section 37. A guardian or conservator shall pay all just debts 1
which are due from his ward out of the personal property, if sufficient, 2
and, if not, out of the real property, upon obtaining a license for the 3
sale thereof as provided in chapter two hundred and two. He shall 4
settle all accounts of his ward and demand, sue for and receive all debts 5
due to him or, with the approval of the probate court, may compromise 6
the same and give a discharge to the debtor. He shall appear for and 7
represent his ward in all actions, suits and proceedings, unless another 8
person is appointed therefor as guardian ad litem or next friend. 9
6 Mass. 58.
13 Mass. 237.
14 Mass. 207.
1 Picli. 314.
5 Pick. 431.
13 Piclc. 206.
14 Picli. 280.
19 Pick. 346, 506.
21 Pick. 30.
24 Pick. 115.
8 Gush. 587.
9 Gray, 84, 255.
5 Allen, 404.
8 Allen, 311.
10 Allen, 463.
97 Mass. 508.
99 Mass. 29.
100 Mass. 239.
101 Mass. 60.
106 Mass. 501.
Ill M
120 M
128 M
132 M
133 M
136 M
146 M
149 M
151 M
155 M
ass. 265.
ass. 487.
ass. 116.
.1SS. 414.
ass. 531.
ass. 219.
ass. 40.
ass. 57.
ass. 354.
ass. 136.
168 Mass. 215,
170 Mass. 499.
171 Mass. 303.
173 Mass. 140.
180 Mass. 303.
182 Mass. 332.
184 Mass. 545.
190 Mass. 117.
204 Mass. 522.
573.
Support of
ward and
family.
1726-7, 12, § 4.
1731-2, 14, § 4.
1737-8. 9, § 3.
1783, 38. § 4.
1806, 102.
R. S. 79, § 18.
G. S. 109, I 19.
P. S. 139. § 30.
R. L. 145, § 26.
1915,23.
Section 38. He shall manage the estate of his ward frugally and 1
without waste, and shall, except as otherwise provided, apply the same, 2
so far as may be necessary, to the comfortable and suitable maintenance 3
and support of the ward and his family. If the income and profits are 4
insufficient for that purpose, he may sell tlie real estate upon obtaining a 5
license therefor, and shall apply the proceeds of such sale, so far as may 6
be necessary, for the maintenance and support of the ward and his family. 7
1 Pick. 527.
IS Pick. 1.
20 Pick. 116.
4 Allen, 426.
8 Allen, 427.
10 Allen, 59.
109 M.ass. 252.
120 Mass. 487.
157 Mass. 73.
160 Mass. 232.
181 Mass. 539.
190 Mass. 459.
Partition.
1727. 5.
1783,41, § 1.
R. S. 79, § 19.
1852, 248.
G. S. 109, § 20.
P. S. 139. § 31.
R. L. 145, § 27.
1915, 23.
Section 39. A guardian or conservator may make partition of his 1
ward's real property if lying in common and undivided, either upon 2
petition for partition or otherwise, as fully and in like manner as the 3
ward could do if he were under no disability, may assign and set out 4
dower in his ward's estate to any widow entitled thereto, and may ap- 5
Chap. 201.] GUAEDL«fs and conservators. 2189
6 point an appraiser of real property on an execution either against or in i9is, 257,
7 favor of his ward ; except that when the guardian or conservator has an 1/19*5.
8 interest adverse to that of his ward no partition shall be made without rp['cif'22i,
9 the appointment of a guardian ad litem. ^i*-
1 Section 40. The probate court may, upon the petition of a guardian Support of
2 entitled to the custody of his minor ward, during the lifetime of either parTnte'"''* ^^
3 or both of his parents, and after notice to all parties interested, order ^^l] iff; 5 23.
4 and require said parents or either of them to contribute to the support
5 and maintenance of such minor in such amounts and at such times as it
6 determines are just and reasonable. Such parent or parents may be re-
7 quired to give a bond conditioned to comply with such order and payable
8 to the judge of said court and his successors in such sum and with such
9 sureties as the court orders. The court may from time to time, upon
10 application of either party, revise or alter such order or make such new
11 order or decree as the circumstances of the parents or the benefit of the
12 minor may require.
1 Section 41. If a minor, who has a father living, has property Application of
2 sufficient for his maintenance and education in a manner more expensive ™ty°to ifi™"
3 than the father can reasonably afford, regard being had to the situation fatifer^s ut"""^
4 of the father's family and to all the circumstances of the case, the pro- fg^ g^ ^ ^•
5 bate court may order that such expenses of the maintenance and educa- pf'jgi'lla'
6 tion of such child as it determines are reasonable may be defrayed out R- l us. § 29.
7 of his own estate; and, if necessary, his real property upon obtaining 4Mas8:97. '
8 license therefor may be sold for that purpose by the guardian. "^ ' ^^^'
8 Allen, 125. 144 Masa. 25. 164 Mass. 422. 181 Mass. 539.
1 Section 42. The probate court may, upon the application of the Support of
2 guardian of an insane person or of a child or the guardian of a child of an Ls'an'Jpe'rson
3 insane person, after notice to all other persons interested, authorize and iiniSi?"'"^''
4 require the guardian of such insane person to apply to the maintenance J>^s°'i3^9^'5 33
5 and education of any child or children of said ward such portion as the k. l. 145, § 30.
6 court orders of the estate of the ward, which is not required for his
7 maintenance and support.
1 Section 43. The probate court for the county where a guardian Support of wife
2 of an insane person has been appointed may make an allowance out of SnlTeTguard^""
3 the estate of such insane person for the support of his wife, to be paid 'igs^'feg.
4 to her by the guardian during the continuance of the guardianship in *f^|- ^^j ^ ^e
5 such manner as the court orders.
1862, 116. P. S. 139, § 34. R. L. 145, § 31. IGO Mass. 232.
1 Section 44. The probate court may, after notice to all persons Purchase of
2 interested, authorize a guardian or conservator to obtain by purchase dow^etc,
3 the release and conveyance of a right of dower or curtesy, homestead, j," J^crty^ "^"^^
4 life estate, estate for years or other interest, vested or contingent, held p**f ■fgg^'j^s's
■") or owned by any person in or to any real property of his ward, and to R- l. 145, § 32.
G make any contract relative to such right or interest which may be
7 necessary to effect such purchase.
1 Section 45. If property, rights or benefits given by will or by law Election.
2 depend upon the election, waiver or other act of a person incompetent ercise of power
3 by reason of insanity or minority to perform the same, his guardian et'o.^"'"^ '*"'
2190
GUAKDI-USrS AND CONSERVATORS.
[COAF. 201.
1871, 97.
P. S. 139, § 36.
R. L. 145, § 33.
1918, 68, § 4.
102 Mass. 568.
153 Mass. 137.
221 Mass. 315.
may make such election or waiver or perform such act; but if a power 4
is vested in an insane person for his own benefit, or his consent is required 5
for the exercise of any power where the power of consent is in the nature 6
of a beneficial interest in himself, his guardian may, by order of the pro- 7
bate court, made after notice to such persons, if any, as the court shall 8
deem proper, exercise the power or give the consent in such manner as 9
shall be authorized or directed by the order. 10
Appraisal of
estate.
Section 46. Upon taking an inventory, the estate and effects com- 1
R 's'79°§ 20^' prised therein shall be appraised in the manner required by section six of 2
G. s. 109, § 17. chapter one hundred and ninetj'-five. p. s. 139, § 37. r. l. 145, § 34. 3
Sale of personal
property of
ward.
1817, 190. § 35.
1820, 54, I 3.
R. S. 79, §21.
G. S. 109, § 22.
P. S. 139. § 38.
R. h. 145, § 35.
1913,23.
2 Pick. 243.
20 Pick. 116.
4 Allen, 426.
8 Allen, 15. 427.
120 Mass. 102.
168 Mass. 573.
190 Mass. 27.
459.
Section 47. The probate court may, upon the application of a 1
guardian or conservator or of any person interested in the estate of a 2
ward, after notice to all other persons interested, authorize or require 3
the guardian or conservator to sell and transfer any personal property 4
held by him as guardian or conservator and to invest the proceeds thereof 5
and all other money in his hands in such manner as may be for the best 6
interest of all concerned. Said court, after such notice, if any, as it may 7
recjuire, may make such further order and give such directions as the 8
case may require for the management, investment and disposition of 9
the estate in the hands of the guardian or conservator. 10
propert7o°^ Section 48. Upon complaint to the probate court by a guardian, 1
bee'nembez-'"'^ couscrvator. Ward, Creditor or other person interested in the estate of a 2
ward or by a person having claims thereto in expectancy as heir or other- 3
wise, against any one suspected of having fraudulently received, con- 4
cealed, embezzled or conveyed away any of the property, real or personal, 5
of the ward, the court may cite and examine such suspected person, 6
although he is the guardian or conservator, in the manner and subject 7
p'l im'§42 ^° ^^^ penalties provided in section forty-four of chapter two hundred 8
R. L. 145, § 38. and fifteen. i9i5, 23. 11 Gray, 210. 9
zled, etc
1726-7, 12,
§§2,3.
1731-2, 14,
§§ 2, 3.
1737-8, 9, § 2.
1783, 38, § 3.
R. S. 79, § 27.
1857, 71, § 2.
AGENTS OF NON-RESIDENT GUARDL'VNS AND CONSERVATORS.
^fde*nt°gua°d- SECTION 49. Scctious eight, nine and ten of chapter one hundred and
ian or con- nincty-five shall apply to non-resident guardians and conservators.
1889,462. 1893.118. R. L. 145. § 42.
ser\'ator.
REFERENCES.
§ 1. The appointment of trust companies and national banks to fiduciary
positions, Chap. 172, § 52, and reference at end of chapter.
Ckjnfhct of jurisdiction, Chap. 21.5, § 7.
Appointment of the Massachusetts Society for Prevention of Cruelty to
Children and the Hampden County Children's Aid Association, Chap.
119, §§31-35.
Appointment of the Home for Destitute Catholic Children, 1890, 117;
1891, 312.
Appointment of a married woman. Chap. 209, § 5.
Appointment of a judge, register or assistant register of probate or any
person employed in the registry of probate, Chap. 217, §§ 6, 7.
Authority of guardians, etc., to contract for the safe keeping of property
in their hands, Chap. 175, § 105.
§ 2. Bond, Chap. 205, § 1.
I 4. Giving of bond without sureties, Chap. 205, § 6.
Habeas corpus proceedings to bring child before the probate court, Chap.
208, § 32.
Cli^P. 202.] SALES, ETC., OF REAL ESTATE BY EXECUTORS, ETC.
2191
§ 5.
§ 6.
§ 30.
§ 33.
§ 3.5.
§ 37.
§ 40.
Criminal [iroceedings to compel parents to support minor children, Chap.
273, §§ 1-10.
Giving of bond without sureties, Chap. 205, §§ 5, 6.
Definition of an insane person. Chap. 4, § 7, cl. 15th.
Rights of foreign guardians, etc., Chap. 202, § 33.
Effect of an appeal from decree of removal. Chap. 215, § 25.
Removal for failure to pay board of ward at state hospital, Chap. 123, § 96.
Compensation in the probate court, Chap. 215, § 39.
Right of a guardian or conservator to release damages where land of
his ward is taken for the use of a railroad, Chap. 79, § 20.
Limitation on actions against guardian and conservator. Chap. 260, § 11.
Method of recovery for services rendered in connection with guardianship
or conservatorship. Chap. 215, § 39.
Criminal proceedings to compel support of minor children. Chap. 273.
CHAPTER 202.
SALES, MORTGAGES AND LEASES OF RE.\L ESTATE BY EXECUTORS,
ADMINISTRATORS, GUARDIANS AND CONSERVATORS.
Sect.
SALES.
1. Sale of real estate to pay debts, etc.
2. Real estate subject to sale.
3. Sale free of dower or curtesy.
4. Undevised real estate first liable to be
sold.
6 Sale of real estate of ward.
6. Venue.
7. Form of petition.
8. Whole may be sold if partial sale would
injure residue.
9. Marshalling assets under a will.
10. Notice on petition of executor or ad-
ministrator.
11. Notice on petition by guardian or con-
servator.
12. License to guardian of insane person,
etc., only after notice to overseers of
poor.
13. No license if bond given to pay
debts.
14. Public or private sale of real estate.
15. Notice of sale by auction.
16. Perpetuation of evidence of giving of
notice.
17. Adjournment of sale.
18. Recovery of possession of land fraudu-
lently conveyed.
19. Sale of real property by administrator,
etc., for distribution.
20. Time within which real estate is liable
to be sold for payment of debts.
Sect.
sales by guardians and conservators
for maintenance or investment.
21. Sale by guardian or conservator for
maintenance or investment.
22. Form of petition and license.
23. Disposal of proceeds of sale if made for
maintenance.
24. Disposal of proceeds of sale i f made for
investment.
25. Property of minor may be sold by per-
son other than the guardian.
26. Disposal of proceeds of sale in such case.
SALE.S BY QUABDLAN OF NON-RESIDENT
WARD.
27. Transfer of property of non-resident
ward, etc.
MORTOAOES.
28. Mortgage by executor or administrator.
29. Mortgage by guardian or conservator.
30. Form of petition and decree.
LEASES.
31. Lease of real estate of ward.
POWERS OP FOREIGN EXECUTOR, ETC.
32. Foreign executor, etc., may be licensed
to sell real estate.
33. Foreign guardian or conservator may
be Ucensed to sell real estate of ward.
34. Bond in certain cases.
35. Subsequent proceedings.
SALES.
1 Section 1. If the personal property of a deceased person is insuffi- Saieofreai
2 cient to pay his debts, legacies and charges of administration, his executor debts, etc.
3 or administrator shall, for the purpose of paying such debts, legacies or nss', 32!
1696, 10, § 2.
" 1.
2192
SALES, ETC., OF REAL ESTATE BY EXECUTORS, ETC. [ChAP. 202.
1S18, 112, § 3.
R. S. 65, §§ 8,
9; 71, §§ 1, 20.
G. S. 96, §§ 7,
8; 102, §§ 1,19.
P. S. 134, § 1.
R. L. 146, § 1.
charges of administration, sell his real estate in the manner hereinafter 4
provided, and the proceeds thereof shall be assets in the hands of the 5
executor or administrator in like manner as if they had originally been 6
part of the personal property of the deceased. 1918,257, §397. 7
1919, 5.
1920, 2.
14 Mass. 83.
5 Pick. 140.
18 Pick. 285.
4 Gush. 467.
3 Grav, 205.
4 Allen, 359.
100 Mass. 224.
105 Mass. 33.
125 Mass. 363.
140 Mass. 351.
182 Mass. 534.
186 Mass. 577.
212 Mass. 248.
Real estate
subject to sale.
1805, 90, § 5.
R. S. 71, § 11.
G. S. 102, § 11.
1881, 112, § 1.
P. S. 134, § 2.
R. L. 146, § 2.
167 Mass. 205.
182 Mass. 534.
187 Mass. 531.
189 Mass. 390.
190 Mass. 513.
212 Mass. 248.
214 Mass. 549.
Section 2. The real estate so liable to be sold shall include all land 1
of the deceased, all rights of entry and of action and all other rights and 2
interests in land, which would descend to his heirs or would have been 3
liable to attachment or execution by a creditor of the deceased in his 4
lifetime; but the title passed by any such sale shall, except as provided 5
in the following section, be subject to the dower of the wife or curtesy 6
of the husband of the deceased. No claim by entry or by action to land 7
fraudulently conveyed by the deceased shall be made unless within five 8
years after the decease of the grantor. 9
Sale free of
dower or
curtesy.
1917, 309.
Section 3. Upon a petition by an executor or administrator to sell 1
real estate of a deceased person, if it shall appear that a surviving hus- 2
band is or may be entitled to an estate of curtesy, or a surviving wife 3
to an estate of dower in the premises to be sold, the probate court may, 4
if the petitioner so requests, and after notice, license him to sell the 5
same free and clear of any such interest or claim on the part of the sur- 6
viving husband or wife. One third of the proceeds of the sale shall there- 7
upon be set apart for the period during which such curtesy or dower 8
may be claimed; and if a claim is duly made therefor, the court shall 9
appoint a trustee to administer the same in accordance with section 10
thirty-five of chapter two hundred and forty-one, unless the parties in 11
interest shall otherwise agree upon a division of the proceeds without 12
the appointment of a trustee, and the probate court may approve any 13
such agreement on the part of the executor or administrator. 14
Undevised
real estate
first liable to
be sold.
R. S. 62, § 30.
Section 4. Real estate not devised shall be first chargeable with the 1
payment of debts, legacies or charges of administration in exoneration 2
of real estate devised, unless a different intention appears by the will. 3
G. S. 92, § 34.
P. S. 134, § 3.
R. L. 146, § 3.
6 Mass. 149.
8 Pick. 478.
7 Gush. 161.
Sale of real
estate of ward.
1783, 38, § 4.
ISOli, 102.
1818, 112, § 1.
1830, 140, § 1.
R. S. 71, § 26.
G. S. 102, § 24.
P. S. 140, § 1.
1899, 147.
R. L. 146, § 4.
1915, 23.
16 Mass. 326.
7 Met. 388.
Section 5. If the personal property in the hands of a guardian or 1
conservator is insufficient to pay the debts of the ward, with the charges 2
of managing his estate, the guardian or conservator may be licensed to 3
sell the ward's real estate for that purpose or for the purpose of raising 4
money with which to pay, in whole or in part, any encumbrance existing 5
thereon when the title thereto came to his ward, in like manner and 6
upon like terms, except as hereinafter provided, as are provided for a 7
sale of real estate by an executor or administrator. 8
Venue.
1696, 10, § 2.
1769-70, 20.
1783, 32, § 1.
1806, 102.
1817, 190, § 10.
1818, 112,
§§ 1, 3.
Section 6. A license to an executor or administrator to sell the real 1
estate of a deceased person or to a guardian or conservator to sell the 2
real estate of his ward may be granted by the probate court appointing 3
him. 1S30, 45; 140, § 1. R. S. 71, §§ 2, 30; 72, § 6. 4
G. .S. 102, §§ 2, 37. P. S. 134, §4; 140, § 13. R. L. 146, § 5. 1915,23.
ClL^P. 202.] SALES, ETC., OF REAL ESTATE BY EXECUTORS, ETC. 2193
1 Section 7. To obtain such license, the executor, administrator, Form of
2 guardian or conservator shall file a petition stating the value of the per- i783,"32', § i.
3 sonal property in his hands, the amount of the charges of administration §: 1; iokS^s.
4 or management, the amount of debts due from the deceased or ward, as f^if j'l^' ^ ^'
5 nearly as can be ascertained, and, if a person dies testate, the amount R- l- we, § e.
6 of any legacies given in his will. If it is necessary to sell a part only of is i'ick. 23.
7 the real estate, the value, description and condition of the part which s Met si.'
8 it is proposed to sell may also be set forth, and the court may direct what u Gray, sob.
9 specific part shall be sold.
105 Mass. 33. 182 Mass. 534. 190 Mass. 513. 192 Mass. 79.
1 Section 8. If it is represented in such petition and appears to the whoiemaybe
2 court to be necessary to sell a part of the real estate, and that by such ll\e wouu In-
3 partial sale the residue of the property or of a specific part or piece i'78"32!'§'2.
4 thereof would be greatly injured, the court may license a sale of the Jfgg; \\l] | };
5 whole or any part thereof. 1830, i-io, 1 1. r. s. 7i, §§ 4, 27.
G. S. 102, §§ 4, 25. R. L. 146. § 7. 157 Mass. 565.
1880, 152, § 2. 6 Gray, 635. 182 Mass. 534.
P. S. 134, § 6; 14 Gray, 500. 190 Mass. 513.
140, § 2. 102 Mass. 262. 192 Mass. 79.
1 Section 9. If a will contains a provision for the payment of debts, MarshaiUng
2 or which may require or induce the court to marshal the assets in a wnf. ^ "° "^
3 manner different from that which the law would otherwise provide, clilioi.SV
4 the executor shall set forth in the petition a copy of the will, and the rl\4oH
5 court shall marshal the assets accordingly, so far as can be done consist- jjp?^?- ^i|-
6 ently with the rights of the creditors. 192 Mass. 79.
1 Section 10. No license to sell real estate shall be granted to an Notice on
2 executor or administrator until notice of the petition and of the time executor or
3 and place appointed for hearing the same has been given by serving such ivS^I'Ti"^'
4 notice personally on all persons interested in the estate at least fourteen J*i^' ff' ^ ^°-
5 days before the time appointed for the hearing, or by publication once p§ii;,^s*o
6 in each of three successive weeks in such newspaper as the court orders, p.' s.' 134,' § 9.'
1886, 137, § 2. 8 Met. 51, 355. 147 Mass. 489.
R. L. 146. § 10. 9 Gush. 223. 190 Mass. S13.
1 Mass. 256. , 13 Gray, 513.
1 Section 11. No license to sell real estate shall be granted to a guard- '^°';'^^ ™
„ . Ml- 111- petition by
2 lan or conservator until such notice as the court orders has been given guardian or
3 to the next of kin of the ward, to all his heirs apparent or presumptive, 17S3, 32, § i.
4 and to all persons interested in the estate.
1814, 71. R. S. 71, 55 8, 29; P. S. 140, §§ 15, 16.
1817, 190, 5 10. 72, § 8. R. L. 146, § 11.
1830, 45. G. S. 102, §5 39. 40. 1915, 23.
1 Section 12. No license to sell real estate shall be granted to the License to
2 guardian of a spendthrift who resides in the commonwealth, or of an in- fHsaM^ncKon,
3 sane person, unless seven days' notice of the petition therefor has been notice to over-
4 given to the overseers of the poor of the town where the spendthrift ^j|^q"'| °'yP°°''-
5 resides, or, in the case of an insane person, to the department of mental isis' ii^i § i.
6 diseases. Such notice may be served upon any of said overseers or any is3o! 14b, § 1.
7 member of said department. R. s. 71, § 28; 72, § 9.
G. S. 102, § 38. P. S. 140, § 14. 1909, 504, §§ 102, 107.
1874, 202. R. L. 146, § 13. 1916, 285, § 1.
1 Section 13. No license shall be granted to an executor or admin- no license
2 istrator, if any person interested in the estate gives bond to him in li pTycfc'b^!
2194
SALES, ETC., OF REAL ESTATE BY EXECLTOES, ETC. [ClLiP. 202.
1817, 190. § 10.
R. S. 71. § 9.
G. S. 102. § 9.
P. .S. 134. § 10.
R. L. 146, § 12.
5. -Mien. US.
100 Mass. 224.
150 Mass. 3S1.
190 Mass. 513.
a sum and -w-ith sureties approved by the court, conditioned to pay, so 3
far as the personal property of the deceased shall be insufficient there- 4
for, all legacies mentioned in the petition, all debts therein mentioned 5
•which shall eventually be found due from the estate and charges of 6
administration. 7
Public or
private sale
of real estate.
17S3. 32. §§ 1.
2; .38, § 4.
1806, 102.
1S17. 1.S2, I 1.
1818. 112, § 1.
1830. 140, § 1.
R. S. 71, 5§ 10,
17, 26.
G. S. 102,
§§ 10, 17, 24.
1872, 278.
P. S. 134. § 11;
140, §§ 1. 18.
1885, 3»8.
1886, 137, § 1.
1899, 147.
R. L. 146, § 9.
1915. 23,
4 Cush. 54.
2 Grav, 154.
13 Grav, 326.
4 Allen, 184.
Section 14. Upon a petition of an executor or administrator for a 1
license to sell real estate of the deceased or of a guardian or conservator 2
to sell real estate of his ward, the court may, if the petitioner so requests, 3
authorize him to sell such property at public auction and to convey to the 4
purchaser all the estate, right, title and interest which the deceased had 5
therein at his death and which was then chargeable with the pajTnent 6
of his debts or which the ward has at the time of the sale. If the peti- 7
tioner requests that such property may be sold by private sale and the 8
court, upon a hearing, finds that an advantageous offer for the purchase 9
thereof has been made to the petitioner, and that the interests of all 10
parties will be promoted by an acceptance thereof, it may authorize all
conveyance by private sale in accordance with such offer or upon other 12
terms; but the petitioner so authorized may nevertheless sell such prop- 13
erty by public auction in accordance with this chapter. 14
147 Mass. 489. 190 Mass. 459. 513. 221 Mass. 587.
Notice of sale
bv auction.
1719-20, 10,
§2.
1783,32, § 1.
1814, 71.
1829, 108, § 2.
R. S. 71. §§ 15,
35: 72, §§ 12,
15.
G. S. 102,
§§ 15,41.
1877, 158, § 1.
vSection 15. An executor, administrator, guardian or conservator 1
shall give notice of the time and place of a sale by auction by causing 2
notices thereof to be posted, thirty days at least before the sale, in a 3
public place in the town where the land lies, and in two adjoining towns, 4
if there are so many in the county, or, if the court granting the license 5
so orders, by publishing the notice once in each of three successive weeks 6
in a newspaper. p. s. 134, § 12; 140, § 17. r. l. i46, § 14. 7
1915, 23. 1 Mass. 256. 8 Met. 355. 4 .VUen, 426.
Perpetuation
of e\'idence of
gi^-ing of
notice.
1788. 66,
§§ 6. 7.
1812. 24.
R. S. 71. §§ 16.
35; 72, §§ 12.
15.
1853, 393.
G. S. 102,
§§ 16,41.
Section 16. An affidavit of the executor, administrator, guardian 1
or conservator, or of a person in his behalf, filed and recorded with a copy 2
of the notice in the registry of probate, or such affidavit made by any 3
person and filed and recorded with such copy by permission of the court 4
upon satisfactory evidence that the notice was given as ordered, shall be 5
admitted as evidence of the time, place and manner in which the notice 6
was given. iS76, 7i;76. 7
p. S. 134, I 13;
140, § 17.
1888, 148, § 2; 380.
R. L. 146. I 15.
1915, 23.
8 Met. 355.
of'^iaiT™"'" Section 17. If at the time appointed for such sale the executor, 1
r's.'7i,''§| If. administrator, guardian or conservator considers it for the interest of all 2
cf'l^io?' ^ ^^' P^i'sons concerned that the sale should be postponed, he may adjourn 3
it for not more than fourteen days, and notice of such adjournment shall 4
be given by a public declaration at the time and place first appointed for 5
the sale. If the adjournment is for more than one day, finther notice 6
of tlie sale shall be given by posting or publishing, as time and circum- 7
stances may admit. 8
17, 18,41
p. S. 134, § 14;
140, § 17.
R. L. 146, § 16
1915, 23.
15 Mass. 175.
Recovery of
f>ossession of
and fraudu-
lently con-
veyed.
R. S. 71,
§5 12, 13.
Section 18. If an executor or administrator is licensed to sell land
which has been fraudulently conveyed by the deceased or is fraudulently
held by another person for him, or land to which the deceased had a right
of entry or of action or of which he had a right to a conveyance, he may,
Chap. 202.] sales, etc., of real estate by executoks, etc. 2195
5 within one year after such license, sell the land without first obtaining g. s. 102.
6 possession thereof by entry or action, or he may witiiout a formal entry p. s. 134,' § is.
7 bring an action to obtain possession by virtue of sucii license, demanding s 'olsh^sb!.^^'
8 the land as executor or administrator, and may sell the same witliin one }o2^Mas3*26'2.
9 year after possession is obtained.
105 Mass. 33. 147 Mass 489. 182 Mass. 534. 1S9 Mass 390.
132 Mass. 462. 152 Mass. 257. 186 Mass. 59. 204 Mass. 270.
1 Section 19. The probate court may, upon petition of an adminis- saieofreai
2 trator, administrator with the will annexed, or executor, unless the will administrator.
3 otherwise provides, filed within one year after the date of the giving trfbution?^
4 of the executor's or administrator's bond, or, if an administrator de bonis ^'^°' 266. ^^
5 non shall be appointed within one year after the date of the original inoi, 217!
6 appointment of the executor or administrator, then within six months 11107; 236.
7 after the date of the giving of a bond by such administrator de bonis non, 22i'Mas8! 262.
8 with the consent of all parties interested or after notice, license him to ^^^ '^''^' ^'
9 sell the whole or any part of the real estate or any undivided interest
10 therein belonging to the estate of the deceased, in such manner and
11 upon such notice as the court orders, for the purpose of distribution;
12 and the net proceeds of such sale, after deducting the expenses thereof
13 and such amount as may be required for the payment of debts, lega-
14 cies and charges of administration, in consequence of a deficiency in the
1.5 personal property, shall, subject to the laws governing the distribution of
16 the personal estate of the deceased, be distributed to the persons who
17 would have been entitled to such real estate and in the proportions to
18 which they would have been entitled had it not been sold. Before any
19 such license shall be issued, the petitioner shall file in the probate court
20 an affidavit containing the names of all persons known to him as having
21 or claiming any interest in said real estate derived from any deed of
22 conveyance or mortgage by, through or under any of the heirs or devi-
23 sees, and if it appears that there are any such persons, they shall be
24 made parties to the proceedings, and notified in such manner as the court
25 orders.
1 Section 20. Whenever an executor or administrator has given due Time witun
2 notice of his appointment, and an affidavit thereof has been filed in ac- mute ITuMe
3 cordance with sections two and three of chapter one hundred and ninety- paymlniVf""^
4 five, no interest in the real estate of the deceased conveyed absolutely ]|o7^549, § 1.
5 or in mortgage for value and in good faith by an instrument duly re- }9}|'|33 ,26
6 corded shall be liable to be taken on execution, or sold under any judicial 1920! 2.
7 proceeding for payment of his debts, costs of court or claims against 214 Masai 549!
8 his estate, except claims for taxes, municipal assessments or succession "'^^
9 taxes, legacies or other charges created by will of the deceased, or the
10 expenses or charges of admmistration, after the expiration of one year
11 from the time of such executor or administrator giving bond for the
12 performance of his trust, or from the passing of the order of the probate
13 court mentioned in said section three, unless in piu-suance of a license to
14 sell granted in consequence of an order for the retention of assets passed
15 under the provisions of section thirteen of chapter one hundred and
16 ninety-seven, upon a petition filed within said year or before said con-
17 veyance or mortgage is recorded, or unless in pursuance of a license to
18 sell granted upon a petition filed in the registry of probate within said
19 year, or unless for the satisfaction in whole or in part of a claim of wliich
20 notice has been filed in the registry of probate within said year, stating
2196
SALES, ETC., OF REAL ESTATE BY EXECUTORS, ETC. [CfLU'. 202.
substantially the name and address of the claimant, the nature and 21
amount of the claim and the court, if any, in which proceedings are pend- 22
ing to determine or enforce the same. Said notice shall be filed with the 23
other proceedings in the case and entered upon the docket under the 24
name of the estate of the deceased. 25
Sale by
guardian or
conservator for
maintenance
or investment.
1093-4, IS.
S§3.4.
1783.32. §5;
38. § 4.
1806, 102.
1818, 112. § 1.
1826, 64.
1828. 121.
1830, 45:
140, § 1.
R. S. 72,
§§ 1,2.
G. S. 102, I 26.
SALES BY GUARDM.NS AND CONSERVATORS FOR MAINTENANCE OR IN-
VESTMENT.
Section 21. If the income of the estate of a ward is insufficient to 1
maintain him and his family or if it appears that it would be for his 2
benefit that his real estate or any part thereof or any standing or grow- 3
ing wood thereon should be sold and the proceeds placed on interest or 4
invested in a productive security, his guardian or conservator may sell 5
such real estate or wood upon obtaining a license therefor and proceed- 6
ing as hereinafter provided. If standing or growing wood is so sold, the 7
guardian or conservator may grant to the purchaser the privilege of 8
entering upon the land and cutting and carrying away such wood within 9
such time as the guardian or conservator may allow. 10
1867, 231.
P. S. 140, § 3.
R. L. 146, § 19.
1915, 23.
7 Met. 388.
184 Mass. 545.
Forra of
petition and
license.
R. S. 72. § 7.
G. S. 102, § 27.
P. S. 140, § 4.
R. L. 146, § 20.
1915,23.
Section 22. To obtain such license, the guardian or conservator 1
shall file a petition setting forth the condition of the estate and the facts 2
and circumstances on which the petition is founded. If after an ex- 3
amination, on the oath of the petitioner or otherwise, the court finds 4
that it would be for the benefit of the ward that the sale should be made, 5
it may grant a license therefor, specifying therein whether the sale is to 6
be made for the maintenance of the ward and his family, or in order that 7
the proceeds may be placed on interest or invested as aforesaid. 8
Disposal of
proceeds of
sale if made
for main-
tenance.
R. S. 72, § 3.
G. S. 102, § 29.
P. S. 140, § 5.
R. L. 146, § 21.
1915, 23.
Section 23. If the sale is made for the maintenance of the ward 1
and his family, the guardian or conservator shall apply the proceeds, so 2
far as necessary, to that purpose, and shall place the residue on interest 3
or invest it according to his best judgment until the capital is wanted 4
for such maintenance; in such case, the capital may be used for that pur- 5
pose as if it had been personal property. 6
Disposal of
proceeds of
sale if made
for investment.
R. S. 72, § 4.
G. S. 102, § 30.
P. S. 140, § 6.
Section 24. If the property is sold in order to place on interest or 1
invest the proceeds, the guardian or conservator shall make the invest- 2
ment according to his best judgment, or in pursuance of any order of the 3
court relative thereto. R- l. uo, § 22. 1915, 23. 8 Alien, 125. 4
Property of
minor may be
sold by person
other than the
guardian.
1838. 100, § 1.
G. S. 102, § 31.
P. S. 140, § 7.
R. L. 146, 5 23.
Section 25. A sale of the property of a minor for the purpose of 1
investment may be made upon the petition of the guardian or any friend 2
of the minor, and the court may authorize the guardian or another person 3
to sell and convey the property. The provisions of this chapter relative 4
to licenses and sales upon the petitions of guardians shall, except as 5
provided in the following section, apply to licenses and sales under this 6
section. 7
pro?°ed8 of Section 26. If the sale is made by a person other than the guardian, 1
sdeinsuch ^|jg proceeds .shall forthwith be paid to the guardian upon his giving 2
1838, 190, § 2. to the judge of probate a bond with sufficient sureties conditioned to 3
Chap. 202.] sales, etc., of real estate by executors, etc. 2197
4 account for such proceeds. If there is no guardian, the proceeds shall be isso. 45.
5 placed on interest or invested by the person authorized to sell the prop- p. s. lio,' 1 1.^"
6 erty, in like manner as is required of a guardian. r. l. us, § 24.
sales by guardl^n of non-resident ward.
1 Section 27. A guardian or conservator appointed within the com- Transfer ot
2 monwealth, whose ward removes from or resides out of the commonwealth, Son'-reaident
3 may sell the real estate of his ward and transfer and pay over the whole JJ^s' ^[7;
4 or any part of the proceeds of such sale to a guardian, conservator, ^^^^j- ^°^^ § ~^-
5 trustee, committee or other official appointed by competent authority i»;2! isa.
6 in the state or country -uhere the ward resides, upon such terms and in p. s.'i39,'§ 39.
7 such manner as the probate court may, after notice to all parties inter- 1907, 219; § iT
8 ested, decree upon petition filed therefor. wis, 23. 149 Mass. 57.
MORTGAGES.
1 Section 28. The probate court may, upon petition and after notice Mortgage by
2 to all persons interested, if upon a hearing it appears to be for the benefit adml'mstrator.
3 of the estate, authorize an executor, administrator with the will annexed |§'^;|^^'
4 or administrator to mortgage any of the real estate for the purpose of J|^5', 151 ^
5 paying debts, legacies or charges of administration or for the purpose p.s.'i34, § 19.
6 of paying an existing lien or mortgage on the estate of the deceased; r.'l! liei § 26.
7 or it may authorize such executor or administrator to make an agreement
8 for the extension or renewal of such existing mortgage.
1 Section 29. The probate court may, upon petition of a guardian or Mortgage by
2 conservator, if, after notice and a hearing, it appears to be necessary or fonservatof.
3 expedient, authorize him to mortgage any real estate of his ward. JI71; fg,; 5 1;
1873. 280, §1. R. L. 146, §27. 153 Mass. 137.
P. S. 140, § 11. 1915, 23.
1 Section 30. A petition under either of the two preceding sections Form of
2 shall set forth a description of the estate to be mortgaged, the amount dec'"°° ""
ecree.
3 of money necessary to be raised and the purposes for which it is required; H'^f'i^^'
4 and the decree of the court upon such petition shall fix the amount for J^IJ' 79^'5^2^-
5 which the mortgage may be given and the rate of interest which may ^-^'Pi' ^ ^°'
6 be paid thereon, and may order the whole or any part of the money r.l. hg, §28.
7 secured by the mortgage to be paid from time to time out of the income
8 of the property mortgaged.
LEASES.
1 Section 31. The probate court may, upon the petition of a guardian Lease of
2 or conservator setting forth a description of the real estate of his ward ol^ward" ^
3 which he desires to lease, the reason why it is necessary or expedient \^^l' Hf^ 5 29.
4 to give a written lease thereof, and the length of the term, if, after notice i^i^- ^^■
5 and a hearing, it appears to be necessary or expedient, authorize such
6 guardian or conservator to give a written lease of said real estate, and
7 the decree of the court shall fix the term and the amount for which it
8 may be leased.
powers of foreign executor, etc.
1 Section 32. An executor or administrator appointed in another state Foreign ciec-
2 or country upon the estate of a person who was not at the time of his be°ncense'd''to^
3 death a resident of this commonwealth and upon whose estate adminis- ll'^Tisll's'l!'
2198
SALES, ETC., OF REAL ESTATE BY EXECUTORS, ETC. [ChAP. 202.
R. S.
71, (
5 21.
G.S.
102,
§20.
P. S.
134,
1 lli.
1901,
315.
R. L.
146,
!§30.
1918,
257,
§398
1919,
5.
1920,
2.
tration has not been granted in this commonwealtli, duly qualified and 4
acting, may file an authenticated copy of the record of his appointment 5
and of his bond in the probate court for any county where there is 6
real estate of the deceased; and such executor or administrator, after 7
such notice to the state treasurer, creditors and all other persons interested 8
as the court may order, may be licensed to sell said real estate or an 9
undivided interest therein in such manner and upon such notice as the 10
court orders. But such license shall not be granted unless the court 11
finds that six months have expired since the death of the deceased, that 12
the executor or administrator has given a sufficient bond and will be 13
liable to account for the proceeds of the sale in the state or country 14
where he was appointed, and that no creditor or other person interested 1.5
will be prejudiced thereby. The net proceeds of such sale, after deduct- 16
ing the expenses thereof and after the pajTnent and satisfaction of all 17
claims against said estate in this commonwealth, may be taken by said 18
foreign executor or administrator out of the commonwealth to be ac- 19
counted for in the court in which he received his appointment. 20
Foreign
guardian or
conservator
may be
licensed to sell
real estate of
ward.
1817, 182, § 1.
R. S. 71, § 31;
72, § 14.
G. S. 102, § 3.3.
P. S. 140, § 9.
R. L. 146, § 31.
1915, 23.
Section 33. If a person who resides out of the commonwealth is 1
under guardianship or conservatorship in the state or country where 2
he resides and has no guardian or conservator appointed in this com- 3
monwealth, the foreign guardian or conservator may file an authenticated 4
copy of his appointment in the probate court for any county where 5
there is real estate of the ward; after which upon petition he may be 6
licensed to sell, mortgage or lease the real estate of the ward in any 7
county, for the purposes, in the manner and upon the terms provided 8
in this chapter for a guardian or conservator appointed in this com- 9
monwealth, except as provided in the following section. 10
Bond in
certain cases.
1817, 182. § 2.
R. S. 71, §§ 32,
33; 72, § 17.
G. S. 102,
§§ 34-36.
P. S. 140, § 10.
R. L. 146, § 32.
1915. 23.
Section 34. If the court finds that such foreign guardian or conser- 1
vator has given bond with sufficient suret.y or sureties, in the state or 2
country where he was appointed, to account for the proceeds of such 3
sale, mortgage or lease, and if an authenticated copy of such bond is 4
filed in said court, no further bond shall be required; otherwise, before 5
such license is granted, he shall give bond payable to the judge of said 6
court and his successors with sufficient surety or sureties and with con- 7
dition to account for and dispose of said proceeds according to law. 8
proceedings SECTION 35. A foreign executor, administrator, guardian or conser-
R "'7\*"§ 24 ■^'ator who has been licensed to sell real estate shall, except as otherwise
g: s. 102, § 23. provided, give notice of the time and place of sale, and otherwise proceed
p. s.'i3"47§ Ts. as is provided for an executor, administrator, guardian or conservator,
r"l! 146,' i 33. appointed in this commonwealth ; and the evidence of such notice may
1915,23. i^g perpetuated in the same manner.
REFERENCES.
Jurisdiction of land court to determine the extent and the propriety of the ex-
ercise of powers of sale vested in fiduciaries, etc., Chap. 240, § 27.
Right of creditor or legatee to bring suit to enforce claim in favor of estate where
executor or administrator refuses to do so, Chap. 230, § 5.
§ 1. Sales by the state treasurer to pay inheritance taxes, Chap. 65, § 31.
Sales by executors, administrators or trustees to pay inheritance taxes,
Chap. 65, § 21.
Sales to pay widows' allowance, Chap. 196, § 2.
Chap. 203.]
TRUSTS.
2199
§ 1.
§ 2.
§ 19.
21.
§ 27.
§§32,
Sales to pay widows' or husbands' estate of $5,000, Chap. 190, § 1.
Sales by public administrators, Chap. 194, § 9.
Sales of real estate to reimburse estate for payment of mortgage. Chap.
191, §23.
Liability of estates tail, Chap. 184, § 4.
Authority of public administrators to sell real estate. Chap. 194, § 9.
Proceedings by distributee to compel payment of his shares. Chap. 197,
§§ 24, 26.
Sales to pay prior debts or encumbrances. Chap. 201, § 37; also § 5 of this
chapter.
Sale of cemetery lots, Chap. 204, § .5.
Personal property. Chap. 201, § 43.
33. Venue, Chap". 204, § 7.
CHAPTER 203
TRUSTS.
Sect.
creation of trusts.
1. Creation of trust concerning land.
2. Record to be notice of trust.
3. Purchasers, etc., without notice.
APPOINTMENT AND REMOVAL OF TRUSTEES.
4. Appointment of testamentary trustee.
5. Appointment to fill vacancy.
6. Trust estate to vest in new trustee on
his giving bond, etc.
7. Bonds of trustees appointed by su-
preme judicial or superior court.
8. Inventory dispensed with in certain
cases.
9. Appraisal.
10. Letters required of foreign trustee in
certain cases, etc.
11. Same subject. Notice to trustee.
12. Removal of trustee.
13. Resignation of trustee.
14. Executor, etc., of former trustee.
AGENT OF NON-RESIDENT TRUSTEE.
15. Agent of non-resident trustee.
SALE OF TRUST ESTATE.
16. Order for sale, etc., of trust estate, how
obtained.
17. Proceedings in case of persons not as-
certained, etc. Effect.
18. Property held in trust by minors, etc.,
may be sold and conveyed in certain
cases.
19. Trustee may sell personal property un-
less otherwise provided.
20. Sufficiency of receipt of trustee.
21. Corporations, etc., not bound to see to
execution of trusts to which shares
are subject.
22. Brokers' commission, etc., to be
charged to principal.
Sect.
mortgage of trust estate.
23. Trustees may be authorized to mort-
gage, etc.
24. Form of petition and decree.
DISTRIBUTION OF TRUST ESTATE.
25. Distribution of trust estate.
SETTLEMENT OP CERTAIN TRUST ESTATES
HAVING ABSENTEE BENEFICIARIES.
26. Definition of absentee.
27. Petition for transfer of trust estate of
absentee in certain cases.
28. Notice.
29. Return day and service.
30. Certain persona may appear and an-
swer, etc.
31. Guardians ad litem may be appointed,
etc.
32. Court to find facts, order transfer or au-
thorize sale of trust estate, etc.
33. New trustees to give bond for the pay-
ment of fund. Endorsement for
costs in suit on bond.
34. Liability and powers of new trustee.
35 No suit, etc., to be brought against new
trustee after six years.
36. Trust estates may be distributed to
known beneficiaries in certain cases,
etc.
37. Where petition shall be brought.
38. Court may decree that income shall be
paid to certain persons.
39. Certain sections to apply to trusts now
existing or hereafter established.
TRUSTS FOR THE BENEFIT OF CREDITORS.
40. Validity of certain acts of trustees for
creditors, subsequent insolvency, etc.
41. Same subject. Requirements for valid-
ity.
42. Termination of trusts for benefit of
creditors created by persons deceased.
2200
TRUSTS.
[Chap. 203.
CREATION OF TRUSTS.
Creation of
trust concern-
ing land.
29 Car. II.,
c. 3. § 7.
1692-3, 15, § S
1783,37, § 3.
Section 1. No trust concerning land, except such as may arise or 1
result by implication of law, shall be created or declared unless by a 2
written instrument signed by the party creating or declaring the trust 3
or by his attorney. R. s. S9, § 30. G. s. loo, § i9. p. s. hi, § i. 4
R. L. 147, § 1.
16 Mass. 221.
12 Pick. 233.
4 Met. 537.
2 Gush. 226.
5 Gush. 431.
10 Gush, 458.
10 Allen, 15,
11 Alien, 15, 542.
R. S. 59, § 30.
14 Allen, 523.
97 Mass. 87.
103 Mass. 484.
109 Mass. 681.
110 Mass. 392.
112 Mass. 171.
113 Mass. 372.
118 Mass. 108.
G. S. 100, § 19.
129 Mass. 23.
135 Mass. 299.
137 Mass. 184.
158 Mass. 146.
160 Mass. 195, 538.
193 Mass. 291.
197 Mass. 270.
199 Mass. 598.
P. S. 141, § 1.
205 Mass. 547.
210 Mass. 430.
225 Mass. 480.
228 Mass. 533.
230 Mass. 313.
231 Mass. 324.
232 Mass. 535.
233 Mass. 428.
Record to be
notice of trust.
R. S. 59, § 32.
G. S. 100, § 21.
P. S. 141, § 2.
R. L. 147, § 2.
168 Mass. 118.
197 Mass. 270.
Section 2. If a trust concerning land is created or declared by such 1
instrument, the recording of the instrument in the registry of deeds for 2
the county or district where the land lies shall be equivalent to actual 3
notice to every person claiming under a conveyance, attachment or 4
execution thereafter made or levied. 5
Purchasers,
etc., without
notice.
. R. S. 59, § 31.
G. S. 100, § 20.
P. S. 141, §3.
R. L. 147, § 3.
Ill Mass. 270.
130 Mass. 182.
Section 3. No trust concerning land, whether implied by law or 1
created or declared by the parties, shall defeat the title of a purchaser 2
for a valuable consideration without notice of the trust, or prevent a 3
creditor who has no notice of the trust from attaching the land or from 4
taking it on execution as if no such trust existed. 5
173 Mass. 378. 196 Mass. 509. 197 Mass. 270. 200 Mass. 498.
Appointment
of testamentary
trustee.
1845, 158.
1855, 307, § 1.
G. S. 100, § 7.
P. S. 141, §4.
R. L. 147, § 4.
APPOINTMENT AND REMOVAL OF TRUSTEES.
Section 4. If a testator has omitted in his will to appoint a trustee
in this commonwealth and such appointment is necessary to carry into
effect the provisions of the will, the probate court may, after notice to all
persons interested, appoint a trustee who shall have the same powers,
rights and duties and the same title to tlie estate as if originally ap-
pointed by the testator.
Section 5. If a trustee under a written instrument declines, resigns,
8. no adequate provision for filling the vacancy is made therein the supreme
judicial court, the superior court or the probate court shall, after notice
to all persons interested, appoint a new trustee to act solely or jointly
with the others as the case may be. 12 Pick. 445. 4 Met. 330.
Appointment
to rill vacancy. i i . i* i Till
1817, 190, dies or is removed before the objects 01 the trust are accompushed and
§§ 40, 41, - -
R. S. 69, g
1,S43, 19.
1852, 212.
G. S. 100, § 9.
1877,31.
P. S. 141, § 5.
R. L. 147, § 5.
12 Gush. 41.
1 Gray, 220.
12 Allen, 293.
102 Mass. 11.
115 Mass. 424.
117 Mass. 219.
120 Mass, 412.
121 Mass. 568.
128 Mass. 272.
129 Mass. 3.39, 513.
148 Mass. 431.
149 Mass. 92.
186 Mass. 25.
188 Mass. 510.
227 Mass. 498.
234 Mass. 374.
Trust estate
to vest in new
trustee on his
giving bond,
1817. 190, § 40.
R. S. 69, § 8.
1843, 19.
1852, 212.
G. S. 100.
§§9,10.
1878, 254, § 1.
P. S. 141, § 6.
R. L. 147, § 6.
2 Met. 243.
0 Gray, 428.
Section G. A trustee appointed under the preceding section, or ap- 1
pointed in the place of a former trustee in conformity with a written 2
instrument creating a trust, shall, upon giving such bond as may be 3
required, have the same powers, rights and duties and the same title 4
to the estate, whether as sole or joint trustee, as if originally appointed; 5
and the court may order any conveyances to be made by the former 6
trustee or his representatives or by the other remaining trustees which 7
it may find proper or convenient to vest the trust estate in the new 8
trustee either solely or jointly with the others. s Alien, 540. 9
102 Mass. 11.
115 Mass. 424.
117 Mass. 219.
129 Mass. 339.
132 Mass. 405.
134 Mass. 426.
159 Mass. 484.
171 Mass. 586.
179 Mass. 223.
186 Mass. 25.
211 Mass. 327.
224 Mass. 184.
Chap. 203.] teusts. 2201
1 Section 7. The bond required of a trustee appointed by the su- Bonds of
2 preme judicial or superior court under section five shall be payable po"! n'te'd by"
3 to the commonwealth, and shall otherwise be in such form as the court rS'^^reuperior
4 shall require. Such bond may be enforced in the name of the common- ^gjy'-gj
5 wealth by the attorney general, or by any person interested therein and
6 duly authorized to take such action by the court where the bond is filed
7 after notice to the attorney general. Any sums recovered shall be paid
8 over or administered as the court directs.
1 Section 8. If a trustee is appointed by the probate court as the inventory dis-
2 successor of a prior trustee, the court may dispense with the making and ?|r"tam caLs."
3 return of an inventory if it appears to be unnecessary, and in such case i^'s.'el^ll*''
4 the condition of the bond shall be altered accordingly.
G. S. 100, § 11. p. S. 141, § 14. R. L. 147, § 7.
1 Section 9. If an inventory is required to be returned by a trustee. Appraisal.
2 the estate and effects shall be appraised in the manner provided by sec- o'. s. lob, § ik
3 tion six of chapter one hundred and ninety-five.
p. S. 141, § 15. R. L. 147. § 8.
1 Section 10. If a trustee who derives his appointment or authority Letters re-
2 from a court having no jurisdiction in the commonwealth holds land in fllieiKn trustee
3 the commonwealth in trust for persons resident therein, he shall, upon casesfet"
4 petition to the probate court for the county where the land lies, and p'^i.'ui.'iT
5 after notice, be required to take out letters of trust from said court; and ^- ^- !*''• § ^^
6 upon his neglect or refusal so to do, the court shall declare such trust
7 vacant, and shall appoint a new trustee, in whom the tru.st estate shall
8 vest in like manner as if he had been originally appointed or authorized
9 by said court.
1 Section 11. The notice to the trustee required by the preceding same subject.
2 section may be given by serving him with a copy of the petition, and trustee. "
3 of the citation thereon, fourteen days at least before the return day of p'.'i' i^i' ^ t
4 such citation, or in such other manner as the court may order. ^- ^- ^*''' ^ '"■
1 Section 12. The supreme judicial court, the superior court or the Removal of
2 probate court may, upon petition of a party beneficially interested in isiV'^iso, § 4i.
3 a trust under a written instrument, and after notice to the trustee and ig^f.^g, ^^'
4 all persons interested, remove the trustee if it finds that such removal Q^l'foo'js
5 is for the interests of the beneficiaries of the trust or if he has become ps ^^7 |^,,
6 insane or otherwise incapable or is unsuitable therefor. i bray, 22b.
101 Mass. 223. 114 Mass. 356. 121 Mass. Sfi8. 150 Mass. 185.
110 Mass. 225. 118 Mas3. 215. 145 Mass. 490. 224 Mass. 474.
1 Section 13. A trustee may resign his trust, and the guardian or Resignation
2 committee of an insane trustee, appointed by a court having jurisdiction, isi7"i'.i^a,§39.
3 may on behalf of the insane person resign his trust, if the court authorized §; |; iob,S\
4 to appoint a trustee finds it proper to allow such resignation, and in the p^"s'f/f;|io
5 case of an insane trustee the court may accept such resignation without R- 1- i;*^. § 12-
6 notice to him.
1 Section 14. A person succeeding to a trust as executor or adminis- Executor, etc.,
2 trator of a former trustee shall not be required to accept such trust. truste™"^
1817, 190, § 39. G. S. 100, § 6. R. L. 147, | 13.
R. S. 69, § 6. P. S. 141, § 11.
2202
TRUSTS.
[Chap. 203.
AGENT OF NON-RESIDENT TRUSTEE.
Agent of
non-resident
tru8tee.
18S9. 462.
1893, 118.
R. L. 147. § U.
235 Mass. 171.
Section 15. Sections eight, nine and ten of chapter one hundred 1
and ninety-five shall apply to non-resident trustees, except that said 2
writing shall be filed in the clerk's office of the court appointing him if 3
appointed by a court other than the probate court. 4
Order for sale,
etc., of trust
estate, how
obtained.
1820, 64, § 3.
R. S. 69, § 11.
1846, 242.
G. S. 100,
§§ 14, 16.
1S64, 168, § I.
1869, 331.
P. S. 141, § 20.
R. L. 147, § 15.
1907, 262.
1917, 155; 279,
§42.
14 Allen, 24.
103 Mass. 59.
109 Mass. 1.
119 Mass. 1.
150 Mass. 377.
182 Mass. 106.
196 Mass. 217.
199 Mass. 344.
224 Mass. 474.
SALE OF TRUST ESTATE.
Section 16. If the sale and conveyance, transfer or exchange of any 1
real or personal property held in trust appears to be necessary or expe- 2
dient, the supreme judicial court, the superior court or the probate court 3
may, upon petition of a trustee or other person interested, after notice, 4
order such sale and conveyance, transfer or exchange to be made, and 5
the investment, reinvestment and application of the proceeds of such 6
sale in such manner as will best effect the objects of the trust. In the 7
case of personal property the probate court may make such order with 8
or without notice and without the appointment of a guardian ad litem 9
or next friend as provided in the following section. The fact that the 10
trustee has the necessary authority under the terms of the instrument 11
creating the trust or by law to make such sale and conveyance, transfer 12
or exchange without order of the court shall not bar proceedings under 13
this section, but nothing herein contained shall be deemed to require a 14
license where such authority exists. 15
Proceedings
in case of
persons not
ascertained,
etc. Effect.
1863, 25.
1864, 168, § 2.
P. S. 141, § 21.
R. L. 147, § 16.
146 Mass. 100.
Section 17. If the court, upon proceedings under the preceding 1
section, finds that said estate may be held in trust for, or that a remain- 2
der or contingent interest therein may be limited over to, persons not 3
ascertained or not in being, notice shall be given in such manner as the 4
court may order to all persons who are or may become interested in 5
such estate, and to all persons whose issue, not then in being, may become 6
so interested; and the court shall of its own motion in every such case 7
appoint a suitable person to appear and act therein as the next friend 8
of all persons not ascertained or not in being, who are or may become 9
interested in such estate, and the provisions of sections thirty-four and 10
thirty-five of chapter two hundred and one consistent herewith shall 11
apply to such appointment. A conveyance or transfer made after such 12
notice and proceeding shall be conclusive upon all persons for whom 13
such guardian ad litem or next friend was appointed. 14
Property held
in trust by
minors, etc.,
may be sold
and conveyed
in certain
cases.
1845, 64.
G. S. 100, § 15.
1869, 331.
P. S. 141, §22.
R. L. 147, § 17.
116 Mass. 377.
119 Mass. 52.
137 Mass. 252.
163 Mass. 503.
Section 18. If a person who is seized or possessed of real or personal 1
property or of an interest therein upon a trust, express or implied, is a 2
minor, insane, out of the commonwealth or not amenable to the process 3
of any court therein having equity powers, and if in the opinion of the 4
supreme judicial court, the superior court or the probate court a sale 5
should be made of such property or of an interest therein, or a con- 6
veyance or transfer should be made thereof in order to carry into effect 7
the objects of the trust, the court may order such sale, conveyance or 8
transfer made and may appoint a suitable person in the place of such 9
trustee to sell, convey or transfer the same in such manner as it may re- 10
quire. If a person so seized or possessed of an estate or entitled thereto 11
upon a trust is within the jurisdiction of the court, he or his guardian 12
may be ordered to make such conveyances as the court orders. 13
Chap. 203.] trusts. 2203
1 Section 19. When personal property is subiect to a trust contained Trustee may
, .. I 1. 1 ,j J 11. ''^'' personal
2 in a written instrument, the trustee or trustees may, unless there is property unless
3 some provision therein to the contrary or unless it would be inconsist- vided""^'' '"^°"
4 ent with the purposes of the trust, change the investment of such prop- '®^*' ^^' ^ ^'
5 erty from time to time and for that purpose make sales and transfers
6 thereof.
1 Section 20. The receipt of a trustee, or of any one or more of o"f^^if°t''o(
2 several trustees, for any money, securities or other personal property trustee.
3 or effects payable, transferable or deliverable to him or them under any
4 trust or power shall be a sufficient discharge therefor to the person
5 paying, transferring or delivering it, and no such person shall be bound
6 to see to the application thereof.
1 Section 21. A company or corporation, public or private, or quasi Corporations,
2 corporation, or the managers of any trust shall not be bound to see to to see to
3 the execution of any trust, express, implied or constructive, to which trusta to°which
4 any of its shares, bonds or securities are subject, or to ascertain or in- aubject^'^'^
5 quire whether the trust authorizes a transfer thereof by the holder, but ^®^^' ''^' ^ ^■
6 this section shall not be a protection against liability for knowingly
7 participating in a breach of trust.
1 Section 22. Unless otherwise expressly provided by the trust instru- Brokers' com-
2 ment, trustees' and brokers' commissions and other expenses properly S' beTha'rg'iid
3 incurred and paid by trustees for or in connection with the sale, exchange igof'sji.''''
4 or purchase of property shall be charged to principal. Commissions 227 Mass. 392.
5 and expenses paid by trustees for negotiating or effecting leases for
6 terms longer than five years shall be charged to principal in the first
7 instance, and a part thereof proportionate to the number of years of the
8 term shall be repaid from income to principal in each year while the
9 lease and the trust co-exist.
mortgage of trust estate.
1 Section 23. The court having jurisdiction of a trust created by a Trustees may
2 written instrument may, upon petition and after notice to all persons to mortgage,'*
3 interested, if upon hearing it appears to be for the benefit of the trust fgeg 45, § j
4 estate, authorize trustees to mortgage any real estate held by them in ]^l~- J^iJ, § 1.
PI P . 1 P 18/b, 199, § I.
5 trust for the purpose 01 paying assessments upon the trust estate for p- s. 141. § 23.
6 betterments or for the expense of repairs and improvements on such n. l! 147, § is.
7 estate made necessary by such betterments or by the lawful taking of 203 mSs' 328.
8 such estate or of a part thereof by public authority ; for the purpose of ^^^ ^^^^^' ^^^'
9 paying the expense of erecting, altering, completing, repairing or im-
10 proving a building on such estate; or for the purpose of paying the expense
11 of other improvements of a permanent nature made or to be made on
12 such estate; or for the purpose of paying an existing lien or mortgage
13 on such estate or on a part thereof; or it may authorize such trustees
14 to make an agreement for the extension or renewal of such existing
15 mortgage.
1 Section 24. Such petition shall set forth a description of the estate Form of
2 to be mortgaged, the amount of money necessary to be raised and the decree."""
3 purposes for which such money is required, and, if made to a probate Ifi'iJ"'
2204
TRUSTS.
[Cbl\p. 203.
1876, 199, § 2.
P. S. 141, § 24.
R. L. 147, § 19.
court, shall be made in the county where trustees were appointed, if 4
the trust was created by will, or, if it was not so created, in the county 5
where the estate, or a part thereof, which is the subject of the petition 6
is situated. The decree of the court upon such petition shall fix the 7
amount for which the mortgage may be given and the rate of interest 8
which may be paid thereon, -and may order the interest and the whole 9
or any part of the money secured by the mortgage to be paid from time 10
to time from the income of the property mortgaged. 11
Distribution
of trust estate.
1S98. 65, § 1.
R. L. 147, § 20.
175 Mass. 239.
227 Mass. 242.
DISTRIBUTION OF TRUST ESTATE.
Section 25. If under a written instrument a trust estate is to be 1
distributed in whole or in part, the probate court, upon petition of a 2
person interested, after such notice as it may direct, may order the 3
trustee to convert said estate, both real and personal, or either, into 4
cash and distribute it among such persons as under such instrument 5
are entitled thereto. 6
Definition of
absentee.
1905. 326, § 1.
211 Mass. 198.
SETTLEMENT OF CERTAIN TRUST ESTATES HAVING ABSENTEE BENEFI-
CIARIES.
Section 26. In sections twenty-seven to thirty-nine, inclusive, the 1
word "absentee" shall mean a beneficiary who has disappeared, ab- 2
sconded or is absent from the commonwealth, or has disappeared or 3
absconded from the place without the commonwealth, where he was last 4
known to be, and has no known agent in the commonwealth, and it is 5
not known by the petitioner where he is, and the date of such disap- 6
pearance or absconding and of the time when it was last known by the 7
petitioner where he was and when he was last heard from or heard of 8
shall have been more than fourteen years before the filing of the petitions 9
provided for in said sections. 10
Petition for
transfer of
trust estate
of absentee in
certain cases.
1905, 326, § 1.
Section 27. If a trustee appointed under a will by a probate court 1
of the commonwealth holds trust estate the final disposition of which 2
depends upon the, death of an absentee, such trustee, or any person who 3
would be interested in the trust estate or any portion thereof, if such 4
absentee were dead, may file a petition under oath in the probate court 5
for the county where such trustee was appointed, stating to the best of his 6
knowledge and belief the name, age, last known occupation, last known 7
residence and address of such absentee, and the last place where he was 8
known to be, the date and circumstances of his disappearance or ab- 9
sconding, and the names and residences of his wife, children and issue 10
at the time of his disappearance or since, and of those who would have 11
been his heirs at law and next of kin if he had died at the time of filing 12
the petition, and the names and residence of the family of such absentee, 13
and of other persons of whom inquiry may be made, and containing a 14
schedule or statement of such trust estate, real and personal, so far as 15
known, and the names and residences, so far as known, of the persons 16
who would be entitled to the trust estate if said absentee had died intestate 17
within the commonwealth on the day fourteen years after the date of 18
his disappearance. Such petition shall contain as parties the name of 19
such trustee and of such absentee and the names and residences, so far 20
as known to the petitioner, of the persons who would be entitled to the 21
trust estate if such absentee had died intestate within the commonwealth 22
Chap. 203.] trusts. 2205
23 on said day, and of the persons who under his will or otherwise would
24 be entitled to the trust estate if he had then died, and the description of
25 the class of persons, if their names or existence are unknown, who might
26 be entitled as aforesaid, and all persons whom it may concern, excepting
27 however any of such persons or parties who are petitioners, and shall
28 pray that the trust estate, both principal and any accumulations from
29 unpaid income or otherwise, shall be transferred to the persons as trus-
30 tees who would be entitled to such trust estate if such absentee had
31 died within the commonwealth on the day fourteen years after the date
32 of his disappearance, and in the proportions to which each would be
33 entitled.
1905. 326, § 2.
1 Section 28. If the petition is brought by such trustee, the court J^"*^"^
2 shall issue a notice as hereinafter provided. If brought by a person other
3 than the trustee, a subpoena shall be served upon the trustee as in equity,
4 and upon proof of the existence of such trust estate as aforesaid by
5 answer of such trustee or otherwise, which answer shall be filed within
6 one month after the return day of such subpoena and shall set forth a
7 schedule or statement of such trust estate, the court shall issue a notice
8 as hereinafter provided. The notice issued by the court shall recite
9 the substance of the petition, and shall be addressed to such absentee
10 and to all persons who claim an interest in said trust estate, and to all
11 whom it may concern, and to all the persons and classes of persons
12 named as respondents in the petition, citing them to appear at a time
13 and place named and show cause why said estate should not be held
14 and disposed of under sections twenty-six to thirty-nine, inclusive.
1 Section 29. The return day of said notice shall be not less than six Return day
2 months after the date of such order. The court shall order a copy of i905r326r§ 3.
3 said notice to be served on all of said parties who may reside within the ^^' '^'^^^^ ^®^'
4 commonwealth, within sixty days after the date of such notice. Said
5 notice shall be published in one or more newspapers within the common-
6 wealth, and also, if within the United States, in one or more newspapers,
7 if any such there be, in the town, or in the county, in case there is no
8 newspaper published in such town, where the absentee last resided or
9 was known to have last been. Such publication shall be at least once in
10 each of three successive weeks, within thirty days after the date of the
11 order in such newspaper or newspapers published within the common-
12 wealth, and within sixty days after the date of the order in such news-
13 paper or newspapers published without the commonwealth, and a copy
14 of the notice shall be mailed within thirty days after the date of the
15 order to the la.st known address of such absentee. The court may order
16 further notice to be given within or without the commonwealth. Proof
17 of such service shall be made by affidavit, or in such other manner as the
18 court may order.
1 Section 30. The respondents and the absentee and any person Certain persons
2 claiming an interest in the estate may appear and show cause why the "nlf ausw",
3 prayer of the petition should not be granted, and may appear and answer 1905,326, § 4.
4 on or before the return day or within such further time as the court may
5 allow. By the description in the notice, "To all whom it may concern",
6 all the world are made parties defendant and shall be concluded by the
7 order or decree.
2206
TRUSTS.
[Chap. 203.
Guardians ad
litem may be
appointed, etc.
1905, 326, § 5.
Section 31. The court may appoint a suitable person to appear and 1
act in said proceedings as guardian ad litem for minors and for all persons 2
and classes or descriptions of persons under disability or not ascertained 3
or unknown or not in being or out of the commonwealth, and who under 4
the provisions of the will in regard to said trust estate or otherwise may 5
be or may become interested in said trust estate, and the court shall 6
appoint a suitable person to appear and act therein as guardian ad litem 7
of said absentee. An order or decree in such proceedings, made after 8
such appointment, shall be conclusive upon all persons for whom such 9
guardian ad litem was appointed. 10
Court to find
facts, order
transfer or
authorize sale
of trust estate,
1905, 326. § 6.
Section 32. The court shall find the date of the disappearance or 1
absconding of the absentee, and any other material facts. If the court 2
finds that such disappearance has been continuous for more than fourteen 3
years next preceding the filing of the petition, that upon the evidence 4
presented the absentee has not been heard from or known of within such 5
fourteen years, and that the facts foimd warrant a presumption of death, 6
the court shall order the trust estate transferred to the persons as trustees 7
to whom, and at the time or times and in the shares and proportions in 8
which, it would, under the provisions of the trust of said property as 9
set forth in the will, be distributed if said absentee had died within the 10
commonwealth on the day fourteen years after the date of the disap- 11
pearance or absconding, as found and recorded by the court. And by 12
such order all the right, title and interest of said absentee in said trust 13
estate and of all other persons, except those to whom as trustees said 14
trust estate is to be turned over and paid in pursuance of said order, 15
shall, as against the said trustee appointed under the will by the probate 16
court, be barred, and no action, suit or petition in any form shall be 17
begun by, or for the benefit of, such absentee or such other persons against 18
the said trustee for or on account of said trust estate or its proceeds; 19
and the court may authorize the trustee to sell at public or private sale 20
the said trust estate or any part thereof and to convert it into nioney 21
in order to make transfer thereof as aforesaid. 22
New trustees
to give bond
for thepay-
ment of fund.
Endorsement
for costs in
suit on bond.
1905, 326, § 7.
Section 33. Upon the transfer in pursuance of such decree to each 1
of such new trustees of his portion of the trust estate or fund, he shall 2
give bond to be filed in the court in said case, in such sum and with or 3
without sureties as the court may order, to the judge of said court and 4
his successors in office and with condition substantially that he will pay 5
and deliver to such absentee, if living, or to any persons claiming under 6
him, as his heu-s at law or as named in his will as recipients of such trust 7
estate under the exercise of any power of appointment by the said 8
absentee or persons otherwise claiming the fund, the fund which such 9
trustee has received, with the accumulations thereof, if any, less reason- 10
able disbursements and compensation, if in the suit on said bond such 11
absentee or other person shall be found to be lawfully entitled to said 12
trust estate or fund. Such bond may be put in suit by such absentee 13
or other persons for his or their own benefit. In every action on such 14
bond the writ shall be endorsed by the persons for whose benefit or at 15
whose request the action is brought or by their attorney, and the en- 16
dorsers shall be liable for the costs of the suit, and execution therefor 17
shall be issued against them and not against the judge of said court. 18
Chap. 203.] trusts. 2207
1 Section 34. Such new trustee shall be liable only for gross nee;li- Liability and
, . . , *' PI powers of new
2 gence. He may in his discretion invest and reinvest the trust fund or '^'''''Sjg
3 estate delivered to him and sell real and personal estate at public auction
4 or private sale and execute instruments necessary to transfer the title
5 thereto. If such new trustee dies before the expiration of the six years
6 named in the following section, his estate shall be liable on the bond
7 required of such trustee.
1 Section 35. After the expiration of sLx years from the filing of said ^Ve^bro^'gh't
2 bond by said new trustee no action, suit or petition in any form shall ^^"'f"^* "/'"'
3 be brought against him on said bond or otherwise by said absentee or six years.
4 person claiming under him or otherwise claiming the estate in the hands ^' " '
5 of such new trustee.
1 Section 36. If during the continuance or upon the termination of Trust estates
... . , r> 1 1 niay be dis-
2 a trust under a will or written instrument one of the beneficiaries be- tributed to
3 comes an absentee as defined in section twenty-six, the trustee may pay ficiarjes in
4 the income or distribute the trust estate to the knowTi beneficiaries in ^^J "'^ '^''''^'''
5 the proportions to which they would be entitled if such absentee were ^®°^' ^^'^' ^ "'
6 present in the commonwealth, and as to the remaining part to which
7 such absentee would be entitled if present, such trustee or any person
8 who would be interested in the share of such absentee if he were dead
9 may take like proceedings with reference to such share as are provided
10 for in the ten preceding sections.
1 Section 37. In cases brought under the preceding section the pe- where petition
2 tition, if brought on account of a trust under a will, shall be brought bro'4ht
3 in the probate court for the county where the trustee was appointed, ^'*°^' ^**'' ^ ^^■
4 and, if brought on account of a trust under a written instrument other
5 than a will, shall be brought in the probate court of any county where
6 any of the parties interested in the trust reside or where any of the land
7 held in trust is situated. If any probate .court has assumed jm-isdiction
8 of the trust, the petition shall be brought in that court.
1 Section 38. The court may at any time during the continuance of de°c"eeTh?t
2 the trust on like petition and other proceedings as provided in sections income simii
. . . .... , , , 1 be paid to
6 twenty-SLX to thirty-seven, inclusive, decree that any income then accrued certain persons.
4 or thereafter accruing for the benefit of such absentee shall be paid to the ^' '"'
5 persons as trustees to whom, and at the time or times and in the shares
6 and proportions in which, it would be distributed if said absentee had
7 died on the day fourteen years after the date of the disappearance or
8 absconding, as found and recorded by the court.
1 Section 39. Sections twenty-six to thirty-eight, inclusive, shall apply Cert.iin sections
2 to existing trusts heretofore established as well as to trusts hereafter tnistTnow"
3 established. ISOS, 326, § lO. h^rea^fer"
established.
TRUSTS FOR THE BENEFIT OF CREDITORS.
1 Section 40. If a debtor residing in the commonwealth has made Validity of
2 an assignment to a trustee for the benefit of his creditors, the acts of Sf"?ustee^
3 the trustee thereunder in protecting and caring for the property and iubsermont"'
4 converting it into money, if done in good faith and with reasonable i"^°7^'3!Jo*^'§^'"''
2208
TRUSTS.
[Chap. 203.
isT^Mill' IqI'" judgment and discretion, shall, subject to the following section, be valid 5
221 Mass. 384! notwithstanding subsequent proceedings in insolvency by or against 6
the debtor, and the assignee in insolvency shall, if such assignment is 7
avoided by him, recover the net amount of money received for, or the 8
price of, the property sold and converted by such trustee instead of the 9
property itself. 10
Same subject.
Requirements
for validity.
1887, 340,
§§ 1. 2.
1897, 326.
R. L. 147, § 22.
187 Mass. 296.
201 Mass. 190.
220 Mass. 122.
221 Mass. 384.
Termination
of trusts for
benefit of
creditors
created by
persons
deceased.
1850, 241,
§§ 1, 3.
G. S. 100,
§§ 17, 18.
P. S. 141,
§§ 25, 26.
R. L. 147, §
Section 41. The preceding section shall not apply to the acts of such 1
trustee unless the assignment conveys all the property and estate of the 2
debtor wherever situated, either within or without the commonwealth, 3
not exempt from attachment by the laws thereof, and provides for its 4
distribution in substantial conformity with chapter two hundred and 5
sixteen; nor unless a majority in number and value of the creditors, 6
whose claims are neither secured nor preferred by said chapter, have 7
assented in writing to the assignment; nor unless the trustee, before 8
proceeding to act and immediately on the acceptance of his trust, gives 9
written notice by mail or otherwise to all known creditors of the debtor 10
of such assignment and his acceptance thereof, and deposits with the 11
clerk of the town where the principal business of the debtor is carried on 12
a copy of such assignment, which shall be filed and indexed by said clerk 13
upon receiving a fee of one dollar therefor. 14
Section 42. If, upon petition or otherwise, the probate court for the 1
county where letters testamentary or of administration have been granted 2
on the estate of a deceased person finds that such person in his lifetime 3
made a conveyance of real estate in the commonwealth in trust for the 4
benefit of his creditors, and the trustee certifies that all the debts secured 5
by such conveyance and due to persons other than himself have been paid 6
or otherwise adjusted to the satisfaction of the creditors so far as known 7
2S- and that he desires to settle his trust account and to terminate the trust, 8
the court shall appoint a time and place for hearing all persons inter- 9
ested in such trust, of which notice shall be given by publication in a 10
newspaper published in the county, or otherwise, as the court orders. 11
Upon such hearing the court may terminate the trust so far as the credi- 12
tors and persons claiming under them are concerned, may discharge 13
such real estate from the trust, may settle the trust account, and make 14
any further order as to the disposition, distribution or partition of the 15
remaining trust estate, consistent with the provisions of the original 16
instrument creating the trust. This section shall not apply to any case 17
where the instrument creating the trust does not bear date more than 18
six years previous to the time appointed for the hearing; nor shall it 19
affect the operation of the insolvent laws of the commonwealth. 20
REFERENCES.
Right of national bank or trust company to be appointed trustee, Chap. 172,
§ 52, and reference at end of chapter.
Limitation of actions against trustees for their own acts, Chap. 260, § 11.
Trustees who hold funds given to city or town for charitable, etc., purposes.
Chap. 68, §§ 13, 14.
Trustee to hold damages recoverable under Chap. 79, where property is subject to
contingent remainder, etc., Chap. 79, §§ 24, 25.
Funds held by savings banks in trust for shade trees, playgrounds, cemeteries and
drinking fountains, Chap. 168, §§ 37, 38.
Appointment of trustee to sell land subject to contingent remainders, etc.. Chap.
183, §§ 49-51.
Appointment of trustee to hold proceeds of land subject to a charge for life, Chap.
183, § 52.
Chap. 204.] general provisions relatr'e to sales, compromises, etc.
2209
Jurisdiction of land court to determine extent and propriety of exercise of power
of sale, etc., held by trustees, etc.. Chap. 240, §§ 27-29.
Authority of probate court to order the transfer of a trust fund to a trustee in
another state, where all the beneficiaries are non-residents. Chap. 206, § 29.
Sales generally by trustees. Chap. 204.
Sale to pay inheritance taxes. Chap. 65, § 21.
CHAPTER 204
GENERAL PROVISIONS RELATIVE TO SALES, MORTGAGES, RELEASES,
COMPROMISES, ETC., BY EXECUTORS, ETC.
Sect.
general provisions.
1. Executor, etc., to convey real estate
which testator, etc., had agreed to
convey.
2. Sale of real estate dependent upon con-
sent of a deceased person.
3. Foreign executor, etc., may be licensed
to receive and dispose of personal
property.
4. How executor, etc.. may release vested
or contingent interests.
5. Sale or release of lots in cemeteries.
6. Form of mortgage given under license
of court.
7. Venue of petitions for sales by foreign
executor, etc.
8. License to sell to remain in force for one
year.
9. Surplus of proceeds of sales to be treated
as real estate.
10. Costs in case of objection to the grant-
ing of a license.
11. Examination of persons Ucensed to sell
land.
12. Sale of church, etc., property.
COMPROMISES, ETC.
13. Compromises by executors, etc.,
authority of probate court.
under
Sect.
14. Executors, etc., may be authorized to
compromise controversies, etc.
15. Compromise of wills.
16. Protection of contingent interests.
17. Effect of compromise.
IS. Minor, etc., to be represented by guard-
ian, etc.
IRREGUL.\R and INVALID SALES, ETC., BT
executors, etc.
19. Irregular, etc., sale not to be avoided in
certain cases.
20. Where contestant claims under title.
paramount.
21. When adjudication as to debts final.
22. Action or entry for recovery of land
sold by executor, etc.
23. Confirmation, etc., of void acts of ex-
ecutor, etc.
24. Ratification of doubtful acts of execu-
tor, etc.
25. Liability of irregularly appointed exec-
utor, etc., to account.
26. Failure of proof of notice of appoint-
ment or sale, how remedied.
GENERAL PROVISIONS.
1 Section 1. If a person who has entered into a written agreement
2 for the conveyance of real estate dies or is put under guardianship or
3 conservatorship before making such conveyance, the probate court shall
4 have jurisdiction concurrent with the supreme judicial and superior courts
5 to enforce specific performance of such agreement; and, upon a petition
6 therefor by any person interested in the conveyance, shall, after notice,
7 if upon hearing it appears that the deceased, were he living, or the ward,
8 were he not under guardianship or conservatorship, would be required
9 to make the conveyance, order the e.xecutor or administrator or the
10 guardian or conservator to make the same, which conveyance shall have
1 1 like force and effect as if made by the person who agreed to convey.
Executor, etc.,
to convey real
estate which
testator, etc,
had agreed to
convey.
C. L. 296, § 3.
1783, 32, § 4.
R. S. 74,
§§ 8-13.
1855, 374.
1S59, 36.
G. S. 117,
§§ 5, 6.
P. S. 142, § 1.
1883, 223.
R. L. 148, I 1.
1915. 23.
8 Gray, 542.
108 Mass. 5.52.
119 Mass. 482.
173 Mass. 450.
179 Mass. 451.
184 Mass. 534.
226 Mass. 224.
2210
GENERAL PROVISIONS RELATIVE TO SALES, COMPROMISES, ETC. [ChAP. 204.
Sale of real
estate depend-
ent upon
consent of a
deceased
person.
1871, 329.
P. S. 142. § 2.
R. L. 148. § 2.
Section 2. If, under a will, the sale of real estate by a trustee, execu- 1
tor or administrator with the will annexed is dependent upon the con- 2
sent of a person who has deceased, the probate court having juristliction 3
of the settlement of the estate may, in its discretion, and if all parties 4
interested assent, authorize the sale and conveyance of such real estate 5
in like manner as if no such consent had been required. 6
Foreign execu-
tor, etc., may
be licensed
to receive and
dispose of
personal
property.
1880, 220.
P. S. 142, § 3.
1900, 371, § 3.
R. L. 15, § 14:
148, § 3.
1907, 563.
§§ 17, 26.
1909. 490,
IV, § 17.
1915, 23.
1919, 350, § 53.
Section 3. An executor, administrator, guardian, conservator or 1
trustee duly appointed in another state or in a foreign country and duly 2
qualified and acting, who may be entitled to any personal property, 3
situated in the commonwealth, may file an authenticated copy of his 4
appointment in the probate court for any county where there is real 5
estate of his trust, or, if there is no such real estate, in any county where 6
there is personal property of his trust, and may upon petition to said 7
court, after such notice to creditors and all persons interested as the 8
court may order, be licensed to receive or to sell by public or private 9
sale, upon such terms and to such person or persons as he shall think fit, 10
or otherwise to dispose of, and to transfer and convey, shares in a cor- 11
poration or other personal property, if the court finds that there is no 12
executor, administrator, guardian, conservator or trustee appointed in 13
the commonwealth who is authorized so to receive and dispose of such 14
shares or estate, and that such foreign executor, administrator, guardian, 15
conservator or trustee will be liable, upon and after such receipt or sale, 16
to account for such shares or estate, or for the proceeds thereof, in 17
the state or country where appointed; and that no person resident in 18
this commonwealth and interested as a creditor or otherwise objects to 19
the granting of such license or appears prejudiced thereby; but no such 20
license shall be granted to a foreign executor or administrator until the 21
expiration of six months after the death of his testator or intestate. The 22
commissioner of corporations and taxation shall be made a party to any 23
petition by a foreign executor, administrator or trustee under this sec- 24
tion, and shall be given fourteen days' notice of the same. 25
?tc* ma'"y "*"■ Section 4. An exccutor, administrator, guardian, conservator or
release vested trustec may, after the notice required upon a petition by him for a license
or contingent ,, , i • i i i i i i i-
interests. to Sell rcal estate, be authorized by the probate court to release and dis-
1855 307 § 2 . .
G. s.' loi! § 11. charge, upon such terms and conditions as may appear to be proper, a
p. s.' 142,' § 4. vested, contingent or possible right or interest, if such release or discharge
1915; 23^' * *' appears to be for the benefit of the person or estate which he represents.
190 Mass. 459.
Sale or release
of lot.8 in
cemeteries.
1869, 35.
P. S. 142, § 5.
R. L. 148, § 5.
1915, 23.
Section 5. An executor, administrator, guardian, conservator or 1
trustee may be authorized by the probate court, after notice to all persons 2
interested, to sell and convey or release upon such terms and in such 3
manner as the court may order, lots in cemeteries belonging to the person 4
or estate by him represented. 5
Form of mort-
gage given
under license
of court.
1864, 212, 5 4.
1869, 219, S 2;
451, § 2.
Section 6. A mortgage given by an executor, administrator, guard- 1
ian, conservator or trustee under license of court may contain a power 2
of sale, and every such mortgage shall state that it is made under license 3
of court and the date of such hcense. 4
3, 4;
1871, 282, § 3.
1872, 370, I 3.
1873, 280, § 2.
1876, 79,
199, § 3.
P. S. 142, § 6.
R. L. 148, § 6.
1915. 23.
11 Gray, 492.
Chap. 204.] general provisions relative to sales, compromises, etc. 2211
1 Section 7. All proceedings in probate courts relative to sales by a venueof
2 foreign executor, administrator, guardian, conservator or trustee shall be saies'by° °'
3 in the county where an authenticated copy of his appointment is first executor, etc.
4 filed. 1S17, 182, § 1. R. S. 71, § 25; 72, § 16.
G. S. 102, § 42. p. S. 142, § 7. R. L. 148, § 7. 1915, 2X.
1 Section 8. No license to sell bv an e.xecutor, administrator, guard- License to seii
-. ^ pto remain in
2 lan, conservator or trustee shall be in force tor more than one year after force for one
3 the granting thereof, except as provided in section eighteen of chapter is'n'. i9o, § 12.
4 two hundred and two. R. s. 71, § lO; 72, § 13. g. s. 102, § 43.
p. S. 142. § 8. R. L. 148, § S. 1915, 23. 146 Mass. 100.
1 Section 9. In every sale of the real estate of a deceased person or a .surplus of
2 ward by an executor, administrator, guardian or conservator, the surplus LTes'^to be
3 of the proceeds remaining on the final settlement of the accounts shall estate'' "" ^'^^
4 be considered as real estate, and shall be disposed of to the same persons 1!; ^j/s' iV^'
5 and in the same proportions to whom and in which the real estate if not pgA'^'lo*-
6 sold would have descended or have been disposed of by law. h- l- hs. § 9-
1915,23. 133 Mass. 111. 154 Mass. 7. 233 Mass. 481.
1 Section 10. If a person appears and objects to the granting of a Costs in case
2 license to sell real estate and the court finds that either the petition or the°gran'tmg'°f
3 the objection thereto is unreasonable, it may award costs to the prevail- nss^gl; 5 g.
4 ing party. R. S. 7i, § 36; 72, § is.
G. S. 102, § 45. p. S. 142, § 10. R. L. 148, § 10.
1 Section 11. A person authorized to sell land under license of court Examination
2 shall be required, upon petition to the probate court by an heir, creditor, iicen"ld'to
3 ward or other person interested in the estate, to answer on oath as to r.'s."?!,' § 39;
4 all matters relative to his exercise and fulfilment of said license as fully H'J^W 5 1
5 as he is liable to account and be examined relative to personal property. '■ |- 102. § 49.
6 If, in relation to the exercise of such license or to a sale under it, there is R- l. us. | 11.
7 any neglect or misconduct in the proceedings of such person by which
8 a person interested in the estate suffers damage, such interested person
9 may recover compensation therefor on the probate bond or otherwise as
10 the case may require.
1 Section 12. The supreme judicial court, upon petition of a party Saie of church,
2 interested and after notice, may order the sale or transfer of any real or isq?.''!^!"^*^'
3 personal property held for churches, cemeteries or other like trusts and ^' ^' ^*^' ^ ^^'
A the investment or disposition of the proceeds, and may make orders and
5 decrees necessary to secure the rights of owners of, or of other persons
6 claiming an interest in, pews or in tombs or lots in cemeteries.
COMPROMISES, etc.
1 Section 13. The probate court may authorize an executor, adminis- Compromises
2 trator, guardian, conservator or trustee to adjust by arbitration or com- eu-t'undS'^^'
3 promise any demand in favor of or against the estate by him represented, probate'oourt.
1817, 190, § 21. 1838. 92. P. S. 142, § 12. 9 Allen, 173.
1826, 136. 1855, 37; 432. R. L. 148, § 13. 137 Mass. 94.
1835, 93- G. B. 101, § 10. 1915, 23. 178 Mass. 125.
R. S. 65, § 10; 79, § 17.
1 Section 14. The supreme judicial court or the probate court may Executors, etc..
2 authorize an executor, administrator, guardian, conservator or trustee to alTthorized to
2212
GENERAL PROVISIONS RELATIVE TO SALES, COMPROMISES, ETC. [ChAP. 204.
compromise
controversies,
1861, 174, § 1.
P. S. 142, § 13.
R. L. 148, § 14
1903, 222. •
1907, 447.
4 Allen, 466.
170 Mass. 32S.
211 Mass. 334.
215 Mass. 220.
225 Mass. 12.
230 Mass. 131.
adjust by arbitration or compromise any controversy or question as to 3
the administration or distribution of the estate in his possession, or as to 4
his accounting therefor, or as to any matter relating to said estate, or as 5
to the construction of a will or trust created by a wTitten instrument, 6
or as to his power and authority thereunder, or as to any controversy 7
growing out of said will or instrument that may arise between him and 8
any other person or the guardian or conservator of any person interested 9
under said will or instrument or in said estate, or between claimants or 10
the guardians or conservators of claimants to said estate, to which arbi- 1 1
tration or compromise, in the form of an agreement in writing, such 12
executor, administrator, guardian, conservator or trustee, and all other 13
persons in being and of full age and not under guardianship, and the 14
guardian or conservator, if any, of all other persons who claim a vested 15
interest in said estate, whose interests will, in the opinion of the court, 16
be affected by the proposed arbitration or compromise, shall be parties. 17
An award or compromise made in writing in such a case, if found by the 18
court to be just and reasonable in its effects upon the interests of minors 19
and persons under guardianship or conservatorship, and upon any future 20
contingent interests in said estate, shall, when appro\'ed by the court, 21
be valid and binding upon all such interests and upon the original parties 22
to said agreement, and a decree shall be entered accordingly. If the 23
court finds that any minor or person without legal capacity or under 24
guardianship, or any future contingent interests, may be affected, it may 25
appoint some person or persons to represent such minor or person without 26
legal capacity or under guardianship, or future contingent interests in 27
such controversy, question, administration or account upon such con- 28
ditions as to costs as it may order. 29
Compromise
of wills.
1864, 173, § 1.
P. 8. 142, § 14.
1889, 266,
R. L. 148, § 15.
1902, 638.
1903, 222.
1918, 257,
§399.
1919, 5.
1920, 2.
128 Mass. 203.
152 Mass. 254.
180 Mass. 303.
151 Mass. 501.
152 Mass. 208.
188 Mass. 190.
199 Mass. 330.
204 Mass. 471.
209 Mass. 459.
211 Mass. 288.
Section 15. The supreme judicial court or the probate court may au- 1
thorize the persons named as executors in an instrument purporting to 2
be the last will of a person deceased, or the petitioners for administra- 3
tion with such will annexed, to adjust by arbitration or compromise any 4
controversy between the persons who claim as devisees or legatees under 5
such will and the persons entitled to the estate of the deceased under the 6
laws regulating the descent and distribution of intestate estates, to which 7
arbitration or compromise the persons named as executors, or the pe- 8
titioners for administration with the will annexed, as the case may be, 9
those claiming as devisees or legatees whose interests will in the opinion 10
of the court be affected by the proposed arbitration or compromise, and 11
those claiming the estate as intestate, shall be parties. 215 Mass. 226. 12
225 Mass. 12, 380. 228 Mass. 39. 230 Mass. 131. 233 Mass. 267.
co^ntfngent °' Section 16. If the couTt fiuds that any future contingent interests 1
iseTfls, § 2. which would arise under said will if admitted to probate would be af- 2
R Lus'Vw f^cted by the arbitration or compromise, it shall appoint some person 3
209'^M^""' 4'i9 *^ represent such interests in such controversy, and the court shall have 4
225 Mass! 12, ' like power as to any bequests made in the will for charitable purposes, if 5
no trustees have been appointed in such will; in both cases with such 6
conditions as to costs as the court orders. 7
380
228 Mass. 39
Effect of
compromise.
1864, 173,
§§3,4.
R L Hs'liV"' parties in being and in its effect upon any future contingent interests „
1903,222. that might arise under such will and upon any bequests to charities 4
Section 17. An award or compromise made in writing in any such
case, if found by the court to be just and reasonable in relation to the
Chap. 204.] gener.\l provisions eelative to sales, compromises, etc. 2213
5 made in the same, shall be valid and binding upon such interests and J?| JJ*^^- ?o?-
7, I • n 11 • 1 • ^^^ Ma3s. 303.
6 upon such bequests, as well as upon the uiterests ot all persons m bemg, iS2 Mass. 208
7 but it shall not impair the claims of creditors. 225 Mass. sso.
209 Mass. 459.
1 Section 18. If a minor or a person under guardianship or conserva- Minor, etc. to
2 torship is a necessary party to an arbitration or compromise under sec- by gTardfan."
3 tion fifteen, he shall be represented in the proceedings by his guardian or iges, ise,
4 conservator, or by a guardian ad litem appointed by the court, who shall ^; f; ^l, | 'is.
5 in the name and in behalf of the party he represents, make and receive J^°|' p^-
6 all proper con\eyances and payments necessary to carry into effect any iso Mass. 303.
7 award or compromise sanctioned by the court.
IRREGULAR AND INVALID SALES, ETC., BY EXECUTORS, ETC.
1 Section 19. No sale of real estate under license of court, and no imguiar, etc.,
2 title thereunder, shall be a\'oided for the reason that the deed was not avoided ?n ^^
3 delivered within one year after the license, or on account of any irregu- R.'^a'7i!T38;
4 larity in the proceedings, if it appears — Jg^^ ^'^■
5 First, That the license was granted by a court of competent juris- g- s- 102. § 47.
6 diction; 1864; 137.
7 Second, That the person licensed gave a bond approved by the court r. l. hs, § 19.
8 or judge granting such license, if a bond was required; isMaSissf'
9 Third, That the notice of the time and place of sale was gi\en accord- ppjek. s67
10 ing to the order of the court; and ^ ^j^^- ^f^-
11 Fourth, That the property was sold by public auction in accordance | J^"'*''- J|*-
12 with the notice, and is held by one who purchased it in good faith. 10 bray, 31!
13 Gray, 326. 105 Mass. 33. 146 Mass. 100.
3 Allen, 25. 106 Mass. 347. 153 Mass. 325.
13 Allen, 109, 417. 115 Mass. 50, 508. 161 Mass. 315.
102 Mass. 14. 133 Mass. 447.
1 Section 20. If the validity of a sale is drawn in question by a person where con-
2 claiming adversely to the title of the deceased or of the ward, or under under title
3 a title not deri\ed from or through the deceased or the ward, the sale S?'^s"7i!°§'40;
4 shall not be void by reason of any irregularity in the proceedings, if the q?'| ^102, § 48
5 executor, administrator, guardian, conservator or trustee was licensed to J^- ^- ^^^^ i^^^
6 make the sale by a court of competent jurisdiction and executed and ? Mass. 488.
7 acknowledged in legal form a deed of the property.
1 Section 21. If a license is granted by a probate court for a sale or whenadjudi-
2 mortgage of real estate to pay the debts and charges of a deceased person deb'CTfinai."
3 or of a person under guardianship or conservatorship, the adjudication r 's.' ul,' § 26.
4 of said court as to the existence of such debts and charges shall be final fgij- 23*' ^ '''
5 so far as the same may affect any title acquired by virtue of such license,
6 but shall not affect the right of the executor, administrator, guardian or
7 conservator to contest the validity of such debts and charges.
1 Section 22. No action for the recovery of property sold by an execu- Action or
2 tor or administrator under chapter two hundred and two shall be main- recovery of
3 tained by an heir or other person claiming under the deceased unless executor, etc.
4 commenced within five years next after the sale; and no action for R^'s.'7i,°'§37f"
5 property sold by a guardian or conservator under said chapter shall J?-^ 'jo2, § 46.
6 be maintained by the ward or by any person claiming under him unless P- S- h2, § 21^.
7 commenced within five years next after the termination of the guardian- 19^5, 23 '
8 ship or conservatorship; but persons out of the commonwealth and 10 Gray. 31!
9 minors and others under legal disability to sue when their right of action
2214
GENERAL PROVISIONS REL.'VTIVE TO SALES, COMPROMISES, ETC. [ClLiP. 204.
first accrues may commence such action at any time within five years 10
after the removal of the disabihty or after their return to the common- 11
wealth. No entry, unless by judgment of law, shall be made upon land 12
so sold, with a view to avoid the sale, unless within the times of limi- 13
tation before prescribed for the commencement of an action. 14
Confirmation,
etc., of void
acts of exec-
utor, etc.
1873, 253, § 3.
P. S. 142. § 22.
R. L. 148, § 23.
1915, 23.
142 Mass. 479.
150 Mass. 381.
179 Mass. 451.
Section 23. If an act or proceeding of a person acting as executor, 1
administrator, guardian, conservator or trustee under an appointment 2
or license of a probate court is void or voidable by reason of an irregu- 3
larity or of want of jurisdiction or authority in the court which made 4
the appointment or granted the license, any person interested in or 5
affected by such act or proceeding may have the matter heard and de- 6
termined by the supreme judicial court in equity, which may confirm or 7
set aside, in whole or in part, the act or proceeding. 8
SfuMfSi a?ts°^ Section 24. If the authority or validity of an act or proceeding of
etc"^'^''"'"'^' ^^^ probate court or of a person acting as executor, administrator, guard-
1^874, 346, 1 ^ ian, conservator, receiver appointed by the probate court, or trustee is
195 Mass. 184.
1888, 420. " """ drawn in question by reason of an alleged irregularity, defective notice
1915' 23,63."' ■ or want of authority, any party interested in or affected by such act or
proceeding may apply to the probate court ha\'ing jurisdiction of the
subject matter relative to which the act or proceeding has been had, and
the court, after notice to all parties interested, and to the persons who 8
may be the parents of such parties not in being, with power to appoint 9
a guardian or next friend to represent the interests of any person unborn 10
or unascertained, may hear and determine the matter and confirm the 11
act or proceeding, in whole or in part, and may authorize anil empower 12
the executor, administrator, guardian, conservator, receiver appointed 13
by the probate court, or trustee, or any successor or other person who 14
may be legally appointed to act in the same capacity, to ratify and con- 15
firm such act or proceeding and to execute and deliver such deeds, re- 16
leases, conveyances and other instruments as may be found necessary 17
therefor; but no act or proceeding shall be ratified or confirmed which 18
the coiu-t might not have passed or authorized in the first instance upon 19
due proceedings. 20
What acts to
be ratified, etc.
Liability of
irregularly
appointed
executor, etc.,
to account.
1873, 253,
§§ 1, 2.
P. S. 142. § 24.
R. L. 148, § 25.
1915, 23.
126 Mass. 105.
133 Mass. 207.
Section 25. An executor, administrator, guardian, conservator or 1
trustee whose appointment is invalid by reason of an irregularity or of 2
want of jurisdiction or authority in the court whicli made it, shall account 3
for all money, property or assets coming to his hands in said capacity 4
as if the appointment had been regular and valid; and any bond given 5
in pursuance of such appointment shall be valid and binding on the prin- 6
cipaJs and sureties; and payments to or by a person so appointed, if in 7
other respects properly made, may with the approval of the probate 8
court be ratified and confirmed by the executor, administrator, guardian, 9
conservator or trustee who is afterward legally appointed. 10
pmo7of "notice Section 26. If au executor, administrator, guardian, conser\'ator or
6r8a&"how''"' trustcc. Or a person employed by him to give notice of an appointment
remedied. or uoticc of salc of real estate, has failed to file an affidavit of such notice
R. l! 148', § 26. in the probate court and such affidavit cannot be obtained, the court
may, upon petition of any person interested in real estate the title to
which may be affected thereby, stating the particular failure complained
of and averring that the affida-\-it cannot be obtained, order notice by
1
2
3
4
5
6
7
dL-vp. 205.]
BONDS OF EXECUTORS, TRUSTEES, ETC.
2215
8 publication to creditors of, and others interested in, the estate in the
9 settlement of which the failiu-e complained of occurred. If, upon return
10 of such notice and after hearing, the court is satisfied that such notice
11 was in fact given, it may make a decree to that effect.
REFERENCES.
§ 5. Descent of cemetery lots unless expressly devised by will, Chap. 114, § 31.
§ 10. Method of payment of costs, Chap. 215, § 4.5.
§ 11. Limit of time for writs against executors, etc., for their own acts, etc.. Chap.
260, § 11.
§ 13. Arbitration or compromise by receiver of absentee, Chap. 200, § 11.
§ 1.5. Conclusiveness of the proceedings, Chap. 192, § 3.
§ 19. Partition sales, Chap. 241, § 31.
Sales, mortgages and leases by executor and others, see also Chaps. 201-203.
Sales by pubUc administrator. Chap. 194, § 9.
CHAPTER 205
BONDS OF EXECUTORS, ADMINISTRATORS, GUARDIANS, CONSERVA-
TORS, TRUSTEES AND RECEH'ERS.
Sect.
form and conditions of probate bonds.
1. Form of bonds and when required.
2. Additional proWsions for bonds in
French spoliation cases.
3. Bond of executor, etc., who is residuary
legatee.
EXEMPTION FROM GIVING SURETIES ON
BONDS.
4. E-xemption of executor, etc., from
gi\'ing sureties.
5. Exemption of guardians and trustees.
6. Exemption of guardian having custody.
7. Bond not required in certain cases.
8. Neglect to give bond a resignation.
GENERAL PROVISIONS.
9. Sureties on bonds to be inhabitants of
commonwealth.
10. Bonds to be approved by judge or regis-
ter.
11. Joint or separate bonds by joint execu-
tors, etc.
12. Executor not gi\-ing bond not to inter-
meddle.
13. Additional bond may be required of
executor, etc., licensed to sell, etc.
14. New bond when sureties, etc., insuffi-
cient.
15. Discharge of sureties, and new bond.
Sect.
16. Removal if new bond not given.
17. Sureties on prior bond Hable until new
bond approved.
18. Reduction of penal sum of bond.
19. Release of sureties by marriage of
executrix, etc.
ACTIONS UPON BONDS.
20. Action by creditor.
21. Same subject.
22. Action by next of kin.
23. Action by person aggrieved by mal-
administration of e.xecutor, etc.
24. Action when the judge is an obUgor.
25. Action against wife of probate judge.
26. Endorsement of writ.
27. Obligor may be summoned in certain
cases.
28. Same subject.
29. Actions upon bonds of guardians, con-
servators or trustees.
30. Venue of actions upon bonds.
31. Form of execution in action on bond.
32. Proceedings if execution is awarded for
the use of a particular person.
33. Proceedings if awarded mthout express-
ing for whose use.
34. ProWsion for new breach after execu-
tion awarded.
35. Limitation of actions against sureties
on bond of guardian or conservator.
1
FORM AND CONDITIONS OF PROB.\TE BONDS.
Section 1. An executor, administrator, administrator with the will Form of
bonds and
2 annexed, special administrator, receiver of an absentee, conservator, p''|°7|ST?!-
3 temporary guardian and, unless otherwise expressly provided, a guardian i3o.§§ 2] s. I'l;
4 or trustee under a will or appointed by the probate court, including a §§ ia. 13".'
2216
BONDS OF EXECUTORS, TRUSTEES, ETC.
[Chap. 205.
1897, 135, § 3:
447, § 2.
1S9S, 527, 5 2.
1900, 345, § 4.
R. L. 145, § 41
149, § 1.
1908, 295.
1910,95.
5 Pick. 65.
Conditions of
bond of exec-
utor or admin-
istrator, etc.
1783, 24. § 17.
1816,94, § 1.
1817, 190, § 14.
R. S. 63,
§§2,8.
13 Pick. 328.
10 Cusli. 1.
106 Mass. 15.
140 Mass. 351.
143 Mass. 326.
144 Mass. 587.
152 Mass. 412.
193 Mass. 38.
211 Mass. 178.
Bond of
administrator.
1692-3, 14. § 1.
1783,36, §8,
1816,94. § 1,
1817, 190, § 14.
R. S. 64. § 5.
G. S. 94, § 2.
1878. 154, § 1.
5 Pick. 65.
trustee under a will holding property for public charitable purposes,
before entering upon the duties of his trust, shall give bond with suf-
ficient sureties, in such sum as the probate court may order, payable
to the judge of said court and his successors, and with condition sub-
stantially as follows: 8 Pick. 526. 7 Gush. 207. 16 Gray, 577.
R. L. 149, I 1.
133 Mass. 111.
136 Mass. 54.
198 Mass. 401.
Bond of
special ad-
ministrator.
1834, 174, § 5.
R. S. 64. § 7.
G. S. 94, § 7.
1876, 200, § 2.
P. S. 130. I 11.
R. L. 149, § 1.
Bond of
receiver
of absentee.
1897, 447, § 2.
R. L, 149, § 1.
8 Allen, 532.
184 Mass. 373.
191 Mass. 211.
194 Mass. 423.
221 Mass. 587.
228 Mass. 225.
1878, 154, § 1.
1880, 152, § 1.
P. S. 129, § 5;
130, § 8.
R. L. 149, § 1.
152 Mass. 412.
1. In the case of an executor or administrator with the w^ill annexed: 10
First, To make and return to the probate court within three months all
true inventory of all the testator's real and personal property w-hich at 12
the time of making such inventory shall have come to his possession or 13
knowledge; g. s. 93, §§ 2. 8. i87o, 285. 14
Second, To administer according to law and to the will of the testator 15
all personal property of the testator which may come into his possession 16
or into the possession of any person for him, and also the proceeds of any 17
of the real estate of the testator which may be sold or mortgaged by him; 18
Third, To render upon oath a true account of his administration at 19
least once a year until his trust is fulfilled, unless he is excused therefrom 20
in any year by the court, and also to render such account at such other 21
times as the court may order. 22
2. In the case of an administrator: 23
First, To make and return to the probate court within three months a 24
true inventory of all the intestate's real and personal property which at 25
the time of making such in\^entory shall have come to his possession or 26
knowledge; isso, 152, §1. p. s. lao, §2. r. l. 149, §1. 27
Second, To administer according to law all the personal property of the 28
deceased which may come into his possession or into the possession of any 29
person for him, and also the proceeds of any of tiie real property of the 30
deceased which may be sold or mortgaged by him; 31
Third, To render upon oath a true account of his administration at 32
least once a year until his trust is fulfilled, unless he is excused therefrom 33
in any year by the court, and also to render such account at such other 34
times as the court orders; 35
Fourth, To pay to such persons as the court orders any balance 36
remaining in his hands upon the settlement of his accounts; 37
151 Mass. 595.
Fifth, To deliver his letters of administration into the court if a will of 38
the deceased is thereafter duly proved and allowed. 39
3. In the case of a special administrator: 40
That he will make and return to the probate court within such time as 41
it orders a true inventory of all the personal property of the deceased 42
which at the time of making such inventory shall have come to his 43
possession or knowledge, and that he will, whenever required by the pro- 44
bate court, truly account on oath for all the property of the deceased 45
which may be received by him as such special administrator, and will 46
deliver the same to any person who may be appointed executor or ad- 47
ministrator of the deceased, or may be otherwise lawfully authorized to 48
receive the same. 49
4. In the case of a receiver of an absentee under chapter two hundred : 50
With condition substantially as provided for the bond of an executor 51
or administrator, and with the further condition to obey all orders and 52
decrees made by the probate court. 53
Chap. 205.] bonds of executors, trustees, etc. 2217
54 5. In the case of a temporary guardian or conservator appointed under Bond of
55 section fourteen or twenty-one of chapter two hundred and one : guarSan'^r
56 That he will make and return to the probate court within such time as i897??35.°§'3.
57 it shall order a true inventory of all the personal property of the ward ^"li \Iq-_ | \-
58 which at the time of making such in\-entory shall have come to his pos- i^i^' ^3.
59 session or knowledge, and that lie will, whenever required by the probate
60 court, truly account on oath for all the property of the ward which may be
€1 received by him- as such temporary guardian or conservator, and will
62 deliver it to any person who may be appointed guardian or conservator
63 or may be otherwise lawfully authorized to receive it.
64 6. In the case of a guardian or conservator: ^uardianor
1 Pick. 198, 206, 527. S Pick, 528. 154 Mass. 266. conservator.
7 Pick. 91. 3 Gush. 465.
65 First, To make and return to the probate court at such time as it orders 1726-7, 12,
66 a true inventory of all the real and personal property of the ward which at 1731-2', 14,
67 the time of making such inventory shall have come to his possession or 1737-8 9
68 knowledge; ' "3, 4.' '
1783, 38, § 5. G. S. 109, §§ 6, 16. 1898, 527, § 2.
1817, 190, § 34. 1878. 1.V4, § 2. R. L. 145, § 41; 149, § 1.
R. S. 79, §§ 5, 7. 1880, 152, § 1. 1910, 95.
1855, 280. P. S. 139, § 22. 1915, 23.
69 Second, To manage and dispose of all such property according to law
70 and for the best interests of the ward, and faithfully to perform his trust
71 in relation to such property and to the custody, education and main-
72 tenance of the ward;
73 Third, To render upon oath at least once a year until his trust is ful- fj^p^^k ^i^'
74 filled, unless he is excused therefrom in anv vear by the court, a true ?y'l'' i?,^^
*■' " 4 V„ USD. olU.
75 account of the property in his hands, including the proceeds of all real n Cush. is.
76 property sold or mortgaged by him and of the management and disposi- 9Aiienii02.
77 tion thereof, and also to render such account at such other times as said u4 Mass! 195!
78 court may order;
79 Fourth, At the expiration of his trust to settle his account in the pro- 1 Pick, los,
80 bate court or with the ward or his legal representatives, and to pay over Ts Pick. 1.
81 and deliver all the property remaining in his hands, or due from him on 4 cusV^lio.
82 such settlement, to the person or persons lawfully entitled thereto. o^AUeny'iol?'
130 Mass. 141. 182 Mass. 332. 206 Mass. 4,S8.
144 Mass. 195. 187 Mass. 578. 232 Mass. 83.
83 7. In the case of a trustee under a will or appointed by the probate Bond of
o , , _ " trustee.
84 court: 22Pick.2i5.
10 Allen, 169. 153 Mass. 249. 184 Mass. 373.
85 First, To make and return to the probate court at such time as it orders isio, 8o, § i.
86 a true inventory of all the real and personal property belonging to him as §§ 37, 41.'
87 trustee which at the time of the making of such inventory shall have §§1,9.'
88 come to his possession or knowledge; g. s. 100, §§ 1, 11.
1869, 357. P. S. 141, §§ 12, 13. 1908, 295.
1878, 154, § 2. R. h. 149, § 1. 186 Mass. 189.
89 Second, To manage and dispose of all such property, and faithfully to
90 perforin his trust relati\-e thereto according to law and to the will of the
91 testator or the terms of the trust as the case may be;
92 Third, To render upon oath at least once a year until his trust is
93 fulfilled, unless he is excused therefrom in any year by the court, a true
94 account of the property in his hands and of the management and dis-
95 position thereof, and also to render such account at such other times as
96 said court orders;
2218
BONDS OF EXECUTORS, TRUSTEES, ETC.
[Chap. 205.
Fourth, At the expiration of his trvist to settle his account in the pro- 97
bate court, and to pay over and dehver all the property remaining in his 98
hands, or due from him on such settlement, to the person or persons 99
entitled thereto. 100
Additional
provisions for
bonds in
French spo-
liation cases.
1902. 371,
§5 2-4.
Section 2. A bond given by an administrator engaged in the admin- 1
istration of French spoliation awards shall contain a condition substan- 2
tially as follows: "To administer according to law and the orders of 3
the probate court all French spoliation awards which shall come to his 4
possession as such administrator." Such bond, when satisfactory to the 5
judge or register, shall be approved in the following form : " Approved as 6
adequate security for the legal disbursement of a French spoliation award 7
of dollars", stating the amount appearing then to be receivable 8
by the administrator from the United States treasury on account of 9
such award or awards. Nothing herein contained shall be construed to 10
impair the validity of any bond given prior to I\Iay second, nineteen 11
hundred and two, or to afl'ect the rules of administration and distribution 12
of French spoUation awards theretofore established in the commonwealth. 13
§§6,
Bond of
executor, etc.,
who is
residuary
legatee.
1783. 24, § 17.
R. S. 63,
§§3.4.
1857, 88.
G.S. 93,
§§3,4.
1870, 285.
P. S. 129,
7; 130, § S
R. L. 149. § 2.
3 Mass. 523.
16 Mass. 172.
5 Pick. 337.
5 Met. 247.
6 Cush. 235.
2 Gray, 404.
5 Gray, 67.
107 Aias.-(. 474.
116 Mass. 435.
131 Mass. 408.
133 Mass. 447.
134 Mass. 115.
Section 3. If the executor of a will or an administrator with the 1
will annexed is residuary legatee thereunder, and it appears that the 2
bond required of him by section one is unnecessary for the protection 3
of any person interested in the estate, the court may permit him, in- 4
stead of giving such bond, to give bond in a sum and with sureties to 5
the satisfaction of the court, and conditioned to pay all debts and 6
legacies of the testator and such amounts as may be allowed by the 7
court to the widow or minor children for necessaries. In such case he 8
shall not be required to return an inventory to the court. The giving 9
of such bond shall not discharge the lien on the real estate of the testator 10
for the payment of debts, except on such part as may be sold by such 11
executor or administrator to a purchaser in good faith and for a valuable 12
consideration; and all property not so sold may be taken on execution 13
by a creditor not otherwise satisfied, in like manner as if a bond had been 14
given in the other form. 15
140 Mass. 66, 502. 144 Mass. 238. 191 Mass. 187. 202 Mass. 104.
Exemption of
executor, etc.,
from giving
sureties.
1858, 72.
G. S. 93. § 5.
P. S. 129. § 8.
1885, 274,
§§ 1.2.
R. L. 149,
§§3.8.
8 Allen, 532.
12 Allen, 330.
218 Mass. 27.
EXEMPTION FROM GIVING SURETIES ON BONDS.
Section 4. An executor shall be exempt from giving a surety on 1
his bond if the testator has ordered or requested such exemption or that 2
no bond be required, and an executor, administrator or an administrator 3
with the will annexed shall be so exempt if all the persons interested in 4
the estate of full age and legal capacity, other than creditors, certify 5
to the probate court their consent thereto; but not until all creditors of 6
the estate, and the guardian of any minor interested therein, have been 7
notified and have had opportunity to show cause against the same. 8
The probate court may, however, upon or after the granting of letters 9
testamentary or letters of administration require bond, with sufficient 10
sureties, and failure to furnish the same within such time as the court 11
orders shall constitute a declination of or a resignation from the trust. »12
guarfra'ns"and SECTION 5. A testamentary guardian and a trustee under a will
isn^igo, § 37. shall be exempt from giving sureties on liis bond, if tlie testator has
1
2
CbJlP. 205.] BONDS OF EXECUTORS, TRUSTEES, ETC. 2219
3 ordered or requested such exemption, or that no bond be required, ^g|'7®'^^'
4 or in case of a trustee, if all the persons beneficially interested in the PqI^-,!?"' ^ ^•
5 trust, of full age and legal capacity, other than creditors, request such ism, 357.
6 exemption; but not until the guardian of any minor interested therein 1574] 352] §2!
7 and such other persons as the court orders have been notified and had p^a'fs^o,
8 opportunity to show cause against the same. The probate com-t may, || ff^ 'fi- ^*^'
9 however, at any time require such guardian or trustee, or a trustee ap- ^^^' 339- ^
10 pointed bv the probate coiut, to give a bond with siu-eties. The court ibos! 295.'
.". . .. 22 Pick 215
1 1 may, with or ^\■lthout notice, exempt a trustee imder a will holding 117 Mass. sis.
12 property for public charitable purposes from giving surety on his bond. ^''^
1 Section 6. If the custody of a minor is given to a guardian, under Exemption
2 section five of chapter two hundred and one, for the reason that one or hlvm" custody.
.3 both of his parents are unfit to have such custody, such guardian may in Ra'i^s^J.'j 2s.
4 the discretion of the com-t give a bond without surety ; but the court in ^- ^- 1''^' ^ ^•
5 such case may, at any time if it finds that the protection of the ward's
6 interests renders it necessary, require such guardian to give bond with
7 sureties.
1 Section 7. A guardian or trustee not required to give bond by the Bond not re-
2 laws in force at the time of his appointment shall not be required to give teinrases!^""
3 bond under the preceding sections of this chapter, except by special Jl}?; fg'of /s?.
4 order of the court under section five.
•R. S. 69, §3. 1873, 122, §2. P. S. 139, § 27; 141, § 19.
G. S. 100, § 3. 1880, 34, § 2. R. L. 149, § 6.
1 Section 8. A person required by the preceding sections, except 'j^l'^ond'a
2 section four, to gi\e a bond who, for thirty days after his appointment or resignation
3 after the entry of the decree requiring liim to give bond, fails to file i8i7,' inb, § 38.
4 the bond, duly approved, may be found to have declined or resigned g! a ibo, § i.
5 the trust. i869, 357. is73, 122, § 2. isso, 34, § 2.
p. S. 139, §2G; 1898,458. 110 Mass. 298.
141, § 18. R. L. 149, § 7. 128 Mass. 398.
general provisions.
1 Section 9. Sureties on probate bonds shall be iiJiabitants of the sureties on
2 commonwealth, and satisfactory to the judge or register; except that iXabit'a'ntsot
3 companies permitted by section one hundred and five of chapter one 5°"2,"|5,Y4'."'"
4 hundred and seventy-five to act as sureties may be accepted in accord- jf^l'TO^s 1^^'
5 ance with the provisions thereof. g. s. loi, § 12.
p. S. 143, § 1. 1901, 463. R. L. 149, § 9. 7 Al\en. 425.
1 Section 10. No bond required to be given to a judge of probate or Bonds to be
2 to be filed in a registry of probate shall be sufficient, unless it has been fudge o^r ^^
3 examined and approved by the judge or register, and his approval over igj'I'Ygo, § 23.
4 his official signature written thereon. R. s. 83, § 32.
G. S. 101, § 12. R. L. 149, § 10. 12 Allen, 330.
P. S. 143, § 2. 3 Cush. 4ri5. 142 Mass. 399.
1901,463. 8 Allen, 532. 178 Mass. 203.
1 Section 11. Two or more persons acting jointly as executors, admin- Joint or sepa-
2 istrators, trustees or otherwise, who are required to give bonds, may Joint executors.
3 give either separate or joint bonds. i834, 174, § 6. ^'°-
R. S. 70. § 2. 1874, 366. R. L. 149, § 11.
G. S. 101, § 14. P. S. 143, § 3. lOG Mass. 15.
2220
BONDS OF EXECUTORS, TRUSTEES, ETC.
[Chap. 205.
givmg'brad' SECTION 12. If two or morc persons are appointed executors, none
meddie"""^ shall intermeddle or act as such but those who give bond as before
ms, 24, § 17. provided. 3
R. S. 62, § 2. G. S. 93, § 2. P. S. 129, | 9. R. L. 149, § 12.
1
2
Additional
bond may be
required of
executor, etc.,
licensed to
sell, etc.
1783, 32, § 2.
1834, 174, § 7.
R. S. 71, § 6:
72. § 10.
1850, 196.
Section 13. If a license or authority to sell or mortgage real estate 1
is granted to an executor, administrator, guardian, conservator or trus- 2
tee, no special bond shall be required; but if the court finds the bond 3
already given by him insufficient, it shall, before granting such license 4
or authority, require an additional bond containing the same conditions 5
as are required in the original bond. 6
G. S. 101, § 13;
102, §§ 6, 28.
1880, 152, § 2.
P. S. 143, § 4.
1898, 527, § 2.
R. L. 145, §41; 149, § 13.
1910, 95.
16 Grav, 267.
133 Mass. 236.
Section 14. If the sureties or the penal sum in a probate bond are
New bond
when sureties, . ™» . , . ,. . ,
etc ■insufficient, msufficieut, the suprcmc judicial court or the probate court may, after
isn! 190, 1 42. notice to the principal in such bond, require a new bond with such
79, §24.' "'' surety or sureties and in such penal sum as the court orders.
1851, 31, § 1. P. S. 143, § 5. 139 Mass. 356.
G. S. 101, § 15; R. L. 149. § 14. 142 Mass. 399.
109, § 27. 3 Gush. 465. 171 Mass. 386.
1877, 134. 116 Mass. 435. 175 Mass. 199.
Discharge of SECTION 15. A surcty on a probate bond may, upon the petition of
new bond. the surcty or of the principal to the supreme judicial court or the pro-
R. s. 70, '§ 28"' bate court, be discharged from all further responsibility, if the court,
1843, 56, § 1. after notice to all persons interested, finds such discharge reasonable
?69^§^27' ^ ^'^' ^"^ proper; and the principal shall thereupon give a new bond with
S- ?• ^}?A ^<:^; = such surety or sm-eties as the court orders. i9i2, lei.
R. L. 149, § 15. ^
129 Mass. 226. 130 Mass. 404. 132 Mass. 343. 139 Mass. 356.
Removal if
new bond not
given.
1817, 190, § 42.
R. S. 70, § 29.
1843, 56, § 2.
1851,31, § 1.
Section 16. If, in the cases specified in the two preceding sections, 1
the principal does not give such new bond within such time as the court 2
orders, he shall be removed from his trust, and another person appointed 3
in his stead. g. s. loi, § i7. p. s. 143, § 7. r. l. 149, § le. 4
prio'?bon°d Section 17. If a new bond is required as above provided, the sureties 1
Uabie until new qu the prior bond shall be liable for all breaches of the condition thereof 2
bond approved. •iir* i i i* ii »»i
1817, 190, § 42. committed betore the new bond is approved by the judge. 3
R. S. 70, § 30. P. S. 143, § 8. 116 Mass. 552. 132 Mass. 343.
1843, 56, § 3. R. L. 149, § 17. 129 Mass. 226. 142 Mass. 399.
G. S. 101, § 18. 3 Gush. 465. 130 Mass. 404. 171 Mass. 386,
^emiTsum "i SECTION IS. If a surety company becomes surety on a probate bond, 1
bond. ^ the court may, upon the petition of any party in interest and after notice, 2
R. l'. 149, § 18. reduce the penal sum in which the principal and surety shall be liable 3
for subsequent violations of the conditions thereof. 4
Release of SECTION 19. In casc of the marriage of a woman who is an execu- 1
sureties by . , , . . ,. ^ , .1,1
marriage of trix, administratrix, guardian, conservator or trustee, her sureties shall, 2
iso9"409',V2. upon petition to the probate court in M'hich her bond is filed, be released 3
i898,'62l'', §^2. from further liability thereon, beyond accounting for and paying over 4
fii^'i^w.' ^ *'' *'^^ money and property already in her hands by ^■irtue of such trust; 5
7^Aii'en^427 ^^^ ^^ ^^^ siu'etics are so released, she shall be required to furnish a new 6
bond to the satisfaction of said court, or shall be removed from said 7
trust. 8
CUAP. 205.] BONDS OF EXECUTORS, TRUSTEES, ETC. 2221
ACTIONS UPON BONDS.
1 Section 20. A bond given by an executor or administrator for the Action by
2 performance of his trust may be put in suit by a creditor of the deceased lyse, 55, § 2.
3 for his own benefit, when such creditor has recovered judgment for his §.' l/io'i! §19.
4 debt against the executor or administrator and he has neglected upon ^ f; Y/g,^ 20.
5 demand to pay the same or show sufficient goods or estate of the deceased ]i jja^^- f ■ .
, , • 0 ^ 1^ Mass. 524.
6 to be taken on execution tor that purpose. 20 Pick. 53.
9 Met. 525. 138 Mass. 336. 183 Mass. 510. 195 Mass. 155, 411.
1 Gray, 305. 142 Mass. 227. 185 Mass. 178. 196 Mass. 1.
2 Gray. 154. 173 Mass. 112. 187 Mass. 461. 217 Mass. 552.
117 Mass. 222. 182 Mass. 332. 188 Mass. 525. 221 Mass. 587.
1 Section 21. A creditor of an estate which has been represented in- same subject.
2 solvent may bring such action if the amount due him has been ascertained r.*s.'7o,'|4.'
3 by the decree of distribution, and the executor or administrator neglects Ritual in.'
4 upon demand to pay it.
R. L. 149, § 21. 21 Pick. 58. 221 Mass. 587.
1 Section 22. Such action may be brought by a person who is next Action by next
2 of kin to recover his share of the personal property after a decree of lim/bb. § 2.
3 the probate court ascertaining the amount due him, if the executor or giI. u'l! t'21.
4 administrator neglects upon demand to pay it.
p. S. 143, § 12. R. L. 149, § 22. 126 Mass. 450. 144 Mass. 135.
1 Section 23. If the probate court, upon the representation of a per- Action by
2 son interested in an estate, finds that the executor or administrator has aggn°vedby
3 failed in any manner not specified in the three preceding sections to per- J?aUo™of '^
4 form the conditions of his bond, it may authorize any creditor, next of jyl^^ 5'5 ' |'2'
5 kin, legatee or other person aggrieved by such maladministration to g | ''S'-^ ^-.^^
6 bring an action on the bond. p. s. 143, § 13. r. l. 149, § 23. 9 Met. 525.
7 Gush. 467. 9 Allen, 244. 129 Mass. 75. 187 Mass. 578.
1 Gray, 305. 13 Allen, 109. 136 Mass. 104. 193 Mass. 38.
2 Gray, 175. 110 Mass. 195, 549. 140 Mass. 351. 202 Mass. 541. ^
15 Gray, 57. 116 Mass. 518. 183 Mass. 596. 221 Mass. 587. W
1 Section 24. If a judge of probate is obligor, either as principal or Action when
2 as surety, in a bond given to a former judge of the court, any action in^owfg^o'r."'
3 authorized by this chapter may be brought upon such bond in the name ^^^' \^\-
4 of the judge mentioned therein or in the name of his executor or adminis- i^F'fo
5 trator, and the register of probate for the county in which such bond was r'. l. i49, § 24.
6 given may authorize an action thereon in like manner and upon the
7 same conditions as may be done in other eases by the court.
1 Section 25. The wife of a judge of probate may be a defendant in Action against
2 an action upon a bond given to him or to his predecessor in such office, bate judge-
1896, 208. R. L. 149, § 25.
1 Section 26. In every action on a bond under sections twenty. Endorsement
2 twenty-one and twenty-two, the writ shall be endorsed by the persons i7si[,'55, § 2.
3 for whose benefit or at whose request the action is brought or by their g'I^Io'i.^^m.
4 attorney, and the endorsers shall be liable for the costs of suit, and execu- p- ^- ^*^^ Yii
5 tion therefor shall be issued against them and not against the judge. ?Pj^'''^i-_
6 If the action is brought for the benefit of creditors or next of kin, there
7 shall be a further endorsement on the writ specifying that it is brought for
8 the benefit of such creditors or next of kin.
2222
BONDS OF EXECUTORS, TRUSTEES, ETC.
[Chap. 205,
Section 27. If the principal in the bond is a resident of the com-
Obligor may
be summoned p i . l •
in certain momvealth at the commencement or the action, and is not made a
1788,' 20, § 2. defendant therein or is not served with process, the com-t may, at the
g'. s. loi. § 26. request of any of the sureties, continue or postpone the action so long
R.L. u9,V27. ^s may be necessary to simimon or bring in the principal as provided
in the following section.
Same subject. Section 28. The Sureties may take out a ■nTit, in such form as the
R. s.'7o.'§9.' com-t mav prescribe, to arrest the principal or to attach his goods or
p.'s.'i43,'§ 17.' estate, and to summon him to appear and answer as defendant in the
^■^•"»- 5^^- original action.
If, after being ser\'ed with such process foiu-teen days
at least before the time appointed for him to appear and answer to the
action, he neglects so to do, and if judgment is for the plaintiff, such
judgment shall be rendered against the principal obligor with the other
defendants in the same manner as if he had been originally a party to
the action. An attachment or bail on such process shall be liable to
respond to the judgment in like manner as if made or taken in the original 10
action. 11
Actions upon
bonds of
guardians,
conser\*ators
or trustees.
1786. 55.
1810, 86, I 3.
1817, 190, 5 43.
R. S. 69, § 13;
79, § 25.
Section 29. A bond given by a guardian, conservator or trustee may 1
be put in suit by order of the probate court for the benefit of any person 2
interested in the estate, and the proceedings in such action shall be con- 3
ducted in like manner as is provided relative to actions on bonds given 4
bv executors or administrators. g. s. loo, § i2; 109, § 28. 5
p. S. 143, § 18.
R. h. 149, § 29.
1908, 295.
1915, 23.
19 Pick. 403.
21 Pick. 36.
140 Mass. 351.
182 Mass. 332.
188 Mass. 525.
195 Mass. 133.
215 Mass. 242.
226 Mass. 218.
Venue of
actions upon
bonds.
1786, 55, § 3.
1810, 86, § 3.
Section 30. An action on a bond payable to a judge of probate 1
shall be brought in the superior court held for the county where the 2
bond was taken. 1817, 190, § 43. R. S. 69, § 13; 70, § lO; 79, § 25. 3
G. S 100, § 12;
101, §28; 109, §28.
P. S. 143, § 19.
1897, 131.
R. L. 149, § 30.
195 Mass. 133.
Form of
execution in
action on
bond.
1786, 55.
1816, 94, § 2.
R. S. 70, § 10.
Section 31. If the court finds that there has been a breach of the 1
condition of the bond of an executor or administrator, it shall, upon 2
a hearing in equity, award execution in the name of the plaintiff as 3
follows : 4
G. S. 101, § 18.
P. S. 143, § 20.
R. L. 149, § 31.
16 Gray, 267.
110 Mass. 195.
116 Mass. 552.
155 Mass. 203.
188 Mass. 525.
223 Mass. 389.
144 Mass. 135.
107 Mass. 474.
116 Mass. 552.
129 Mass. 2215.
138 Mass. 259.
204 Mass. 233.
215 Mass. 242.
First, If the action is brought for the benefit of a creditor, execution 5
shall be awarded for the use of the creditor for the amount due him 6
upon the judgment which he has recovered, or upon the decree of dis- 7
tribution in his favor. 8
Second, If the action is brought for the benefit of a person who is 9
next of kin, execution shall be awarded for the use of such person for the 10
amount due him according to the decree of the probate court. 11
Third, If the action is brought for a breach of the condition in not 12
accounting for the estate as required by law, execution shall be awarded, 13
without expressing that it is for the use of any person, for the full value 14
of all the estate of the deceased which has come to the hands of the 15
executor or administrator and for which he does not satisfactorily ac- 16
count, and for all damages caused by his neglect or maladministration. 17
Chap. 205.] bonds of executors, trustees, etc. 2223
18 Fourth, If the action is brought for any other breach of the condi- io7 Mass. 474.
19 tion of the bond, execution shall be awarded for such amount and for
20 the use of such person or persons, or \\ithout expressing it to be for the
21 use of any particular person, as the court determines.
22 Fifth, If there are two or more persons for whose use execution is to 1 Mass. 69.
2.3 be awarded as proAided in this section, a separate execution shall be
24 issued for the amoimt due each.
25 Sixth, The execution shall include costs of suit, as well as the debt
26 or damages; and if there is more than one execution, costs shall be
27 divided between them as the court orders.
1 Section 32. If an execution awarded under the preceding section is Proceedings if
2 expressed to be for the use of a particular person, such person shall be Iwarded°fir
3 considered as the judgment creditor, and may cause it to be levied in pa^Sar ^
4 his name and for his benefit, as if the action had been brought and the ire|°°55 5 1
5 judgment recovered in his name. r. s. -0, § 10. ci. 7.
G. S. 101, § 28. cl. 7. P. S. 143, § 21. R. L. 149, § 32. 8 Gush. 289.
1 Section 33. If such execution is awarded without expressing it to be Proceedings if
2 for the use of any particular person, all money received thereon shall be ^thout ex-
3 paid to the co-executor or co-administrator, if any, or to the person who whrae^use""^
4 is then the rightful executor or administrator, and shall be assets in his §■ | loi.S^g
5 hands to be administered according to law.
P. S. 143, § 22. R. L. 149, § 33. 9 Met. 625.
1 Section 34. If, after execution has once been awarded in an action Provision for
2 upon a bond, the executor or administrator commits a new breach of the after e'^^ecu-
3 condition of the bond, or if a creditor, next of kin, legatee or other person r°s.''7o!'^§'T2.
4 interested in the estate has a claim for further damages on account of any ^'il^^'i 23'
5 neglect or maladministration of the executor or administrator, a writ of R- l. 149, § 34.
6 scire facias on the original judgment may be sued out in like manner as is
7 provided for the commencement of the original action ; and the court shall
8 thereupon award a new execution in like manner as might have been done
9 in the original action.
1 Section 35. No action shall be maintained against the sureties on a Limitation of
21 J • 1 ]. , I J "j.! • J? actions against
bond given by a guardian or conservator unless commenced within tour sureties c
i on
3 years from the time of the discharge of the guardian or conservator; but g^ardu
consen
1835, 1
R. S. 7
G. S. 109, § 29.
4 if at the time of such discharge the person entitled to bring such action is Jgsl'^'^"'"''
11; 113.
5 out of the commonwealth, it may be commenced within four years after g- 1- ^j^ f^^,
6 his return. p. s. 139. § 28.
R. L. 149, I 35. 9 Gush. 68. 141 Mass. 507.
1915, 23. 13 Gray, 661. 199 Mass. 109.
REFERENCES.
§ 1. Means of enforcing payment of premium on surety company bonds, Chap.
21.5, § 39.
Bonds of public administrators, Chap. 194, § 2.
Bonds given by trustees in certain cases of absentees, Chap. 203, § 33.
Right of executors, etc., to give joint control of assets to surety on bond, Chap.
17.5, § 10.5.
§ 3. But see Chap. 65, § 16.
§ 4. E.xemption of trust companies, Chap. 172, §§ 55, 58.
§ 8. See Chaps. 192, § 4; 193, § 7.
§ 9. Giving of surety company bonds. Chap. 175, § 105.
§ 21. See Chap. 19S, § 27.
2224
ACCOUNTS, ETC., OF EXECUTORS, TRUSTEES, ETC. [ChAP. 206.
CHAPTER 206.
ACCOUNTS AND SETTLEMENTS OF EXECUTORS, ADMINISTRATORS,
GUARDIANS, CONSERVATORS, TRUSTEES AND RECEIVERS.
Sect.
1. When accounts shall be rendered.
2. Forms of accounts.
3. Examination on oath.
4. Court may require production of secu-
rities and moneys.
6. Personal property to be accounted for
at appraised value, except, etc.
6. Property for which accountant charge-
able.
7. Allowance of guardian's account.
8. Income derived from real estate to be
accounted for.
9. Mortgage of real estate to be personal
assets.
10. In case of redemption, executor, etc.,
to release.
11. Land taken on execution by executor,
etc., to be personal assets.
12. How land held in mortgage or on execu-
tion may be sold.
13. How disposed of if not sold.
14. Allowance for burial lot and monument.
15. Cost of perpetual care.
16. Compensation and expenses of execu-
tor, etc.
Sect.
17. Expense of procuring surety chargeable
on estate.
18. Executor, etc., liable for neglect to ac-
count.
19. Opening of settled accounts.
20. Allowance of account of joint execu-
tors, etc., on oath of one.
Distribution.
Final discharge of executor, etc.
Confirmation of distribution by admin-
istrator without order.
Final determination of account. Guard-
ian ad litem, etc.
25. Unclaimed money to be deposited in
savings bank, etc.
Deposit of legacies, etc., of unknown
legatees.
Deposit of certain funds.
Final disposition of deposits.
If beneficiaries live out of common-
wealth, courts may order trust fund
paid over to trustee in another state.
30. Same subject.
31. Settlements by receivers.
21.
22.
23.
24
When accounts
shall be
rendered.
1752-3, 12, § 1.
R. S. 67. § 7.
G. S. 98, § 9.
1877, 102.
P. S. 144, § 1.
R. L. 150, § 1.
1915, 23.
1 Pick. 198.
3 Pick. 365.
7 Pick. 1.
Section 1. An executor, administrator, guardian or conservator, or 1
a trustee required by law to give bond to a judge of probate, shall render 2
an account relative to the estate in his hands at least once a year and at 3
such other times as shall be required by the court, until his trust is ful- 4
filled; but the court may at his request excuse him from rendering an 5
account in any year, if satisfied that it is not necessary or expedient that 6
it should be rendered. 7
3 Met. 74.
6 Met. 553.
4 Gush. 510, 513.
8 Gush. 365.
U Gush. 107.
6 Allen. 494.
102 Mass. 350.
116 Mass. 518.
144 Mass. 195.
191 Mass. 211.
195 Mass. 133, 559.
215 Mass. 419.
220 Mass. 84.
227 Mass. 392.
Forms of
accounts.
1895, 210.
R. L. 150, § 2.
1915. 23.
146 Mass. 373.
149 Mass. 520.
151 Mass. 595.
152 Mass. 328.
166 Mass. 300.
195 Mass. 559.
202 Mass. 356.
220 Mass. 84.
Section 2. Accounts rendered to the probate court by an executor, 1
administrator, trustee, guardian or conservator shall be for a period dis- 2
tinctly stated therein, and consist of three schedules, of which the first 3
shall show the amount of personal property according to the inventory, 4
or, instead thereof, the amount of the balance of the next prior account, 5
as the case may be, and all income and other property received and gains 6
from the sale of any property or otherwise; the second shall show pay- 7
ments, charges, losses and distributions; the third shall show the invest- 8
ment of the balance of such account, if any, and changes of investment. 9
A trustee shall state in his accounts the receipts of principal and income 10
separately and also the payments and charges on account of such princi- 11
pal and income separately. 12
Chap. 206.] accoxotts, etc., of executors, trustees, etc. 2225
1 Section 3. An executor, administrator, guardian, conservator, trustee Examination
2 or receiver may be examined on oath before the court upon any matters r" a 07, § 7.
3 relative to his accounts. g. s. 98, § 9. p. s. 144, § 2.
R. L. 150, § 3. 1 Pick. 530. 12 Pick. 166. 4 Gush. 510.
1915,23. 11 Pick. 113. 6 Met. 553. 149 Mass. 520.
1 Section 4. In settling an account of any executor, administrator. Court may
2 trustee, guardian or other fiduciary, the probate court may require him, d
require pro-
uction of
securities and
moneys.
3 or any of them if there are more than one, to produce during the pro-
4 ceedings or afterward, as the court may direct, any seciu^ities or moneys ^^^^' '*'• ^ ^■
5 comprised in the account or any documents relating to the investments
6 of the estate, and to replace any moneys or property that have been
7 improperly applied or disposed of, or the value thereof, and to pay or
8 transfer the same or any moneys or property with which he or they
9 may be charged into a proper account or otherwise, as the court may
10 order, in such manner that the same shall be in the control of the per-
il sons entitled thereto; and the proceedings upon every such account
12 shall be considered for all purposes to be proceedings in equity, and
13 orders and decrees of the court therein shall be enforceable accordingly,
14 and execution may issue for any such moneys against the fiduciary per-
15 sonally as upon a judgment at law in favor of the persons entitled to the
16 control thereof, or any of them, for the benefit of all.
1 Section 5. An executor, administrator, guardian, conservator or Personal prop-
2 trustee shall account for the personal property at its appraised value, iSounted for
3 but he shall make no profit by the increase nor sustain any loss by the vaiue?except,
4 decrease or destruction of any part thereof without his fault. If he sells f^^j jg^
5 any of the personal property for more than its appraised value, he shall |§ i^, 34.'
6 account for the excess: if he sells for less than its appraised value, he 2,'4;'79,'§ 20.'
7 shall be allowed for the loss if the court finds that the sale was expedient 2, eV 109, § 17.
8 and for the interest of all concerned; and he shall not be accountable for r,i;.\5o,|4.
9 a debt inventoried as due to the estate if the court finds that it remains 2''Ma<«?'384
10 uncollected without his fault. no Mass. 369. 159 Mass. 185.
1 Section 6. An executor, administrator, guardian, conse^^•ato^ or Property for
2 trustee shall be chargeable in his account with all the personal property rnt'char^geabie"
3 of the estate coming to him and which is by law to be administered, R*a'67,°§5f'
4 although not included in the inventory; also with all proceeds of real q "g gg « 7.
5 estate which is sold or mortgaged, and with all interest, profit and JoS; § i^.
6 income coming to him from tlie personal property. R. l. 150, § 5.
1915,23. 9 Mass. 337. 13 Gray, 387. 191 Mass. 211.
1 Section 7. No final account or discharge of a guardian of an insane AUowanc* of
2 person shall be allowed unless at least seven days' notice has been given ScTOunt" "
3 to the department of mental diseases.
1909, 504, § 101. 1919, 350, § 79. 3 Op. A. G. 252.
1 Section 8. If real estate of a deceased person is used, occupied or income de-
2 taken charge of by an executor or administrator, he shall account for rJilBTcstatc
3 the income and management thereof in the same maimer as in the case coiIiTtiTfor.
4 of personal property. i7S9, u, § 2. r. s. 67, § 6.
G. S. 98, § 8. 9 Met. 540. 99 Mass. 616. 145 Mass. 520.
P. S. 144, § 5. 6 Gray, 338. 100 Mass. 218. 149 Mass. 262.
R. L. 150, § 6. 12 Gray, 23fi. 106 Mass. 100. 152 Mass. 257.
1913,248. 13 Gray, 326. 116 Mass. 552. 102 Mass. 56.
16 Mass. 280. 1 Allen, 1.32. 125 Mass. 307, 311. 193 Mass. 38.
1 Pick. 157. 5 .•Ulen, 87. 136 Mass. 297. 204 Mass. 233.
2226
ACCOUNTS, ETC., OF EXECUTORS, TRUSTEES, ETC. [ChAP. 206.
Mortgase of
real estate
to be personal
assets.
1786, 5. § 1.
1788, 51, § 1.
R. S. 65. § 11.
G. S. 90, § 9.
P. S. 133. § 6.
R. L. 150, § 7.
16 Mass. 18.
U Pick. 399.
8 Gush. 225.
Section 9. If a mortgagee of real estate or an assignee of such 1
mortgagee dies without ha\'ing foreclosed the mortgage, the mortgaged 2
property and the debt secured thereby shall be personal assets in the 3
hands of his executor or administrator, and shall be administered and 4
accounted for as such ; and the executor or administrator shall have the 5
same rights of entry and of action under said mortgage as the mortgagee 6
or his assignee. ii Cush. 147. 7
3 Grav, 504.
10 Allen, 430.
108 Mass. 379.
128 Mass. 284.
161 Mass. 487.
175 Mass. 213.
219 Mass. 266.
223 Mass. 134.
In case of
redemption,
executor, etc.,
to release.
17SB, 5, §§ 2, 4.
1788, 51,
§§2,4.
R. S. 65, § 12.
G. S. 96. § 10.
P. S. 133, § 7.
R. L. 150, § 8.
Section 10. Upon the redemption of such mortgage the money paid 1
thereon shall be received by the executor or administrator, and he shall 2
tliereupon release and discharge the mortgage; and until such redemj)- 3
tion the executor or administrator, if possession has been taken either 4
by himself or by the deceased, shall be seized of the mortgaged property 5
in trust for the persons who would be entitled to the money if the prop- 6
erty had been redeemed. 7
Land taken
on execution
by executor,
etc., to be
personal
assets.
1786, 5, § 3.
1788, 51, § 3. •
R. S. 65. § 13.
G. S. 96, § 11.
P. S. 133, § 8,
R. L. 150, § 9.
4 Mass. 598.
Section 11. If an executor or administrator recovers judgment for 1
a debt due the deceased, and levies on real estate, he shall be seized of 2
such real estate in trust for the persons who would have been entitled 3
if tlie judgment had been satisfied in money; and the real estate so 4
ttiken shall be considered as personal assets in his hands; and if re- 5
deemed, the money shall be received by the executor or administrator, 6
who shall thereupon release the real estate. 17 Pick. 477. 3 Gray, 302. 7
How land held
in mortgage
or on execution
may be sold.
1786, 5, § 3.
1788, 51, § 3.
R. S. 65, § 14.
1849, 47.
1851, 288.
1852.41.
G. S. 96, §S
13; 98. § 5.
12,
Section 12. Real estate held by an executor or administrator in 1
mortgage, or taken on execution by him, may, at any time before the 2
right of redemption is foreclosed, be sold subject to such right, in the 3
same manner as personal property of a person deceased; and after such 4
right has been foreclosed, it may be sold in the same manner as real 5
estate of which the deceased died seized. p. s. 133. 1 9. 6
R. L. 150, (
1 Pick. 81.
17 Pick. 477.
10 Met. 403.
13 Met. 126.
3 Gray, 302.
6 .\llen, 77.
190 Mass. 27.
How disposed
of if not sold.
1786, 5, § 3.
1788, 51, § 3.
R. S. 65, § 15.
G. S. 96. § 14.
P. S. 133. § 10
R. L. 150. § 11.
3 Gray, 504.
Section 13. If real estate so held by an executor or administrator in 1
mortgage or on execution is not redeemed or sold as before provided, 2
it shall be assigned and distributed to the same persons and in the 3
same proportions as if it had been part of the personal property of the 4
deceased; and if upon such distribution the property comes to two or 5
more persons, the probate court may cause partition thereof to be made. 6
! 0.
Allowance for
burial lot and
monument.
1878, 228.
P. S. 144,
1900, 147.
R. L. 150,
1920. 46.
10 Pick. 154.
139 Mass. 304
159 Mass. 185
12.
Section 14. A reasonable amount expended for a burial lot and a
monument, or for the repair, improvement or embellishment of a burial
lot or monument, may be allowed by the court as part of the funeral
expenses of a deceased person; and the court may at any time, upon
petition of an executor or administrator, after notice, determine the
amount which may be expended. 167 Mass. 307. 577. iso Mass. sos.
petua?care. Section 15. Au exccutor or administrator may pay to a cemetery
r^l! iso, 1 13. corporation or to a town having a bm-ial place therein a reasonable
lOTMaSJo?; amount for the perpetual care of the lot in which the body of the
deceased is buried. The probate court shall determine, after notice, to
whom the same shall be paid and the amount thereof, and such amount
shall be allowed the executor or administrator in his account.
Chap. 206.] accounts, etc., of executors, trustees, etc. 2227
1 Section 16. An executor, administrator, guardian, conservator or Compensation
2 trustee shall be allowed his reasonable expenses incurred in the execution ofexecutorfltc.
3 of his trust, and shall have such compensation for services as the court 79,^5' 3I; ^ ^'
4 may allow. isss, h4. g. s. os, § lO; 109, §31. p. s. 144. §7.
R. L. 1.50, § 14. 101 Mass. 592. 149 Mass. 375, 520.
1915,23. 109 Mass. 252, 258, 541. 152 Mass. 328.
1 Pick. 147. 117 Mass. 41. 161 M.as3. 188.
5 Pick. 146. 121 Mass. 220. 163 Mass. 509.
10 Pick. 77. 125 Mass. 307. 185 Mass. 14.
16 Pick. 46. 128 Mass. 140. 192 Mass. 337.
19 Pick. 473. 130 Mass. 262. 204 Mass. 233.
20 Pick. 378. 140 Mass. 117, 351. 224 Mass. 145.
2 Met. 420. 142 Mass. 422. 226 Mass. 231, 492.
5 Allen, 87. 146 Mass. 373. 234 Mass. 374. '
6 Allen, 494.
1 Section 17. Money paid with the approval of the judge of probate Expense of
2 to a corporation qualified to act in the commonwealth in guaranteeing si™cty'charEe-
3 the fidelity of persons and in acting as surety on bonds, or to any person is86,°23f *''*^'
4 for acting as surety on any official bond given to such probate court, JjsVi^s' i5d'
5 may be allowed as a charge against the estate.
1 Section 18. If an executor or administrator, after being duly cited fab^for' "'''■■
2 by the probate court, neglects to render an account of his administra- °pf^"„t*°
3 tion, his bond may be put in suit as provided in the preceding chapter; q |gMj-.
4 and if he persists in such neglect, judgment shall be rendered against him, p.'s.'i44, § 8.'
6 and he shall be liable in like manner and to the same extent as an exec-
6 utor in his own wrong.
1 Section 19. If an account of an executor, administrator, guardian, OpcmnEof
2 conservator or trustee is settled in the absence of a person adversely founts. ^"^
3 interested and without notice to him, it may be opened upon his appli- c'lgs,'! 12!
4 cation at any time within six months after such settlement. Upon p%?'i^/4''§ 9
5 the settlement of an account, all former accounts of the same account- ^^y^- i^o, § 17.
6 ant which have not been settled according to section twenty-four or 1 Pick. 157.
7 corresponding provisions of earlier laws may be so far opened as to 7 pick! 1.
8 correct a mistake or error therein; but a matter in dispute, previously lOPicL*??.
9 heard and determined by the court, shall not without leave of the court J| p\l^- j°^'
10 be again brought in question by any of the parties to such dispute. 6°Mit''i94°'
4 Gush. 513. 103 Mass. 177. 144 Mass. 415, 461. 188 Mass. 186.
11 Gush. 107. 109 Mass. 541. 148 Mass. 434. 203 Mass. 328.
12 Allen, 1. 128 Ma,s3. 532. 155 Mass. 203. 219 Mass. 40.
9S Mass. 462. 134 Mass. 120. 162 Mass. 56. 225 Mass. 380.
101 Mass. 592. 137 Mass. 94. 186 Mass. 393. 227 Mass. 303.
1 Section 20. The probate court may allow the account of two or Allowance of
2 more joint executors, administrators, guardians, conservators or trustees, fofnTexe™-
3 upon the oath of one of them. r. s. 70, §3i;79, §33. oath of^one"
G. S. 101, § 6. P. S. 144, § 11. R, L. 150, § IS. 1915, 23.
1 Section 21. If the estate of a deceased person is to be distributed R'L"i5o'°§"i9
2 in whole or in part, the probate court, on petition of any person inter- i-j* Mass. 507.
3 ested, alter such notice as it may require, may order the executor or 211 Mass. i7.s.
4 administrator to convert the personal property into cash and distribute *"
5 it among the persons entitled thereto.
1 Section 22. If an executor, administrator, guardian, conservator or Final discharge
2 trustee has paid or delivered to the persons entitled thereto the money etc"'^" °''
3 or other property in his hands, as required by decree of a probate court, §: a 101, §^7!
4 he may perpetuate the evidence thereof by presenting to said court, r.l.\m.|2o'.
2228:
ACCOUNTS, ETC., OF EXECUTORS, TRUSTEES, ETC. [ChaP. 206.
1915. 23.
191 Mass. 211.
229 Mass. 231.
232 Mass. 83.
within one year after the decree is made, an account of such payments 5
or of the delivery of such property; and said account, upon being proved 6
to the satisfaction of the court, and verified on oath by the accountant, 7
shall be allowed as his final discharge and ordered to be recorded. Such 8
discharge shall forever exonerate the accountant and liis sureties from all 9
liability under such decree unless his account is impeached for fraud or 10
manifest error. 11
Confirmation
of distribution
by adminis-
trator witiiout
order.
1894, 303.
R. L. 150. I 21.
1(36 Mass. 300.
Section 23. If without an order of court an administrator pays or 1
delivers to the widow or husband of the deceased or to any other person 2
any money or other property in his hands, and thereafter renders an ac- 3
coimt on oath with a full and detailed statement thereof, and after notice 4
it appears that the persons to whom such money has been paid or prop- 5
erty delivered would have been entitled to an order of court for such 6
payment or delivery and that such account ought to be allowed, the 7
probate court may make a decree which shall have the same effect to 8
discharge and exonerate the accountant and his sureties from further lia- 9
bility as if such payment or delivery had been made under a previous 10
order of the probate court. 11
Final determi-
nation of
account.
Guardian ad
litem, etc.
1S77, 199,
§§1.2.
1879. 161,
§§1.2.
P. S. 144. § 13.
1889, 406.
1895. 2S8.
R. L. 150. § 22.
227 Mass. 392.
Section 24. If an account has been filed in the probate court and
if the court finds that the items of said account should be finally deter-
mined and adjudicated, or if the accountant after two years from a
former adjudication or from his appointment desires such determination
and adjudication, notice of such proposed action on such account shall
be given to all parties as it may order. If the interest of a person un-
born, unascertained or legally incompetent to act in his own behalf is
not represented except by the accountant, the court shall appoint a
competent and disinterested person as guardian ad litem or next friend 9
for such person, to represent his interest in the case. The person so ap- 10
pointed shall make oath to perform his duty faithfully and impartially, 11
and shall be entitled to such reasonable compensation as the court 12
allows. 13
Unclaimed
money to be
deposited in
savings bank,
etc.
R. S. 70, §§ 33.
34.
G. S. 101, §S.
P. S. 144. § 16.
R. L. 150, § 23.
1915, 23.
145 Mass. 517.
153 Mass. 14.
200 Mass. 594.
223 Mass. 540.
Section 25. If money which a decree of a probate court has ordered 1
to be paid over remains for six months unclaimed, the executor, admin- 2
istrator, guardian, conservator or trustee who was ordered to pay the 3
same may deposit it in a savings bank or other like institution, or 4
invest it in bank stock or other stocks, as the probate court orders, to 5
accumulate for the benefit of the person entitled thereto. Such deposit 6
or investment shall be made in the name of the judge of probate for the 7
time being, and shall be subject to the order of the judge and of his 8
successors in office as hereinafter provided. The person making such 9
deposit or investment shall file in the probate court a memorandum 10
thereof, with the original certificates or other evidences of title thereto, 11
which shall be allowed as a sufficient voucher for such payment. When 12
the person entitled to the money deposited satisfies the judge of his right 13
to receive it, the judge shall cause it to be paid over and transferred to 14
him. 15
SgMTi'eto., Section 26. If the residence of a legatee under a will duly proved 1
leKat^"™ or of a person entitled to a portion of a trust fund under an order of dis- 2
1885,376. tribution provided by section twenty-five of chapter two hundred and 3
Chap. 206.] accounts, etc., of executors, trustees, etc. 2229
4 three is unknown or if he is a minor without legal guardian, the court isss, iss.
5 may, if satisfied of such fact, order the legacy or share of the trust fund r. l! iso, § 24.
6 due him to be deposited or invested as provided in and subject to the 223 Mass! 540!
7 preceding section.
1 Section 27. If an executor, administrator, guardian, conservator or Deposit of
certain funds.
2 trustee has money which he considers it advisable to deposit in a savings ilgg.'go"
3 bank in the name of the judge of probate for the benefit of any person, f^] \^\ ^ ~®'
4 he may apply to the probate court by which he was appointed for leave HWi^ 540
5 so to do, and the court may in its discretion, without notice, direct such
6 money to be so deposited. \Mien the deposit is made the deposit book
7 of the bank shall be filed in said court. WTien the person entitled to
8 such money satisfies the court of his right to receive it, the coiut shall
9 by decree direct it to be transferred to him.
1 Section 28. The probate court may, on petition of any person in- Final disposi-
2 terested and after public notice, order all money or the proceeds thereof i89o°408!Ti^
3 which have been deposited or invested by its authority and which shall fss^^a^ga' I:
22.
26.
4 have remained unclaimed for twenty years from the date of such de- 211 Mass. i98.
5 posit or investment to be paid to the residuary legatee, if any, of the
6 testator to whose estate the money belonged, or, if such residuary legatee
7 is dead, to his heirs living at the time of such distribution ; and if no such
8 residuary legatee or any of his heirs are then living, or if the deceased
9 died intestate, said money and the proceeds thereof shall be disposed of
10 and distributed among the persons entitled thereto and in the manner
11 provided by chapter one hundred and ninety. The court shall first re-
12 quire from the persons to whom such money shall be ordered paid a suf-
13 ficient bond of indemnity, with two sufficient sureties to be approved by
14 it, conditioned to repay to the persons for whose benefit such deposit or
15 investment was originally made, or to the personal representatives of
16 such persons, all money paid over by the order of the court under this
17 section.
1 Section 29. If all living parties interested as beneficiaries in a trust n beneficiaries
2 created by a will allowed in the commonwealth reside outside thereof, commonweaJth,
3 the probate court having jurisdiction of the trust may, on petition of l°2lTu^.
4 parties in interest or of the executor, administrator or trustee, if it t^^'Ju^gg °^^'^
5 considers it just and expedient, authorize the executor, administrator ?SSg''Y-6'^«*i
6 or trustee to pay the fund to a trustee appointed by the proper court p.'s.'i44.'§i7".
7 in any other state or country, if all living beneficiaries and the executor, • • •
8 administrator or trustee signify their consent, and the court is satisfied
9 that the laws of such other state or country secure the due performance
10 of said trust; and upon such pajTnent, shown to the satisfaction of said
11 court, the executor, administrator or trustee appointed here may be dis-
12 charged from further responsibility by decree of said court.
1 Section 30. If there are contingent interests in such trust fund, fg^^ij^^i^a
2 whether the persons who may be entitled thereto are in being or not, E l\^o Vlj
3 or if any of the beneficiaries are minors, the court, before making an order
4 or decree, shall cause such interests and minors to be properly represented
5 by guardians ad litem or otherwise at its discretion.
1 Section 31. The following claims shall, in the settlement of estates settlements by
2 by receivers, be entitled to priority in the order named: iIqIt.''^.
2230 ACCOUNTS, ETC., OF EXECUTORS, TRUSTEES, ETC. [ChAP. 206.
fn^Ma^ss' 22^^' First, Debts due the United States or debts due, or taxes assessed by, 3
176 Mass. 283. the Commonwealth or a county, city or town therein. 4
215 Mass! 156! Second, Wages to an amount of not more than one hundred dollars 5
due an operative, clerk or servant for labor, either performed within one 6
year last preceding the appointment of the receiver or for the payment 7
for which a suit, which was commenced within one year after the per- 8
formance of the labor, is pending or was terminated within one year 9
after said appointment. 10
Third, Debts to an amount of not more than fifty dollars due physicians 11
for medical attendance on the debtor or his family, rendered within six 12
months prior to said appointment. 13
REFERENCES.
Duty of city and town auditors to audit the accounts of trustees who hold prop-
erty for the benefit of such city or town or the inhabitants thereof, Chap. 41, § 53.
Authority of the probate court to detcrnoine the amounts due to appraisers and
other persons for services in connection with the handUng of estates, and to enforce
payment of the same, Chap. 215, § 39.
Charging of brokers', etc., commissions to principal rather than income, Chap.
203, § 22.
§§ 1, 2. Requirements contained in the bonds of executors, etc., Chap. 205, §§ 1-3.
§ 5. Authority of the probate court to appoint auditors on accounts. Chap. 221,
§57.
I 14. Payment of funeral expenses by a special administrator, Chap. 193, § 14.
§ 16. Allowance for costs on a judgment against executor or administrator in a
representative capacity, Chap. 230, § 8.
§ 18. Executors in their own wrong, Chap. 195, §§ 14, 15.
I 21. Authority of the probate court to enforce payment. Chap. 197, § 24.
§ 24. Requirement of payment of inheritance and income taxes before final
accounts of executors, administrators, trustees and other fiduciaries can
be allowed, Chap. 65, § 23.
Allowance of final account without payment of inheritance tax on future
interest, Chap. 65, § 24.
§ 25. Disposition of money paid into the courts for the county of Suffolk, Chap.
35, § 23.
§ 28. For another provision, see Chap. 168, § 41.
Appointment of administrator de bonis non to make distribution, Chap.
193, § 9.
Chap. 207.]
AIAREIAGE.
2231
TITLE. III.
DOMESTIC RELATIONS.
Chapter 207. Marriage.
Chapter 208. Divorce.
Chapter 209. Husband and Wife.
Chapter 210. Adoption of Children and Change of Names.
CHAPTER 207
MARRIAGE.
Sect.
certain marriages pbohibited.
1. Marriage between certain relatives pro-
hibited.
2. Same subject.
3. Same subject.
4. Polygamous marriage void.
5. Insane persons incapable of marrying.
6. Marriage during existence of former
marriage valid, when.
7. Minors not to be married without con-
sent of parents, etc.
8. Marriages void without decree, when.
9. Marriages between minors void after
separation, etc.
10. Foreign marriages void, when.
11. Certain marriages contrary to laws of
other states forbidden.
12. Licensing officer to ascertain legal abil-
ity to marry of non-residents.
13. Construction of three preceding sec-
tions.
14. Determination of validity of marriage.
LEGITIMACY AND CARE OF ISSUE OF VOID
MARRIAGES.
15. Issue of certain void marriages ille-
gitimate.
16. Issue of marriage void by reason of
nonage, insanity, etc.
17. Issue of marriage void by reason of
prior marriage.
18. Care and maintenance of children of
void marriage.
NOTICE OF INTENTION OF MARRIAGE.
19. Notice to be filed five days in advance.
20. Notice to be in writing under oath.
Sect.
21. Certificate, etc., of divorce to accom-
pany notice of divorced person.
22. Oath before judge of probate court in
place of certificate.
23. Notice, where and when receivable.
24. Notice not receivable from certain
minors.
25. Marriage of such minors, how au-
thorized.
26. Notice not to be given without con-
sent of parties. How cancelled.
27. Notice in case of adopted persons.
28. Certificate of intention of marriage.
29. Five days' notice not required of immi-
grants.
30. Five days' notice, how dispensed with.
31. Alteration of certificate of intention
prohibited.
32. Clerk or registrar not to issue certifi-
cate without facts relative to divorce.
33. Certificate not to be issued to certain
minors.
34. Duplicate copies of notice of intention
of minors, when.
35. Refusal of certificate, when.
36. Citizens married outside common-
wealth to file certificate here.
37. List of impediments to marriage to be
posted in ofiice of clerk or registrar.
SOLEMNIZATION OF MARRIAGE.
38. Solemnization of marriago.
39. Designation of justices of the peace to
solemnize marriage.
40. Persons solemnizing marriages to keep
records and make returns.
41. Correction of imperfect certificates of
marriage.
2232
IVL\REIAGE.
[Chap. 207.
Sect.
42. Marriages valid though irregularly
solemnized.
43. Marriage by consul, etc.
44. Fees by cities and towns to persons
solemnizing marriages.
EVIDENCE OF MARRIAGE.
45. Record.
46. Certificate, etc., of consul, etc. "
47. Admissions and general repute, etc.
48.
49
PENALTIES.
Penalty for solemnizing marriage with-
out authority.
Penalty for joining persons in marriage
without certificate.
50. Penalty for knowingly is.suing certifi-
cate or performing marriage in eva-
sion of laws of another state.
Sect.
51. Penalty for -vaolation of certain pro-
visions of this chapter.
52. Penalty for violation of law relative to
making out notice of intention, and
false statement therein.
53. Penalty for issuing certificate of in-
tention to persons under age.
54. Penalty for illegal alteration of certifi-
cate of intention.
55. Penalty for failure of citizens married
outside commonwealth to file certifi-
cate.
56. Penaltj' for failure to make records
and returns of marriages.
57. Penalty for failure to return certificate
of intention of marriage.
58. Penalty for advertising to perform
marriage ceremony.
Marriage
between certain
relatives
grohibited.
;. L. 102, § S.
1695-6, 2. § 1.
1785. 69, § 1.
R. S. 75. 5 1.
G. S. 106, § 1.
CERTAIN 5I.ARRL\GES PROHIBITED.
Section 1. No man shall marry his mother, grandmother, daughter, 1
granddaughter, sister, stepmother, grandfather's wife, son's wife, grand- 2
son's wife, wife's mother, wife's grandmother, wife's daughter, wife's 3
granddaughter, brother's daughter, sister's daughter, father's sister or 4
mother's sister. p. s. 145. § 1. r. l. i5i,'§ 1. 213 Mass. 334. 5
Same subject.
1785, 69, § 1.
R. S. 75, § 2.
G. S. 106, § 2.
P. S. 145, § 2.
R. L. 151, § 2.
10 Met. 451.
213 Maas. 334.
Section 2. No woman shall marry her father, grandfather, son, 1
grandson, brother, stepfather, grandmother's husband, daughter's hus- 2
band, granddaughter's husband, husband's father, husband's grand- 3
fa4ier, husband's son, husband's grandson, brother's son, sister's son, 4
father's brother or mother's brother. 5
Same subject.
R. S. 75, § 3.
G. S. 106, § 3.
P. S. 145, § 3.
R. L. 151, § 3.
213 Masa. 334.
Section 3. The prohibition of the two preceding sections shall con- 1
tinue notwithstanding the dissolution, by death or divorce, of the mar- 2
riage by which the affinity was created, unless the divorce was granted 3
becaise such marriage was originally unlawful or void. 4
Polygamous
marriage void.
1784, 40, § 2.
1785. 69, I 2.
R. S. 75, 5 4.
Section 4. A marriage contracted while either party thereto has 1
a former wife or husband living, except as provided in section six and in 2
chapter two hundred and eight, shall be void. 3
G. S. 106. § 4. R. L. 151, § 4. 170 Mass. 150. 213 Mass. 334.
P. S. 145. I 4.
113 Mass. 458.
171 Mass. 560.
214 Mass. 77
Insane i
; pers-
incapable of
ions
Section 5. An insane person or an idiot shall be incapable of con-
R*a*75f§ 5 tracting marriage. The validity of a marriage shall not be questioned
1843. 5 by reason of the insanity or idiocy of either party in the trial of a col-
1845. 222
G.S. lOB, I 5
107, § 2.
lateral issue, but shall be raised only in a process instituted in the life-
p.s. 145, H 5, 9. time of both parties to test such validity. R. l. isi, § 5.
12 Mass. 363. 4 Pick. 32. 4 Allen, 458. 213 Mass. 334.
Marriage
during ex-
istence of
former niar-
riage valid,
when.
1895, 427.
Section 6. If a person, during the lifetime of a husband or wife 1
with whom the marriage is in force, enters into a subsequent marriage 2
contract with due legal ceremony and the parties thereto live together 3
thereafter as husband and wife, and such subsequent marriage contract 4
Ch.\P. 207.] MARRIAGE. 2233
5 was entered into by one of the parties in good faith, in tlie full belief ^^^- *|^- ^ g
6 that the former husband or wife was dead, that the former marriage had i™ Niaes'. iso.
7 been annulled by a divorce, or without knowledge of such former mar- iw Mass. 179.'
8 riage, they shall, after the impediment to their marriage has been re- iSe uT^'. 280!
9 moved by the death or divorce of the other party to the former marriage, 032 Mast 253!
10 if they continue to live together as husband and wife in good faith on
1 1 the part of one of them, be held to have been legally married from and
12 after the removal of such impediment, and the issue of such subsequent
13 marriage shall be considered as the legitimate issue of both parents.
1 Section 7. A magistrate or minister shall not solemnize a marriage Minors not to
2 if he has reasonable cause to belie\-e that the male is under twenty-one wtthout'consent
3 or the female is under eighteen, except with the consent of the parent loiw-s^S'.^'i.
4 or guardian having the custody of the minor, if there is any such parent \%^s H *■
5 or guardian in the commonwealth competent to act. R. s. 75. §15. i834, 177, § 2.
G. S. 106, § 13. R. L. 151, § 7. Penalty, § 51.
P. S. 145, § 6. 1 Gray, 119.
1 Section 8. A marriage solemnized within the commonwealth which Marriages
2 is prohibited by reason of consanguinity or affinity between the parties, dMre^when.
3 or of either of them having a former wife or husband living, shall be i785769^§V^'
4 void without a decree of divorce or other legal process. ^' ^' ^'^' ^ ^'
G. S. 107, § 1. P. S. 145, § 7. R. L. 151, § 8.
1 Section 9. A marriage solemnized when either party is under four- Marriages be-
2 teen if a male, or twelve if a female, shall be void without a decree of voi'd afte""'^^
3 divorce or other legal process if the parties separate during such nonage r!'" Veri^"."^'
4 and do not afterward cohabit.
G. S. 107, § 3. P. S. 145, § 8. R. L. 151, i 9. 1 Gray, 119.
1 Section 10. If any person residing and intending to continue to Foreign mar-
2 reside in this commonwealth is disabled or prohibited from contracting wK ™' '
3 marriage under the laws of this commonwealth and goes into another q[ s! io6,S%.
4 jurisdiction and there contracts a marriage prohibited and declared void r l.Ysi,V?o.
5 by the laws of this commonwealth, such marriage shall be null and void 5o^fJip^t''4M ^'
6 for all purposes in this commonwealth with the same effect as though }57 Mass. 73
7 such prohibited marriage had been entered into in this commonwealth. i7i Mass' nm'.
211 Mass. 512. 213 Mass. 334. 219 Mass. 111. 232 Mass. 253.
1 Section 11. No marriage shall be contracted in this commonwealth Certain mar-
2 by a party residing and intending to continue to reside in another tofawso" other
3 jurisdiction if such marriage would be void if contracted in such other bwdln.""^
4 jiu-isdiction, and every marriage contracted in this commonwealth in ^^^^' ^^^' ^ ^■
5 violation hereof shall be null and void.
1 Section 12. Before issuing a license to marry a person who resides Licensing
2 and intends to continue to reside in another state, the officer having ^certain legal
3 authority to issue the license shall satisfy himself, by requiring affidavits marry o°non-
4 or otherwise, that such person is not prohibited from intermarrying by jg^'fl^s^, § 3
5 the laws of the jurisdiction where he or she resides.
1 Section 13. The three preceding sections shall be so interpreted and o^t'hrrapr^
2 construed as to effectuate their general purpose to make uniform the 5^3"^6o'"'«'5^'
3 law of those states which enact like legislation.
2234
MARRL\GE.
[Chap. 207.
Determination
of validity of
marriage.
R. S. 76,§§3, 4.
1846. 197.
1835. 27.
G. S. 107,
§§4,5.
P. S. 145, § 11.
1886, 36.
R. L. 151, § 11.
114 Mass. 563,
566.
144 Mass. 163.
149 Mass. 223.
156 Mass. 578.
161 Mass. 111.
171 Mas3. 404.
174 Mass. 216.
175 Mass. 157,
383.
214 Mass. 77.
223 Mass. 62.
224 Mass. 392,
438.
4 0p. A. G. 176.
Section 14. If the validity of a marriage is doubted, either party 1
may file a libel for annulling such marriage, or if it is denied or doubted 2
by either party, the other party may file a libel for affirming the mar- 3
riage. Such libel shall be filed in the same manner as a libel for divorce, 4
and all the provisions of chapter two hundred and eight relative to 5
libels for divorce shall, so far as appropriate, apply to libels under this 6
section. Upon proof of the validity or nullity of the marriage, it shall 7
be affirmed or declared A-oid by a decree of the court, and such decree of 8
nullity may be made although the marriage was solemnized out of the 9
commonwealth, if at that time and also when the libel was filed the 10
libellant had his domicil in the commonwealth, or if he has resided in 11
this commonwealth for five years last preceding the filing of said libel, 12
unless the court finds that he has removed into this commonwealth for 13
the purpose of obtaining said decree. 14
LEGITIMACY AND CARE OF ISSUE OF VOID M.\RRLVGES.
Section 15. The issue of a marriage declared void by reason of 1
9
Issue of certain
void marriages , ,
^eptimate. cousanguinity or affinity between the parties shall be illegitimate.
■ ■ ■ ■ G. S. 107, § 28. P. S. 145, § 12. R. L. 151, § 12.
rSgevoidby SECTION 16. The issuc of a marriage declared void by reason of 1
reason of nouage, insanity or idiocy of either party shall be the legitimate issue 2
of the parent who was capable of contracting the marriage. 3
R. S. 76, § 22. G. S. 107, § 29. P. S. 145, § 13. R. L. 151, § 13.
nonage, in-
sanity, etc.
Issue of mar-
riage void by
reason of prior
marriage.
R. S. 76, § 23.
G. S. 107, § 30.
P. S. 145, § 14.
R. L. 151, § 14.
1902, 310.
114 Mass. 563.
156 Mass. 578.
223 Mass. 451.
228 Mass. 602.
Section 17. If a marriage is declared void by reason of a prior
marriage of either party and the court finds that the second marriage
was contracted with the full belief of the party who was capable of
contracting the second marriage that the former husband or wife was
dead, or that the former marriage was void, or that a divorce had been
decreed leaving the party to the former marriage free to marry again,
such finding shall be stated in the decree, and the issue of the second
marriage, if born or begotten before the second marriage was declared
void, shall be the legitimate issue of the parent capable of contracting
the marriage.
9
10
Care and Section 18. Upou or after a decree of nullity, the court shall have 1
mamtenance of... ^ ^ . ., ^ i
children of void like powcr to make orders relative to the care, custody and mamtenance 2
of the minor children of the parties as upon a decree of divorce. 3
R. S. 76, § 26. G. S. 107, § 33. P. S. 145, § 15. R. L. 151, | 15.
marriage.
1820, 56, § 1.
Notice to be
filed five days
in advance.
C. L. 101, § 2.
1695-6, 2, § 4.
1727-8, 11.
1786, 3, S 3.
1834, 177. § 2.
R. S. 75, 5 7.
1850, 121, § 1.
G. S. 106, § 7.
notice of intention of marriage.
Section 19. Persons intending to be joined in marriage in the 1
commonwealth shall, not less than five days before their marriage, 2
cause notice of their intention to be filed in the office of the clerk or 3
registrar of the town where each of them dwells, or, if they do not 4
dwell within the commonwealth, in the office of the clerk or registrar 5
of the town w'here they propose to have the marriage solemnized. 6
3 Op. A. G. 467.
1867, 68, § 1.
P. S. 145, § 16.
R. L. 151, § 16.
1911, 736, § 1.
Section 20. The clerk or registrar shall require WTitten notice of 1
Notice to be
in writing
1S53,'^335',''§ 2. intention of marriage to be given him on blanks furnished by him, by 2
G. s. 106, § 10. one of the parties to such intended marriage, or by his or her parent 3
Chap. 207.] ilvrrla.ge. 2235
4 or legal guardian, and shall require the party giving such notice to make p. s. i45. § 19.
5 oath before him or before a regularly employed clerk in his ofEce desig- R^^L.'fsf.'iVi?.
6 nated by him in writing and made a matter of record in the office, to 19^2, 120, § 1.
7 the truth of all the statements therein, whereof he or she could have \l\f l^f t ^■
8 knowledge, and also to make oath that there are no legal impediments „
9 to such intended marriage. In towns having an assistant clerk or regis- false oath,
10 trar he may administer the oath. No fee shall be charged for adminis- '^ ""
1 1 tering such oath.
1 Section 21. Persons filing such notice of intention, one or both of Certificate etc ,
... 'iiT . divorce to
2 whom have previously been married and divorced, shall file therewith a accompany
3 certificate or certified copy from the clerk or corresponding official of vorccd peraon.
4 the court or other tribunal by which the divorce was granted, showing 4'op! a. 6. 223.
5 the title and location of the tribunal and the names of the parties to
6 the proceeding for divorce, and showing which party obtained the
7 divorce, the cause therefor and the date when the decree became abso-
8 lute. If there has been more than one divorce, the said certificate or
9 certified copy as to every such divorce shall accompany the notice of
10 intention.
1 Section 22. If a person cannot obtain the certificate or certified oath before
2 copy described in the preceding section, he shall apply to the judge of bate court in
3 probate in the county where the notice of intention is to be filed and rat^ ° ""' '
4 state under oath the facts required to be stated in the said certificate or ^^'^' ^^^' ^ ^'
5 certified copy, and the reasons why such certificate or certified copy
6 cannot be obtained. The judge of probate, if satisfied of the truth of
7 the statements so made to him, shall thereupon grant to the party a
8 certificate stating the facts required, and such certificate shall be filed
9 with the notice of intention.
1 Section 23. The clerk or registrar need not receive notices of in- Notice, where
2 tention of marriage on Sunday or a legal holiday, nor at any place ^Sva'bie." '^
3 except his office. is94, 409. § 3. r. l. isi, § is.
1 Section 24. The clerk or registrar shall not, except as provided in Notice not re-
2 the following section, receive a notice of the intention of marriage of a certain mmora.
3 male under eighteen, nor of a female under sixteen.
1894,401,11. R. L. 1.51, § 19.
1 Section 25. The probate court for the county where a minor under Marriage of
2 the age specified in the preceding section resides may, after hearing, ho°wa"thor!ied.
3 make an order allowing the marriage of such minor, if the father of J^gg' *^][ ^ ^■
4 such minor or, if he is not living, or if he lives out of the commonwealth Rg^L. im, § 20.
5 or has deserted his family, the mother or, if neither parent is alive, and
6 resident in the commonwealth, a legal guardian has consented to such
7 order. If the parent whose consent would be required if living in the
8 commonwealth lives outside thereof and the address of such parent is
9 known, such notice of the proceedings shall be given him as the probate
10 court may order; but no notice need be given to a parent who has de-
ll serted his family. Said court may also after hearing make such order
12 in the case of a person whose age is alleged to exceed that specified in
13 the preceding section, but who is unable to produce an official record
14 of birth, whereby the reasonable doubt of the clerk or registrar, as
15 exercised under section thirty-five, may be removed. Upon receipt of a
2236
MARRIAGE.
[Chap. 207.
certified copy of such order by the clerk or registrar of the town where 16
such minor resides, he shall receive the notice required by law and issue 17
a certificate as in other cases. 18
Notice not to
be given with-
out consent of
parties. How
cancelled.
1894, 409,
§5 6, 7.
R. L. 151, § 21.
Penalty, § 51.
Section 26. Whoever, without the consent of both parties to an 1
intended marriage, gives the notice of their intention of marriage re- 2
quired by law shall be liable in damages to either of such parties whose 3
name was so used without such consent. The superior court, upon 4
petition of either party alleged to intend marriage in such a notice 5
given without the consent of both parties, and not followed by their 6
intermarriage, may, after notice and a hearing, order that such notice 7
of intention be cancelled in the town records. 8
S°adoVt^°''^ Section 27. A party to an intended marriage who has been legally 1
189?! 424. 1 4 adopted shall, in the notice of intention thereof, give the names of his 2
R. L. 151, § 22. parents by adoption; and the names of his parents may also be added. 3
The consent of a parent by adoption to the marriage of a minor shall 4
be sufficient if the consent of a parent of a minor is required by law as 5
a preliminary to marriage. If the natural parents of a minor have been 6
divorced and the consent of one of them is required by law, preliminary 7
to the marriage of such minor, the consent of the parent having the 8
custodv of such minor shall be sufficient. 9
Certificate of
intention of
marriage.
1727-S, 11.
1786, 3, § 3.
1834, 177, § 2.
R. S. 75, § 9.
1850, 121, § 2.
G. S, 106, § S.
1867, 58, § 1.
P. S. 145. § 17.
R. L. 151, § 23.
1911,736, § 2.
1912,463, I 1.
1914, 428, § 1,
3 Op. A. G. 467.
Section 28. On or after the fifth day from the filing of notice of 1
intention of marriage, except as otherwise provided, the clerk or regis- 2
trar shall deliver to the parties a certificate signed by him, specifying 3
the date when notice was filed with him and all facts relative to the 4
marriage which are required by law to be ascertained and recorded, 5
except those relative to the person by whom the marriage is to be solem- 6
nized. Such certificate shall be delivered to the minister or magistrate 7
before whom the marriage is to be contracted, before he proceeds to 8
solemnize the same. If such certificate is not used, it shall be returned 9
to the office issuing it within six months after it is issued. 10
Five days'
notice not re-
quired of im-
migrants.
1911, 736, § 6.
Section 29. If either of the parties to an intended marriage has 1
arrived as an immigrant from a foreign country within five days, the 2
notice of intention may be filed at any time before the marriage, and 3
the certificate required by the preceding section shall be issued at any 4
time after the filing of such intention. 5
Five days*
notice, how dis-
pensed with.
1911, 736, 5 4.
1912. 463, I 2.
Section 30. Upon application by both of the parties to an intended 1
marriage, when both parties are residents of the commonwealth or both 2
parties are non-residents, or upon application of the party residing 3
within the commonwealth when one of the parties is a resident and the 4
other a non-resident, a judge of probate or a justice of a district court 5
may, after hearing such evidence as is presented, grant a certificate 6
stating that in his opinion it is expedient that the intended marriage be 7
solemnized without delay. Upon presentation of such a certificate, or, 8
in extraordinary or emergency cases when the death of either party is 9
imminent, upon the authoritative request of a minister, clergyman, 10
priest, rabbi or attending physician, the clerk or registrar of the town 11
where the notice of intention has been filed shall at once issue the 12
certificate prescribed in section twenty-eight. 13
Chap. 207.] marriage. 2237
1 Section 31. No alteration or erasure shall be made by any person Alteration of
2 on the certificate under section twenty-eight until it has been returned fntelftmnV/o-
3 to the clerk or registrar, and then only in such form and to such extent J89'7r424 § i
4 as he may prescribe. Any such certificate may be recorded after cor- ^ ^- ^^^- 5 24.
5 rection in accordance herewith.
1 Section 32. The clerk or registrar shall not issue a certificate under aerk or
2 section twenty-eight, if either of the parties has been previously married to^^^'u^cenifi-
3 and divorced, unless the certificate or certified copy described in section faef^^eiaSvl
4 twenty-one or the certificate described in section twenty-two is filed Jg^'o'^aj'' « 3
5 with the notice of intention of marriage, and in such cases, if he issues
6 the certificate of entry of notice of intention, he shall attach thereto
7 such certified copy or certificate, which shall be a part thereof.
1 Section 33. The clerk or registrar shall not issue the certificate Certificate not
2 under section twenty-eight before the time therein specified, except as wruin mmore.
3 otherwise provided; nor to a male under twenty-one, or to a female cfH.'fol.'fg'
4 under eighteen, when he has reasonable cause to believe the person to S ? "*; i'^i
5 be under such age, except upon the apphcation or consent m writing of isii, 736, §3.
6 the parent or guardian of such person or by order of the probate court Penalty for
7 under section twenty-five. If there is no parent or guardian in this o"cmi£cate,*'
8 commonwealth competent to act, a certificate may be issued without ^ ^^'
9 such application or consent.
1 Section 34. If it is necessary to give notice in two towns of the Duplicate
2 intention of marriage of a minor, the clerk or registrar who first takes 0° mTention'o?
3 the consent of the parent or guardian shall take it in duplicate, retaining Js^J'^og'^? 4
4 one copy and delivering the other duly attested by him to the person R- ^- i^i, § 26.
5 obtaining the certificate, to be given to the clerk or registrar issuing Penalty. § si.
6 the second certificate; and no fee shall be charged for such consent
7 or copy.
1 Section 35. The clerk or registrar may refuse to issue a certificate Refusal of cer-
2 if he has reasonable cause to believe that any of the statements con- i's^94,*4b9!'§'2.
3 tained in the notice of intention of marriage are incorrect; but he may, ^- ^- ^^^- ^ -*•
4 in his discretion, accept depositions under oath, made before him, which renaity for
1 II 1 rr* • p p 1 p 1 ■ 1 I • false statement,
5 shall be sumcient prooi 01 the tacts therein stated to authorize the § 52.
6 issuing of a certificate. He may also dispense with the statement of any
7 facts required by law to be given in a notice of intention of marriage,
S if they do not relate to or affect the identification or age of the parties,
9 or a former marriage of either party, if he is satisfied that the same
10 cannot with reasonable effort be obtained.
1 Section 36. If a marriage is solemnized in another state between citizens mar-
2 parties living in this commonwealth, who return to dwell here, they commonwealth
3 shall, within seven days after their return, file with the clerk or registrar 'Ste'here"^
4 of the town where either of them lived at the time of their marriage a cf^s'io6'|?2
5 certificate or declaration of their marriage, including the facts required S-f "''•^^29
6 in a notice of intention of marriage. Penalty. § 55.
1 Section 37. The state secretary shall furnish to the clerk or registrar List of impcdi-
2 of every town a printed list of all legal impediments to marriage, and nfge'^to'b""
3 the clerk or registrar shall forthwith post and thereafter maintain it in a {|rderk or°*°*'
4 conspicuous place in his office. 1913, 752, 5 1. Penalty. §52. reglBtrar.
2238
JL\^RRIAGE.
[Cdap. 207.
Solemnization
of marriage.
C. L. 102, § 5.
1692-3, 25, § 1-
1695-6, 2, § 4.
1716-17,
IB, § 1.
1762-3, 28.
1772-3, 31,
5S 1. 2.
1786, 3, §§ 1.
2 8
1817, 141.
1820, 55.
1834, 177,
§§ 1,6.
R. S. 75, §§ 16,
22
1850, 121, § 5.
G. S. 106,
§§ 14, 15.
1867, 58, § 2.
P. S. 145, §§22,
23
1893, 461, § 1.
1894, 409, § 5.
1896, 300. § 4.
1899, 387, § 1.
R. L. 151, § 30.
1 Mass. 240.
7 Mass. 48.
SOLEMNIZATION OF MARRIAGE.
Section 38. A marriage may be solemnized in any place within the 1
commonwealth by a minister of the gospel, ordained according to the 2
usage of his denomination, who resides in the commonwealth and con- 3
tinues to perform the functions of his office; by a rabbi of the Israelitish 4
faith, duly licensed by a congregation of said faith established in the 5
commonwealth, who has filed with the clerk or registrar of the town 6
where he resides a certificate of the establishment of the synagogue, 7
the date of his appointment thereto and of the term of his engagement; 8
by a justice of the peace if he is also clerk or assistant clerk of a town, 9
or a registrar or assistant registrar, in the town where he holds such 10
office, or if he is also clerk or assistant clerk of a court, in the city or 11
town where the court is authorized to be held, or if he has been desig- 12
nated as provided in the following section and has received a certificate 13
of designation and has qualified thereunder, in the town where he re- 14
sides; and it may be solemnized among Friends or Quakers according 15
to the usage of their societies; but no person shall solemnize a marriage 16
in the commonwealth unless he can read and write the English language. 17
1 Pick. 235. 127 Mass. 459. 163 Mass. 453. 1 Op. A. G, 445.
J^Sira9^o°tije' Section 39. The governor may in his discretion designate a justice
peace to solera- ^f ^he peace in each town and such further number, not exceeding
nize marriage. ^ n ^ I'll' e' i
1899,387, one for every five thousand inhabitants of a city or town, as he con-
R. L. 151, § 31. siders expedient, to solemnize marriages, and may for cause at any time
revoke such designation. The state secretary, upon payment of five
dollars to him by a justice of the peace so designated, shall issue to him
a certificate of such designation.
Persons solem-
nizing mar-
riages to keep
records and
make returns.
C. L. 130. § 2.
1692-3. 25, § 3.
1695-6, 2,
§§4,6.
1716-17,
16. § 3.
1786. 3, §§ 6, 8.
1795, 7.
1817,61.
1834, 177.
§§ 5,6.
R. S. 75, §§ 17,
23
1844, 159, § 3.
G. S. 106, § 16.
1879, 116, § 1.
1881, 11, § 1.
P. S. 145, § 24.
1887, 202. § 3.
1892, 300.
1897, 424, § 5.
R. L. 151, § 32.
201 Mass. 261.
Penalty, § 5C.
Section 40. Every justice of the peace, minister, rabbi and clerk or 1
keeper of the records of a meeting wherein marriages among Friends or 2
Quakers are solemnized shall make and keep a record of each marriage 3
solemnized by him, or in such meeting, and of all facts relative to the 4
marriage required to be recorded by section one of chapter forty-six. 5
He shall also, between the first and tenth days of the month following 6
each marriage solemnized by him, return each certificate issued under 7
section twenty-eight to the clerk or registrar who issued the same; and 8
if the marriage was solemnized in a town other than the place or places 9
where the parties to the marriage resided, return a copy of the certifi- 10
cate, or of either certificate if two were issued, to the clerk or registrar 11
of the town where the marriage was solemnized. Each certificate and 12
copy so returned shall contain a statement giving the place and date of 13
marriage, attested by the signature of the person who solemnized the 14
same or of said clerk or keeper of the records of a Friends or Quaker 15
meeting. The person who solemnized the marriage shall add the title 16
of the office by virtue of which the marriage was solemnized, as "jus- 17
tice of the peace", "minister of the gospel", "clergyman", "priest" or 18
"rabbi", and his residence. AH certificates or copies so returned shall 19
be recorded by the clerk or registrar receiving them. 20
frnplTieoTcel- SECTION 41. If a Certificate of marriage is found, upon its return to
nmm*r\"' ^'^^ clcrk Or registrar, to have been incorrectly filled out by the person
Chap. 207.] marriage. 2239
3 who solemnized a marriage under it, the clerk or registrar shall have is97, 424. § 2.
4 it corrected and shall enforce the penalties provided by law relative ^' ^' '*'' ^ ^^'
5 thereto. Such imperfect certificates shall be recorded and indexed by
6 the clerk or registrar.
1 Section 42. A marriage solemnized by a person professing to be a Marriages
2 justice of the peace having authority to solemnize marriages, a minister ii-reguLrly^
3 of the gospel or a rabbi, or solemnized among Friends or Quakers ac- \°i™,1'j^^ 7.
4 cording to their usages, shall not be void, nor shall the validity thereof g g lobS^tb
5 be in any way affected by want of authority in such person or society, p-^siV-\^27
6 or by an omission or by informality in the manner of filing the notice ism, 4fii, § 2.'
7 of intention, if the marriage is in other respects lawful and is consum- no Mass.' 314.'
8 mated with a full belief of either of the persons so married that they 144 mIH'. tlf.
9 have been lawfully married. 155 Mass 534.
1 Section 43. Marriages solemnized in a foreign country by a con- Marriage by
2 sul or diplomatic agent of the United States shall be valid in this al^ioe,"! 23.
3 commonwealth. p. s. 145, § 28. r. l. isi, § 35. 5 Alien. 257.
1 Section 44. A city by ordinance and a town by vote may authorize Fees by cities
2 its clerk or registrar to pay on demand, in his office, twenty-five cents pcrsonrsoiem-
3 to any person who has legally solemnized a marriage in the common- ?iages.™"
4 wealth, after the receipt by such clerk or registrar of the certificate r^liII' lie
5 in legal form of the solemnization of such marriage. A city or town
6 which passes such ordinance or vote shall annually appropriate the
7 money necessary therefor, and the clerk or registrar thereof shall file
8 quarterly with the treasurer or other proper financial officer of said
9 city or town proper vouchers for all such payments.
evidence of marriage.
1 Section 45. The record of a marriage made and kept as provided R^g'^ys j 25
2 by law by the person by whom the marriage was solemnized, or by the pli^gllg''
3 clerk or registrar, or a copy thereof duly certified, shall be prima facie R- l- isi, 5 37.
4 evidence of such marriage.
10 Allen. 161. 133 Mass. 242. 156 Mass. 226. 229 Mass. 435.
1 Section 46. A copy of the record of a marriage solemnized by a Certificate.
2 consul or diplomatic agent of the United States or a certificate from etc" ° ™°™ '
3 such consul or agent shall be prima facie evidence of such marriage. p |; JJf; | |o.
R. L. 151, § 38. 229 Mass. 435.
1 Section 47. Marriage may be proved by evidence of an admission Admissions and
2 thereof by an adverse party, by evidence of general repute or of co- ft™^"^" '^''^^''^
3 habitation of the parties as married persons, or of any other fact from }|l?;2o!
4 which it may be inferred.
G. S. lOR. § 22. 3 Pick. 293. 10 Allen, 196. 120 Mass. 387.
P. S. 145. § 31. 14 Gray, 411. 99 Mass. 444. l.W Mass. 226.
R. L. 151, § 39. 5 Allen, 257. 110 Mass. 314. 163 Mass. 453.
penalties.
1 Section 48. Whoever, not being duly authorized by the laws of f(fi°^n^ji^
2 the commonwealth, undertakes to join persons in marriage therein """."'^fho^it'*"
3 shall be punished by a fine of not more than five hundred dollars or by nse, 3^5 5.
4 imprisonment for not more than one year, or both. R. s. 75. § 20.
G. S. 106, i 19. p. S. 145, § 26. 1896, 306, § 2. R. L. 151, § 40.
2240
M.4.RRLVGE.
[Cbl^p. 207.
Penalty for
joining persons
in marriage
without certifi-
cate.
1695-6, 2. § 4.
1772-3. 31. § 3.
17S6. 3, § 5.
1S34. 177,
l§4,9.
Section 49. Whoever, being duly authorized to solemnize mar- 1
riages in the commonwealth, joins in marriage persons who have not 2
complied with the laws relative to procuring certificates of notice of 3
intention of marriage shall be punished by a fine of not more than 4
five hundred dollars. R. s. 75, 1 19. g. s. loe, § is. F>
1867, 58, f 3. p. S. 145, § 25. 1896, 306, § 1. R. L. 151, | 41.
^owiSg/v'is- Section 50. Any official issuing a certificate of notice of intention
Buing certificate of marriage knowing that the parties are prohibited by section eleven
or periornung , ^ , ^ ^ i-i i-
marriage in from intermarrying, and any person authorized to solemnize marriage
who shall solemnize a marriage knowing that the parties are so pro-
hibited, shall be punished by a fine of not less than one hundred or
more than five hundred dollars or by imprisonment for not more than
one year, or both.
evasion of laws
of another
state.
1913, 360, 5 4.
^oMionof Section 51. Violations of any provision of section seven, twenty- 1
certain pro- gjij or thlrty-four, shall, upon complaint made within one year there- 2
Visions or tDi3 v ' ' sr i. »/
chapter. after, bc punished by a fine of not more than five hundred dollars or by 3
1894, 409. § 8. , ,
R. L. 151, § 43. imprisonment for not more than one year, or both. 4
^Xtio/of Section 52. Whoever violates any provision of section twenty or 1
law relative to of sectiou thirty-scveu, and whoever falsely swears or affirms in making 2
making out '' . ' . •' i n i • i i i n «
notice of in- any Statement required under section twenty, shall be punished by line 3
false statement or imprisonment at the discretion of the court. 4
"'"^'°' 1857. 34. P. S 145. § 20. R. L. 151. §§ 43, 44.
G. S. 106, § 11. 1894, 409, § 8. 1913, 752, § 3.
rmng'c^./t'ificate SECTION 53. A clcrk or registrar issuing a certificate of intention of 1
°ersoSunde'r° marriage contrary to section thirtv-three shall forfeit not more than 2
age- one hundred dollars. is53, 335, 1 1. g. s. loe, § 9. 3
p. S. 145, § IS.
R. L. 151, 5 25.
1911. 736, § 3.
k^af aftem'^tion SECTION 54. Whocvcr makcs an illegal alteration or erasure on 1
of certificate of a Certificate of intention of marriage shall be punished by a fine of not 2
more than one hundred dollars. R. l. 151, § 42. 3
intention.
1897, 424, S 1
Penalty for
failure of citi-
zens married
outside com-
monwealth to
file certificate.
Section 55. ^Vhoeve^ violates section thirty-six shall forfeit ten 1
dollars. 2
1850, 121, § 3. G. S. 106, § 12. p. S. 145, } 21. R. L. 151, J 29.
Penalty for
failure to make
records and
returns of
marriages.
Section 56. Whoever neglects to make the record and returns 1
required by section forty shall forfeit not less than twenty nor more 2
than one hundred dollars. i834, 177, §§ 5. 6. r. s. 75, j§ is. 23. 3
1844. 159, § 3.
G. S. 106, § 17.
1879, 116, § 2.
P. S. 145, § 24.
1892. 300,
R. L. 151, § 32.
Penalty for
failure to return
certificate of
intention of
marriage.
1914, 428, 5 2.
Section 57. Whoever performs a ceremony of marriage upon a 1
certificate more than six months after its issue, and whoever having 2
taken out such certificate and not having used it fails to return it, within 3
six months after its issue, to the office issuing the same, shall be punished 4
by a fine of not more than ten dollars. 5
CIL4.P. 208.]
DIVORCE.
2241
1 Section 58. Whoever advertises in a newspaper circulated in the Penalty for
2 commonwealth, or by any other means, to perform or to procure the perform mar-
3 performance of the marriage ceremony, shall be punished by a fine of i'gol,?/™™^'
4 not less than ten nor more than one hundred dollars.
REFERENCE.
§§ 20, 28. Facts required by law to be ascertained and recorded, and therefore
stated in the notice of intention of marriage. Chap. 46, § 1.
CHAPTER 208
DIVORCE.
Sect.
CAUSES FOR DrPORCE.
1. Causes for divorce.
2. Same subject.
3. Divorce after absence raising a pre-
sumption of death.
4. Divorce only if parties have lived to-
gether in commonwealth.
5. Exception.
LIBELS FOR DIVORCE.
6. Venue of libel.
7. Libel to be signed.
8. Notice to libellee.
9. Co-respondent may contest.
10. Co-respondent not to be named, except,
etc.
11. Same subject.
12. Attachment of husband's property.
13. Attachment, how made.
14. Same subject.
15. Guardian for insane libellee. Compen-
sation.
16. Investigation of divorce case.
17. Allowance and alimony during pend-
ency of libel.
18. Protection of personal liberty of wife
during pendency.
19. Custody of children during pendency.
20. Continuance of libel, and orders for
temporary separation, etc.
21. Decrees of divorce to be entered nisi.
22. Libel for desertion not to be defeated
by temporary return.
GENERAL PROVISIONS.
23. Resumption of former .name by wife.
24. Remarriage of divorced parties.
25. Divorce for adultery of wife not to
affect legitimacy of issue.
Sect.
26. Effect of divorce for adultery of wife
upon her separate property.
27. No dower to wife after divorce, except,
etc.
28. Care and maintenance of minor chil-
dren.
29. Same when divorce obtained out of
commonwealth.
30. Children not to be removed from com-
monwealth.
31. Custody of children.
32. Writ of habeas corpus to bring child
before court.
33. Procedure under this chapter.
34. Alimony.
35. Enforcement of alimony, etc.
36. Security for same.
37. Revision of decree for same.
38. Costs.
39. Validity of foreign divorces.
CRIMINAL PROVISIONS.
40. Cohabitation after divorce to bo
adultery.
41. Penalty for personation, etc., in divorce
suits.
42. Penalty for procuring unlawful divorce.
43. Penalty for advertising to procure
divorces.
44. Penalty for unlawfully issuing certifi-
cates of divorce.
45. Notice to district attorney of criminal
offences.
STATISTICS OF DIVORCE.
46. Returns of statistics of divorce.
47. Publication of abstracts of returns.
CAUSES FOR DIVORCE.
1 Section 1. A divorce from the bond of matrimony may be decreed ^^"^f/g'"'
2 for adultery, impotency, utter desertion continued for three consecu- nss, 69^§ 3.
3 tive years next prior to the filing of the libel, gross and confirmed habits r. s.'ye, §§ s, 6.
2242
Dn^ORCE.
[CH.VP. 208.
1838. 126.
1S57, 228,
G. S. 107.
§§ 6. 7, 9.
1870, 404,
187.3, 371.
I§ 2, 6.
P. S. 146,
5 1.
§2.
§1.
of intoxication caused by the voluntary and excessive use of intoxicating 4
liquor, opium or other drugs, cruel and abusi\'e treatment or, on the 5
libel of the wife, if the husband, being of sufBcient ability, grossly or 6
wantonly and cruelly refuses or neglects to provide suitable maintenance 7
for her. 8
1889, 447.
R. L, 152, § 1.
1 Mass. 240, 346.
2 Mass. 150, 154.
4 Mass. 5S6, 587.
5 Mass. 320.
7 Mass. 474.
11 Pick. 461.
21 Pick. 509.
2 Cush. 551.
7 Gray. 279.
8 Allen. 418.
97 Mass. 327
98 Mass. 155.
99 Mass. 39, 493.
,373.
100 Mass.
101 Mass.
103 Mass.
lot Mass.
111 Mass.
112 Mass.
113 Mass.
117 Mass.
126 Mass.
140 Mass
141 Mass,
142 Mass,
143 Mass,
150 Mass
154 Mass,
150.
111.
577.
195,
327.
298.
314.
202.
205.
528.
495.
361.
577.
111.
515.
198.
157 Mass. 503.
159 Mass. 281.
160 Mass. 216, 258.
168 Mass. 50. 201, 456.
171 Mass. 146.
175 Mass. 7.
190 Mass. 349.
191 Mass. 72.
192 Mass. 194.
210 Mass. 156.
219 Mass. 107.
225 Mass. 183.
229 Mass. 592.
230 Mass. 59.
234 Mass. 37, 250.
Section 2. A divorce may also be decreed if either party has been
Same subject.
R. S. 76, § 5.
a a' 107,' I (?.' sentenced to confinement at hard labor for life or for five years or more
R L "5*2 1^' ^^ ^^^® state prison, a jail, house of correction or reformatory for women;
1-1 m''^*' irf ^^^' ^^^^^ * divorce for such cause, no pardon granted to the party so
169 Mass! 592: sentenced shall restore such party to his or her conjugal rights.
216 Mass. 594.
S>se°nclmismg SECTION 3. A divorcc may be decreed for any of the causes allowed
of'^del'th''''"" ^y *^^ ^^^ preceding sections although the libellee has been continuously
1884, 219. absent for such time and under such circumstances as would raise a pre-
K. L. 152, § 3. , „ . , ^
113 Mass. 314. sumption 01 death. 147 Mass. 294.
Dirorce only
if parties have
lived together
in common-
wealth.
R. S. 76,
§§ 9-11.
G. S. 107, § 12.
P. S. 146, § 4.
R. L. 152, § 4.
98 Mass. 158.
Section 4. A divorce shall not, except as pro-vided in the following 1
section, be decreed if the parties have never lived together as husband 2
and ■U'ife in this commonwealth; nor for a cause which occurred in 3
another jurisdiction, unless before such cause occurred the parties had 4
lived together as husband and wife in this commonwealth, and one of 5
them lived in tliis commonwealth at the time when the cause occurred. 6
103 Mass. 574, 575.
115 Mass. 438.
135 Mass. 83.
143 Mass. 274.
191 Mass. 12,S.
205 Mass. 388.
210 Mass. 156.
230 Mass. 59.
236 Mass. 256.
Exception.
1843, 77.
G. S. 107, § 11.
1877, 174.
P. S. 146, § 5.
R. L. 152, § 5.
6 Gray, 157.
135 M.ass. 83.
154 Mass. 515.
161 Mass. 508.
188 Mass. 550.
190 Mass. 349.
191 Mass. 12.S.
210 Mass. 319.
225 Mass. 82.
Section 5. If the libellant has lived in this commonwealth for five 1
years last preceding the filing of the libel, or if both parties were inhabit- 2
ants of tliis commonwealth at the time of their marriage and the libellant 3
has lived in this commonwealth for three years last preceding such .filing, 4
a divorce may be decreed for any cause allowed by law, whether it occurred 5
in tills commonwealth or elsewhere, unless it appears that the libellant 6
has removed into this commonwealth for the purpose of obtaining a 7
divorce. 230 Mass. 59. 236 ILass. 250. S
I
Venue of li
1692-3. 25,
1783, 69, §
1820, 14, I
R. S. 76,
§§7,8.
1851, 82, I
G. S. 107,
§§ 13. 14.
bel.
5 4.
7.
10.
LIBELS FOR DIVORCE.
Section 6. Libels for divorce shall be filed, heard and determined
in the superior court held for the county where one of the parties lives,
except that, if the libellant has left the county where the parties lived
together and the libellee still lives therein, the libel shall be heard and
determined in the court held for that county.
P. S. 146, I 6. Ill Mass. 158. 191 Mass. 128.
1887. 332. 5 1. 135 Mass. 83. 210 Mass. I,i6.
R. L. 152, 5 6. 150 Mass. 280. 223 Mass. 451.
Chap. 208.] divorce. 2243
1 Section 7. The libel shall be signed by the libellant, if of sound mind ll^^l^° ^^
2 and of legal age to consent to marriage; otherwise, it may be signed by g | JpV^.^jg
3 the guardian of the libellant or by a person admitted by the court to p.'s.ue.'i 7.
4 prosecute the libel as his next friend. R. l. 152, § 7.
7 Mass. 96. 1 Met. 3S2. 8 Allen, 311. 139 Mass. 377.
1 Section 8. The court or clerk may order the libellee to be summoned JJ^'eiw*''
2 to appear and answer at the court having jurisdiction of the cause, by i^^ss, eg, § s.
3 the publication of the libel or of the substance thereof, with the order s§ 'i5-i7.
4 thereon, in one or more newspapers to be designated in the order, or by s§ h), 20.'
5 delivering to the libellee an attested copy of the libel and a summons, or isos! 109, § 1.
6 in such other manner as it or he may require. If such order is made by ^'j | \l^-
7 the clerk, the court may order an additional notice. If the libellee does J|[J°' |™;
8 not appear and the court considers the notice defective or insufficient, P^ ^ 152, §8
^^ I !■ 1 • 12^ Mass. 191.
9 it may order further notice. i4i Mass. 432. 223 Mass. 451.
1 Section 9. A person named as co-respondent in an amended libel, may^contrar'
2 cross libel or answer may appear and contest the charge of adultery Jlgg'^y
3 therein made against him. e. l. 152. § 9.
1 Section 10. In a libel for divorce, wherein the commission-of adultery Co-respondent
2 by either party is alleged as ground for the divorce or as the ground for SamedXcept,
3 contesting the divorce, no libel, cross libel or answer at the time of filing f^^^^ j2i, § 1.
4 shall name any person as co-respondent. The party alleging such adul-
5 tery may by motion, after the libel has been entered, upon an ex parte
6 hearing before a justice of the superior court, obtain permission to amend
7 his libel, cross libel or answer by inserting the name of the co-respondent
8 if the justice finds probable cause has been shown that such accused
9 person has committed adultery as alleged, and thereupon notice shall
10 be sent to said co-respondent and to the other party to the libel.
1 Section 11. The e\adence produced at such ex parte hearing shall fgn^ i2i,'T2.
2 not be reported or made a part of the record in the case and the motion i9i9. i^*-
3 for said amendment shall not be read to the court during the divorce pro-
4 ceedings, but the clerk of the court shall make an entry in the docket of
5 "Motion to insert name of co-respondent allowed", or "Motion to in-
6 sert name of co-respondent denied", as the case may be. If the amend-
7 ment is allowed upon affidavits, they shall be retained by the court and
8 placed in the custody of the clerk of the court for the county where the
9 divorce proceedings are brought, and shall be open for the purposes of
10 inspection, and taking copies thereof, to counsel of record, or the libellee
1 1 or any co-respondent named in the amended libel.
1 Section 12. Upon a libel by a wife for divorce for a cause accruing Attachment ot
2 after marriage, the real and personal property of the husband may be properly.^
3 attached to secure suitable support and maintenance to her and to such q f ■ igj; | g^
4 children as may be committed to her care and custody. i*'*'*' ^*^' ^ -■
p. S. 146, § 11. 107 Mass. 428. 186 Mass. 420.
R. L. 152, i 10. 150 Mass. 92. 196 Mass. 509.
1 Section 13. The attachment may be made upon the summons Attachment.
2 issued upon the libel, in the same manner as attachments are made ism, 137, '§§2.
3 upon writs in actions at law, for an amount which shall be expressed in g. s. 107, § 51.
2244
DIVORCE.
[Chap. 208.
1866, 148, § 3.
P. S. 146, § 12.
R. L. 152, § 11.
196 Mass. 509.
the summons or order of notice. The attachment may be made by trustee
process, in which case there shall be inserted in the summons or order
4
5
6
7
8
9
10
11
of notice a direction to attach the goods, eiTects and credits of the libellee
in the hands of the alleged trustee, and service shall be made upon the
trustee by copy. If attachment is made by trustee process, the libel
shall be filed as provided in section six notwithstanding the provisions
of section two of chapter two hundred and forty-six. The court may in
such cases make all necessary orders to secure to the trustee his costs.
The attachment may be made by injunction, as in suits in equity, to 12
reach shares of stock or other property which cannot be reached to be 13
attached as in an action at law, and the property so attached may there- 14
after, by appropriate order, be applied to the satisfaction of any order 15
or decree for the payment of money by the husband to the wife for her 16
support or that of the children. 17
i855!i3A§''4 Section 14. The laws relative to attachments of real or personal 1
p'lue'lfl' property shall apply to attachments herein provided for, so far as they 2
R. L. 152, § 12. are consistent with the two preceding sections. i96 Mass. 509. 3
Guardian for
insane libellee.
Compensation.
R. S. 76, § 18.
G. S. 107, § 21.
P. S. 146, 5 14.
R. L. 152, § 13.
1902, 644, § 21.
1914. 385.
13 Gray, 264.
114 Mass. 379.
Section 15. If during the pendency of a libel the libellee is insane, 1
the court shall appoint a suitable guardian to appear and answer in like 2
manner as a guardian for an infant defendant in an action at law may be 3
appointed. The compensation of such guardian shall be determined by 4
the court and, together with his necessary expenses, shall be paid by the 5
libellant if the court so orders. 6
Investigation
of divorce case.
1907, 390.
Section 16. Any justice of the superior court may appoint an at- 1
torney to investigate and report to the court in relation to any libel for 2
divorce or to have a marriage declared void, and may direct such attorney, 3
or any other attorney, to defend it. The attorney may be appointed 4
either before or after a decree of divorce nisi has been granted, and may 5
enter objections to such decree nisi becoming absolute in the same manner 6
as the libellee. His compensation shall be fixed by the court, and shall 7
be paid by the county where the libel is pending, together with any ex- 8
penses approved by the court, upon certificate by a justice thereof to 9
the county treasurer. The state police, local police and probation offi- 10
cers shall assist the attorney so appointed, upon his request. II
alimony 'du^fn'^g SECTION 17. The court may require the husband to pay into court
Rbei''''"^^ °' for the use of the wife during the pendency of the libel an amount to
1855' 65' ^ ^' enable her to maintain or defend the libel, and to pay to the wife alimony
137, '§ 6.' during the pendency of the libel. g. s. 107, § 22.
p. S. 146, § 15. R. L. 152, § 14. 6 Gray, 341. 161 Mass. 111.
Section 18. The court sitting in any county may, upon petition of 1
Protection of
personal
w^te'iuring ^^® wifc, prohibit the husband from imposing any restraint upon her 2
pendency. pcrsoual liberty during the pendency of the libel. 3
R. S. 76, § 24. G. S. 107, § 31. P. S. 146, § 10. R. L. 152, § 15.
1820, 56, § 1.
Custody of
children during
pendency.
1820, 56, § 1.
R. S. 76, I 25.
G. S. 107, § 32.
P. S. 146, § 17.
Section 19. The court may in like manner, upon application of either
party, make such order relative to the care and custody of the minor
children of the parties during the pendency of the libel as it may consider
expedient and for the benefit of the children.
II. L. 152, § 16.
220 -Mass. 38.
CiL\p. 208.] DIVORCE. 2245
1 Section 20. The court may, without entering a decree of divorce. Continuance
2 order the hbel continued upon the docket from time to time, and during "rders toT
3 such continuance may make orders and decrees relative to a temporary sepSatfon, etc.
4 separation of the parties, the separate maintenance of the wife and the p*s''i^4^6'§S^8
5 custody and support of minor children. Such orders and decrees may ™^j/^,-' LV-
6 be changed or annulled as the court may determine, and shall, while 220 Mass! ss!'
7 they are in force, supersede any order or decree of the probate court '"
8 under section thirty-two of chapter two hundred and nine and may
9 suspend the right of said court to act under said section.
1 Section 21. Decrees of divorce shall in the first instance be decrees Decrees of
2 nisi, and shall become absolute after the expiration of six months from the entmd msi.^
3 entry thereof, unless the court within said period, for sufficient cause, {^o; lol'. 1 3.
4 upon application of any party interested, otherwise orders. '*"^' ^' '• ^ ^•
1881, 234, § 2. 1882, 223. R. L. 152, § 18. 168 Mass. 228.
P. S. 146, § 19. 1893,194:280. 157 Mass. 503. 207 Mass. 254.
1 Section 22. A libel for divorce for desertion shall not be defeated by Libei tor
2 a temporary return or other act of the libellee if the court finds that such to be drfeated
3 return or other act was not made or done in good faith, but with intent to J^^um'""'^*'^
4 defeat such libel.
1855, 137, § 8. G. S. 107. § S. P. S. 146, § 20. R. L. 152, § 19.
GENERAL PROVISIONS.
1 Section 23. The court granting a divorce to a woman may allow Resumption of
2 her to resume her maiden name or that of a former husband. by™?fe°^™^
1849. 141. G. S. 107, § 23. P. S, 146, § 21. R. L. 152, § 20.
1 Section 24. After a decree of divorce has become absolute, either Remarriage
2 party may marry again as if the other were dead, except that the party part^™.™
3 from whom the divorce was granted shall not marry within two years isssillg,
4 after the decree has become absolute. i855, 137. § 9; 426. g. s. 107, § 25.
1S64, 216. P. S. 146, § 22. 113 Mass. 458. 152 Mass. 633.
1873, 371, § 4. R. L. 162, § 21. 122 Mass. 3. 191 Mass. 166.
1881, 234, § 4. 1 Pick. 506. 126 Mass. 34. 219 Mass. 111.
1 Section 25. A divorce for adultery committed by the wife shall not Divorce for
2 affect the legitimacy of the issue of the marriage, but such legitimacy, if wife not to
3 questioned, shall be tried and determined according to the course of the ma'cy on'ss'ue.
4 common law. 17S5, 69, § 6. r. s. 76, § 20.
G. S. 107, § 27. p. S. 146, § 23. R. L. 152, § 22. 189 Mass. 64.
1 Section 26. Upon a divorce for adultery committed by the wife, Effect of
2 her title to her separate real and personal property during her life shall adultery "f
3 not be affected, except that the court may decree to the husband so much Teplrate" ^^'^
4 of such property as it considers necessary for the support of any minor is77"i'f8, § s.
5 children of the marriage decreed to the husband's custody; and if the RLYe'llls
6 wife afterward contracts a lawful marriage, the interest of the divorced i^^ iiaas'. 112.
7 husband in the wife's separate real and personal property, after her death,
8 shall cease, except in so much thereof as may have been decreed to him
9 as herein provided.
1 Section 27. After a divorce, a wife shall not be entitled to dower in nq dower to
2 the land of her husband, unless, after a decree of divorce nisi granted diVorce. ^
3 upon the libei of the wife, the husband dies before such decree becomes ms^eg.'ls.
2246
DIVORCE.
[Chap. 208.
R. s. 76, 5 32; absolutc; but if the divorce was for the cause of adultery committed by
G s. 107, § 3S; the husbaud or because of his sentence to confinement at hard labor, she
is76,^404. § 4. shall be entitled to her dower in the same manner as if he were dead.
p. S. 146, § 28; 14 Mass. 219. 110 Mass. 463. 192 Mass. S.
174, § 13. 2 Pick. 316. 128 Mass. 34. 214 Mass. 204.
R. L. 152, § 24. 2 Allen, 45.
Care and
maintenance
of minor
children.
1820,56, § 1.
R. S. 76, I 26.
1853, 23, § 1.
G. S. 107,
§§ 33, 48.
1873, 371, § 7.
P. S. 146, I 29.
R. L. 152, § 25.
1918, 257.
S400.
1919,5.
1920, 2.
152 Mass. 16.
Section 28. Upon decree of divorce, or petition of either parent, or 1
of a next friend in behalf of the children, after notice to both par- 2
ents, after such decree, the court may make such decree as it considers .3
expedient relative to the care, custody and maintenance of the minor 4
children of the parties, and may determine with which of the parents the 5
children or any of them shall remain; and afterward may from time to 6
time, upon the petition of either parent, or of a next friend, re\'ise and 7
alter such decree or make a new decree, as the circumstances of the parents 8
and the benefit of the children may require. 9
196 Mass. 509.
220 Mass. 38.
Same when
divorce
obtained out
of common-
wealth.
1842,83, § 1.
G. S. 107, § 34.
P. S. 146, § 30.
R. L. 152, § 20.
156 Mass. 27.
Section 29. If, after a divorce has been decreed in another juris- 1
diction, minor children of the marriage are inhabitants of this common- 2
wealth, the superior court, upon petition of either parent or of a next 3
friend in behalf of the children, after notice to both parents, may make 4
like decrees relative to their care, custody, education and maintenance 5
as if the divorce had been decreed in this commonwealth. 6
t?be removed SECTION 30. " A miuor chlld of divorced parents who is a native of or
mo?wSth. li^s resided five years within this commonwealth and over whose custody
cf I' fo7 V35 ^'^^ maintenance the superior court has jurisdiction shall not, if of suit-
R L^isiVi- able age to signify his consent, be removed out of this commonwealth
without such consent, or, if under that age, without the consent of both
parents, unless the court upon cause shown otherwise orders. The court,
upon application of any person in behalf of such child, may require
security and issue writs and processes to effect the purposes of this and
the two preceding sections.
Custody of
children.
1855. 137, § 7.
G. S. 107. § 37.
P. S. 146, § 32.
R. L. 152, I 28.
151 Mass. 349.
227 Mass. 77.
Section 31. In making an order or decree relative to the custody of 1
children pending a controversy between their parents, or relative to their 2
final possession, the rights of the parents shall, in the absence of mis- 3
conduct, be held to be equal, and the happiness and welfare of the children 4
shall determine their custody or possession. 5
Writ of habeas
corpus to
bring child
before court.
1902, 324.
Section 32. Any court ha\'ing jurisdiction of libels for divorce or for 1
nullity of marriage, of petitions for separate support or maintenance, or 2
of any other proceeding in wliich the care and custody of any child is 3
draM'n in question, may issue a WTit of habeas corpus to bring before 4
it such child. The writ may be made returnable forthwith before the 5
court by which it is issued, and, upon its return, said court may make 6
any appropriate order or decree relative to the child who may thus be 7
brought before it. 8
Procedure
under this
chapter.
17S5, «U, 5 8.
1820. SO, I 1.
Section 33. The superior court may, if the course of proceeding is 1
not specially prescribed, hear and determine all matters coming ■within 2
the pur\'iew of this chapter according to the course of proceedings in 3
Chap. 208.] divorce. 2247
4 ecclesiastical courts or in courts of equity, and may issue process ofol" Toj-^&^ls
5 attachment and execution and all other proper and necessary processes. P- s.' i46,' § 33.'
1SS7, 332, §1. 109 Jlass. 306. 186 Mass. 244. 206 Mass. 449.
R. L. 152, § 29. 130 Mass. 57. 196 Mass. 509. 211 Mass. 77.
107 Mass. 428. 161 Mass. 111. 197 Mass. 112. 230 Mass. 59.
1 Section 34. Upon a divorce, or upon petition at any time after a AHmony.
2 divorce, the superior court may decree alimony to the wife, or a part of isoti s?!
3 her estate, in the nature of alimony, to the husband. isu, ii9.
1829, 55. 1857. 228, § 3. R. L. 152, § 30. 135 Mass. 393.
R. S. 76, §31. G. S. 107, §§43, 100 Mass. 365. 147 Mass. 159.
183S. 126, § 2. 44.48. 107 Mass. 428. 168 Mass. 311.
1844, 129. 1873, 371, § 7. 108 Mass. 314. 190 Mass. 573.
1850, 100, § 3. P. S. 146, § 36. 120 Mass, 390. 211 Mass. 139.
1853, 23, I 1. 1887, 332, § 1. 128 Mass. 34. 222 Mass. 415.
1 Section 35. The court may enforce decrees for allowance, alimony Enforcement
2 or allowance in the nature of alimony, in the same manner as it may isss',™?!"^' **°'
3 enforce decrees in equity. g. s. io7, § 43.
p. S. 146. § 37. 100 Mass, 373. 107 Mass. 428. 166 Mass. 226.
R. L. 152. § 31. 105 Mass. 385. 130 Mass. 163, 189. 206 Mass. 449.
12 Gray, 28. 106 Mass. 499. 134 Mass. 353. 208 Alass. 458.
1 Section 36. When alimony or an annual allowance is decreed for Security for
2 the wife or children, the court may require sufficient seciu-ity for its is2'o,'36, § 2.
3 pajTnent according to the decree.
R. S. 76, § 35. G. S. 107, § 46. P. S. 146. § 3S. R. L. 152, § 32.
1 Section 37. After a decree for alimony or an annual allowance for Revision of
2 the ■nife or children, the court may, from time to time, upon the petition xIss^m^YI"^'
3 of either party, revise and alter its decree relati\-e to the amount of such r*"!.' 76,^5 36.
4 alimony or annual allowance and the pa\'ment thereof, and may make ^ ^| • f^j * ^•
5 anv decree relative thereto which it midit have made in the original Pl^ff-, ,„
° ° p. S. 14b, § 39.
6 suit.
R. L. 152, § 33, 161 Mass. 111. 190 Mass. 573.
134 Mass. 353. 168 Mass. 511. 225 Mass. 392.
1 Section 38. In proceedings under this chapter, the com-t may award fslof so, § 2.
2 costs in its discretion. R. s. 76, § 37. is53, 23, § 2.
G. S. 107, §49. P. S. 146, §40. R. L. 152, § 34. 161 Mass. lU.
1 Section 39. A divorce decreed in another jurisdiction according to Validity of
2 the laws thereof by a court ha\'ing jurisdiction of the cause and of both dho^s.
3 the parties shall be vaUd and effectual in this commonwealth; but if an §§39,'46.
4 inhabitant of this commonwealth goes into another jurisdiction to ob- ^§ 14,^55;
5 tain a divorce for a cause occurring here while the parties resided here, |- 1; 1*^5 § «:
6 or for a cause which would not authorize a divorce by the laws of this 2 Gray, 367.
7 commonwealth, a divorce so obtained shall be of no force or effect in this is Gray, 209.
8 commonwealth. 11 AUen, i96.
97 Mass. 538. 129 Mass. 14. 157 M.ass. 42. 224 Mass. 427.
110 Mass. 463. 136 Mass. 32S. 167 Mass. 474. 225 Mass. 82.
113 Mass. 438. 149 Mass. 223. 176 Mass. 92. 234 Mass. 269.
122 Mass. 3, 156. 154 Mass. 290. 218 Mass. 21. 188 U. S. 14.
criminal provisions.
1_ Section 40. Persons divorced from each other cohabiting as hus- Cohabitation
2 band and wife or living together in the same house shall be held to be to'be adultery.
3 guilty of adultery. i785, 69, § 6.
R. S. 76, § 19. G. S. 107, § 24. P. S. 146, § 42. R. L. 132, § 36.
2248
DrV'ORCE.
[Ch-vp. 208.
Penalty for
personation,
etc., in di-
vorce suits.
1S73, 371. § 1.
P. S. 146. § 43.
R. L. 132, § 37.
Section 41. Wlioever falsely personates another or wilfully and 1
fraudulently procures a person so to do, or fraudulently procures false 2
testimony to be given, or makes a false or fraudulent return of service 3
of process upon a libel for divorce or in any proceeding connected there- 4
Avith, shall be punished by a fine of not more than one thousand dollars 5
or by imprisonment for not more than two years. 6
pro°cunng°un- SECTION 42. \Mioever knowingly procures or obtains or assists an-
iss6"342T°'^'^'^' other to procure or obtain any false, counterfeit or fraudulent divorce
K. L. 152, § 3S. Qj. decree of divorce, or any di\orce or decree of divorce from a court of
another state for or in favor of a person who at the time of making ap-
plication therefor was a resident of this commonwealth, such court not
having jurisdiction to grant such decree, shall be punished by a fine of
not more than two hundred dollars or by imprisonment for not more
than six months.
1
2
3
4
5
6
7
8
Penalty for
advertising to
procure
divorces.
1SS7, 320.
R. L. 152, I 39.
1911,83.
Section 43. ^^Tioe-ver writes, prints or publishes, or solicits another 1
to write, print or publish, any notice, circular or ad\ertisement soliciting 2
employment in the business of procuring divorces or offering induce- 3
ments for the purpose of procuring such employment shall be punished 4
by a fine of not more than two hundred dollars or by imprisonment for 5
not more than six months. 6
unfaw^fuiiy'^ SECTION 44. Whoever, except in compliance with an order of a court
cates°ff'^'''*'^' of competent jurisdiction, gives, signs or issues any writing purporting
189" M. to grant a divorce to persons who are husband and wife according to the
R. L. 152, § 40. ifj^yg Qf ^i^g commonwealth, or purporting to be a certificate that a di\'orce
has been granted to such persons, shall be punished by a fine of not more
than one thousand dollars, or by imprisonment in the jail for not more
than three years, or both.
1911,
Sic\"attorney SECTION 45. .If a dlA'orce is granted for a cause constituting a crime,
offenc'er"' other than adultery, committed within the commonwealth and within the
Y^s'wt'iii t'"^® proA'ided by law for making complaints and finding indictments
R. L. 152, § 4i. therefor, the court granting the diA-orce may, in its discretion, cause
notice of such facts to be given by the clerk of the court to the district
attorney for the county where such crime was committed, with a list
of the witnesses proving such crime and any other information which it
considers proper; but if the divorce is granted because of adultery the
court shall cause notice of such facts, information and list of witnesses
to be given to the district attorney, and thereupon the district attorney
may cause complaint therefor to be made before a magistrate having
jurisdiction thereof, or may present the evidence thereof to the grand 12
juiy. 13
1
2
3
4
5
6
7
8
9
10
11
Returns of
statistics of
divorce.
1882, 194,
§§1,2.
R. L. 152, § 42.
STATISTICS OF DIVORCE.
Section 46. The clerks of the courts and the clerk of the superior 1
court for civil business in Suffolk county shall annually, in February, 2
make returns for the last preceding calendar year to the state secretary, 3
upon suitable blank forms provided by him, of the number of libels 4
pending at the beginning of the year, the number of libels filed within 5
the year, the number of divorces granted, the number of divorces re- 6
fused, the number of libels contested, the number of libels uncontested, 7
the alleged cause for divorce in each case, the sex of the libellant and 8
Chap. 209.]
HUSBAND AND WIFE.
2249
9 the length of time the parties have been married, and the number of
10 cases in which notice has been given to the district attorney for prose-
1 1 cution under the preceding section and the crime for which divorce has
12 been granted in such cases.
1 Section 47. The state secretary shall annually prepare from said fi"^jaets°3 °^
2 returns abstracts and tabular statements of the facts relative to divorces 5^o"2''",%4
3 for each county, and embody them, with necessary analyses, in his R. l! 152, § 43.
4 annual report to the general court relative to the registry of births,
5 marriages and deaths.
CHAPTER 209
HUSBAND AND WIFE.
Sect.
GENERAL PROVISIONS.
1. Married woman may control separate
property.
2. Married woman may contract.
3. Transfers between husband and wife.
4. Labor of married woman.
5. Married woman may be executrix, etc.
6. Married woman may sue and be sued.
7. Liabilities of married woman.
8. Husband not liable for wife's debts.
9. Husband not liable on certain contracts
of wife after marriage.
10. Separate business certificate.
11. Record of certificates.
12. Trustee for married woman's separate
estate.
13. Marriage settlements not affected.
PHOVISIONS IF HUSBAND OR WIFE IS UNDER
DISABILITT.
14. Release of dower by wife of ward.
15. Sale of her real estate.
16. Disposition of proceeds of such sales.
17. Joinder of wife or husband of ward with
guardian in making partition.
18. Release of dower or curtesy of insane
person.
19. Reservation for insane husband of por-
tion of proceeds upon release of cur-
tesy.
20. Reservation for insane wife of portion
of proceeds upon release of dower.
21. Like reservation for insane wife upon
release of homestead.
22. Conveyance if provision in lieu of cur-
tesy or dower.
Sect.
23. Same subject.
24. Venue of proceedings.
MARRIAGE CONTRACTS.
25. Ante-nuptial marriage contracts.
26. Record of contract and description of
property.
27. Marriage contract of female minor
ward.
MARRIED W'OMEN COMING FROM OTHER
STATES, ETC.
2S. Rights of woman coming into common-
wealth without her husband.
29. Rights of persons married out of com-
monwealth and coming here to re-
side.
M.^RRIED WOMEN ABANDONED BY THEIR HUS-
BANDS, ETC.
30. Conveyance, etc., of property by mar-
ried woman abandoned, etc. Venue.
31. Sale of real estate by non-resident mar-
ried woman.
32. Orders for support, etc., of wife de-
serted.
33. Attachment of husband's property in
such case.
34. Venue of petition.
35. Conveyance and will of married woman
living apart.
36. Conveyance and will of husband living
apart.
37. Support, etc., of children of parents
living separately.
GENERAL PROVISIONS.
1 Section 1. The real and personal property of a woman shall upon Married
2 her marriage remain her separate property, and a married woman may rontrol separate
3 receive, receipt for, hold, manage and dispose of property, real and per- fg4g"2os, § 3.
4 sonal, in the same manner as if she were sole. But no conveyance by a !*'"'• -0^' 5 1-
2250
HUSBAND .\XD WIFE.
[Chap. 209.
1S55, 304,
HI. 3.
1857, 249,
5§1.2.
G. S. 108,
3. 6. 10.
1804, 198.
1S74, 184, §
§1,
married woman of real estate shall, except as otherwise provided in this 5
chapter, extinguish or impair her husband's tenancy by the curtesy by 6
statute or his right to cm-tesy existing on December thirty-first, nine- 7
teen hundred and one, in such property unless he joins in the conveyance 8
or otherwise releases the same. p- s. 147, § 1. 9
1SS9, 204.
R. L. 153, § 1.
16 Pick. 137.
1 Met. 542.
10 Met. 192.
2 Cush. 264.
S Cush. 56.
2 Grav, 161.
10 Gray, 72.
16 Gray, 105.
4 Allen, 440.
5 Allen, 103, 379.
7 Allen, 504.
9 Allen, 403.
11 Allen, o3S.
12 Allen, 476.
13 Allen, 64, 213.
99 Mass. 241, 561.
111 Mass. 308.
112 Mass. 271.
114 Mass. 550.
117 Mass. 62, 241.
128 Mas3. 169, 269.
167 Mass. 390.
Married
woman may
contract.
ISoo. 304, §
1857, 249, 5
Section 2. A married woman may make contracts, oral and written, 1
sealed and unsealed, in the same manner as if she were sole, except that 2
she shall not be authorized hereby to make contracts with her husband. 3
G. S. 108, § 3.
105 Mass. 115.414.
141 Mass. 283.
1803, 105.
106 Mass. 305, 307.
145 Mass. 3.39.
1S69, 304.
107 Mass. 437.
146 ilass. 460, 517.
1874, 184, § 1.
109 Mass. 79, 502.
150 Mass. 275, 574.
P. S. 147, § 2.
110 .Mass. 51, 311.
155 Mass. 52.
R. L. 153, § 2.
Ill Mass. 245.
158 Mass. 3SS.
10 Cush. 550.
112 Mass. 99, 271,515.
162 Mass. 527.
12 Cush. 486.
113 .Mass. 25.5.
166 Mass. 198.
8 Gray, 542.
114 Mass. 133, 520. 550.
168 Mass. 471.
10 Gray, 222.
115 Mass. 374.
1S6 Mass. 244.
15 Gray, 328, 453.
117 Mass. 3S2, 532.
187 Mass. 315.
3 Allen, 127, 315, 541.
llSMass. 541, 588.
190 Mass. 507.
4 Allen, 342. 346, 412.
123 Mass. 96.
195 Mass. 124.
5 Allen, 460.
124 Mass. 108.
200 Mass. 437.
6 Allen, 136, 300, 305, 565.
125 Mass. 25, 374.
203 Mass. 233.
TAllen, 146, 176, 481.
126 Mass. 297.
209 Mass. 193.
8 Allen, 321, 581.
130 Mass. 407.
217 Mass. 411.
10 Allen, 512.
133 Mass. 140.
227 Mass. 166.
11 Allen, 345.
134 Mass. 77, 291.
228 Mass. 305, 549.
14 Allen, 36.
135 Mass. 87, 299.
229 Mass. 11, 87.
99 Mass. 559, 562.
138 Mass. 49, 58, 540.
9 Wall. 743.
101 Mass. 66.
139 Mass. 202.
3 Op. A. G. 120, 260
102 Mass. 246.
HOMass. 63, 202, 521,560.
Transfers be-
tween husband
and wife.
1857, 249, § 5.
G. S. 108, § 10.
1874, 184, § 1.
1879, 133.
P. S. 147, § 3.
1884, 132, § 1.
R. L. 153, § 3.
1912, 304.
1920, 478.
15 Gray, 322.
Section 3. Gifts of personal property, and conveyances of real 1
estate other than mortgages, between husband and wife, shall be valid 2
to the same extent as if they were sole, except that no such conveyance 3
of real estate shall have any effect, either in passing title or otherwise, 4
until the deed describing the property to be transferred is duly acknowl- 5
edged and recorded in the registry of deeds for the district where the 6
land lies. 12 -uien, 107, 114. 7
103 Mass. 300.
113 Mass. 157.
114 Mass. 167.
116 Mass. 490.
119 Mass. 596.
126 Mass. 113.
128 Mass. 169.
130 Mass. 378, 407.
134 Mass. 138.
138 Mass. 358.
140 Mass. 202.
141 Mass. 2S3.
146 Mass. 25.
138 Mass. 342.
212 Mass. 486.
229 Mass. 11.
Labor of mar-
ried woman.
1846, 209.
1855, 304, § 7.
G. S. 108,
§§3,6.
1874, 184, § 1.
Section 4. Work and labor performed by a married woman for a 1
person other than her husband and children shall, unless there is an 2
expres's agreement on her part to the contrary, be presumed to be per- 3
formed on her separate accomit. P- s. 147, § 4. 4
R. L. 153, § 4.
14 Gray, 389.
1 .AUen, 258.
97 Mass. 113.
131 Mass. 533.
165 Mass. 100.
219 Mass. 572.
227 Mass. 166.
Married SECTION 5. A married woman may be an executrix, administratrix, 1
woman may be .-' i i • i i 1 1- i i
executris. etc. guardian, conservator, trustee or receuer, and may bind herself and the 2
G. s.' 109,' § 25. estate which she represents without any act or assent of her husband. 3
1869, 409. 1874, 184, § 4. P. S. 147, § 5. R. L. 153, § 5.
Married
woman may g
and be sued.
1845, 208, § c
1855, 304,
§§2,4.
Section 6. A married woman may sue and be sued in the same 1
manner as if she were sole; but this section shall not authorize suits 2
between husband and wife. 3
1857, 249, § 3.
G. S. 108, § 8.
1871, 312.
1874, 184, § 3.
P. S. 147, § 7.
R. L. 153, § 6.
6 Gray, 562.
2 Allen, 48.
6 Allen, 305.
10 .illen, 512.
110 Mass. 238.
115 Mass. lis.
118 Mass. 58.
120 Mass. 89.
129 Mass. 407.
135 Mass. 87.
155 Mass. 136.
173 Mass. 214.
190 Mass. 69.
191 Mass. 283, 563.
195 Mass. 124.
200 Mass. 437.
208 Mass. 458.
235 Mass. 261.
Chap. 209.] husband and wife. 2251
1 Section 7. A married woman shall not be liable for her husband's Liabilities
2 debts, nor shall her property be liable to be taken on an execution against woman"'"^
3 him, except as provided in section ten. But a married woman shall be §f^f,'|.°*'
4 liable jointly with her husband for debts due, to the amount of one hun- ^z ^- i°s-
5 dred dollars in each case, for necessaries furnished with her knowledge E-^^^^'i®-
6 or consent to herself or her family, if she has property to the amount of i9io,' sto!
7 two thousand dollars or more.
217 Mass. 15. 228 Mass. 305. 229 Mass. 87.
1 Section S. A husband shall not be liable upon a cause of action Husband not
2 which originated against his wife prior to their marriage, or to pay a witvsd'ebts.
3 judgment recovered against her, except under section ten.
1S5S, 304, § 2. 1871, 312. R. L. 153, § 8.
G. S. 108, § 8. P. S. 1-17, § 9.
1 Section 9. Contracts made by a married woman relative to her Husband not
2 separate property, trade, business, labor or services shall not, except c&rtain con-
3 as provided in the following section, bind her husband or render him or after nmrTilfge.
4 his property liable therefor; but she and her separate property shall be JstfiiM^le'
5 liable on such contracts in the same manner as if she were sole. *-*• ^- 1"*' 5 s.
p. S. 147, § 10. R. L. 1.53. § 9.
1 Section 10. If a married woman does or proposes to do business on separate
2 her separate account, she shall cause to be recorded in the clerk's office cSSe.
3 of the town where she does or proposes to do such business a certificate Issi.'wf'
4 stating her name and that of her husband, the nature of the business and Pg'i47 s ^
5 the place where it is or is proposed to be carried on, giving, if practicable, is9s, 4ib.
6 the street and number, and the name, which shall not be her husband's, i Alien, 258.
7 under which she proposes to carry on business. If the nature of the busi- 104 mTs's. 5S9.
8 ness or the place where or the name under which it is carried on is changed, lot Wlfg, tn.
9 a new certificate shall be recorded accordingly. If she fails to cause such ^S|.*''''^^' "'
10 certificates to be recorded her husband may do so. If such certificates J?!? Mass. 2S9.
,,,.,,,, ■% 1 1 112 Mass. 250.
1 1 are not so recorded by either husband or Miie, the personal property em- 114 Mass. 77,
12 ployed in such business shall be liable to be attached as the property of 120 Mass! 332)
13 the husband and to be taken on execution against him, and the husband 129' Mass. 296.
14 shall be liable upon all contracts lawfully made in the prosecution of 135 Jials: fso!
15 such business in the same manner and to the same extent as if such con- Jig Mass' si*'
16 tracts had been made by him. This section shall not, however, affect the i^"*- ,
,_ . , „ , .„ fi . 1 J • « 150 Mass. 82,
17 rights or any person under any certincate nled or recorded prior to August 275.
18 first, eighteen hundred and ninety-eight. lea Mass. 255.
170 Mass. 142. 190 Mass. 556 197 Mass. 504.
173 Mass. 90. 191 Mass. 283. 223 Mass. 108.
1 Section 11. The town clerk shall, upon receipt of twenty-five cents. Record of
2 record said certificate in a book kept therefor, noting therein and on the issum.I^.
3 certificate the time when received; and a certificate shall be considered as R.L.^Is.Vn.
4 recorded at the time when left for record. The clerk shall keep an index i^o Mass. 75.
5 of all such certificates.
1 Section 12. The probate court may, upon petition of a married ^^•15^°''
2 woman having separate property, appoint a trustee to hold the same in woman's sepa-
3 trust for her, to whom she may thereupon con\-ey it upon such trusts and 1845, '20s, § 8.
4 to such uses as she may declare. The trustee may prosecute and defend p. !3.i47,'§ 13.
5 all actions relative to such property brought by or against her; and the il^l.^Is',!^.
6 property in his hands shall be liable to be attached or taken on execution Jss^Mas's.^ns.
7 in anv such action. lae Mass. 342.
2252
HTJSBAND AND WIFE.
[Ch.\p. 209.
Marriage
settlements
not affected.
1855, 304, § 9.
Section 13. The twelve preceding sections shall not invalidate a mar- 1
riage settlement or contract. g. s. los, § lo. 2
1S74. 184, § 6. P. S. 147, § 15. R. L. 133, § 14. 136 Mass. 342.
PROVISIONS IF HUSBAND OR WIFE IS UNDER DIS.VBILITY.
Section 14. If the guardian or conservator of a married man is
licensed to sell real estate of his ward, the wife of the ward may join with
the guardian or conservator in the conveyance, and release dower and
Release of
dower by wife
of ward.
1S23, 146, § 2.
R. S. 77, § 14.
P.' s! 147', § 16. homestead in the granted property, in like manner as she might have
R. l! 145, § 41; donc by joining in a conveyance thereof made by her husband if he had
i9io,V5^' been under no legal disability. i9i5, 23.
Section 15. If such guardian or conservator is licensed to sell the
Sale of her
real estate.
R^l.' 77?'/ IS. interest of the ward in any real estate of his wife, the wife may join with
T'suf'iif' ^^^^ guardian or conservator in the conveyance, and convey all her
1S98. 527, §2 estate and interest in the granted property in like manner as she might
153, § 16.' ' have done by a conveyance thereof made jointly with her husband, if
1915! 23'. he had been under no legal disability.
Disposition of
proceeds of
such sales.
1823, 146, § 1.
R. S. 77, § 16.
G. S. 108, § 13.
P. S. 147, § IS.
1898, 527, § 2.
R. L. 145, § 41;
153, § 17.
1910, 95.
1915, 23.
Section 16. If the wife so releases her dower or homestead, or so 1
conveys her owti estate, the proceeds of the sale may be so invested and 2
disposed of as to secure to her, and to the minor children of the owner if 3
it is an estate of homestead, the same rights in the principal and income 4
thereof as she or they would have had therein if it had not been sold. An 5
agreement made between her and the guardian or conservator for securing 6
and disposing of the proceeds or any part thereof for the purpose afore- 7
said, if approved by the probate court for the county where the guardian 8
or conservator was appointed, or, in default of such agreement, an order 9
therefor made by the probate court, shall be ^'alid and binding on all 10
persons interested in the granted property or in said proceeds, and may 1 1
be enforced by the court or by an action at law. 12
Joinder of wife
or husband of
ward with
guardian in
making parti-
tion.
1830, 54.
R. S. 77, § 20.
G. S. 108, § 15.
P. S. 147, § 19.
1898, 527, § 2.
Section 17. The wife of a man under guardianship or conservator-
ship may join with his guardian or conservator, and the guardian or con-
servator of a woman may join with her husband, in making partition of
her real estate which is held in joint tenancy or in common, and they may
make any release or other conveyance necessary or proper therefor, as
the parties might do if neither of them were under legal disability.
R. L. 145, §41; 153. § 18. 1910,95. 1915,23.
Release of
dower or
curtesy of
insane person.
1856, 169, § 3.
1857, 298, § 10.
G. S. 108, § 20.
P. S. 147, § 20.
1886, 245, § 1.
1890, 105.
1899, 284, § 1.
R. L. 153, § 19.
Section IS. The husband or wife of an insane person desiring to 1
convey his or her real estate absolutely or by mortgage may file a petition 2.
in the probate court describing such real estate and praying that the 3
wife's dower or homestead or the husband's curtesy therein may be re- 4
leased, and stating the facts and reasons why the prayer of the petition 5
should be granted. The court may, after notice and a hearing, bj^ a decree 6
authorize the guardian of the insane person to make the release by join- 7
ing in any deed or deeds, mortgage or mortgages of the whole or a part 8
of said real estate which is or are made within five years after said 9
decree by the husband or wife of the insane person or by a trustee for 10
such husband or wife. 11
Chap. 209.] husband and wife. 2253
1 Section 19. If the guardian of an insane husband is authorized Reservation
!• • 1 1 111 lor insane hus-
2 under the preceding section to release such curtesy, and the probate band of portion
3 court finds that a portion of the proceeds of such real estate, or of an release of "^"^
4 amount loaned on mortgage thereof, should be reserved for the use of issefl-is, § 2.
5 such ward, it may order a certain portion, not exceeding one third of the \tll[ lit'. | f.
6 net amount, if it is in respect of the tenancy by the curtesy by statute, ^^l; ^gg § 20
7 of the proceeds or amount actually realized from such sale or mortgage,
8 exclusive of any encumbrance then existing on said real estate, to be set
9 aside and paid over to such guardian, to be invested and held for the
10 benefit of the husband during his life if he survives his wife. The income
11 of such portion shall be received and enjoyed by the wife during the life
12 of her husband, or until otherwise ordered by the court for cause. If
1.3 she survives him, the principal shall upon his death be paid over to her,
14 but if she does not survi\'e him, to her heirs, executors or administrators.
1 Section 20. If the guardian of an insane wife is authorized under Reservation
2 section eighteen to release the dower of his ward, and the probate court o'fVort'io'n ^f ^
3 finds that a portion of the proceeds of such real estate, or of an amount feS''of"''°°
4 loaned on mortgage thereof, should be reserved for the use of such ward, igse^ieg § 4
5 it may order a certain portion, not exceeding one third of the net p|j47'||f
6 amount of the proceeds or amount actually realized from such sale or R- l- i53,'§ 21.
7 mortgage, exclusive of any encumbrance then existing on said real estate,
8 to be set aside and paid over to such guardian, to be invested and held
9 for the benefit of the wife during her life if she survives her husband.
10 The income of such portion shall be received and enjoyed by the husbajid
11 during the life of his wife, or until otherwise ordered by the court for
12 cause. If he survives her, the principal shall upon her death be paid
13 over to him, but if he does not survive her, to his heirs, executors or
14 administrators.
1 Section 21. If the guardian of an insane wife is authorized under Liitereser-
2 section eighteen to release an estate of homestead, and the probate court inline ^-ie
3 finds that a portion of the proceeds of the real estate sold, or of an amount honrest'S" °*
4 loaned on mortgage thereof, should be reserved for the use of the ward, q ^|' f^f | II-
5 it may order a certain portion, not exceeding eight hundred dollars, to £• L^iJj^s^fi
6 be set aside and paid over to such guardian to be invested in a homestead,
7 and held by him for the benefit of his ward, if she survives her husband ;
8 the rent or use thereof to be received and enjoyed by the husband dur-
9 ing the life of his wife, or until otherwise ordered by the court for cause;
10 and the homestead to be his, and to be conveyed to him by said guardian,
11 if he survives her.
1 Section 22. If the husband or wife of an insane person conveys real Conveyance if
rt • •! p • 11 .. provision in
2 estate in trust without a power of revocation and makes a provision Ueu of curtesy
3 therein for the insane husband or wife, respectively, which the probate isso, leo, § 5.
4 court, upon petition, after notice and hearing, finds is sufficient in lieu p.' s.' u?,' § 23!
5 of curtesy or dower, the trustee may convey such real estate free from all ^' ^' ^^^' ^ ^^'
6 right of curtesy or dower.
1 Section 23. The court, under the preceding section, may find that fg^^feg^s^g
2 the provision for the husband or wife is sufficient in lieu of curtesy or o. s." iqs', § 24.
3 dower either in the whole or in particular portions of the real estate of r. l. 153, § 24.
2254
HUSBAND .\XD W^FE.
[Chap. 209.
Venue of
proceedings.
1856, 169, § 7.
G. S. 108. § 2.3.
P. S. 147, § 25,
1SS6, 245, § 3.
R. L. 153, § 25.
the husband or wife, and thereupon the guardian of such insane husband 4
or wife may be authorized to release the curtesy or dower in the whole or 5
in particular portions thereof. 6
Section 24. Proceedings under the six preceding sections shall, if 1
the husband or wife of such insane person is an inliabitant of this com- 2
monwealth, be in the county where he or she resides; otherwise, in a 3
county where any of his or her real estate is situated ; and a certified copy 4
of all final orders or decrees in such proceedings shall be recorded in the 5
registry of deeds in every county or district where such real estate lies. 6
Ante-nuptial
marriage con-
tracts.
1845, 208, § 1.
G. S. 10$, § 27,
P. S. 147, § 20.
R. L. 153, § 2B.
8 Gray, 542.
2 Allen, 36.
5 Allen, 187.
9 Allen, 234.
10 Allen, 278.
109 Mass. 201.
110 Mass. 401.
128 Mass. son.
139 Mass. 144.
148 Mass. 132.
195 Mass. 230.
212 Mass. 131.
227 Mass. 331.
Record of
contract and
description of
property.
1845, 208, § 2.
G. S. 108, § 28.
1867, 248.
P. S. 147, § 27.
R. L. 153, § 27.
4 Allen, 412.
100 Mass. 337.
109 Mass. 2G1.
148 Mass. 132.
169 Mass. 186.
175 Mass. 349.
MARRIAGE CONTR-iCTS.
Section 25. At any time before marriage, the parties may make a 1
written contract pro\iding that, after the marriage is solemnized, the 2
whole or any designated part of the real or personal property or any right 3
of action, of which either party may be seized or possessed at the time 4
of the marriage, shall remain or become the property of the husband or 5
wife, according to the terms of the contract. Such contract may limit 6
to the husband or wife an estate in fee or for life in the whole or any part 7
of the property, and may designate any other lawful limitations. All 8
such limitations shall take effect at the time of the marriage in like 9
manner as if they had been contained in a deed conveying the property 10
limited. 11
Section 26. A schedule of the property intended to be affected, con- 1
taining a sufficiently clear description thereof to enable a creditor of the 2
husband or wife to distinguish it from other property, shall be annexed 3
to such contract; and such contract and schedule shall, either before the 4
marriage or within ninety days thereafter, be recorded in the registry of 5
deeds for the county or district where the husband resides at the time of 6
the record, or, if he is not a resident of this commonwealth, then in the 7
registry of deeds for the county or district where the wife resides at the 8
time of the record, if it is made before the marriage, or where she last 9
resided, if made after the marriage. If the contract is not so recorded, it 10
shall be void except as between the parties thereto and their heirs and 11
personal representatives. It shall also be recorded in the registry of 12
deeds for every county or district where there is land to which it relates. 13
Marriage con-
tract of female
minor ward.
1869, 292.
P. S. 147, § 28.
R. L. 153, § 28.
Section 27. A female minor who has become eighteen may join with 1
her guardian in making such marriage contract, and for such purpose the 2
guardian and ward may convey her real and personal property to trustees 3
approved by the probate court having jurisdiction over said minor, to be 4
held upon the trusts declared in such contract, and such conveyance shall 5
have like effect as if said minor were of full age, and the guardian in the 6
settlement of his accounts shall be allowed by the probate court for all 7
property so conveyed to said trustees. The court may require said trus- S
tees to give bond with sufficient sureties for the faithful performance of 9
their trust. 10
Rights of
woman coming
into common-
wealth without
her husband.
M.ARRIED WOMEN COMING FROM OTHER ST.«ES, ETC.
Section 28. If a married woman comes from another state or country 1
into this commonwealth without her husband, who has never lived with 2
her in this commonwealth, she shall have all the rights and powers given 3
Chap. 209.] husband and wife. 2255
4 to married women by the foregoing sections, and may transact business, R. s. 77, § is.
5 make contracts, sue and be sued in her own name, and dispose of her p.'s.'i47,'§29.'
6 property which may be found here, in hke manner as if she were sole. f^ Mass^sP^'
1 Section 29. If a husband and his wife, married in another state or Rights of
2 country, come into this commonwealth, either at the same or at different ounfcom™
3 times, and reside here as husband and wife, she shall retain all property "nTcom'i'n\
4 which she had acquired by the laws of any other state or country, or r"|*?7''^|''J9
5 by a marriage contract or settlement made out of this commonwealth. (/'I'jos'l fn
6 Such residence together here shall have the same effect, relative to their p.' s.' 147,' § so."
7 subsequent rights and liabilities, as if they had married here at the be- • ■ '
8 ginning of such residence.
married women abandoned by their husb.vnds, etc.
1 Section 30. A probate court, upon petition of a married woman Conveyance,
2 whose husband abandoning and not sufficiently maintaining her has Iny'byma?-
3 absented himself from this commonwealth, or has been sentenced to con- "bandoS"
4 finement in the state prison, may authorize her to sell, convey, receive «l|y J]f°"<=-
5 and receipt for her real and personal property, any personal property §§ i.'s."
6 which may have come to her husband by reason of the marriage and r. s.'77,'
7 remains in this commonwealth undisposed of by him or any personal prop- 1; n-i's'^'
8 erty to which he is entitled in her right, and to use and dispose of the same ^^,35^°^' ^^ ^^"
9 or the proceeds thereof, during his absence or imprisonment, as if she Fif/I,
10 were sole; and the authority so granted shall continue until the husband is87.'332, § 2.
11 returns to this commonwealth and claims his marital rights, or is dis- §§31,32.'
12 charged from prison. Such petition may be filed, heard and determined I Met:478!
13 in the probate court in any county, and notice shall be given as provided ^" '^'^°' ^^^'
14 in case of divorce libels when the libellee is out of this commonwealth.
1 Section 31. A married woman residing without this commonwealth, Saieof re.ii
2 and owning in her own right real estate situated herein, whose husband resriln/ °°°'
3 abandoning and not sufficiently maintaining her has absented himself woman!
4 from the place where they last dwelt together, may petition the probate i''^i'',477.
5 court in any county where the land lies, describing such real estate
6 and praying for authority to sell and convey it in the same manner and
7 with the same effect as if she were sole. The court, after such notice as
8 it may order, if it finds that the petitioner has been abandoned by her
9 husband and that he does not sufficiently maintain her, may authorize
10 the petitioner to sell and convey within one year from the date of such
1 1 decree such real estate as if she were sole.
1 Section 32. If a husband fails, without just cause, to provide suitable orders for
2 support for his wife, or deserts her, or if the wife, for justifiable cause, of w'^ife'' ''*°"
3 is actually li^•ing apart from her husband, the probate court may, upon ist"*!^.
4 her petition or, if she is insane, upon the petition of her guardian or next ]f^f; J'f'^V'
5 friend, prohibit the husband from imposing any restraint on her personal r- f'\\t; |i|-
6 liberty during such time as the court shall by its order direct or until the a Met. 2.w.
7 further order of the court thereon; and, upon the application of the hus- 120 Mass. 320.
8 band or wife or of her guardian, the court may make further orders relative Hq ^"33! is?!
9 to the support of the wife and the care, custody and maintenance of the 540Mass'56o'
10 minor children of the parties, may determine with which of their parents i;|| m^^^o-s'
11 the children or any of them shall remain and may, from time to time, us Mass. 40
12 upon a similar application, revise and alter such order or make a new 153 Mass! as. "
2256
HUSBAND AND WIFE.
[Chap. 209.
154 Mass. 262. ordcr OF dccrec, as the circumstances of the parents or the benefit of the 13
156 Mass. 4S5. , ., , . - .
159 Mass. 91, children may TeqUirC. leo Mass. 149,232,464. 161Mass.58. 175 Mass. 316. 14
*''■'• i7KM,== OQO 1S9 Mass. 281. 208 Mass. 458. 222 Mass. 563.
195 Mass. 436. 21S Mass. 21, 73. 234 Mass. 37.
196 Mass. 179, 509. 220 Mass. 38, 197. 236 Mass. 248, 353.
176 Mass. 229.
184 Mass. 394, 488.
186 Mass. 244.
Attachment
of husband's
property in
such case.
1878, 199, § 2.
1879,31.
P. S. 147, § 35.
Section 33. Upon such petition, an attachment of the husband's 1
property may be made as upon a Hbel for divorce; and sections seven- 2
teen, thirty-three and thirty-five of chapter two hundred and eight shall 3
apply to proceedings upon such petition, so far as appropriate. 4
R. L. 153, § 35.
ISO Mass. 92.
163 Mass. 530.
1S6 Mass. 244.
196 Mass. 509.
208 Mass. 458.
218 Mass. 73.
pe^'ition^ Section 34. A petition under section thirty-two or thirty-six may 1
188^1. 33\ be brought in the county where either of the parties lives, except that if 2
r'. l. 153, § 34. the petitioner has left the county where the parties have lived together 3
'^^^ ■ and the respondent still lives therein, the petition shall be brought in 4
that county. 5
and w^ufor SECTION 35. If a court having jurisdiction has entered a decree that
ih^n '"^a ar°™''° ^ married woman has been deserted by her husband or is living apart from
isss' 255 '^™ ^^^ justifiable cause, she may convey her real estate in the same
R. l! 153', § 36. manner and with the same effect as if she were sole; and the surviving
220 Mass. 197! husband shall not be entitled under section fifteen of chapter one hundred
and ninety-one to waive the provisions of a will made by her.
Conveyance
and will of
husband living
apart.
1906, 129.
1919, 333, § 27.
1920. 2.
198 Mass. 136.
Section 36. A probate court may upon petition of a husband or, if 1
he is insane, of his guardian or next friend, enter a decree tliat said husband 2
has been deserted by his wife or that he is li\'ing apart from her for justi- 3
fiable cause, and he may thereafter convey his real estate in the same 4
manner and M'ith the same effect as if he were sole; and the surviving 5
wife shall not be entitled under section fifteen of chapter one hundred 6
and ninety-one to waive the provisions of a will made bj' him. Section 7
seventeen of chapter two hundred and eight shall apply to proceedings 8
upon such petition, so far as applicable. 9
Support, etc.,
of children of
parents living
separately.
1856, 24.
G. S. 107,
§§ 36, 37.
P. S. 147, § 36.
1887, 332, § 2.
R. L. 153, § 37.
1919, 333, § 28.
1920, 2.
138 Mass. 449.
162 Mass. 375.
189 Mass. 281.
Section 37. If the parents of minor cliildren live apart from each 1
other, not being divorced, the probate court for the county in which 2
said minors or any of them are residents or inhabitants, upon petition of 3
either parent, or of a next friend in behalf of the children after notice to 4
both parents, shall have the same power to make decrees relative to their 5
care, custody, education and maintenance, and to revise and alter such 6
decrees or make new decrees, as the superior court has relative to children 7
whose parents are divorced. 227 Mass. 77. 236 Mass. 248. 8
REFERENCES.
§ 1. Rights of curtesy, Chap. 189, § 1.
§ 32. Alimony and support of children in divorce cases, Chap. 20S, §§ 17, 28, 34.
Criminal procedure to compel support of wife and minor children, Chap. 273.
Sale, etc., of homestead estate to furnish support. Chap. 188, §§ 1, 3.
Effect of divorce proceedings on proceedings under this section. Chap. 208,
§20.
Habeas corpus proceedings to bring children before the court, Chap. 208, § 32.
Method of proving marriage. Chap. 207, §§ 45-47.
Effect of appeal. Chap. 215, § 24.
Power of probate court to eniorce its decrees. Chap. 215, § 34.
§ 37. Authority of court in divorce cases, Chap. 208, §§ 28, 29, 36.
Support of minor cliildren. Chap. 201, § 40.
Ch.\p. 210.]
ADOPTION, CH-\JVGE OF N.^IES.
2257
CHAPTER 210.
ADOPTION OF CHILDREN AND CHANGE OF NAMES.
Sect.
ADOPTION OP CHILDREN.
1. When adoption permitted.
2. Written consent of certain persons
required.
3. Consent not required in certain cases.
4. Notice.
5. Proceedings upon failure to object
after notice.
6. Decree of court and its effect.
7. Rights of adopted child as to succes-
sion to property.
Sect.
8. Rights of adopted child under wills.
trusts, etc.
9. Rights in this commonwealth of a
child adopted in another state.
10. Effect of second adoption.
11. Appeals.
CHANGE OF NAMES.
12. Petitions for change of name.
13. Notice and certificate.
14. Annual return of changes.
ADOPTION OF CHILDREN.
1 Section 1. A person of full age may petition the probate court in the when adop-
2 county where he resides for leave to adopt as his child another person is's'irs™"^'^'
3 younger than himself, unless such other person is his or her wife or hus- ^^g'lio
4 band, or brother, sister, uncle or aunt, of the whole or half blood. If the jpj^' |}0'
5 petitioner has a husband or wife living, competent to join in the petition, §§ i6, ii.'
6 such husband or wife shall ioin therein, and upon adoption the child R. l. is4', § i,
JC J. ■ 1 U-i J. C J.U- 124Mass.592.
Ir a person not an inhabitant oi this 137 Mass. 346.
7 shall in law be the child of both.
8 commonwealth desires to adopt a child residing here, the petition may \ll mIH. 404.
9 be made to the probate court in the county where the child resides. Jos Mass', sle.
206 Mass. 294. 226 Mass. 396.
1 Section 2. A decree for such adoption shall not be made, except as written con-
2 hereinafter provided, without the written consent of the child, if above persora'''^'^*'""
3 the age of fourteen; of her husband, if she is a married woman; of the 585'i!"24,
4 lawful parents or surviving parent; of the parent having the lawful ciis- ll^^%2
5 tody of the child, if the parents are divorced or are living separately; J?^|',^1a
6 of the guardian of the child, if any; of the mother only of the child, if §'§2,'5.
7 illegitimate; or of the person substituted for any of the above named §§2,'4, '
8 by this chapter. Illegitimacy shall in no case be expressly averred Wi.'ui.'il'
9 upon the record. A person whose consent is hereby required shall not ^,02; lit] § I2.
10 thereby be debarred from being the adopting parent. If the child has fi'^^j^j^^'^^ 202
11 been previously adopted, the consent of the previous adopting parent }?I m"^^- oio-
12 shall also be required. 195 Mass. is7.
1 Section 3. The consent of the persons named in the preceding sec- Consent not
2 tion, other than the child or her husband, if any, shall not be required cS^'in'c.^ses.
3 if the person to be adopted is of full age, nor shall the consent of any llill^'j 1.
4 such person other than the child be required if such person is adjudged ^g^^- ^^^^^^ § ■'•
5 by the court hearing the petition to be hopelessly insane, or is imprisoned ^L|'^;-,, 5
6 in the state prison or in a house of correction in this commonwealth i87b!2i3]
7 under sentence for a term of which more than three years remain une.xpired p. s.' us. § 3.
8 at the date of the petition; or if he has wilfully deserted and neglected ilgs! 433! 1 24.
9 to provide proper care and maintenance for such child for two years last Jgo?; lot'. ^'
10 preceding the date of the petition; or if he has suffered such child to be JgyVats' 34*6^'
2258
ADOPTION, CH.\NGE OF NAMES.
[Chap. 210.
183 Mass. 404.
195 Mass. 1S7.
supported for more than two years continuously prior to the petition by 11
an incorporated charitable institution or as a pauper by a town or by the 12
commonwealth ; or if he has been sentenced to imprisonment for drunken- 13
ness upon a third conviction within one year and neglects to provide 14
proper care and maintenance for such child; or if such person has been 15
convicted of being a common nightwalker or a lewd, wanton and lasciv- 16
ious person, and neglects to provide proper care and maintenance for 17
such child. A gi^^ng up in writing of a child, for the purpose of adoption, IS
to an incorporated charitable institution shall operate as a consent to 19
any adoption subsecjuently approved by such institution. Notice of the 20
petition shall be given to the department of public welfare, if the child 21
is supported as a pauper by a town or by the commonwealth, and if the 22
child is supported by a town, notice shall also be given to the overseers of 23
the poor thereof, and in Boston said notice shall be given both to the 24
overseers of the poor and to the trustees for children. 25
Notice.
1859, 61. § 2.
G. S. 110,
1864, 213, I 1.
1871, 310, § 5.
1872, 311, I 3.
1876, 213, I 5.
P. S. 148. § 4.
R. L. 154, § 4.
1915,53.
1919, 3.50, § 87.
137 Mass. 84,
346.
154 Mass. 378.
Section 4. If the written consent required by the two preceding 1
sections is not submitted to the court with the petition, the court shall 2
order notice by personal service on the parties of a copy of the petition 3
and order thereon, or, if they are not found within this commonwealth, 4
by publication of the petition and order once in each of three successive 5
weeks in such newspaper as the court orders, the last publication to be 6
seven days at least before the time appointed for the hearing, and the 7
court may require additional notice and consent. But if such child is of 8
unknown parentage and is a foundling, publication as herein set forth 9
shall not be required; but notice of the petition shall be given to the 10
department of public welfare. 11
Proceedings
upon failure to
object after
notice.
1851,324, § 2.
1853,31.
G.S. 110, I 2.
Section 5. If, after such notice, a person whose consent is required
does not appear and object to the adoption, the court may act upon the
petition without his consent, subject to his right of appeal, or it may
appoint a guardian ad litem with power to give or withhold consent.
137 Mass. 346.
1864, 213, § 3.
1S76, 213, § 6.
P. S. 148, § 5.
E. L. 154, § 5.
Decree of court
and its effect.
1S51, 324,
i§5-7.
G. S. 110,
§§ 6-8.
1871,310,
§§7,9.
1876,213,
§§7,10.
P. S. 148, § 6.
R. L. 154, § 6.
140 Mass. 668.
226 Mass. 479.
Section 6. If the court is satisfied of the identity and relations of the 1
persons, and that the petitioner is of sufficient ability to bring up the 2
cliild and provide suitable support and education for it, and that the cliild 3
should be adopted, it shall make a decree, by which, except as regards 4
succession to property, all rights, duties and other legal consequences of 5
the natural relation of child and parent shall thereafter exist between the 6
child and the petitioner and his kindred, and such rights, duties and 7
legal consequences shall, except as regards marriage, incest or cohabita- 8
tion, terminate between the child so adopted and his natural parents 9
and kindred or any previous adopting parent; but such decree shall 10
not place the adopting parent or adopted child in any relation to any 11
person, except each other, different from that before existing as regards 12
marriage, or as regards rape, incest or other sexual crime committed 13
by either or both. The court may also decree such change of name as 14
the petitioner may request. If the person so adopted is of full age, he 15
shall not be freed by such decree from the obligations imposed by sec- 16
tion six of chapter one hundred and seventeen and section twenty of 17
chapter two hundred and seventy-three. IS
Ch.\P. 210.] ADOPTION, CHLVNGE OF NAMES. 2259
1 Section 7. A person adopted in accordance with this chapter shall ^j^''^|d°'pj,iy
2 take the same share of the property which the adopting parent could as to succes-
3 dispose of by will as he would have taken if born to such parent in lawful erty.
4 wedlock, and he shall stand in regard to the legal descendants, but to no g.^s.'iio.'§ t.'
5 other of the kindred of such adopting parent, in the same position as if Jl-J; 213,' 1 1'.
6 so born to him. If the person adopted dies intestate, his property ac- rl "54,17.
7 quired by himself or by gift or inheritance from his adopting parent or i|5 Mass. 262.
8 from the kindred of such parent shall be distributed according to chapters hs Mass. 619.
9 one hundred and ninety and one hundred and ninety-six among the iss Mass' 404!
10 persons who would have been his kindred if he had been born to his adopt- 212 Masll 454!
11 ing parent in lawful wedlock; and property received by gift or inheritance 225 Mass! 11^'
12 from his natural parents or kindred shall be distributed in the same man- Ifg '^''^- ^^^•
13 ner as if no act of adoption had taken place. The apportionment and 234 Mass. 540.
14 distribution shall be ascertained by the court. A person shall not by
15 adoption lose his right to inherit from his natural parents or kindred.
1 Section 8. The word "child", or its equivalent, in a grant, trust RJ^hts^of^^.^^
2 settlement, entail, devise or bequest shall include a child adopted by the under wius,
3 settlor, grantor or testator, unless the contrary plainly appears by the isr'e. 2i3,§9.
4 terms of the instrument; but if the settlor, grantor or testator is not r.l. 154, is.
5 himself the adopting parent, the child by adoption shall not have, under \\l Hl^] Ht'.
6 such instrument, the rights of a child born in lawful wedlock to the lIlMasl'.tlk
7 adopting parent, unless it plainly appears to have been the intention of iw Mass. 540.
8 the settlor, grantor or testator to include an adopted child. 214 Mass. 172.
226 Mass. 396.
1 Section 9. An inhabitant of another state, adopted as a child in Rights in this
2 accordance with the laws thereof, shall upon proof of such fact be en- of ""hud ^"^
3 titled in this commonwealth to the same rights of succession to prop- tnothlrsTate.
4 erty as he would have had in the state where he was adopted, except p'Ji;iii;^g^'
5 so far as such rights are in conflict with this chapter.
R. L. 154, § 9. 124 Mass. 592. 129 Mass. 243.
1 Section 10. If the child has been pre\'iously adopted, all the legal o^^d adoptfo'n.
2 consequences of the former decree shall, upon a subsequent adoption, p*^|' f]|; | "q'
3 determine, except so far as any interest in property may have vested R- l. 154, § 10.
4 in the adopted child, and a decree to that effect shall be entered on the
5 records of the court.
1 Section 11. The supreme judicial court may allow a parent, who, Appeals
2 upon a petition for adoption, had no personal notice of the proceedings is59;oi. '§'2. '
3 before the decree, to appeal therefrom within one year after actual notice §59; 10. '
4 thereof, if he first makes oath that he was not, at the time of filing such Jlj^; 2I3; | }2:
5 petition, undergoing imprisonment as specified in section three, or that, r.I.'iI&.Vu.
6 if so imprisoned, he has since been pardoned on the ground of innocence is* iiass. 574.
7 or has had his sentence reversed.
change of names.
1 Section 12. A petition for the change of name of a person may be Petitions for
2 heard by the probate court in the county where the petitioner resides. naml.°_°
3 No change of the name of a person, except upon the adoption of a child }|g4; fj"' ^ ^•
4 under this chapter or upon the marriage or divorce of a Moman, shall be ^^j ^j 'J^;
5 lawful unless made by said court for a sufficient reason consistent with |- L.Y54.V12.
6 public interests.
2260
ADOPTION, CHANGE OF N.\MES.
[Ch.U'. 210.
Notice and
certificate.
1851,256, §2.
G.S. 110, § 12.
P. S. US, § 13.
R. L. 154, § 13.
Section 13. The court shall, before decreeing a change of name, 1
require public notice of the petition to be given, and any person may be 2
heard thereon. It shall also require public notice to be given of the 3
change decreed, and on return of proof thereof may grant a certificate 4
under the seal of the court of the name which the person is to bear, which 5
shall thereafter be his legal name. 6
otchalies!"'^ Section 14. Each register of probate shall annually, in December, 1
aU'm'lu. Diake a return to the state secretary of all changes of names made in 2
p. S. 148, § 14. ]-,Js court. 1897, 89. R. L. 154, § 14. 3
REFERENCES.
§ 2. Duty of persons receiving child for adoption to notify the department of pub-
lic welfare, Chap. 119, § 14.
§ 3. Necessity of notifying the department of public welfare before adopting child
from an institution, Chap. 121, § IS.
§ 11. Appeals generally, Chap. 215, §§ 9, 21.
§ 12. Changes of names in divorce cases. Chap. 20S, § 23.
Ch.\p. 211.
SUPREME JUDICIAL COURT.
2261
PART III
COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIL
CASES.
TITLE I
COURTS AND JUDICIAL OFFICERS.
(For the Land Court see Chapter 185.)
Chapter 211. The Supreme Judicial Court.
Chapter 212. The Superior Court.
Chapter 213. Provisions Common to the Supreme Judicial and Superior Courts.
Chapter 214. Equity Jurisdiction and Procedure in the Supreme Judicial and
Superior Courts.
Chapter 21.5. Probate Courts.
Chapter 216. Courts of Insolvency.
Chapter 217. Judges and Registers of Probate and Insolvency.
Chapter 218. District Courts.
Chapter 219. Trial Justices.
Chapter 220. Courts and Naturalization.
Chapter 221. Clerks, Attorneys and Other Officers of Judicial Courts.
Chapter 222. Justices of the Peace, Notaries Public and Commissioners.
CHAPTER 211.
THE SUPREME JUDICIAL COURT.
Sect.
1. Number of justices.
2. Quorum.
3. Superintendence of inferior courts.
4. Removal of certain officers.
5. Questions of law to be heard by full
court.
6. Reservation of questions of law.
7. Law questions, when argued.
8. Judgment or rescript after decision.
9. Contents of rescripts, etc.
10. Frivolous exceptions, etc.
11. Late entry of appeal.
12. Law sitting for the commonwealth.
13. Other law sittings.
Sect.
14. Transfer of cases by full court.
15. Hearings in capital cases.
16. Hearings in Boston of questions arising
in other counties.
17. Jury sittings.
18. Sittings at FaU River.
19. Dukes County or Nantucket cases to
be tried in Bristol.
20. Powers of justices at jurj- and law
sittings.
21. Audit of accounts, etc.
22. Salaries, etc.
23. Clerical assistance.
1 Section 1, The supreme judicial court shall consist of one chief ?\^,f„^t'' °*
2 justice and six associate justices.
Decl. of Rights, art. 29.
justices.
(Const. Rev. art. 29.)
1699-1700, 3, § 1.
1780, 17.
1782,9, § 1.
1799, 82. § 1.
1804, 105, § 1.
1823, 98.
R. S. 81, I 1.
1837, 78.
1840, 87, § 6.
1S48, 9.
1852, 127, 5 1.
G. S. 112, § 1.
1S73, 40.
P. S. 150, § 1.
R. L. 15G, § 1.
2262
SUPREME JUDICLiL COLTIT.
[Chap. 211.
Quorum.
1699-1700,
3. § 1.
1780. 17.
1782, 9, § 1.
Section 2. The full court shall be the supreme judicial court in 1
banc, and four justices shall constitute a quorum to decide all matters 2
required to be heard by it. 3
1800, 71, § 1.
R. S 81, § 11.
1852, 127, § 2.
1859, 196, § 39.
G. S. 112, 5 2.
P. S. 150, § 2.
1883, 223, § 2.
R. L. 156, § 2.
Superintend-
ence of in-
ferior courts.
1782, 9, § 2.
R. S. 81,§§4. 5.
1859, 196, § 38.
G. S. 112, § 3.
P. S. 150. § 3.
R. L. 156. § 3.
3 Gush. 212.
8 Gush. 529.
2 Allen, 463.
102 Mass. 310.
Section 3. The supreme judicial court shall have general superin- 1
tendence of all courts of inferior jurisdiction to correct and prevent 2
errors and abuses therein if no other remedy is expressly pro^^ded; and 3
it may issue writs of error, certiorari, mandamus, prohibition, quo war- 4
ranto and all other ■UTits and processes to such courts and to corpora- 5
tions and indi\'iduals which may be necessary to the furtherance of 6
justice and to the regular execution of the laws. 7
123 Mass. 418,460.
127 Mass. 50. 254.
163 Mass. 446.
167 Mass. 123, 424.
188 Mass. 443.
197 Mass. 194.
208 Mass. 528.
222 Mass. 542.
Removal of
certain officers.
1856, 173. § 7.
G. S. 112. § 4.
1876, 209.
P. S. 150. § 4.
1897. 224.
R. L. 156. §4.
11 Gray. 206.
1 Allen. 358.
Section 4. A majority of the justices may, if in their judgment the 1
public good so requires, remove from ofBce a clerk of the courts or of 2
their own court; and if sufficient cause is shown therefor and it appears 3
that the public good so requires, may, upon a bill, petition or other 4
process, upon a summary hearing or otherwise, remove a clerk of the 5
superior court in Suffolk county, or of a district court, a county com- 6
missioner, sheriff, register of probate and insolvency or district attorney. 7
Questions of
law to be
heard by full
court.
1804, 105. 5 6.
R. S. 81. § 13.
G. S. 112, §5.
Section 5. Questions of law arising upon exceptions or report, 1
upon appeals from the superior court, upon cases stated or upon special 2
verdicts and all issues in law, except as otherwise provided, shall be 3
heard and determined by the full court. p. s. iso, § 7. r. l. isb, § 6. 4
2 Met. 376.
120 Mass. 86.
137 Mass. 536.
168 Mass. 297.
170 Mass. 152.
206 Mass. 408.
215 Mass. 209.
226 Mass. 430.
Reser\'ation
of questions
of law.
R. S. 81. § 26.
G.S. 112, § 10.
P. S. 150, § 8.
R. L. 156. § 7.
6 Allen, 150.
9 Allen, 159.
Section 6. Questions of law arising upon a trial or other proceed- 1
ing, or upon a motion for a new trial by reason of an opinion, direction, 2
order or refusal of one justice in matter of law, may be reserved for the 3
consideration of the full court, and so much of the case as is necessary -4
for imderstanding the question shall be reported. 5
144 Mass. 260.
161 Mass. 46.
187 Mass. 509, 516.
200 Mass. 386.
201 Mass. 248.
225 Mass. 399.
Law questions,
when argued.
1859, 196, § 45.
G.S. 112, § 34.
1864, 111, § 1.
P. S. 150. § 9.
R. L. 156, § 8.
115 Mass. 335.
Section 7. Questions of law which are entered upon the docket of
the full court shall, when reached, be argued in their order, if either
party is ready, unless the court for good cause sho^m postpones the
argument. But no party shall be compelled to be ready for argument
within ten days after the question has been duly reserved of record in
the court in which the case is pending.
Judgment or
rescript after
decision.
1859, 196, § 48.
G.S. 112. J 11.
1866, 220.
P. S. 150, § 12.
R. L. 156. § 11.
4 Gray, 572.
il2AUen, 201.
,109 Mass. 248.
1 123 Mass. 418.
124 Mass. 353.
130 Mass. 201.
133 Mass. 536.
Section 8. The full court shall, as soon as may be after the decision 1
of the questions submitted to it, make and enter a proper order, 2
direction, judgment or decree for the further disposition of the case, or 3
cause a rescript, containing a brief statement of the grounds and reasons 4
of the decision, to be filed therein; or it may by a writ of certiorari 5
or other proper process remove the record of the case, or order it to be G
removed, into the supreme judicial court, there enter judgment, and 7
remand the record to the court from which it was removed to carry 8
such judgment into effect, or instead thereof, the full court may order a 9
Ch.\P. 211.] SUPREME JTJDICIAL COURT. 2263
10 new trial or further proceedings at the bar of the supreme judicial court,
1 1 or order sentence to be awarded or execution issued in said court.
1 Section 9. The records and rescripts which are made after the Contents of
2 decision of questions of law shall contain a brief statement of the issgl'ige.^fis.
3 reasons therefor; and if no further opinion is written within sixty days, ?; |; iso,' | if.'
4 the reporter shall publish the case with the opinion contained in such RLise, §12.
5 record or rescript.
1 Section 10. If, upon the hearing of an appeal or exceptions in any Frivolous ex-
2 proceeding, it appears that the appeal or exceptions are frivolous, im- iIIoTtq! 1*5.
3 material or intended for delay, the court may, either upon motion of a |'2,^§?6.'^^'"
4 party or of its own motion, award against the appellant or excepting psUo'tu'
5 party double costs from the time when the appeal was taken or the jf *l' iss t la'
6 exceptions were allowed, and also interest from the same time at the 2Cush. 465.
7 rate of twelve per cent a year on any amount which has been found 13 Gray, 91!
S due for debt and damages, or which he has been ordered to pay, or for 120 Mass! 21s,
9 which judgment has been recovered against him, or may award any ?2}Mass. sse.
10 part of such additional costs and interest.
126 Mass. 21. 181 Mass. 120. .208 Mass. 270.
130 Mass. 265. 182 Mass. 439. 210 Mass. 346.
158 Mass. 590. 192 Mass. 147. 225 Mass. 231.
1 Section 11. If, by mistake or accident, an appeal from the superior Late entry
2 court or a bill of exceptions which has been allowed by the supreme miAiU i.
3 judicial court or the superior court is not duly entered in the full court, §§'34^37,
4 that court, upon petition filed within one year after the appeal or bill pfisolJJ'
5 of exceptions should have been entered, and upon terms, may allow the ? \KH'ij^ ^■'•
6 appellant to enter his appeal or the excepting party to enter his bill of iiV Mass. 279.
7 exceptions. But no security by bond, attachment or otherwise which
8 has been discharged by the omission to enter an appeal or bill of excep-
9 tions shall be revived or continued in force by the entry thereof.
1 Section 12. A law sitting of the court for the commonwealth shall Lawsitting
^ lor tne com,-
2 be held annually at Boston on the first Wednesday of January and may monweaith
, ,. ,| ,. i. ,,' IP 1S59, 196. § 36.
3 be adjourned to places and times most conducive to the despatch or o.s. 112, §26;
4 business and to the interests of the public. At such sitting, questions p. s.iso, § 30;
5 of law arising in the counties of Barnstable, Essex, Middlesex, Norfolk, r.^.^sc, § 15.
6 Plymouth and Suffolk, and, by consent of the parties filed in the case, ig^slforfu.
7 such questions arising in other counties, and such questions for which
8 no other provision is made, shall be entered and determined.
1 Section 13. For hearing questions of law arising in the following other Uw
2 counties, law sittings shall be held once in each year in September and mi.^g', § 1.
3 October at such times as the court shall by rule determine: isoo!7i',|^2".'^'
1803.39. R. S. 81.§50, R. L. 156, § 16.
1804. 105, §§ 2, 3. 1859, 196, § 36. 1903, 54, § 2,
1820, 14, §§ 1. 6. G.S. 112, §27. 1915, 107, § 2.
1828, 2. P. S. 150, § 31. 1920, 386.
4 For Berkshire, at Pittsfield. Berkshire.
1861,99, § 1.
1868, 325, § 1. X , !,. i, .
5 For Franklin and Hampshire, alternately at Greenfield and North- Franiiiinand
6 ampton, the sitting at Northampton being in the even year. i86T,'99.'Y2.
7 For Hampden, at Springfield. Hampden.
8 For Worcester, at Worcester. JIsFw"'
9 For Bristol, Dukes County and Nantucket, at Taunton. Bristol, Dukes
1861. 206. 1S77, 178, § 3. 1891, 287. § 1. NantickS''
2264
SUPREME JUDICLiL COURT.
[CH-VP. 211.
Provided, that when no case has been set down for oral argument at 10
least two weeks before the day determined for any one of the said sittings, 1 1
the sitting may be omitted; and if only one case shall have been set 12
down for oral argument, that case may be transferred to any other of 13
said sittings which may be most accessible and convenient for the parties, 14
or to a sitting for the commonwealth if the parties so agree. 15
Transfer of
cases by full
court.
1892, 127.
E. L. 156. I 17.
1920. 3S0.
162 Mass. 90.
Section 14. The full court sitting in any cou'iity, or for the com- 1
monwealth, shall have jurisdiction of all questions of law and of all 2
cases and matters at law or in equity, civil or criminal, wliich arise 3
in any county other than that in or for wliich it is sitting, and which 4
might properly be heard and determined by it sitting for such county; 5
and, upon the application of a party, the full court may order any such 6
questions of law, or case or matter, to be entered and determined by 7
the full court sitting in any county, or for the commonwealth. 8
rapltSrases. Section 15. Exceptions alleged at the trial of a capital case in any
Wi'im'iio county may be entered and determined eitlier at the law sitting of the
1894' 204' ^ ^' s'^'Pi'^^s judicial court held for the county in whicli they arise, or, upon
R. l! isei § IS. the order of the justice presiding at the trial, at the sitting of the court
162 Mass. 90. n ,, i.,.i_
lor the commonwealth.
Hearings in
Boston of
questions aris-
ing in other
counties.
1859, 196, § 36.
G.S. 115, § 13.
P. S. 153, § 16.
R. L. 156. § 19.
1903,54. §2.
1915. 107. § 2.
162 Mass. 90.
Section 16. If the justice before whom an action or proceeding is 1
tried in the supreme judicial court or the superior court in counties 2
other than Barnstable, Essex, Middlesex, Norfolk, Plymouth or Suf- 3
folk considers that a question of law which arises for the determination 4
of the full court is immaterial, frivolous, or intended merely for delay, 5
or that the interests of the parties or of the public require a more speedy 6
determination thereof than can be reached in the sitting established 7
for the county in which the action or proceeding is tried, he shall so 8
certify and order the question of law to be entered and heard at the 9
sitting of the court for the commonwealth; and all the other proceedings 10
shall be the same as if the question had arisen in one of the above named 11
counties. 12
Jury sittings.
1782,9. § 1.
1799, 82, §5 2. 3.
1800, 71. § 2.
1802. 39.
1804, 105,
§§ 2. 3.
Barnstable.
Berkshire.
1868, 325. § 1.
Bristol,^ Dukes
County* and
Nantucket.
1.827, 135. § 1.
1860, 210.
Esses.
1860. 210. § 1.
1870, 351.
Franklin.
1860. 57. § 1.
Hampden.
Hampshire.
Section 17. Jury sittings of the court shall be held by one justice, 1
who shall have all the powers not expressly reserved to the full court. 2
If there are pending before the court in the respective counties mat- 3
ters requiring trial by jury, such sittings shall be held as follows: 4
1820, 14, §§1.6. 1S59. 196, § 56. P. S. 150. | 32.
R. L. 156, § 21.
1828. 2.
R. S. 81. I 59.
G. S. 112, § 28.
For Barnstable, at Barnstable, on the first Tuesday of May.
For Berkshire, at Pittsfield, on the second Tuestlay of IVIay.
For Bristol, Dukes County and Nantucket, at Taunton, on the third
Tuesday of April, and at New Bedford, on the second Tuesday of
November. i877. i7s, § 3. is78. i5i, 1 1.
For Essex, at Salem, on the third Tuesday of April and the first Tues-
day of November.
For Franklin, at Greenfield, on the second Tuesday of April.
For Hampden, at Springfield, on the fourth Tuesday of April.
For Hampshu-e, at Northampton, on the third Tuesday of April.
5
G
7
8
9
10
11
12
13
14
CH-VP. 211.] SUPREME JUDICIAL COURT. 2265
15 For Middlesex, at Lowell, on the third Tuesday of April, and at Cam- Middlesex.
16 bridge, on the third Tuesday of October. ^^^°' ^"' ^ '•
1837, 89, §2. 1S60, 57, § 2;210, § 1.
17 For Norfolk, at Dedham, on the third Tuesday of February. Norfolk.
18 For Plymouth, at Plymouth, on the second Tuesday of May. is6"°57"\ 3
19 For Suffolk, at Boston, on the first Tuesday of April, and the second Suffolk.'
20 Tuesday of September. ^^^i- 1*^*-
21 For Worcester, at Worcester, on the second Tuesday of April. iss"^!?"'
1 Section 18. If the public business so requires, the court may ad- fan^fveJ
2 journ an established sitting for the county of Bristol from either Taun- p^^i'^°Q'^si
3 ton or New Bedford to Fall River, in the manner and with the effect of ^- l- ise. § 22.
4 an adjournment to another shire town; and such adjournment shall be
5 subject to all the provisions of law relative to adjournments to another
6 shire town.
1 Section 19. An action, suit or proceeding arising or pending in the Dukes County
2 county of Dukes or Nantucket, which is cognizable by the supreme cLes^tobe^*'
3 judicial court and which is to be heard before one justice, shall be BrStof
4 entered, heard, tried and determined at the court held in the county of §■ | f Jo^^^fo
5 Bristol, in all respects as if the same com-t were held in the county of J^' ^^f | f
6 Dukes or Nantucket, as the case mav be; and all matters cognizable bv P- s.'i5o,'§ 35.
7 the full court arising or pending in the county of Dukes or Nantucket
8 shall be heard and determined as if arising in the county of Bristol.
1 Section 20. Four or more justices present at a jiu^- sitting shall ^'sticesat
2 have the powers of a full court. One justice present at a law sitting '^^^y ^"^ '='''
3 shall have the same authority as at a jury sitting. R. s. si, § 3S.
1S59, 196, § 39. G.S. 112, §18. P. S. 150, § 36. R. L. 156, § 24.
1 Section 21. The full court, sitting for the commonwealth, shall e'^oun^"'^^'''
2 examine and audit all accounts for services and expenses incident to S |•J-r|o|■
3 said court, and they shall be paid by the commonwealth. R. l. ise, § 25.
1 Section 22. The chief justice of the court shall receive a salary of Deci"of' ^*'^'
2 twelve thousand five hundred dollars, and each associate justice a salary Jl'fJ;'|' ^^^- ^^■
3 of twelve thousand dollars, and the chief justice and each associate justice i"8?! 4t.
4 shall annually receive from the commonwealth, upon the certificate of isog^is.
5 the chief justice, the amount of the expenses incurred by them in the is43,a
6 discharge of their duties; pro\'ided, that any chief justice or justice Jfsa.'fo."
7 appointed before June fourth, nineteen hundred and twenty, wlio has ^gg|- 46^5^i*°'
8 not accepted the increase in salary pro\ided by chapter six hundred and ]?^^'-}^-^ 39
9 twentv-seven of the acts of nineteen hundred and twenty shall receive isss, 274, § 1."
10 annually two thousand dollars less than the salaries above provided for. 1900', 335; § 1.
R. L. 156, § 26. 1911, 743, § 1. 1919, 288. § 1. 1920, 627, §§ 1, 4, 6.
1 Section 23. The justices of the court shall be allowed annually not clerical
2 more than four thousand dollars for clerical assistance, which shall be is9i, si. '
3 paid by the commonwealth upon the certificate of the chief justice. rJui eig. ^^'
2266
SUPERIOR COURT.
[Chap. 212.
CHAPTER 212.
THE SUPERIOR COURT.
Sect.
10.
11.
12.
13.
14.
15.
16.
Number of justices.
Court, how held.
Exclusive jurisdiction.
Concurrent jurisdiction.
Appellate cIntI jurisdiction.
Criminal jurisdiction.
Transmission of indictment.
Security to stand upon appeal.
Decrees of supreme judicial court to be
recorded.
Judgment final by agreement.
Transmission of papers.
Affirmation of judgment of district
court upon non-entrj' of appeal.
Late entry of appeal.
Sittings of court.
Jury sessions in Suffolk.
Speedy trials in Suffolk.
Sect.
17. Adjounmient to place other than shire
town.
18. Special adjourned criminal session at
Brockton.
19. Clerk's office.
20. Separation of civil and criminal busi-
ness, except as to jurors.
21. Special sittings for criminal business.
22. Return day in criminal cases.
23. Assembling of grand jury.
24. Precedence of certain prosecutions.
25. Extension of sitting.
26. Custody of records.
27. Salaries, etc.
28. Miscellaneous expenses.
29. Speedy trial of persons held in jail in
default of bail.
1S20, 79, § 2.
Section 1. The superior court shall consist of one chief justice and 1
Number of
justices.
1799, 81. 1 1. twenty-seven associate justices.
1S45, 155. G. S. 114. § 1,
1851, 330, 5 1. 1S75, 230.
1855, 449, § 1. P. S. 152, § 1.
1859, 196, § 7. 1886, 31.
R. S. 82, § 1; S6, §1.
1888, 58.
1892,271.
1896, 526.
R. L. 157, § 1.
1S43, 7, § 4.
1902, 383.
1903, 472, § 2.
1907, 286.
1911, 567.
Coiu^, how
held.
1820, 79, § 1.
R. S. 82, § 32.
G. S. 114, § 2.
P. S. 152. § 2.
R. L. 157. § 2.
1910, 555, § 1.
227 Mass. 598.
Section 2. The court shall be held by one of the justices, and when
so held shall have and exercise all the power and jurisdiction committed
to said court. The chief justice shall make such assignments for the at-
tendance of a justice at the several times and places appointed for hold-
ing the court as will be most convenient and as will insure the prompt
performance of its duties.
^risdfctk>n Section 3. The court shall have exclusive original jurisdiction of
1820.79, 1 i. actions of contract, tort and replevin, except those of which other courts
1840, 87, §§ i, 2. have concurrent original jurisdiction, of libels for divorce or for affirming
1855! 449, 1 3. or annulling marriage, of writs of entry for the foreclosure of mortgages,
G.a'ii4,'^ ^' and of real and mixed actions, except those of which the land court or
1879, 255, § 1. district courts have jurisdiction, of complaints for flowing lands, and of
1880, 28. claims against the commonwealth. p. s. 152, §§ 3, 4. iss7, 332, § 1.
R. L. 157, § 3. 1917,326. 10 Allen, 420. 218 Maas. 463.
Concurrent Section 4. The court shall have original jurisdiction of all civil 1
jurisdiction. .,, i i- '-in
R._s.s2.§4 actions, except those of wluch other coiuts have exclusive original 2
18do, 449, § 3. , , ,, . ^ o
1859, 196, §1. jurisdiction. g. s. iii, §§3,4. 6
p. S. 152. §§3,4.
R. L. 157,
;3, 4.
1917, 326.
Appellate civil
jurisdiction.
1820.79,5 1.
R. S. 82. I 3.
1859, 196, I 5.
Section 5. The court shall have jurisdiction of all civil actions 1
and proceedings which are legally brought before it by appeal or 2
removal. g.s. 114, §5. 3
p. S. 152, § 5.
1887, 332, § 3.
1890, 127. § 1.
1898, 562, I 14.
1899, 131. 5 2.
R. L. 157. § 6.
Chap. 212.] superior court. 2267
1 Section 6. The court shall have original jurisdiction of all crimes, Criminal juris-
2 and appellate jurisdiction of crimes tried before a district court or a trial 1799, si. 5 1.
3 justice. Crimes committed in that part of Scituate described in chapter Ifi^', 133 ^'
4 three hundred and ninety-four of the acts of nineteen hundred and twelve Hlo', Ho, | };
5 shall be within the territorial jurisdiction of the court both in Norfolk H^jlg:^^^'
6 county and in Plymouth county, and arrests and ser\ice of process in |^^| *•
7 such cases may be made by an officer qualified to serve criminal process i855;449, § 3.
8 in Cohasset. Crimes committed in any part of Cambridge, Watertown o. s.'ii2,'§5;
9 or Newton Ij-'ing in the Charles river basin shall be ■within the territorial p. s. 156, § s;
10 jurisdiction of the court both in IMiddlesex county and in Suffolk county. 1891^379, § 1.
R. L. 157, § 7. 1909, 524, § 9. 1912, 394, § 1. 235 Mass. 3S3.
1 Section 7. The clerk of the courts for the county in which an in- Transmission
2 dictment for a capital crime has been entered, or, in the county of isog, 4'33?™2"
3 Suffolk, the clerk of the superior court for criminal business, shall forth- fggi'.STg'.Va*
4 with send notice thereof, with a copy of the indictment, to the chief or ^- ^- ^^''' ^ ^•
5 first justice of the court and to the attorney general. Any justice of
6 said coiu-t may thereupon appoint a time for the arraignment of the
7 prisoner, which shall take place either at a regular sitting or on a day
8 specially assigned therefor.
1 Section 8. If an appeal or a bill of exceptions in a case, civil or Security to
2 criminal, has been duly entered in the supreme judicial court, any se- appeal"''"
3 curity taken in the case, by bond, attachment or otherwise, shall stand is5l'.^9'6;§'3i.
4 as if no judgment had been rendered or exception taken in the superior p; |; 1,52,' 1 12.'
5 court, until final judgment shall be entered, unless, in the case of a bill ^- ^- 1^^- ^ ^^■
6 of exceptions, execution is awarded because the exceptions are im-
7 material, frivolous or intended for delay.
1 Section 9. Orders or decrees of the supreme judicial court upon Decrees of
2 questions arising in a case pending in the superior court shall be entered ciai^™irt to "
3 of record in the superior court, and such case shall be disposed of as g^ s!Ti4,^§i2.
4 law and justice require, conformably to the rescript or order of the r'.i;.\?7',Vi9.
5 supreme judicial court. 103 Mass. 425. 124 Mass. 353.
1 Section 10. Parties to an action submitted to the determination of gnaf by"'
2 the court may agree that the judgment therein shall be final. agreement.
R. S. 82, § 11. G. S. 114, 5 13. P. S. 152, § 14. R. L. 157. § 20.
1 Section 11. The clerk, at the expense of the appellant or excepting Transmission
2 party, or, upon a case reserved or reported at the expense of the plaintiff issg.^ige,
3 or of the party at whose request it is reserved or reported, or in a crimi- g s'^'ih'. § i4.
4 nal case at the expense of the commonwealth, shall prepare and transmit R.L.^s'f.VzL
5 to the supreme judicial court for the proper county one copy of every gg^Ma^sg^no^^'
6 paper on file in the case, except papers used in evidence only, and of pj 'JJ*^^- ^ji-
7 all papers made part of the case or referred to in the bill of exceptions zsii Mass.' 3261
8 or report, or so much thereof as is necessary fully to present the question
9 of law, for the use of the chief justice, and a like copy for the clerk of
10 the supreme judicial court, Mhich shall be kept on file in said court;
11 and one copy of the bill of exceptions, report or papers upon which the
12 question of law arises on appeal for each associate justice, for each
13 party and for the reporter of decisions. Original papers used in the
14 trial, which are needed in the supreme judicial court, shall be trans-
2268
SUPERIOR COURT.
[Chap. 212.
mitted to its clerk to be kept on file by him until the rescript in such 15
action is sent. The e>cpense of such copies and transmission shall be 16
taxed in the bill of costs of the prevailing party, if he has paid it. 17
AfBrmation of
judgment of
district
court upon
non-entry of
appeal-
1783, 42. 5 6.
R. S. 85, § 15.
G. S. 120, § 27.
Section 12. If, upon an appeal in a civil action or proceeding from 1
a judgment of a district court, the appellant fails to enter and prose- 2
cute his appeal, the court may, upon complaint of the appellee, affirm 3
the former judgment or render such other judgment as law and justice 4
require. p- s. 155, § 34. 5
1S93, 396, § 30.
R. L. 157, § 22.
1917. 326.
117 Mass. 279.
118 Mass. 418.
171 Mass. 444.
207 Mass. 437.
216 Mass. 113.
Late entry of
appeal.
1791, 17.
R. S. 82, §§21-
24.
G. S. 114, § 15.
P. S. 152, § 16.
R. L. 157, § 23.
117 Mass. 279.
207 Mass. 437.
216 Mass. 113.
Section 13. If, by mistake or accident, an appeal to the superior 1
court is not duly entered therein, or if, for a like reason, a complaint 2
founded on an omission to enter an appeal has not been entered by the 3
appellee, the court, upon petition filed within one year after the appeal 4
or complaint should have been entered, may upon terms allow the ap- 5
peal or complaint to be entered; but attachments made and seciu-ity 6
given in the original action shall not thereby be revived or continued 7
in force. 8
sittings of
court.
1799,81, I 1.
Section 14. Sittings of the court in the several counties shall be 1
held as follows: r. s. 82, §§40,41 ; S6,§ i. 2
18.55, 449, § 7.
1S59, 196, I 10.
G. S. 114,
P. S. 1.52, i
16.
17.
R. L. 157, § 24.
183 Mass. 199.
Barnstable.
1833,51.
1S69, 354.
Berkshire.
1850, 258.
1868, 325, § 1.
1871, 84.
1904, 38.
Bristol.
1827, 135, § 2.
1878. 95.
1888,314,
§§1,3.
1891, 287, § 2.
1S99, 140.
Dukes County.
1825, 107, § 2.
1827, 18.
Essex.
1839, 150.
1849, 39.
1852, 288.
1860, 62.
1870, 315.
1885, 191, § 1.
1889,461.
1896, 412.
Franklin.
1831,44.
1889, 327.
Hampden.
1830, 40.
1844, 171.
1845, 253.
1849, 53,
1868, 250.
1885, 27.
Hampshire.
1846, 193.
1852, 114.
For Barnstable, at Barnstable, the first Monday of April and the 3
second Monday of October. i89i, 175. isoq, 271. 1902. 456, § 2. 4
For Berkshire, at Pittsfield, for civil business, the first Mondays of 5
April and October; for criminal business, the second Mondays of 6
January and July. 7
For Bristol, for civil business, at Taunton, the first Monday of 8
March and the second INIonday of September, and at New Bedford, 9
the first IVIondays of May and December; for criminal business, at 10
Taunton, the first Monday of February, at New Bedford, the first 11
Monday of June, and at Fall River, the first IMonday of No^-ember. 12
For Dukes County, at Edgartown, the last Tuesdays of April and 13
September. 1833, 51. 1874, 34. i8S9, 308. 14
For Essex, for civil business, at Salem, the first IVIondays of June 15
and December; at LawTcnce, the first Monday of INIarch; and at New- 16
burj-port, the first Monday of October; for criminal business, at Salem, 17
the second Monday of January; at Newbur;^^ort, the second Monday 18
of May; and at Lawrence, the second Monday of September. 19
1911,430.
1917.88.
For Franklin, at Greenfield, the second Mondays of March, July and 20
November. isos, 355. 21
For Hampden, at Springfield, for civil business, the first Monday of 22
]\Iarch, the second INIonday of June and the fourth INIonday of October; 23
for criminal business, the first Monday of May, the second INIonday of 24
September and the third Monday of December. 25
1904, 144. 1907, 26.
For Hampshire, at Northampton, the third Monday of February, the 26
first Monday of June and the third Monday of October. 27
Ch.\P. 212.] SUPERIOR COURT. 2269
28 For Middlesex, for ci\'il business, at Lowell, the first Mondays of ^sij'8'^'l7|''-
29 April and October, and at Cambridge, the first Monday of January; isst^so. §2.
30 for criminal business, at Cambridge, the first Mondays of January, i84i!iii:
31 June and November, and at Lowell, the first Monday of March and the i867!226, § 2.
32 Tuesday after the first Monday of September. ists, 9.
1S92, 391. 190:. 162. 1903, 97. 1909, 197.
33 For Nantucket, at Nantucket, on the first Tuesdays of July and f825'To?*§ i
34 October. isss, 51. is78. 100.
35 For Norfolk, at Dedham, for civil business, the first Mondays of ^^^"loo
36 January, May and October; for criminal business, the first IMondays of issg] 2S7!
37 April, September and December.
38 For Plymouth, at Plymouth, for criminal business, the first Mondays Plymouth.
39 of February, June and October; for civil business, at Plymouth, the is82,' 215, § a.
40 second IMondays of March and September, and at Brockton, the first Hil] fog.^ ^'
41 Mondaj's of April and November.
42 For Suffolk, at Boston, for civil business, the first IMondays of f9^2°,'456, 5 1.
43 January, April, July and October; for criminal business, the first Mon- 107 Mass. 209.
44 day of every month.
45 For Worcester, for civil business, at Worcester, the first Monday of ^^g"*"!^]""
46 March and the second ^londay of December, and at Fitchburg, the i894!i69;
47 first Mondays of June and November; for criminal business, at
48 Worcester, the third Monday of January, the second IMonday of May
49 and the third Monday of October, and at Fitchburg, the third Monday
50 of August.
1 Section 15. The court shall hold in Suffolk county each month, jm-y sessions
2 except July, August and September, seven jury sessions for the trial of 'i903"^'72,'§ 1.
3 civil causes.
1 Section 16. The court shall, except in July, August and September, Speedy trials
2 hold a separate and continuous session, so far as is practicable, in Suffolk )[8l4"^83;'547.
3 county for the speedy trial of causes advanced for speedy trial according ^^l[ jj^; § 35.
4 to law, of causes entered in said court on appeal, or on removal from the ^^^^' ^^^' ^ ■*•
5 municipal court of the city of Boston, of actions of contract originally
6 commenced in the superior court in which the amount demanded does
7 not exceed two thousand dollars, and, upon the application of either
8 party, of actions in which a new trial by jury has been granted or an
9 auditor's report has been filed, and of all other cases in which, in the
10 opinion of a justice of said court, substantial justice and relief require a
11 speedy trial. A trial list of such cases shall be made every month.
1 Section 17. The court may adjourn any established sitting for Adjournment
2 Bristol county from Taunton or New Bedford to Fall River, or for tha''nX°e""""
3 Plymouth county from Plymouth to Brockton, and for the hearing of is77;68.
4 jury waived cases may adjourn any established sitting for Essex county p^'^'j*!, ^ jg
5 from Salem, Lawrence or Newburyport to Haverhill, in the manner and isso. 134.
6 with the effect of an adjournment to another shire town; and such ad- h."l! 157! §27.
7 journment shall be subject to all laws relative thereto.
1 Section 18. An adjourned sitting of each criminal term of the court special ad;
2 for Plymouth county shall be held at Brockton, for the hearing and nai session at
3 disposition of such criminal cases on the trial list as have arisen within igTs, ils'.
2270
SUPERIOR COURT.
[Chap. 212.
the judicial district of the poHce court of Brockton or within the towns 4
of Whitman, Abington and Rockland, where the defendants are not in 5
confinement awaiting trial. 6
S!?'i56®'^' Section 19. The clerks of the courts, and in Suffolk county of the 1
superior court, may maintain regularly established offices in such cities 2
and towns as may be designated by the chief justice of the superior 3
court. 4
Separation of
civil and crimi-
nal business,
except as to
jurors.
1835. 116, I 3.
R. S. 82, § 42.
1859, 196, § 11.
G. S. 114, § 17.
P. S. 152. § 22.
1897. 490, § 4.
R. L. 157. § 29.
1912.209.
Section 20. Except as provided in section twenty-nine, in counties 1
in which separate sittings of the court are established for civil and crimi- 2
nal business, criminal cases only shall be tried by jury at the criminal 3
sittings, and civil cases only at the civil sittings; but jurors summoned 4
for either civil or criminal business may by order of the court be used 5
interchangeably for either civil or criminal business as occasion may 6
require. 1920, i67. iss Mass. 199. 7
fo^r^criminli"^' Section 21. The chief justice may, by WTitten order to the sheriff, 1
i874"2ob order a special jury for a sitting for criminal business to be held in any 2
f™7 490 Vl' co'^i^ty at such time and place as may be appointed in such order. The 3
R. l! 157] § 30, sheriff shall give notice thereof as directed in the order therefor; but no 4
person under recognizance to answer to an indictment or to a criminal 5
complaint shall be held to appear at such special sitting or at any time 6
and place other than the regular sittings of the court, unless duly notified 7
by written summons from the clerk. 8
Return day in
criminal cases.
1841, HI. § 3.
1859, 196, § 12.
G. S. 114. § 18.
P. S. 152. § 23.
1897. 490. § 3.
R. L. 157, § 28.
1907. 176.
11 Gray, 205.
Section 22. The first Monday of every month shall be a return 1
day for the entry of appeals in criminal cases from district courts and 2
trial justices and of suits upon recognizances and bonds in such cases. 3
Such appeals shall be entered on the return day next after the appeal 4
is taken. Such suits may be made returnable at the election of the dis- 5
trict attorney at any such return day witliin tliree months after the date 6
of the ^\Tit. Trials by jury of such suits shall take place at criminal 7
sittings; and such suits shall be filed, docketed and recorded as criminal 8
cases. If said first Monday is a legal holiday, such entry shall be made 9
on the day follo'n-ing. 10
^"^ndfurf. "' Section 23. The chief justice may, by written order to the sheriff, 1
R *l' 157' 1 31 cause the grand jury in any county to be assembled at a time and place 2
appointed therein. 3
Section 24. At a sitting of the court at which criminal business
Precedence of
certain prose-
is55"2i5 5 35 ™^''*' ^^ transacted, cases arising under chapters two hundred and forty-
1859! 196! §54: eight, one hundred and thirty-eight, one hundred and thirty-nine and
114. § 20. I two hundred and seventj-three shall have precedence in the order in
R. L. 157. § 32. which said chapters are herein named, next after the cases of persons
1913,563, § 8. .^.jjQ gj.g actually confined in prison and awaiting trial.
S^'fttfig" Section 25. If a criminal case is on trial at the end of a sitting, 1
p*^"i^5^2 5 26 ^^'^■'^ sitting may be continued, and jurors serving in such case may be 2
R. L. 157, 5 33. required to serve until the case is finished. 121 Mass. 31. iss Mass. 199. 3
Chap, 212.] superior court. 2271
1 Section 26. The records of courts wliich are transferred to the Custody of
2 superior court shall remain in custody of its clerks. In Suffolk county, ism? 196, § 4.
3 the clerk of said court for civil business shall have the custody of said p.' |; 152,' | It.'
4 records in civil cases, and the clerk for criminal business shall have the ^- ^- ^^''' ^ ^*-
5 custody of said records in criminal cases. Copies of said records may
6 be certified by said clerks respectively. Judicial writs and processes
7 which are founded upon such records shall issue under the seal of the
8 superior court, in like manner and with the same effect as similar writs
9 and processes founded upon its own records.
1 Section 27. The chief justice shall receive a salary of ten thousand ff59"i96^'KX7
2 five hundred dollars, and each associate justice a salary of ten thousand G- s. lu, § 22.
3 dollars, and the chief justice and each associate justice shall annually is72!279;
• ... 1S79 ''ZQ
4 receive from the commonwealth, upon the certificate of the chief justice, p. s.'r52,'§ 28.
5 the amount of the expense incurred by them in the discharge of their iss8!i74!
6 duties; provided, that any chief justice or justice appointed before June igooisss! § 2.
7 foiu-th, nineteen hundred and twenty, who has not accepted the increase ^g^^ 743 | 2^-
8 in salary provided by chapter six hundred and twenty-seven of the acts Jq.'S'pi'^ ^•
9 of nineteen hundred and twenty shall receive annually two thousand §r2,'4r6.'
10 dollars less than the salaries above provided for.
1 Section 28. The commonwealth may annually expend not more than Miscellaneous
2 two thousand five hundred dollars for printing, for transportation of i907°la
3 papers and documents, for clerical work, for inspection of the records and ^^^*' ^'^■
4 doings of persons authorized to admit to bail, and for certain other ex-
5 penses incident to the work of the court, to be expended under the direc-
6 tion of the chief justice.
1 Section 29. A prisoner held in jail for trial upon an indictment for Speedy trial of
2 an offence not punishable by death or by imprisonment for life, or so fauTn°defait°
3 held upon an appeal, at any time except during a sitting of the superior Jg^o/jey.
4 court for criminal business in the county Mhere he is held, may petition
5 said court that he be brought before the court at a sitting thereof for
6 civil business in that county in order that disposition may be made of
7 his case. After due notice to the district attorney, and with his consent,
8 the court may grant the petition, and the presiding justice may dispose
9 of the case, as if he were holding a sitting of the court for criminal busi-
10 ness, or he may continue the case to the next sitting of the court for
1 1 criminal business. When a person who has a right to so petition is com-
12 mitted to jail, the keeper thereof shall notify him of such right, furnish
13 him with a blank form for its exercise, and transmit it to the court, if
14 signed by him. This section shall not apply in cases in which two or
1.5 more persons are held on one complaint or indictment, unless all the de-
16 fendants join in the petition.
REFERENCES.
Provisions of law relative to proceedings before trial in criminal cases heretofore
contained in R. L. 157, §§ 10-17, and in 1911, 432, are in Chap. 277,
§§ 47-56.
§§ 3, 4. Jurisdiction in equity, Chap. 83, § 13; Chap. 139, §§ 6, 7, 16; Chap. 176,
§ 47; Chap. 214.
Jurisdiction in mandamus in certain tax cases, Chap. 62, § 31.
Jurisdiction upon appeal from order of mayor and aldermen or selectmen
as to burnt, dilapidated or dangerous building, Chap. 139, §§ 1, 2.
Jurisdiction to review action of board of health or building inspector rela-
tive to tenement houses, Chap. 144, § 90, and Chap. 145, § 55.
2272
SUPEEIIE JUDICLiL AXD SUPERIOR COUETS.
[ClL\P. 213.
CHAPTER 213.
PROVISIONS COMMON TO THE SUPREME JUDICIAL AND SUPERIOR
COURTS.
Sect.
1. Vacancies, etc.
2. Issue of process in any county.
3. Rules.
4. Courts always open.
5. Transaction of business in any county.
6. Duration of sittings.
7. Simultaneous sessions.
Sect.
S. Allowance of accounts.
9. Attendance of justices.
10. Adjournment to another shire town.
11. Adjournment in absence of justice.
12. Same subject.
13. Seal and officers of court.
varancies^ et^c. SECTION 1. In CEse of a vacancy in the office of cliief justice of the 1
p.' I.' 153.' 1 1! supreme judicial or the superior court, or of his illness or absence, his 2
R. L. 15S, § 1. duties shall be performed by the senior justice present and qualified 3
to act. 4
Issue of
process in any
county.
1886, 223.
R. L. 158, § 2.
Section 2. If, in the opinion of a justice of either court, it is im-
portant that a writ or other process should be speedily issued in a cause
pending in the court of which he is a justice, he may order it to be
issued by the clerk of the courts in the county in which he is sitting; and
such clerk shall transmit the order to the clerk of the courts of the
county in which the cause is pending, to be filed and recorded with the
other papers in the case.
Rules.
1782, 9, § 4.
1820, 79, § 7.
R. S. 81, § 10;
82, § 37.
1836, 273, I 2.
1851, 233,
§§ 44, 113.
1852, 312,
§§ 34, 76.
1853, 371, § 4.
1857, 267, § 3.
1859. 196,
l§ 33, 49.
G. S. 113, § 26;
lis, § 4.
1874, 339, 5 4.
P. S. 151, § 33;
153, § 4.
R. L. 15S, § 3.
127 Mass. 518.
227 Mass. 375.
229 Mass. 478.
236 Mass. 330.
ISSo, 384, § 12.
1894, 283, § 2.
Section 3. The courts shall, respectively, make and promulgate 1
uniform codes of rules, consistent M'ith law, for regulating the practice 2
and conducting the business of such courts in cases not expressly pro- 3
vided for by law, for the following purposes: 4
First, Simplifying and shortening pleadings and procedure. 5
Second, Prescribing the terms upon which amendments will be al- 6
lowed or unnecessary counts and statements stricken from the record; 7
discouraging negligence and deceit; preventing delay; securing parties S
from being misled; placing the party not in fault as nearly as possible 9
in the condition in which he Mould ha^•e been if no mistake had been 10
made; distinguishing between form and substance; and' substituting 11
fixed and certain requirements for the discretion of the court. 12
Third, Conducting trials. • 13
Fourth, Presenting distinctly the questions to be tried by the jury. 14
Fifth, Giving a party such notice of the e^•idence which is intended to 15
be offered by the adverse party as will prevent surprise and enable him 16
to prepare for trial. 17
SLxth, Prescribing such forms of verdicts as will place upon record 18
the finding of the jury. 19
Seventh, The entry of judgment by the clerk under a general order 20
in all cases ripe for judgment. 21
Eighth, Expediting the decision of causes and securing the speedy 22
trial thereof. 23
Ninth, Remedying abuses and imperfections in practice and di- 24
minishing costs. 25
Chap. 213.] supreme judicial and superior courts. 2273
26 Tenth, Filing and hearing motions to set aside verdicts and notifying is97, 472.
27 adverse parties thereof.
28 Eleventh, The superior court may also make and promulgate such is96, 40i.
29 rules for the regulation of the printing, publication and distribution of
30 trial lists and for notifying attorneys of trials in civil causes as the
31 public convenience in the several counties requires.
32 The rules of the superior court shall not conflict with those of the
33 supreme judicial court.
1 Section 4. The courts shall always be open in every county and the Courts always
2 business thereof, or of the justices thereof, may be transacted at any isss,' 384. § 2.
3 time; but such business shall not, except as provided in section six r^^l! iss,' 1 1'
4 of chapter two hundred and twenty, be transacted on Sunday or on a \ll ^l^- ^Jj^-
5 legal holiday unless it relates to an application which, in the opinion of ]l^ m^^s. 37
D the justice to whom it is made, is 01 pressing necessity. 227 Mass. 598.
1 Section 5. The courts and the justices thereof, respectively, may Transaction of
2 in any county transact any business of such courts and direct the entry county.^ '° ""^
3 of any order, judgment or decree in an action, suit or proceeding pend- ^^l[ lll[ | 5;
4 ing in the same court in another county.
1 Section 6. Regular sittings of the courts for the transaction of civil Duration of
Sittings
2 or criminal business shall commence on the dav appointed by law there- isss. 384, § 4.
*" . 1897 490
3 for and end on the day preceding the day next appointed by law for a r. l. iss! § e.
4 sitting in such county for the transaction of the same kind of business.
5 Such regular sittings may at any time be adjourned from time to time
6 or without day, and such adjournment shall excuse the attendance
7 during the adjournment of all persons required to attend at the sitting,
8 unless expressly notified to attend, but shall not otherwise terminate
9 the sitting.
1 Section 7. Two or more simultaneous sessions of the court may be simultaneous
2 held in the same county, if public convenience requires; and the business issTslo, § 2.
■3 may be so divided as to secure its speedy and convenient disposal. a^l.'us.'lil.'
p. S. 153, § 22. R. L. 158, § 7.
1 Section 8. The courts shall, respectively, receive, examine and ^cTOunts"*^ °^
2 allow accounts for services and expenses incident to their sittings in the r°|'|I' 5 4g
3 several counties and order payment thereof out of the respective county isso, ig'e, § 20.
... G. S. 115, § 17.
4 treasuries.
p. S. 153, §23. R. L. 158, §8. 104 Mass. 537. 3 Op. A. G. 559.
1 Section 9. The justices of each court, except as otherwise pro- Attendance of
2 vided, shall make such arrangements for the attendance of a justice at isfi^fs, § i.
3 the several times and places appointed for holding their court as will be §' i' iis.^^is.
4 most convenient and as will insure the prompt performance of their rl'iss^I*'
5 duties. loio, 555, § 2.
1 Section 10. If public business requires, either court may adjourn Adjournment
2 an established sitting in one shire town to another in the same county, shiretown.
3 Persons, recognizances and processes required to appear at or to be IsmIPI:
4 returned to the established sitting shall appear at, be returnable to and p'|;i63'|2'5'
5 have day in, the adjourned sitting. R. l. 158, § 12. i op. a. g. 152.
2274
EQUITY JTJEISDICTION AND PROCEDUEE.
[ClL\P. 214.
Adjournment
in absence of
justice.
1782, 9. § 5.
1804, lOS, § 8.
1820, 14, § 5;
79, § 2.
1830. 113, § 9.
R. S. 81, §39;
82, § 39.
1859, 196, § 19.
G. S. 115, § 20.
P. S. 153, § 26.
R. L. 158. § 13.
97 Mass. 214.
Section 11. If no justice is present at the time and place appointed 1
for holding a court at the beginning of a sitting or at an adjournment 2
thereof, the sheriff of the county or any of his deputies may adjourn 3
the court from day to day or from time to time, as circumstances re- 4
quire, or as ordered by any of the justices, and shall give notice of such 5
adjournment by making public proclamation in the court house, and 6
by a notice posted on the door of the court house or published in a 7
newspaper. 8
i7S!9r§^"*' Section 12. In such case, any justice may by a written order re-
§; I fl5.^§*2i. quire the sheriff or his deputy to adjourn the court without day or to
p. S. 153, § 27. i-Ytfi timp> ^irrir*iQCprl in +lip nrrlpr* nnrl flip nfllppr Qliall nrlimirn tVlP pmirt 3
4
R L 158 "5 14 ^^® time expressed in the order; and the officer shall adjourn the court
accordingly by public proclamation in the court house.
1
2
Seal and
oiBcers of
Section 13. Each court may establish a seal and appoint all officers 1
im'196, § 16. necessary for the transaction of its business. 2
G. S. 115, § 22.
P. S. 153, § 28.
R. L. 158, § 15.
REFERENCE.
■ Retirement and resignation of justices, pensions, and service after retirement.
Chap. 32, §§61-63.
CHAPTER 214
EQUITY JURISDICTION AND PROCEDURE IN THE SUPREME JUDICIAL
AND SUPERIOR COURTS.
Sect.
JURISDICTION.
1. General equity jurisdiction, concurrent.
2. Statutory equity jurisdiction,
3. Special jurisdiction.
4. Issue of process.
5. Venue.
SUPERIOR COURT PR.\CTICE.
6. Procedure in superior court.
COMMENCEMENT OF SUITS, NOTICE, ETC.
7. Commencement of suits in equity.
8. Bill not required in summons.
9. Preliminary injunctions and temporary
restraining orders, when granted.
Notice.
10. Notice in questions under wills.
11. Docket entrj' of equity suits.
PLEADING.
12. Form of bill.
13, Demurrer, answer and plea.
Sect.
14. Effect of answer. No replication re-
quired.
15. Signature to pleadings.
HE.UilNGS.
16. Hearing by one justice.
17. Court always open.
IS. Hearing cases pending
county.
in another
19. Appeal from final decree.
20. Separate docket for equity and pro-
bate appeals.
21. Injunction or receiver pending appeal.
22. Modification of decree of superior
court.
Report of facts.
Report of testimony upon appeal.
25. Questions raised by exceptions to be
heard and determined ^-ith appeal.
26. Interlocutory decree, appeal from.
27. Re\'ision of interlocutory decree upon
appeal from final decree.
28. Petition for leave to appeal.
29. Execution on final decree.
23.
24.
Ch-^p. 214.]
EQUITY JUEISDICTION ANT) PEOCEDUEE.
2275
Sect.
EEPORT.
30. Report of interlocutory decree or order
to full court.
31. Reservation for full court.
KEMOV.4L
FROM SUPEHIOR TO SUPREME
JUDICIAL COURT.
32. Removal of suit from superior court.
33. Removal for hearing with other suit.
ISSUES TO JURY.
34. Jury issues.
35. Jury may be summoned.
36. Jury issues in superior court.
Sect.
sittings op the courts.
37. Continuous sitting in Boston.
38. Hearings at chambers for western
counties.
MISCELLANEOUS PROVISIONS.
39. Control of case by court having juris-
diction.
40. Decree, etc., to bear date of entry.
41. Writs of seisin and execution.
42. Receiver's bond.
43. Taking papers from files.
JURISDICTION.
1 Section 1. The supreme judicial and superior courts shall have General equity
2 original and concurrent jurisdiction in equity of all cases and matters TOMurrent"'
3 of ecjuity cognizable under the general principles of equity jurisprudence q%[ Wl] 5 2.
4 and, with reference thereto, shall be courts of general equity jurisdiction. ^''i'lJf'll'
1883, 223, 5§ 1, 2.
135 Mass. 140.
177 Mass. 230.
R. I,. 159, § 1,
140 Mass. 459.
LSI Mass. 41.
10 Gray, 283.
141 Mass. 535.
1,S4 .Mass. 571.
6 .\llen, 59, 60. 126.
142 Mass. 206.
1S5 Mass. 448. .
221,601.
144 Mass. 130.
190 Mass. 40.
8 Allen, 587.
150 Mass. 73.
203 Mass. 591.
99 Mass. 208. 209.
155 Mass. 417.
211 Mass. 238, 494.
100 Mass. 365.
159 Mass. 356.
215 Mass. 419,480.
101 Mass. 447.
161 Mass. 416.
218 Mass. 367.
104 Mass. 239.
165 M.ass. 123.
220 Mass. 106.
119 Mass. 123, 161.
166 .Mass. 294.
224 Mass. 474.
130 Mass. 16.
168 Mass, 76.
225 Mass. 377.
131 Mass. 291.
172 Mass. S3.
226 Mass. 30.
1 Section 2. The supreme
judicial court
shall have original and ex-
Statutory
2 elusive jurisdiction in equity
of all cases and matters of equity cogniza-
equity juris-
diction.
3 ble under any statute and not within the j
urisdiction conferred by the
G. S. 113, § 1.
P. S. 151, § 1.
4 preceding section, unless a different provision is made; and the superior
1883, 223, § 1.
R, L. 159, § 2
5 court shall have like original and exclusive,
or like original and concur-
1,50 Mass. 73.
155 Moss. 417
6 rent, jurisdiction only if the statute so provides.
185 Mass. 448.
203 Mass. 591.
228 Mass. 191.
1 Section 3. The supreme
judicial and
superior courts shall have
Special juris-
diction.
R. S. 81, § 8.
2 original and concurrent jurisdiction in equity of the following cases:
G. S. 113, § 2.
12 Met. 316.
120 Mass. 607.
P. S. 151, § 2.
4 Gray, 324.
134 Mass. 181. 593.
1883, 223, § 2.
100 Mass. 540.
135 M.ass. 140.
R. L. 159, § 3.
103 Mass. 341,514
137 Mass. 487.
6 Pick. 376.
110 Mass. 1.
147 Mass. 23.
13 Pick. 169.
115 Mass. 170.
148 Mass. 1.
23 Pick. 148.
244, 253.
228 Mass. 191.
3 (1) Suits to compel the re-delivery of goods or chattels taken or Re-deiivery,
4 detained from the owner, and so secreted or withheld that they cannot 1823, 140, § 1.
5 be replevied. 1853, 371,54. s rick. 2.54. 20 Pick. 28.
23 Pick. 228.
2 Met. 127.
S Met. 525.
7 Gush. 530.
7 Grav, 146.
16 Grav, 213.
131 Mass. 319.
134 Mass. 181.
192 Mass. 13.
194 Mass. 113.
195 Mass. 141.
221 Mass. 308.
6 (2) Suits for contribution by or between devisees, legatees or heirs liable Contribution.
7 for the debts of a deceased testator or intestate, and by or between other isssi 371, § 4,
8 persons respectively liable for the same debt or demand, if there are two
9 or more such persons liable at the same time to make such contribution.
2276
EQUITY JUKISDICTION AND PROCEDURE.
[CIL4.P. 214.
Multiplicity
of interests.
5 Met. 140,
52.5.
6 Met. 425.
Joint owners,
etc.
1891, 383.
193 Mass. 267.
•Joint trustees,
etc.
1832, 162.
Accounts.
H. S. 118, §43.
1 Cush. 82.
Creditors'
bills.
1851. 206.
1858, 34.
1884, 285.
1902, 544, § 23.
1910.531, § 2.
S Gray, 199.
12 Gray, 365.
13 Gray, 305.
15 Gray, 457,
1 Allen, 566.
13 Allen, 33.
99 Mass. 267.
100 Mass. 390.
105 Mass. 423.
106 Mass. 373.
109 Mass. 383,
478.
115 Mass. 98.
lis Mass. 271.
119 Mass. 155.
123 Mass. 32.
125 Mass. 11.
127 Mass. 206,
210, 558.
128 Mass. 478.
131 Mass. 291.
132 Mass. 164,
408.
133 Mass. 180.
136 Mass. 73.
137 Mass. 523.
140 Mass. 271,
494.
(3) Other cases in which three or more parties have distinct rights 10
or interests which cannot be justly and definitely decided and adjusted 11
in one action at law. i3 Gray, 5. 12
5 Allen, 379.
100 Mass. 355.
105 Mass. 543.
110 Mass. 54.
113 Mass. 495.
120 Mass. 4S1.
132 Mass. 410.
135 Mass. 179.
144 M.1SS. 1.30.
148 Mass. 1.
208 Mass. 326.
109 U. S. 578.
(4) Suits between joint owners of personal property, and their legal 13
representatives, relative to such property, with authority to determine 14
their respective rights and interests therein, to order a division or sale 15
thereof and make and order a proper distribution of the proceeds of a sale, 16
and to do all other things relative to a determination of the ownership, 17
division and distribution of such property or the proceeds thereof. 18
(5) Suits between joint trustees, co-executors and co-administrators, 19
and their legal representatives. R. s. 70, 5 35. is53, 371, § 4. 20
(6) Suits upon accounts of such a nature that they cannot be con- 21
veniently and properly adjusted and settled in an action at law. 22
7 Cush. 445.
100 Mass. 48.
110 Mass. 32.
114 Mass. 121.
120 Mass. 507.
123 Mass. 117.
145 Mass. 56.
193 Mass. 251.
200 Mass. 579.
214 Mass. 134.
234 Mass. 458.
(7) Suits by creditors to reach and apply, in payment of a debt, any 23
property, right, title or interest, legal or equitable, of a debtor, within 24
or without the commonwealth, which cannot be reached to be attached 25
or taken on execution in an action at law, although the property sought 26
to be reached and applied is in the possession or control of the debtor 27
independently of any other person or cannot be reached and applied 28
until a future time or is of uncertain value, if the value can be ascer- 29
tained by sale, appraisal or by any means within the ordinary procedure 30
of the court. In such suit, the interest of the defendant in partner- 31
ship property may be reached and applied in payment of the plaintiff's 32
debt; but unless it is a judgment debt, the business of the partnership 33
shall not be enjoined or otherwise interrupted further than to restrain 34
the withdrawal of any portion of the debtor's share or interest therein 35
until the plaintiff's debt is established; and if either partner gives to the 36
plaintiff a sufficient bond, with sureties approved by the clerk, condi- 37
tioned to pay to the plaintiff" the amount of his debt and costs within 38
thirty days after it is established, the court shall proceed no further 39
therein than to establish the debt; and upon the filing of such bond, 40
41
any injunction previously issued in such suit shall be dissolved
187 Mass. 266. 214 Mass. 134.
1,88 Mass. 502. 215 Mass. 415.
189 Mass. 34. 112. 194,424. 216 Mass. 118,426.
190 Mass. 277, 285. 218 Mass. 360.
193 Mass. 77.
194 Mass. 601.
195 Mass. 8, 45fi.
196 Mass. 1.
199 Mass. 160, 516.
201 Mass. 479.
202 Mass. 562.
204 Mass. 362.
205 Ma.ss. 228.
206 Mass. 373.
209 Mass. 690.
211 Mass. 28.
212 Mass. 118, 486.
213 Mass. 203.
142 Mass. 206.
147 Mass. 81.
148 Mass. 76,247,411.
119 Mass. 24, 487.
150 Mass. 211, 289.
151 Mass. 266, 428, 481, 515.
152 Mass. 64.
154 Mass. 302.
159 Mass. 259, 484.
161 Mass. 58.
163 Mass. 127.
164 Mass. 85, 274.
165 Mass. 389.
171 Mass. 309, 600.
ISO Mass. 543.
1S2 Mass. 302.
185 Mass. 58. 202, 380.
186 Mass. 275, 484.
219 Mass. 61.
221 Mass. 302.
222 Mass. 131,
166, 405.
223 Mass. 325.
224 Mass. 193.
227 Mass. 15, 216, 501.
229 Mass. 235.
230 Mass. 67, 514.
232 Mass. 387.
233 Mass. 522.
234 Mass. 279, 477.
235 Mass. 244.
236 Mass. 117.
Suits to reach
and -ipply cor-
porate shares,
1910, 531, § 2,
222 Mass. 27,
131.
227 Mass. 216.
230 Mass. 67.
Fraudulent
conveyances.
1875, 2.35.
P. S. 151, § 3.
(8) Suits to reach and apply shares or interests in corporations or- 42
ganized under the laws of the commonwealth or of the United States, 43
and located or having a general office in the commonwealth, whether 44
the plaintiff is a creditor or not, and whether the suit is founded upon 45
a debt or not. 46
(9) Suits to reach and apply in payment of a debt any property, 47
right, title or interest, real or personal, of a debtor, liable to be attached 48
CH.A.P. 214.] EQUITY JURISDICTION AND PROCEDURE. 2277
49 or taken on execution in an action at law against him and fraudulently isss. 223, § 2.
50 conveyed by him with intent to defeat, delay or defraud his creditors, 137 Mass! 483!
51 or purchased, or directly or indirectly paid for, by him, the record or i^Masslios!
52 other title to which is retained in the vendor or is con\'eyed to a third HI ^T^'. 132'
53 person with intent to defeat, delay or defraud the creditors of the debtor. 154^1^55 310
186 Mass. 391, 484. 206 Mass. 39. 219 Mass. 61.
187 Mass. 426, 571. 212 Mass. 118. 231 Mass. 563.
198 Mass. 132. 215 Mass. 415. 233 Mass. So, 499.
54 (10) Suits to reach and apply, in satisfaction of a judgment for dam- Certain insur-
55 ages for bodily injury or death, which has not been satisfied within i9u.'464?T2.
56 thirty days after the date when it was rendered, the obligation of an ^^s Mass. isi,
57 insurance company to the judgment debtor under a policy insuring him ^^° ^^'^^^- ^^■
58 against liability for loss or damage from such injury or death.
1 Section 4. Each court may, if necessary to secure justice and ecjuity, issue of
2 issue to courts of inferior jurisdiction, corporations and persons all gen- i7S2r9,' § 2.
3 eral and special writs and processes required in proceedings in equity. r/s.' si," | I.
G. S. 113, § 1. P. S. 161, § 1. 1SS3, 223. § 1. R. L. 159, § 4.
VENUE.
1 Section 5. Suits in equity in said courts may be brought in any Venue.
2 county in which a transitory' action between the same parties might be r**l! 159] 1 5^'
3 brought, as well as in counties in which it is elsewhere provided that i^'S Mass. 3-6.
4 such suits may be brought.
SUPERIOR COURT PRACTICE.
1 Section 6. Procedure, process and practice in equity causes in the Procedure in
2 superior court shall, as nearly as may be, conform to that of the su- i8S3!'223™§'3.
3 preme judicial court, the general rules of which for the regulation of ^' ^' ^^'' ^ ''■
4 practice in equity shall, so far as applicable and except as hereinafter
5 provided, be the rules of the superior court for the regulation of practice
6 in equity.
commencement of suits, notice, etc.
1 Section 7. Suits in equity may be commenced by bill or petition Commence-
2 with a writ of subpoena according to the usual course of proceedings in iS^quUy."' ^
3 equity, or by an original writ of summons or of summons and attachment r™s; H', § 117.,
4 or by trustee process. If the suit is commenced by bill or petition, the jslsfsl^i
5 court may order an attachment of property or the arrest of the defendant, y^'g- |g ,
6 If commenced by a writ, an attachment may be made without special g. s.'iis, §3.
7 order of court, if the writ authorizes such attachment. If the writ isss, 223,
8 authorizes an arrest, such arrest may be made upon compliance with r i.'.V59, §8.
9 section two of chapter two hundred and twenty-four. A subpoena or i^cu'sh.^lks.
10 other writ shall be returnable on one of the return days prescribed by Js^'ATass'^Igg
11 section twentv-four of chapter two hundred and twentv-three. When a V,"j J!'"'^- 5?2-
12 suit in equity is commenced by an original writ as provided in this section, 232 jiass. 7.
13 such writ, with the bill or petition attached thereto, may at any time
14 after service thereof, before the return day, be entered in the court to
15 which it is returnable, and thereupon the court may make such orders
16 as to attachment, arrest, and injunction, or for discharging from arrest,
17 or for dissolving an attachment or injunction, or such other orders, as the
18 court would have had power to make if the suit had been commenced by
19 bill or petition.
2278 EQUITY JURISDICTION AND PKOCEDUEE. [Ch.U'. 214.
qired in^ SECTION 8. If a suit in eqiiitv is commenced by bill or petition in- 1
i8so°37'' serted in an original MTit of simimons or of summons and attachment, 2
P- I'lsi. § 6. or in a -^^-rit of trustee process, the bill or petition need not be inserted 3
E. h. 159', § o'. in the separate summons, in the cop^y of the original writ to be served on 4
the defendant, or in the copy of the writ to be deposited or left with or 5
in the ofBce of a register of deeds or officer of a corporation or other per- 6
son for the purpose of making an attachment. 7
injun?ti^n7and SECTION 9. No preliminary injunction shall be granted without 1
stramin"ordere, Doticc to the oppositc party. No temporary restraining order shall be 2
Notrd'^'""^''' granted without notice to the opposite party, unless it shall clearly ap- 3
1913, 515; S40. pg^r from specific facts, shown by affidavit or by the verified bill, that 4
immediate and irreparable loss or damage will result to the applicant 5
before the matter can be heard on notice. If in such a case a temporary 6
restraining order is granted without notice, notice of the application 7
for a preliminary injunction shall be made returnable at the earliest 8
possible time, and in no event later than ten days from the date of the 9
order, and shall take precedence of all matters except older matters of 10
the same character. When the matter comes up for hearing, the party 11
who obtained the temporary restraining order shall proceed with his 12
application for a preliminary injunction, and if he does not do so the 13
court shall dissolve the temporary restraining order. Upon two days' 14
notice to the party obtaining such temporary restraining order, the 15
opposite party may appear and move the dissolution or modification of 16
the order, and in that event the court or judge shall proceed to hear and 17
determine the motion as expeditiously as the ends of justice may re- 18
quire. Every temporary restraining order shall be filed or noted forth- 19
with in the clerk's oSice. This section shall not apply to proceedings in 20
the probate courts. 21
qu°e'5t^ion° SECTION 10. Upou petitions for the construction of wills, or for 1
isgg.'^s'rs'^' instruction relative to wills, the court, instead of service according to 2
2ii^JilS.' l9i°' the usual course in equity, may order notice of the petition and of the 3
time and place for hearing to be served on such number of the parties 4
in interest representing all possible interests as the court shall direct, 5
and to be published for tlu-ee weeks successively in such newspaper as 6
it directs. If it appears that any possible interest is not represented, 7
further service may be ordered until all possible interests are represented 8
before the court or until a guardian ad litem has been appointed. If 9
all possible interests are represented by persons before the court, it shall 10
be unnecessary to make other persons having similar interests parties 11
defendant. 12
of "equity" "^ SECTION 11. Suits 1X1 cQuity in the superior coiu-t shall be entered 1
1883! 223. § 5. ou the Same docket as other cases, except in Suffolk, IMiddlesex and 2
1892! 440! Essex counties, where they shall be entered upon a separate equity 3
1905 107' ^ ^^' docket. All processes shall be returnable at the retiu-n day occurring 4
next after fourteen days from the date of the process, if required to be 5
served fourteen days before the return day, or at the return day occur- 6
ring next after thirty days from such date, if required to be served thirty 7
days before the return day, or at any return day within three months 8
after the date of the process. 9
CH-\P. 214.] EQUITY JURISDICTION AND PROCEDURE. 2279
PLEADING.
1 Section 12. The material facts and circumstances relied on by the Form of bin.
2 plaintiff shall be stated briefly, and immaterial and irrelevant matters §§^2,'3.**'
3 omitted. The bill, unless actually inserted in a writ, shall be entitled jjf;!^^'
4 in the proper court, with the full title of the cause, containing the names ^gg| '2% ^ ^'
5 and descriptions of all the parties. It need not contain any address to p f • \'l„
6 the court, or the usual commencement, or any prayer for an answer, for isoMass.'is?.'
7 general relief or for process. Discovery may be sought by inserting a 227 Mass! 382!
8 prayer therefor in the bill or petition or bj' interrogatories. 235 Mass. 227.
1 Section 13. A defence to a suit in equity shall be made by demurrer. Demurrer,
2 plea or answer. A demurrer or plea need not contain a protestation pS™" ""^
1855, 194,
l3, 4.
3 or concluding prayer; but a demurrer shall be accompanied by a cer-
4 tificate that it is not intended for delay. An answer, except to a bill ^^ | \^^'
5 for discovery only, or a plea, shall not be made under oath or under F;? JS^-
6 seal, and it need not contain any saving of exceptions to the bill, or a 1883,223,
7 prayer to be dismissed or for costs. Answers to interrogatories in a bill ii. l. 159. § 13.
8 for discovery shall be made within such time as the court orders, and in Mass.°3oo.
9 questions arising thereon shall be determined by the rules applicable to
10 bills for discovery.
1 Section 14. Facts well pleaded in the answer shall not be deemed ^'^'"'' °^ »-
, , . , . . . answer. rJO
2 to be admitted unless the case is set down for hearing upon the bill replication
3 and answer without the introduction of evidence. The parties shall be wis, 257,
4 deemed to be at issue when the answer is filed, and the plaintiff need not 1919, 5.
5 file any replication. 1920, 2. 231 Mass. 404.
1 Section 15. Bills, answers, petitions and other pleadings may be signature to
2 signed by the party or his attorney, and shall not require any other i8's3,'223, § 10.
3 signature. r. l. 159, § 14. CAUen.sos.
hearings.
1 Section 16. Suits in equity, and motions and other applications Hearing by
2 therein, whether interlocutory or final, shall in the first instance be issg.^lsT's 1.
3 heard and determined by one justice of the court. g. s. 113, § 6.
p. S. 151, §11. R. L. 159, § 17. 137 Mass. 487.
1883. 223, § 2. 120 Mass. 86. 203 Mass. 159.
1 Section 17. For hearings, and for making, entering and modifying Court always
2 orders and decrees in equity causes, by one justice, and for issuing writs °s2r,', 109, § 1.
3 in such causes, the courts shall always be open in every county ; and all ^ "|; |i ;
4 such proceedings shall be considered as taking place in court and not in f|59'''2|V s 7
5 chambers. o. s. 113, §7. p. s. isi, §12.
1883, 223, § 4. R. L. 159, § IS. 5 Allen, 81. 205 Mass. 529.
! cases
1 Section 18. A justice of either court or the full court may, if neces- Hearing <
2 sary, hear and determine cases pending in a county other than that in anothef ""
3 which such justice or court is sitting, or any motion therein; but a motion ^sm'^oo
4 shall not be so heard nor a decree or order so made until reasonable i§ ^' |j
5 notice thereof has been given to the adverse party or his counsel; and §§22-24.
6 either party may transmit his reasons in writing for or against the ap- §§ is-20.'
7 plication to the court or ju.stice, who shall examine the same and proceed §§ 2.^-2.5.'
8 thereon as if the parties were present. All orders and decrees made on rI^^l. 139'. 1 35.
2280
EQUITY JURISDICTION AXD PROCEDURE.
[Ch.\p. 2U.
SAUen. SI. such hearings shall be transmitted to the clerk m the proper countv, and
162 Mass. 4S0. i.ifi,- x-x-
be entered by mm.
Appeal from
final decree.
1859. 237, § 2.
G. S. 113. § 8.
P. S. 151, § 13.
1883, 223, § 2.
R. L. 1.59, § 19.
1911. 2S4. § 1.
13 Allen, 207.
114 Mass. 372.
115 Mass. 115,
334.
116 Mass. 227.
117 Mass. 27.
120 Mass. 340,
390.
121 Mass. 127,
568.
123 Mass. 443.
125 Mass. 166.
128 Mass. 11.
129 Mass. 435.
150 Mass. 56.
157 Mass. 68.
APPEALS.
160 Mass. 444.
161 Mass. 593.
171 Mass. 568.
186 Mass. 275.
203 Mass. 159.
204 Mass. 448.
206 Mass. 449.
211 Mass. 334.
212 Mass. 118.
215 Mass. 506.
222 Mass. 218.
223 Mass. 6.
226 Mass. 143.
230 Mass. 500.
233 Mass. 420.
9
10
Section 19. A party aggrieved by a final decree of a justice of the 1
supreme judicial court or a final decree of the superior court may, within 2
twenty days after the entry thereof, appeal therefrom. An appeal from 3
a final decree of a justice of the supreme judicial court shall be entered 4
on the docket of that court, and an appeal from a final decree of the 5
superior court shall forthwith be entered in the supreme judicial court. 6
\^^3en such appeals have been entered as aforesaid, all proceedings under 7
such decree shall be stayed, and the cause shall thereupon be pending 8
before the full court, which shall hear and determine the same, and 9
affirm, reverse or modify the decree appealed from. Upon the reversal 10
of a final decree, the court may remand the cause to a justice of the su- 11
preme judicial court or to the superior court, with necessary and proper 12
directions for further proceeding therein. 13
Separate
docket for
equity and
probate ap-
peals.
1859, 196, 5 S3.
Section 20. The clerk of the court for the commonwealth shall enter 1
appeals in equity and probate matters on a separate equity and probate 2
docket. G. s. 113. § 14. 3
p. S. 151, § 14. 1883, 223. § 2. R. L. 159. § 20. 150 Mass. 56.
Injunction or
receiver
pending ap-
peal.
1859, 237. § 3.
G. S. 113. § 9.
P. S. 151. § 15.
1883, 223, § 2.
R. L. 159, § 21.
203 Mass. 159.
Section 21. Upon an appeal from a final decree, the justice of 1
either court by whom it was made may make such orders for the ap- 2
pointment of receivers, and of injunction or prohibition, or for continu- 3
ing the same in force, as are needful for the protection of the rights of 4
parties, until the appeal shall be heard by the full court, subject to be 5
modified or annulled by the order of the full court, upon motion, after 6
the appeal is taken. 7
Modification
of decree of
superior
court.
1883. 223. § 6.
1901, 244.
R. L. 159, § 22.
203 Mass. 159.
225 Mass. 30.
Section 22. After an appeal has been taken from a decree of the 1
superior court, the full court may, by an order, on terms or otherwise, 2
suspend the execution or operation of the decree appealed from, pending 3
the appeal, and may modify or annul any order made for the protection 4
of the rights of the parties, pending the appeal; but, until such order 5
has been modified or annulled, the justice of the superior court by whom 6
the order or decree appealed from was made, or any other justice of said 7
court, may make any proper interlocutory orders, pending such appeal, 8
including orders for the appointment of receivers, of injunction, of pro- 9
hibition, and orders for continuing in force such orders previously made, 10
or for modifying or dissolving them. The justice who makes any such 11
interlocutory orders may enforce them bj' appropriate proceedings, pend- 12
ing the appeal. 13
Report of Section 23. Upou an appeal from a decree of either court, the justice
ilga' 6?^' ^ '■ ^y whom the decree was made shall report the material facts found by
R^ L^ 159. 5_23. him, if so requested by the appellant within four days after the appellant
174 Mass! 299! has bccn notified of the entry of the decree: otherwise, such report shall
184 Mass. 429.
182 Mass! lio! be in the discretion of the justice. is3 Mass. 333
266.
186 Mass. 83.
188 Mass. 16.
190 Mass. 4.
192 Mass. 555.
193 Mass. 200.
199 Mass. 262, 598.
200 Mass. 179.
204 Mass. 378.
211 Mass. 334.
222 Mass. 102,332,598.
223 Mass. 97,
226 Mass. 349.
Ch.\P. 214.] EQUITY JLTIISDICTION .\ND PROCEDXJKE. 2281
1 Section 24. Upon an appeal, the testimony of witnesses who have Report of
2 been examined orally before a justice of either court shall, at the request upTnTp"ifeai.
3 of any party made before any evidence is offered, be reported to the full q*"!.' nl'. § li.
4 court. The courts shall provide by general rules for some convenient fstfs.Wa \^2^'
5 and effectual means of ha\ing the same reported by the justice by whom ^^ l^^i59 §^24.
6 the case is heard or by a person designated by him for that purpose, iiv Mass. 403.
7 Except as provided in section one hundred and twenty-five of chapter 215 Mass! soe!
8 two hundred and thirty-one, no oral evidence shall be exhibited to the
9 full court, but the cause shall be heard on appeal upon the same evidence
10 as on the original hearing.
1 Section 25. Upon an appeal in a suit in equity in which the evidence Questions
2 is reported to the full court, all questions raised by exceptions taken at the Sreptions
3 hearing shall be subject to revision by the court in the same manner as if and det'ei^''
4 they were contained in a bill of exceptions, and the report of the evidence "''pl^i ""*"
5 shall include, as part thereof, notes of any exceptions properly taken J^J^, ns, § 4.
6 and the rulings of the judge in respect thereto, and it shall not be neces- § 431.
7 sary to file any bill of exceptions or to suspend the entry of a decree by 1920! 2.
8 reason of any such exceptions. 225 Mass. sso. 236 Mass. si. ^^® lass. oi.
1 Section 26. A party aggrieved by an interlocutory decree of a interiocutorj-
2 justice of either court may, in like manner, appeal to the full court; but from.^' ^'""'"'
3 the appeal shall not suspend the execution of such decree, except as g*''!.' nl,' § 1*6.
4 provided in section twenty-two, nor transfer to the full court the entire ^j^g ^2^23' V2^"
5 cause or any matter therein except the question whether the interlocutory Pq,^,!/*^' 5/^-
6 decree appealed from shall be affirmed, reversed or modified. 103 Mass! 496.
115 Mass. 115. 165 Mass. 1.
125 Mass. 20. 216 Mass. 30.
1 Section 27. Interlocutory decrees not appealed from shall be open Revision of
2 to re\'ision upon appeals from final decrees, so far only as it appears to decrerupon^
3 the full court that such final decrees are erroneously affected thereby. gnaf decree!
1S59, 237, § 5. 127 Mass. 28. 210 Mass. 83.
G. S. 113, §11. 169 Mass. 417. 214 Mass. 500.
P. S. 151. §17. 189 Mass. 220. 216 Mass. 30. 380.
1883, 223. § 2. 191 Mass. 310. 233 Mass. 403.
E. L. 159, § 26. 197 Mass. 504.
1 Section 28. A party who has, by accident or mistake, omitted to Petition for
2 claim an appeal from a final decree within the time prescribed therefor a'ppelii."
3 may, within one year after the entry of the decree from which he de- q ^|; f i|; | J";
4 sires to appeal, petition the full court for leave to appeal, which may be J'gg^j '223 \^i'
5 granted upon terms.
R. L. 159. § 28. 128 Mass. 16. 220 Mass. 532.
121 Mass. 568. 204 Mass. 432. 226 Mass. 143.
1 Section 29. No process for the execution of a final decree of either Execution on
2 court shall issue until the expiration of twenty days after the entry isso. si^rll 9.
3 thereof, unless all parties against whom such decree is made waive an p. |.' 1.5?,' 1 22.'
4 appeal by a writing filed with the clerk or by causing an entry thereof l^^^- y^g- 1 1^
5 to be made on the docket; except that if the justice bv whose order the J^P'^s^-^s.
nil ^ ' p • • 1 1 IP 11 • ^^^ Mass. 209.
6 final decree was made is of opinion that the appeal from such decree is 224 Mass. 501.
7 groundless and intended merely for delay, process for the execution of
8 the decree may be awarded notwithstanding the appeal.
2282 EQUITY JURISDICTION AND PROCEDURE. [Ch.'IP. 214.
REPORT.
Interlocutory SECTION 30. If, upon making an interlocutory decree or order, the 1
decree or lusticc IS of opiuion that it so affects the merits of the controversy that 2
order to %j ± */
full court ^ the matter ought, before further proceedings, to be determined by the 3
p.' s.' 151,' § 18.' full court, he may report the question for that purpose, and stay all 4
R. L. 159, § 27. further proceedings except those necessary to preserve the rights of the 5
120 Mass! 277! partlcS. 165 Mass. 1. 211 Mass. 334. 212 Mass. 118. 6
216 Mass. 30. 224 Mass. 424. 230 Mass. 526.
kir7u™cou?t. Section 31. A justice of either court by whom a case is heard for 1
185^, m, § i_i. filial decree may reserve and report the evidence and all questions of law 2
isii 223 \^2' therein for the consideration of the full court; and thereupon like pro- 3
R. l'. 159, § 29. ceedings shall be had as upon appeals from final decrees. 4
141 Mass. 150. 186 Mass. 83. 200 Mass. 179. 209 Mass. 470.
1S4 Mass. 429. 192 Mass. 555. 207 Mass. 394. 224 Mass. 424.
REMOVAL FROM SUPERIOR TO SUPREME JUDICIAL COURT.
^Tfmm"^ Section 32. If the defendant in a suit in equity in the superior 1
i883"2^3°§8 court, or a person in his behalf, within ten days after the day for appear- 2
R L. 159, 1 30. ance, makes affidavit of his belief that the matter involved in the suit 3
equals four thousand dollars in value, that his interest alone or with the 4
interest of any other defendant having a joint or common interest with 5
him equals said value and that he has a substantial defence, and of his 6
intention to bring the cause to a hearing, the case, with the papers therein, 7
shall, upon his request and at his expense, be forthwith removed to 8
the supreme judicial court, where it shall proceed as if originally com- 9
menced therein. Before such removal, the superior court may make 10
such orders for the appointment of receivers, and of injunction or pro- 11
hibition, or for continuing the same in force, as are necessary for the 12
protection of the rights of the parties until the case shall be heard by the 13
supreme judicial court, subject to be modified or annulled by the order 14
of that court upon motion after the case has been removed. 15
hraHnrwith SECTION 33. A justlcc of the supreme judicial court, if upon motion 1
isss"! MS,' 1 9. it appears that a suit in equity pending in the superior com-t ought 2
R. L. 159, 1 31. iq ]-,g heard with a suit or cross suit in equity pending in the supreme 3
judicial court, may order the suit to be remoA-ed at the expense of the 4
applicant from the superior court to the supreme judicial court, where 5
it shall proceed as if originally commenced therein. 6
ISSUES TO JURY.
isJl'l™*^^' Section 34. The supreme judicial court, upon request of a party 1
?859', 23'7f§'i3. to ail cquity cause pending therein, may frame issues of fact to be tried 2
p' i' ill' I If' ^y ^ i^^y ^^*^ order the same to be tried in that court or in the superior 3
1805. iiu. 1 1 , court in the county in which such cause is pending, or upon the request 4
6 Pick. 376. ' of all parties in any other county. le cra.v, 407. 102 Mass. 45. ,5
120 Mass. 113,244. 137 Mass. 483, 487. 180 Mass. 334.
123 Mass. 590. 142 Mass. 161. ISS Mass. 10.
128 Mass. 349. 143 Mass. 643. 221 Mass. 339.
fumm'^TCd'"' Section 35. If there is no regular sitting of the supreme judicial 1
Ra'iM%^2s. court within three months after the framing of such issues, a justice 2
R. h. 159, § 37. thereof may order the clerk of the courts for the county in which the 3
Ch.\.P. 214.] EQUITY JURISDICTION .\JVD PROCEDURE. 2283
4 cause is pending to summon a jury to try such issues, and the proceed-
5 ings at such trial shall be in all respects the same as in a trial at a regular
6 sitting.
1 Section 36. The superior court, upon request of a party to an equity jury issues
2 cause pending therein, may frame issues of fact to be tried by a jury and TOurt?^"""^
3 order them to be tried in the county in which such cause is pending. j^^l. Ill] | Is.
ISS Mass. 16. 221 Mass. 339. 236 Mass. 310.
SITTINGS OP THE COURTS.
1 Section 37. A justice of the supreme judicial court and a justice Continuous
2 of the superior court shall, at all convenient times, sit in Boston to hear Boston!"
3 and determine suits in equity and motions therein arising in any county. G^i'.iis.'iii.'
p. S. 151, § 30. R. L. 159, § 40.
1 Section 38. A justice of the supreme judicial court shall sit at Spring- Hearings at
2 field, on the first Monday of February, June, August and December, to wester"^ ""^
3 hear such matters in equity as may be heard and determined at chambers, 1874*339, 5 1.
4 which arise in the counties of Berkshire, Franklin, Hampshire and ^- 1; ^f^^ ^^l^
5 Hampden.
miscell.\neous provisions.
1 Section 39. A justice of either court shall not dissolve an injunction Control of
2 issued by the other court, or by a justice thereof, or interpose in any having iSu-
3 proceeding in the equity jurisdiction of the other court, except as pro- i883!2'23. § 12.
4 vided in sections twenty-two, thuty-two and thirty-three. ^- ^- ^^^' ^ ^~'
1 Section 40. Every order and decree shall bear date of the day when Decree, etc.,
2 actually entered by the clerk, and at the time of the entry he shall of entrV.
3 note such date upon the order or decree and upon the docket. G**s.'n".'§ le.
p. S. 151, §21. 1883, 223, § 2. R. L. 159, § 33. 5 Allen, 81.
1 Section 41. The courts may issue writs of seisin and execution in wntsof
2 common form if such process is appropriate for the enforcement of a IxIcutTon.
3 decree in equity. R- s. 74, § 12; iis, § 43. g. s. 113, § 23.
p. S. 151, § 29. R. L. 159, § 39. 107 Mass. 428.
1883, 223, § 2. 106 Mass. 499. 233 Mass. 39.
1 Section 42. ^Vhere a bond is required of a receiver appointed by Receiver's
2 either court the provisions of section seven of chapter two hundred and i9r7,'32.
3 tliree shall apply.
1 Section 43. The original papers in a suit in equity pending in either Taking papers
2 court may be taken from the files in any county by counsel of record issg. loo, § so.
3 of either part}', for use before the court, upon leaving a memorandum p'i'.Ui'.IM'.
4 and receipt on such files, containing a short description of the papers so ^^l' j||- 1 %
5 taken.
REFERENCES.
Jurisdiction in equity in various special matters, such as informations, see the
statutes relative to such matters.
Amendment from equity to law, and vice versa, Chap. 231, § 55.
Form of return in equity where service made at last and usual place of abode,
Chap. 223, § 35.
2284
PROBATE COTJETS.
[Chap. 215.
Interrogatories in equity, Chap. 231, §§ 61, 6S.
For various provisions relative to procedure both at law and in equitv, Chans
211, 212, 213 and 231. ^
§ 3, cl. (7). Suit to reach and apply negotiable warehouse receipt. Chap. 105, § 31.
§ 3, cl. (10). The substantive right On which the remedy under this clause is
based is given in Chap. 175, § 113.
§ 25. Appeal and e.xceptions, if any, to be entered together. Chap. 231, § 96.
CHAPTER 215
PROBATE COURTS.
Sect.
courts and their jdrisdiction.
1. Courts of record, etc.
2. Superior jurisdiction.
3. Jurisdiction in general.
4. Same. Separate estate of married
women, custody of minors, etc.
5. Same. French spoliation awards.
6. Equity jurisdiction.
7. Court first taking jurisdiction to retain
it.
8. Jurisdiction of trusts.
9. Person aggrieved may appeal to su-
preme judicial court.
10. Appeal to be heard by full court.
11. Report of facts.
12. E^-idence upon appeal.
13. Judge may reserve and report case to
the full court.
14. Revision of interlocutor)- decrees on
appeal.
15. Petition for late appeal.
16. Jury issues.
17. Insolvent estates.
18. Court may appoint stenographer to
take testimony.
19. Consolidation of appeals by appellant.
20. Consolidation of appeals by court.
21. Appeals to go on same docket as equity
cases.
22. Effect of appeal upon act appealed
from.
23. Same, in equity cases.
24. Same, in separate support and custody
cases.
25. Same, in case of removal of executor,
etc.
26. Same subject.
27. Modification of decree appealed from.
28. Reversal or affirmance of decree ap-
pealed from.
29. Waiver of or failure to complete or
prosecute appeal.
GENERAL. PROVISIONS.
30. Rules and forms.
31. Notice of hearings, etc.
Sect.
32. Transaction of business out of court.
33. Same, ex parte matters.
34. Power to enforce orders and decrees.
35. Revocation of warrants and commis-
sions.
36. Decrees to be in writing, and with wills,
etc., to be recorded.
37. Docket and index.
38. Oaths.
39. Probate courts to determine and en-
force payment for services in connec-
tion with administration of estates,
etc.
40. Enforcement of delivery of property by
executors, etc., who resign, etc.
41. Temporary investments.
42. Appearances.
43. Interrogatories.
44. Persons suspected of concealing prop-
erty may be examined imder oath.
45. Costs.
46. Seri'ice of citation by registered mail.
47. Waiver of notice.
48. Appointment of one appraiser.
49. Selection of newspapers for notices.
50. Receipts, etc., to executors, etc., may
be recorded.
51. Copy of certain papers without charge.
52. Original will may be taken from regis-
try.
53. Court rooms, rooms for record, etc., to
be provided.
54. Same subject.
55. Preservation of dockets, etc.
56. Expense of recording probate proceed-
ings in Suffolk.
SESSIONS op THE COURTS.
57. To maintain order and punish for con-
tempt.
58. Courts always open.
59. Adjournment.
60. No courts on holidays or election
days.
61. Court not to be held without register,
etc.
62. When and where courts are held.
63. Changes in places of holding courts.
ClL\P. 215.] PROBATE COURTS. 2285
COTJRTS AND THEIR JURISDICTION.
1 Section 1. Probate courts shall be courts of record, and the judge Courts of
2 and the register of probate and insoh'ency for each county shall be, re- ^^"^^^^^(f,'"'
3 spectively, the judge and the register of the probate court of such county. ^^ ^' ^•
1817. 190, §§ 1. 2. G. S. 117, § 1. R. L. 162. J 1.
R. S. 83, §1 1, 20. 1862, 68, § 3. 12 Gray, 147.
1858, 93, § 1. P. S. 156, § 1. 227 Mass. 77.
1 Section 2. Probate courts shall be courts of superior and general fur?S?tion.
2 jurisdiction with reference to all cases and matters in which they have Jf^L'tel'lt'
3 jurisdiction, and no order, decree, sentence, warrant, writ or process J?? Mass.' 205.
> 1 • 1 1 1 .1 1 , ,. ,K . 188 Mass. 1.86.
4 made, issued or pronounced by them need set out any adjudication 192 Mass. soe.
5 or circumstances with greater particularity than would be required in 207 Mass! 91. '
6 other courts of superior and general jurisdiction, and the like presump- iog.^''^^' ^^^'
7 tion shall be made in favor of proceedings of the probate courts as would fg?.^'"'''' ^^'
8 be made in favor of proceedings of other courts of superior and general 2I7 HlH fy^'
9 jiu-isdiction. 154 u. s. 34. 215 u. s. 203.
1 Section 3. Probate courts shall have jurisdiction of probate of wills. Jurisdiction
2 of granting administration on the estates of persons who at the time i7l™4"§ 1.
3 of their decease were inhabitants of or resident in their respective counties iFL^J.'64,''§ 1;^'
4 and of persons who die out of the commonwealth lea^•ing estate to f|5P256^§ i-
5 be administered ^sithin their respective counties; of the appointment of Q^gMv s ,
6 guardians and conservators; of all matters relative to the estates of such P- s.' ise,' § 2'.
7 deceased persons and wards; of petitions for the adoption of children, 1901! 125]
8 and for change of names; and of such other matters as have been or may r. L'.^i45, § 40;
9 be placed within their jurisdiction. ^^^' ^ ^-
1903, 96.
9 Pick. 259.
4 Allen, 410.
137 Mass. 195.
1905, 127.
4 Gush. 510.
102 Mass. 186.
140 Mass. 194.
1907, 169, § 3.
8 Cush. 529.
126 Mass. 384.
192 Mass. 596.
1915.23,
10 Cush. 17.
128 Mass. 140,
195 Mass. 133.
5 Pick. 20, 65,
2 Gray, 228.
129 Mass. 513,
218 Mass. 227.
370. 519.
3 Gray, 536.
131 Mass. 477.
221 Mass. 178.
1 Section 4. Probate courts shall have exclusive original jurisdiction Same. Sep-
2 of petitions of married women relati\'e to their separate estate, and of of mlSed"
3 petitions or applications relative to the care, custody, education and "ody'of' *'"^'
4 maintenance of minor children provided for by sections thirty and 5's87.1'32!'^§ 2
5 thirty-seven of chapter two hundred and nine. R. l. 162, § 4.
1 Section 5. Probate courts shall have exclusive original jurisdiction Same. French
2 of all matters relative to the administration of moneys appropriated by lw°=irds,°°
3 the congress of the United States on account of French spoliations. ^®°^' ^^^' ^ ^'
1 Section 6. Probate courts shall have jurisdiction in equity, con- Equity juris-
2 current with the supreme judicial and superior courts, of all cases and r.'^s.°69, § 12.
3 matters relati^•e to the administration of the estates of deceased persons, 5sso, 103. ^ ''^'
4 to wills, including questions arising under sections twenty and twenty- ^jg^j ^^^^ I"/-
5 one of chapter one hundred and ninety-one, or to trusts created by 1*^2, iie, ^
6 will or other written instrument, of all matters relative to guardianship isio! 10a
7 and conservatorship and of all other matters of which they now have 279, §44,'
8 or may hereafter be given jurisdiction. Such jurisdiction may be exer- isnMass.'sss.
9 cised upon petition according to the usual course of procedure in probate I44 Masl! ils!
10 courts.
175 Mass. 199, 265. 183 Mass. 521. 192 Mass, 596. 211 Mass. 494.
181 Mass. 501. 186 Mass. 244. 203 Mass. 94. 226 Mass. 459.
2286
PROBATE COUETS.
[Chap. 215.
1.
Court first
taking juris-
diction to
retain it.
1785, 12,
1817, 190,
§§ 1. 10.
R. S. 62, § 20;
64, §3; 79.
§31; 83, § 14.
G.S. 117. §3.
P. S. 156. § 3.
E. L. 162. § 6.
Section 7. If a case is within the jurisdiction of the probate courts 1
of two or more counties, the court first taking cognizance thereof by the 2
commencement of proceedings therein shall retain jurisdiction thereof, 3
and shall exclude the jurisdiction of the probate courts of all other 4
counties; and the administration, guardianship or conservatorship first 5
granted shall extend to all the estate of the deceased or ward in the 6
commonwealth. i9i5. 23. 7
Jimsdiction
of trusts.
1874, 352, § 3.
P. S. 141, § 28.
R. L. 162. § 7.
Section 8. All matters of trust of which probate courts have jiu-is- 1
diction, except those arising under wills, shall be •within the jurisdiction 2
of the probate court of any county where any of the parties interested in 3
the trust reside, or where any of the land held in trust is situated; but 4
such jurisdiction, when once assumed, shall exclude the probate court 5
of any other county from taking jurisdiction of any matter subsequently 6
arising in relation to the same trust. 7
Person
aggrieved may
appeal to
supre-me
judicial court.
1692-3, 14, § 1;
46. § 1.
169G. 8. § 2.
170O-1. 5.
1719-20,
10, § 5.
APPEALS.
Section 9. A person aggrieved by an order, decree or denial of a 1
probate court made after this chapter takes effect, may, within twenty 2
days after the entry thereof, appeal from the same to the supreme judi- 3
cial court, and the appeal shall be heard and determined by the full 4
court, which shall have like powers and authority in respect thereto as 5
upon an appeal in a suit in equity under the general equity jurisdiction. 6
1783.46. §§ 3.4.
1817, 190, §§ 6, 7.
R. S. 83, §§ 33, 34. 36.
G. S. 117. §§ 7-9.
P. S. 156. |§ 5-7.
1888. 290. § 1.
R. L. 162. §§ 8-10.
1917. 279. § 27.
1918.357, § 401.
1919,5; 17; 274, §11,10,11.
1920, 2.
2 Mass. 140.
9 Mass. 386.
3 Pick. 443.
4 Pick. 33.
16 Pick. 264.
18 Pick. 1, 285.
6 Met. 194.
11 Met. 390.
4 Gush. 408.
8 Gush. 529.
1 Gray, 518.
6 Gray, 137.
13 Gray, 336.
16 Gray, 577.
3 Allen. 556.
10 Allen, 357.
Ill Mass. 346.
118 Mass. 110.
123 Mass. 270.
128 Mass. 692.
129 Mass. 527.
140 Mass. 596.
143 Mass. 234.
144 Mass. 135.
146 Mass. 373.
147 Mass. 204.
148 Mass. 421.
154 Mass. 574.
170 Mass. 93.
184 Mass. 394.
186 Mass. 420.
190 Mass. 459.
195 Mass. 436.
198 Mass. 136.
203 Mass. 556.
211 Mass. 494.
218 Mass. 33.
221 Mass. IDS.
223 Mass. 6.
224 Mass. 145.
228 Mass. 39. 466.
232 Mass. 259, 269, 500.
235 Mass. 33.
236 Mass. 326.
Appeal to be
heard by full
court.
1719-20,
10. § 5.
1783,46. § 4.
1817, 190, § 7.
R. S. 83.
§§ 36, 37.
G.S. 117, I 9.
P.S. 156,
§§ 7,8.
1888, 290, § 1.
Section 10. The appeal shall be pending before the full court as 1
soon as it has been filed in the probate court, and proper copies of papers 2
in the proceeding, as specified in section eleven of chapter two hundred 3
and twelve, have been prepared by the register and transmitted to the 4
supreme judicial court and entered in the docket of the full court 5
under section one hundred and thirty-five of chapter two hmidred and 6
thirty-one. R. l. 102. §§ 10. 11. 7
1919, 17; 274, §§2, 10; 333, §§30,31. 1920,2. 128 Mass. 11. 236 Mass. 326.
Report of facts.
1919, 274, § 3.
174 Mass. 299.
Section 11. Upon appeal the judge by whom the order, decree or 1
denial was made shall report the material facts found by him, if so re- 2
quested by the appellant witliin four days after the appellant has notice 3
of such order, decree or denial; otherwise such report shall be in the 4
discretion of the judge. 5
Evidence upon
appeal.
1919, 274, § 4.
Section 12. Upon the appeal, the e\idence and all questions relating
thereto shall be governed by sections twenty-four and twenty-five of
chapter two hundred and fourteen and section one hundred and twenty-
five of chapter two hmidred and thirty-one.
Chap. 215.] probate courts. 2287
may
1 Section 13. A judge of the probate court by whom a case or matter Judge
2 is heard for final determination may reserve and report the evidence and fepo'rrcase''to
3 all questions of law therein for consideration of the full court, and there- 'i9i9,"274°§'5
4 upon like proceedings shall be had as upon appeal. And if, upon making ^°^ ^^'^^- ^^'^■
5 an interlocutory decree or order, he is of opinion that it so affects the
6 merits of the contro\'ersy that the matter ought, before further pro-
7 ceedings, to be determined by the full court, he may report the question
8 for that purpose, and stay all further proceedings except such as are
9 necessary to preserve the rights of the parties.
1 Section 14. Interlocutory decrees not appealed from shall be open Revision of
2 to revision upon appeals from final decrees so far only as it appears to JfecTces on"^
3 the full court that such final decrees are erroneously affected thereby. 19191*274, § 6.
1 Section 15. A person who has, by accident or mistake, omitted to Petition for
2 claim an appeal from a final decree within the time prescribed therefor mg-lor''
3 may, within one year after the entry of the decree from which he de- 1783,46, §4.
4 sires to appeal, petition the full court for leave to appeal, which may be !*'-■ ^^■
5 granted upon terms. isi7, loo, §§ r. s.
R. S. S3, §§ 39-42. 14 Grav, 279. 223 Mass. 297.
G. S. 1 17, §§ 1 1-13. 7 Allen, 242. 225 Mass. 4S7.
P. S. 156, §§9, 10. 13 Allen, 207. 229 Mass. 508, 537.
1890, 261, 4 2. 139 Mass. 190. 230 Mass. 14.
R. L. 162, || 13, 14. 145 Mass. 287. 231 Mass. 258.
1919, 274. §§ 6, 10. 153 Mass. 8. 232 Mass. 525.
1 Gray, 518. 192 Mass. 126. 233 Mass. 136.
1 Section 16. A probate court in any proceeding, upon the applica- jury issues.
2 tion of a party and in accordance with the practice established by the isiri 196,^*7.
3 supreme judicial court in like cases, may direct tliat any issues of fact §; |; fuf^fg.
4 shall be tried by a jury in the superior court for the same county, or, if p^^^'i^j^o'j^fsi
5 there shall not be any regular sitting for such trial %vithin tlu-ee months isss, ii6','§ 1.
6 after such order, or by consent of the parties, in any otlier counts-. The « 25. 26.'
• • ''• 1Q172 70 S S''
7 form of such issues shall be settled in the probate court, and certified 1919! 274,'
8 copies of the issues and other material papers in the case shall be entered ilo'^Mis3°'277.
9 by the applicant in the superior court forthwith, or within such time \ll lllll\ 3^°;
10 as the probate court may direct, but the same may be entered by any {jl^i^ggH*-
11 other party; and, if the same shall not so be entered, the probate court 9o^ '
12 may discharge the order for a trial. On motion of any party in the iss Mass! le. '
13 superior court the issues shall be advanced for a speedy trial. Questions 221 Mass! 339!
14 of law arising upon the trial of any such issues may be considered and Hi Mass.' ils.
15 determined by the supreme judicial court in the same manner and with
16 like effect as in actions at law tried in the superior court.
1 Section 17. In the case of an estate of a deceased person represented e°tTte^s^"*
2 insolvent, if the court, instead of appointing commissioners to receive i^^®- ^''-i. § 9-
3 and examine the claims of creditors against the estate, receives and ex-
4 amines such claims itself, the provisions of this chapter, so far as applica-
5 ble, shall govern the proceedings for proof of the same and appeals from
6 the allowance or disallowance thereof, exclusive of the provisions of
7 sections eleven and sixteen of chapter one hundred and ninety-eight. '
1 Section 18. At the trial of any issue of fact in a probate court the Court may
2 presiding judge may appoint a stenographer, who shall be sworn and stmographer
3 shall attend the trial, or such part thereof as the judge may direct, and reo'ify.'^ "'^"'
4 perform like duties and receive the same compensation therefor as a ^®^^' ^^^' ^ ^^■
5 stenographer appointed by the superior court who is not on salary; and
2288
PROBATE COURTS.
[Chap. 215.
the sums so payable for his attendance at court and for any transcript 6
of his notes or part thereof furnished to the judge by his direction shall 7
be paid by the county upon the certificate of the judge. 8
S°appra'is'by Section 19. An appellant from decrees of a probate coiu-t settling
issll'lga § 4 different accounts of an executor, administrator, guardian, conservatoi',
wis' 23^' ^ ^^' trustee or receiver may unite his appeals in one notice of appeal, and they
shall thereupon be entered as one appeal in the supreme judicial court;
and an appeal taken by another appellant from any of the same decrees,
or from another decree made at the same time or earlier, settling any
other account of such fiduciary, may be entered in the supreme judi-
cial court as part of the matter comprised in the appeal pre\'iously
entered. The court may, upon appeal, deal with such different accounts
as if they formed one continuous account, and may give effect to any 10
alterations which it may make in any accoimt by altering the balance of 11
the last account without altering the balance of any previous account. 12
S°appeffby° Section 20. The supreme judicial court may at any time, upon
isssSoo, § 4 terms, consolidate any separate appeals from a probate court pending
R. L. 1G2, 1 27. tlierein, and may thereafter deal with such consolidated appeals to-
gether or otherwise, as justice requires.
OTsamldofket Section 21. Appeals and petitions therefor shall be entered on the 1
cases""^ same docket with cases in equity, and shall have the same rights as to 2
G. s. 117, § 14. hearing and determination as such cases. 3
p. S. 156, I 11.
R. L. 1C2, § 15.
162 Mass. 450.
19S Mass. 401.
206 Mass. 395.
224 Mass. 427.
Effect of
appeal upon
act appealed
from.
1783,46, %5.
1817, 190, § 9.
R. S. 83, § 43.
G. S. 117, § 15.
1860, 189.
P. S. 156, § 12.
R. L. 162, § 16.
1919,274, I 1.
18 Pick. 1.
4 Cush. 46.
16 Gray, 577.
128 Mass. 578.
136 Mass. 297.
144 Mass. 415.
Section 22. After an appeal has been claimed and filed in the reg- 1
istry of probate, all proceedings in pursuance of the act appealed from 2
shall, except as otherwase expressly provided, be stayed until the deter- 3
mination thereof by the supreme judicial court; but if, upon such appeal, 4
such act is affirmed, it shall thereafter be of full force and validity. An 5
appeal from an interlocutory order or decree, however, shall not suspend 6
proceedings under the same pending the appeal, except as otherwise ex- 7
pressly provided by law, but an appeal from an order granting or refusing 8
jury issues shall be heard and determined by the full court without await- 9
ing further proceedings in the probate court. i53 Mass. s. 10
175 Mass. 483.
186 Mass. 59.
211 Mass. 494.
219 Mass. 178.
221 Mass. 108.
227 Mass. 303.
fqmty'?ases. SECTION 23. An appeal from a final or interlocutory order or decree 1
R ^L tel 1 17 '™- equity of a probate court made in the exercise of any jurisdiction in 2
211 Mass. 494. equity shall not suspend or stay proceedings under such order or decree 3
pending the appeal. But the probate court or a justice of the supreme 4
judicial court, in case of such appeal, may stay all proceedings under 5
such order or decree and make necessary or proper orders to protect the 6
rights of persons interested pending the appeal; and any such order of 7
the probate court for a stay of proceedings or for protection of any sucli 8
rights may be varied or discharged by a justice of the supreme judicial 9
court upon motion, and sliall not be otherwise subject to an appeal. 10
Same, in
separate sup-
port and cus-
tody cases.
p?s!'f56,Vi3. seven of chapter two hundred and nine.
R. L. 162. §§ 18, 19. 1919, 274, §§ 10, 12.
1907, 266. 184 Mass. 488.
Section 24. The preceding section shall apply to orders or decrees 1
of probate courts in proceedings under sections thirty-two and thirty- 2
1890, 261, §§ 1, 3. 3
195 Mass. 436.
198 Mass. 136.
Chap. 215.] probate courts. 2289
1 Section 25. A decree of a probate court remo\ang an executor, ad- f^s'S^of removal
2 ministrator, guardian, conservator, trustee or receiver shall have effect, of^executor,
3 notwithstanding an appeal therefrom, until otherwise ordered by a jus- iseo. iso.
4 tice of the supreme judicial court. The probate court may in such case §§"i-3.
5 appoint a successor to the person removed, and tlie latter shall forth- p. s.'r56,§ i4.
6 vdih deliver all the property of the estate held by him to his successor, fg-jg; 23'"' ^ ""•
7 who sliall proceed in the performance of his duties in like manner as J*^ Mass, 226.
8 if no appeal had been taken; but if the decree of remoA'al is reversed by 232 Mass. 259.
9 a final decree of the supreme judicial court, the powers of such successor
10 shall thereupon cease and he shall forthwith deliver to his predecessor
1 1 in the trust, or to such person as the court may order, all property of
12 the estate in his hands.
1 Section 26. A decree of a probate court made under the preced- f|™ fgg^^"*'
2 ing section shall have effect, notwithstanding an appeal therefrom, until p^^^'/g*''!,*;
3 otherwise finally determined by the supreme judicial court. R. l- i62,'§ si.
1 Section 27. After an appeal is claimed from an order or decree Modification
2 referred to in the two preceding sections, and before such appeal has been peaMfrom.
3 finally determined, a justice of the supreme judicial court may suspend p^s^'/s^e!^^
4 or modify such order or decree during the pendency of such appeal. ^- ^- ^®^' ^ ^^•
1 Section 28. The supreme judicial court may, upon appeal, reverse Reversal or
2 or affirm, in whole or in part, any decree or order of the probate court, decresTap- °
3 and may enter such decree thereon as the probate court ought to have ri!''ai3™§™4.
4 entered, may remand the case for further proceedings, or make any other p|; Jgg' | Jf;
5 order therein as law and justice may require. R- l- x62, § 23.
146 Mass. 373. 170 Mass. 295. 184 Mass. 394. 226 Mass. 231.
167 Mass. 338. 177 Mass. 238. 204 Mass. 394. 228 Mass. 236.
1 Section 29. If an appellant fails to pay the entry fee in the supreme waiver of or
2 judicial court or otherwise fails to prosecute his appeal, the supreme p1U"'^or prose-
3 judicial court, or a justice thereof, may, upon motion of any person inter- 5719-20!°''''
4 ested, affirm the former decree or order, or make such other order as law J783 46, § 4.
5 and justice may require. If the appellant waiv'es his appeal in writing jj*^|'||"i|J-
6 before the copies have been transmitted to the supreme judicial court, ^v^gi^J'
7 the probate court may proceed as if no appeal had been taken; or if he i88o,'i9.'
8 fails to cause the necessary copies to be prepared or otherwi.se fails to §j'i2, is.
9 perfect his appeal, the probate court from which the appeal was taken "j 16, 24^.'
10 may, upon petition of any person interested, and upon such notice to tlie ]g^ J|j!^^; |J;
11 appellant as the probate court shall order, dismiss the appeal and affirm i^s Mass. s.
12 the decree or order appealed from, and further proceed as if no appeal
13 had been taken.
GENERAL PROVISIONS.
1 Section 30. The judges of the probate courts or a majority of them Rules and
2 shall from time to time make rules for regulating the practice and for r"s.^s3, § s.
3 conducting the business in their courts in all cases not expressly provided p.' s.' 131;,' 1 22.'
4 for by law and shall prescribe forms, and, as soon as convenient after iI^l. let, § 29.
5 making or prescribing them, shall submit a copy of their rules, forms and i^s Aiass. 54.3.
6 course of proceedings to the supreme judicial court, which may alter 227 Mass. -7.
7 and amend them, and from time to time make such other rules and
8 forms for regulating the proceedings in the probate court as it considers
9 necessary in order to secure regularity and uniformity.
2290
PROBATE COURTS.
[Ch.\p. 215.
hearfngs^etc SECTION 31. The supremc judicial court and the probate courts 1
r^l1I2'\30 ^^^'^ make rules requiring notice of any hearing, motion or other pro- 2
201 Mass.' 23. cccding before said courts to be given to parties interested or to the 3
attorney's of record therefor. 4
Transaction of
business out
of court.
1869, 424.
1870, 275.
P. S. 156, § 24.
R. L. 162, § 31.
Section 32. Judges of the probate courts may transact business out
of court at any time and place, if all parties entitled to notice assent
thereto in writing or voluntarily appear; and in such cases their decrees
shall be entered as of such sessions of the court as the convenience of the
parties may require.
mauerr '""^'^ SECTION 33. Ordcrs of notice and other oflScial acts which are passed 1
G i' 117^*23 ^s of course and which do not require previous notice to an adverse 2
E L Ye' Vl'' P^^tJ' ™^^' ^^ issued and performed at any time. 3
fnfOTce'orders SECTION 34. Probate courts shall have like power and authority for
isgi'^r/ll^ enforcing orders, sentences and decrees made or pronounced in the exer-
R. l". 162, 1 33. cise of any jurisdiction vested in them, and for punishing contempts of
such orders, sentences and decrees and other contempts of their author-
ity, as are vested for such or similar purposes in the supreme judicial
or superior court in equity in relation to any suit in equity pending
therein.
wImmiTnd' Section 35. A warrant or commission for the appraisal of an estate,
R"s"sir'ni ^°'' examining the claims against insolvent estates, for the partition of
G. s. 117, 1 24. land or for the assignment of dower or curtesy or other interests in land,
R. L. 162, § 34. may be revoked by the court for sufficient cause, and a new commission
may be issued or other appropriate proceedings taken.
Decrees to be
in writing, and
with wills,
etc., to be
recorded.
R. S. 83. § 7.
G. S. 117, § 21.
P. S. 156, § 27.
R. L. 162, § 35.
6 Met. 3G0.
195 Mass. 187.
Section 36. Decrees and orders of probate courts shall be in WTiting, 1
and the registers shall record in books kept therefor all such decrees and 2
orders, all wills proved in the court, with the probate thereof, all let- 3
ters testamentary and of administration, all warrants, returns, reports, 4
accounts and bonds, and all other acts and proceedings required to be 5
recorded by the rules of the court or by order of the judge. 6
Docket and
index.
1881, 215, §
P. S. 156, §
R. L. 162, i
Section 37. Each register shall keep a docket of all cases and matters 1
2^8 in his court, and shall enter therein e^^ery case or matter by its appro- 2
I 36. priate title and number, brief memoranda of all proceedings had and 3
papers filed therein, the dates of such proceedings or filing of such papers, 4
and references to the places in which the proceedings or papers are 5
recorded, if there is a record thereof. He shall also keep a separate 6
alphabetical index of all such cases and matters which shall refer both 7
to said docket and to the files of the court. Such docket and index shall 8
be open to public inspection at all reasonable times. 9
Oaths.
R. S. 83, § 30.
1851, 29.
1852,241.
1858, 93, § 7.
G. S. 14, §34;
117, § 28;
119, § 12.
1871, 122, § 1.
P. S. 18, S 1;
156, § 30;
158, § 14.
Section 38. Oaths required in proceedings in probate courts may
be administered by the judge, register or assistant register in or out of
court or by a justice of the peace, notary public or special commissioner,
and, when administered out of court, a certificate thereof shall be re-
turned and filed or recorded with the proceedings; but the judge may
require any such oath to be taken before him in open court.
1S83, 252, § 1. 18S9, 197, § 1. 1806, 476, § 1. R. L. 162, § 37.
CllXP. 215.] PROBATE COUETS. 2291
1 Section 39. Probate courts may ascertain and determine the amount Probate courts
rt ^ J. . . p . p , to deterniine
2 due any person tor ser\ices as appraiser, tor premiiuns or surety com- and eniorce
3 panics for acting as surety upon the official bonds of administrators, semllTin'^
4 executors, trustees, guardians, conservators or receivers, or for ser\-ices Sthadlnkiis-
5 rendered by any person in connection with the administration of the estates. °tc.
6 estate of a deceased person, or ■nitli the administration of anv trust, iSi^;/^''^,1-
7 guardianslnp, conservatorship or receivership; and pajTnent of said
8 amount wlien ascertained and determined to be due may be enforced
9 summarily by said court upon motion of the person to whom the amount
10 is due in the same manner as a like pajmient under a decree in equity
1 1 may be enforced, and execution may also be issued therefor against the
12 executor, administrator, trustee, guardian, conservator or receiver per-
13 sonally as upon a judgment at law.
1 Section 40. If an executor, administrator, guardian, conservator. Enforcement
2 trustee or receiver resigns or is removed, and neglects or refuses to de- prop'ertTby''
3 liver to his successor all property held by him under the trust, the pro- Itcrwh?'
4 bate court may, upon application of such successor or any person bene- i|sf"i4o"''
5 ficially interested, order such delivery made, and shall have like powers P- s- i5fi.
6 for enforcing such order as are given to it by section thirty-four. i907,' 129.
1915, 23. 215 Mass. 242.
i31.
§3S.
1 Section 41. A probate court may, upon application of a person in- Temporary-
2 terested in an estate in process of settlement in such court, direct the isrlf, 224? § i.
3 temporary investment of any money belonging to such estate in securities r. L^m, VIq.
4 approved by the judge; or it may authorize the money to be deposited in
5 any bank or institution in the commonwealth empowered to receive such
6 deposits, upon such interest as such bank or institution may agree to pay.
1 Section 42. A duly authorized attorney at law may enter his ap- Appearances.
2 pearance as attorney for the party represented by him in any proceeding r. l! 102. 1 40.
3 in a probate court, and all processes and notices served upon him shall 223 aiaS 297.
4 have the same force and effect as if served upon the party whom he
5 represents.
1 Section 43. In any proceeding in a probate court, the petitioner or inten-og-
2 respondent may at any time after the filing of the petition file inter- israTise,
3 rogatories in the registry of probate for the discovery of facts and docu- Rs.'fse.
4 ments material to the support or defence of the proceeding. All pro- r. l^'i^oIj,
5 visions of chapter two hundred and thirty-one relati\"e to interrogatories ilil^'g*! i §
6 in civil actions shall, so far as applicable, apply to such interrogatories, iss iiass'. 433.
7 If a party neglects or refuses, to expunge, amend or answer according to 2i2Mass;335!
8 said chapter, the petition shall be dismissed or its prayer granted, or "
9 such other order or decree entered as may be required.
1 Section 44. Upon complaint to a probate court by a person inter- Persons sus-
2 ested in the estate of a deceased person against a person suspected of claiing prop-
3 ha\-ing fraudulently received, concealed, embezzled or conveyed away any t^In^n/d "^
4 property, real or personal, of the deceased, the court may cite such sus- c"1r.3°ii','^§ 2.
5 pected person, although he is executor or administrator, to appear and jeg^"! \% ^ "■
6 be examined on oath upon the matter of tlie complaint. If the person jZ?°;J' %
7 so cited refuses to appear and submit to examination, or to answer such §| 4" s.'^
8 interrogatories as may be lawfully propounded to him, the court may r.s.'«5,'§7, "
2292
PROBATE COURTS.
[Chap. 215.
1857, 71. § 2.
G. S. 96. § 6.
P. S. 133. § 1.
R. L. 162. § 43.
4 Mass. 318.
commit him to jail until he submits to the order of the court. The in- 9
terrogatories and answers shall be in writing, signed by the party exam- 10
ined, and shall be filed in the court. 11
7 Pick. 14.
8 Pick. 484.
12 Met. 316.
4 Cush. 46.
99 Mass. 470.
175 Mass. 4.
Costs.
1783. 46, § 4.
1817. 190,
§§ 7. 44.
R. S. S3,
§§ 47, 48.
G. S. 117.
§§ 25, 26.
P. S. 156,
§§ 35. 30.
1SS4, 131.
R. L. 162. § 44.
12 Mass. 525.
Section 45. In contested cases before a probate com-t or before the
supreme judicial coiu-t on appeal, costs and expenses in the discretion of
the court may be awarded to either party, to be paid by the other, or
may be awarded to either or both parties, to be paid out of the estate
which is the subject of the controver.sy, as justice and equity may re-
quire. If costs are awarded to be paid by one party to the other, execu-
tion may issue.
12 Cush. 332.
7 Gray, 467.
16 Gray. 89.
2 Allen, 334.
3 Allen, 587.
5 Allen, 87,270.
7 Allen, 401.
4 Pick. 465.
12 Allen, 1.
99 Mass. 136.
103 Mass. 287.
106 Mass. 100.
lOS Mass. 277.
109 Mass. 179.
110 Mass. 88.
20 Pick. 378.
111 Mass. 132.
112 M.ass. 269.
121 Mass. 220.
129 Mass. 46.
131 Mass. 389.
134 Mass. 249.
139 Mass. 59.
147 Mass. IS.
169 Mass. 216.
210 Mass. 299.
224 Mass. 145.
226 Mass. 231.
228 Mass. 236.
229 Mass. 231.
cftationby Section 46. When personal service is required of any citation issued 1
igTI*"! '' ™''''' ^y ^ probate court, the com't may direct such ser\'ice to be made by 2
registered mail addressed to the party entitled thereto at his post office 3
address. Further service may be ordered. 4
waivM of Section 47. The notice required in any proceeding in a probate court 1
^^s'lx'iii ™^y ^® dispensed with if all parties entitled thereto assent in writing to 2
R. L. 162, § 45. such proceeding or waive notice. isi Mass. 595. 3
Appointment
of one ap-
praiser.
1896, 210.
1897, 147.
Section 48. In appraisals of property, the judge or register may 1
appoint only one appraiser if in his opinion the nature of the property 2
makes it advisable. R- l. 162, § 46. 3
nlwf'a°e?i Section 49. Parties to probate proceedings may select tlie news-
for notices. papcrs in which the notices ordered upon their petitions shall be pub-
G. s.'ii7,'§ 29. lished, preference to be given to a newspaper, if any, published in the
R.L. 162. §47- town where the deceased last dwelt, unless, in the judgment of the regis-
log^Ss'. 111. ter, the interests of all parties require publication in some other locality;
but the court may order the notice published in one other newspaper.
Receipts, etc.,
to executors,
etc.. may be
recorded.
1864, 93.
P. S. 156, I 39.
1898, 527, § 2.
R. L. 145,
§41; 162, §48.
1910, 95.
1915, 23.
Section 50. A paper or instrument, discharging a claim or purport- 1
ing to acknowledge the performance of a duty or payment of money for 2
M'hich an executor, administrator, guardian, conser\'ator, trustee or re- 3
ceiver is chargeable or accountable in a probate court, shall, upon the 4
request of a party interested, be recorded in the registry of said court; 5
and the registers of probate in their respective counties shall enter, record, 6
index and certify any original paper or instrument offered as aforesaid, 7
and shall receive for such ser\ices like compensation as registers of deeds 8
would be entitled to demand for like ser\ices. Such compensation shall 9
be paid by the person leaving such paper or instrument for record at 10
the time of leaving it. 1 1
tam^papc^ra" SECTION 51. A register shall make without charge one certified copy 1
™823°ui'''§?^' ^^ ^"y ^^^'^ proved, inventory returned, account settled, partition of 2
R. s.'83, §53. land, assignment of dower or curtesy, and of any order or decree of the 3
Chap. 215.] probate courts. 2293
4 court, and shall deliver such copy upon demand to the executor, adminis- g. s. in, § so.
5 trator, guardian, conservator, trustee, receiver, widow, heir or other per- r. l.\g2. Itg.
6 son principally interested.
1 Section 52. The probate court in which a will has been duly proved, °a^|' taken
2 allowed and recorded may, after the expiration of twenty davs within t™™ ^?,?i^^^y-
r.!'! 1 11 fi 11 l*. 'I'll lo7b, IbD.
3 which an appeal may be taken irom the decree admittnig such will to p. s. isb, §41.
4 probate, upon the petition of the executor or of a legatee named in such wioi 17-"
5 will, or of any person interested in the estate of the testator, and after '*'
6 notice and a hearing, permit the original will, if it appears necessary, to
7 be taken from the files of such coiut to establish the right or title of such
8 executor, legatee or person to the estate of the testator in any foreign
9 country.
1 Section 53. County commissioners shall provide and maintain suit- Court rooms,
2 able rooms for the use of the probate courts, ample fireproof rooms and record, etc., to
3 suitable alcoves, cases and boxes for the safe keeping of all records, files, i823rHi.''§ 4.
4 papers and documents belonging to the several registries of probate, and §! 1: ii7,\*3i.
5 shall also provide all books necessary for keeping the records, and all \l]l\ il!; § 1.
6 printed blanks and stationery used in probate proceedings. ^- ^ 'jg?; H^-
1 Section 54. If in the opinion of a justice of the supreme judicial ft?^^|34'y2
2 court such fireproof rooms are insufficient, he shall, upon application of the ^- 1- '^J^ \*?^
3 judge or register of probate of the county, certify the need of additional
4 accommodations to the county commissioners of such county, and they
5 shall forthwith provide such additional fireproof rooms and other neces-
6 sary accommodations.
1 Section 55. If in the judgment of the county commissioners, public Presenation
2 convenience so requires, they may, at the county's expense, cause the etc °° "^ ^'
3 files and records of the probate courts, except in the county of Suffolk, ^^l] HI] § 53.
4 to be rearranged, indexed and docketed, worn or defaced dockets renewed ^ °p- ^- °- ■*'''^-
5 and the indexes consolidated, under the direction and supervision of the
6 registers of said courts.
1 Section 56. The expense of recording probate proceedings in Suf- ^^^g?"^^ rebate
2 folk county, not exceeding forty-five hundred dollars in any one year, grnceedings in
3 shall be paid by said county, upon the official certificate of the register, 1375, 233, § 2.
4 countersigned by a judge of the probate court for said county, in the iss4, 11s.
5 amounts and to the persons named in such certificate.
1SS-, 217. 1S93, 422. R. L. 102, § 54.
SESSIONS OF THE COURTS.
1 Section 57. The judge of a probate court may keep order in court, to maintain
2 and may punish any contempt of his authority. i783, 46, § i. pumsh for
1817,190,11. G. S. 117, §33. R. L. 162, §55. contempt.
R. S. 83, §10. P. S. 156, §45. 114 Mass. 230.
1 Section 58. The probate courts shall always be open, except on Courts always
2 Sundays and legal holidays, for hearings, matters in equity, proceedings con°'t. pt. 2,
3 in contempt and for making orders and decrees in matters before them; (c^n"''Rev.
4 but the times of hearings shall be discretionary with the judges of said isgs'lii
5 courts. 1901, 61. R. L. 162, § 56.
2294
PROBATE COURTS.
[ClLiP. 215.
Adiournment.
1811, 139.
1829, no. § 2.
R. S. 83, § 3.
1836,41.
G. S. 117, § 34.
P. S. 156, § 46.
R. L. 162, § 67.
Section 59. A judge of a probate court may adjourn court as 1
occasion requires; and if he is absent at the time appointed for holding 2
court, the register shall adjourn it as he may consider necessary or as the 3
judge may order. The register may also adjourn court when the office 4
of judge is vacant. 5
Midays'or"" Section 60. If the regular time for holding a probate court occurs
is84'°i4i'"^^' ^'^ ^ legal holiday or on the day of a state election, the court shall be held,
R. L. 162, § 68. and all notices, citations, orders and other papers which would otherwise
be made returnable at said regular time shall be made returnable on the
next secular day thereafter.
Court not to
be held without
register, etc.
R. S. 83, § 20.
Section 61. No court shall be held by adjournment or otherwise 1
unless the register, assistant register or a temporary register is present. 2
G. S. 117, § 35. P. S. 156, § 47. R. L. 162, § 59.
when and
where courts
are held.
Section 62. Probate courts shall be held at the followang times and 1
in the following towns, at such places therein as the judges shall designate : 2
Barnstable.
R. S.
83, § 55.
1853,
74.
1857,
113.
G.S.
117,
§36.
Berkshire,
R. S.
83, § 55.
1849,
41.
G.S.
117,
§36.
1857,
16.
1S6S,
325,
§2;
329.
1869,
60, i
11.
1872,
202.
P. S.
156,
§48.
R. L.
162,
, §60.
Bristol.
R. S.
83, S
) 55.
1842,
88.
1867,
159,
§ 1.
G.S.
117,
§36.
1862,
6, §1.
1878,
121.
P. S.
1.56,
§48.
1898,
199.
R. L.
162,
, §60,
1914,
SS.
Dukes.
R. S.
S3, § 55.
1856,
265.
1859,
,56.
G.S.
117,
§36.
1862,
114.
P.S.
156,
§48.
Essex.
R. S.
83, § 55.
1848,
234.
18.5.3,
407.
1856,
1, § 1.
G.S.
117,
§36.
1874,
273.
P.S.
156,
§48.
R. L,
, 162,
, §60.
Const, pt. 2, 0. 3, art. 4.
(Const. Rev. art. 142.)
1719-20, 10, § 8.
1817, 190, § 3.
R. S. 83, §§ 2, 55, 56.
G.S. 117, § 36.
P. S. 156, § 48.
R. L. 162, § 60.
For the county of —
Barnstable, at Barnstable, the second and fourth Tuesday of each 3
month except July and August, and the second Tuesdays of July and 4
August. 1867, 307. 1S6S, 196. 5
1869, 277.
1877, 94, § 1.
P. S. 156, § 48.
1893, 343.
R. L. 162, § 60.
1917, 38.
Berkshire, at Pittsfield, the first Tuesday of each month except July, 6
August and November, the third Tuesday of July, and the Wednes- 7
day next after the first INIonday of November; at Lee, the Wednesdays 8
next after the first Tuesdays of January, April and October, and the 9
Wednesday next after the third Tuesday of July; at Adams, the Thurs- 10
days next after the first Tuesdays of January and October, the Wednes- 11
day next after the first Tuesday of March, and the Thursday next after 12
the third Tuesday of July; at Great Barrington, the Wednesdays next 13
after the first Tuesdays of February, May, September and December. 14
Bristol, at Fall River, the first Friday of each month except August; 15
at New Bedford, the second Friday of each month except July, and 16
except also that in August it shall be held on the first Friday; at Taun- 17
ton, the third Friday of each month except July and August; at Attle- 18
boro, the fourth Fridays of Januaiy, March, May, June, September and 19
November. i9i6, 73. i9is, 123. 20
Dukes, at Edgartown, the third Mondays of January and July, and 21
the first Mondays of March and December; at Vineyard Haven, the 22
third Monday of April, and the first Monday of September; at West 23
Tisbury, the first Monday of June, and the thii-d Monday of October. 24
R. L. 162, § 60.
Essex, at Salem, the first, third and fifth IMondays of each month 25
except August, and the first INIonday of August; at Lawrence, the second 26
Monday of each month except August; at Newburj-port, the fourth 27
Monday of each month except April, August and October; at Haverhill, 28
the fourth Mondays of April and October. i90s, 218. 29
Ch.\P. 215.] PROBATE COURTS. 2295
30 Franklin, at Greenfield, the first Tuesday of each month except No- Frantiin.
31 vember, and the third Tuesday of each month except August; and at 1850,244.
32 least four adjourned sessions shall be held at Orange in each year. fso?', 249. ^ ^^'
p. P. 156, § 4S. 1S9S, 218. R. L. Ifi2, § 60.
1887, 46. 1901, 259. 1919, 43.
33 Hampden, at Springfield, the first Wednesday of each month except Hampden.
34 August, the second Wednesda.v of January, and the third Wednesdays isse, 256.
35 of February, April, May, July, September, November and December; i85o;2S7.
36 at Holyoke, the third Wednesdays of January, March, June and October, fsal, 123. ^ ^^'
1874, 157. 18S4, 294. 1905. 79.
P. S. 156, § 48. R. L. 162, § 60. 1910, 262.
37 Hampshire, at Northampton, the first Tuesday of each month; at Hampshire.
38 Amherst, the second Tuesdays of January, INIarch, June, August and 18.36, 256.
39 November; at Belchertown, the second Tuesdays of ]\Iay and October; g*^|.' n7, § 35.
40 at Williamsburg, the third Tuesdays of INIay and October; at Ware, Jl?!,';™;;,
41 the second Tuesdays of February, September and December, and the P-^^ i*l' § *^-
42 third Tuesday of June. R. l. 162, § 60.
43 ]\Iiddlesex, at Cambridge, INIonday, Tuesday, Wednesday, Thurs- Middlesex.
44 day and Friday of each week except betAveen the foiu-th Tuesday of im's, 21a
45 July and the second INIonday of September, and except the third Tues- g!'s.u7. § se.
46 day of each month; at Lowell, the third Tuesday of each month except }|I]7;22o,§ 2.
47 August. 1S6S, 213.
p. S. 156. § 48. R. L. 162, § 60. 1914, 134.
1889, 182. 1907, 273. 1919, 7.
48 Nantucket, at Nantucket, the Thursday next after the second Tues- Nantucket.
49 day of each month. is38, 26.
1S43,4. G. S. 117, §36. p. S. 156, §48.
1859, 161. 1863, 146. R. L. 162, § CO.
50 Norfolk, at Dedham, the first and third Wednesdays, at Quincy, the Norfolk.^
51 second Wednesday, and at Brookline, the fourth Wednesday of each r. s.'ss.'j 5.5.
52 month except August. The county commissioners of said county may §5^%^"'^'
53 provide, furnish and maintain suitable rooms and accommodations in ^^^1 ^^4 ^ ^"^
54 Boston for the use of the probate coiu-t for said countv for hearings and Js^P' ,']!?., ,„
. , « , ^ . . , .' 1 '^ . p. S. 1 Ob, § 48.
5o trials or such contested cases in said court as the parties thereto or their isos. 201.
56 counsel desire to have heard and tried in Boston. R. l. 162, § 60.
57 Plymouth, at Plymouth, the second JSIonday of each month except Plymouth. _
58 August; at Brockton, the fourth IMonday of each month except July. 1845', 73 '
1850, 204, §§ 1,2. 1863,245. P. S. 156, § 48.
1852, 249, 1868, 169. 1SS7, 63.
1855,320. 1870,37. 18S9, 237; 269.
1856, 122, § 1. 1881, 203. R. L. 162, § 60.
G.S. 117, § 36.
59 Suffolk, at Boston, each Thursday except the first, second, fourth and ^"^"'^j . ^-
60 fifth Thursdays of August.
1S3S. 54. 1873, 375. 1881, 115. P. S. 156, § 48.
G. S. 117, § 36. 1878, 127. 1892, 202. R. L. 162, § 60.
61 Worcester, at Worcester, each Tuesday of every month except August. J^^f^'^f *^''-
R. S. 83, §55. 1848, 134; 255, G. S. 117. § 36. 1893,348.
1836, 231. §§ 1, 2. 1869, 253. . R. L. 162, § 60.
1837, 141. 1854, 318. 1878, 128. 1908, 227.
1846, 128. 1856, 162. P. S. 156, § 48.
1 Section 63. The judges of said courts, as often as changes are made Changes in
2 in the places designated for holding courts, shall give sufficient notice Lwmg courts.
3 thereof, either by advertisement in some newspaper or by posting the io,''§~8.°'
4 same in public places. i8i7, i90, § 3.
R. S. 83, § 57. G. S. 117, § 36. P. S. 156, § 48. R. L. 162, § 60.
2296
COURTS OF INSOLVENCY.
[Chap. 216.
REFERENCES.
§ 5. Bond in French spoliation cases, Chap. 205, § 2.
§ 6. Other matters on which probate courts have equity jurisdiction:
Chap. 209, §§ 32, 33 (separate support).
Chap. 204, § 15 (compromise of wills).
Chap. 204, § 1 (specific performance of contract to convey land by person
subsequently deceased, etc.).
Chap. 241, § 25 (partition).
§ 9. General practice on appeals in equity, Chap. 214, particularly § 19.
Appeals from orders, etc., made before this chapter takes effect. Chap. 2S1, § 4,
Appeals in adoption cases. Chap. 210, § 11.
§ 10. Authority of the court to dismiss the appeal if the appellant fails to order
copies. Chap. 231, § 133.
Appeals in insolvency cases, § 17 infra, and Chap. 19S, §§ 11, 12, 16.
§ 11. For a simil.ar provision in equity. Chap. 214, § 23.
§ 13. As to the procedure in equity. Chap. 214, §§ 30, 31.
§ 14. For a similar provision in equity. Chap. 214, § 27.
§ 15. For a similar provision in equity. Chap. 214, § 28.
§ 16. Practice in the sujireme judicial and superior courts. Chap. 214, §§ 34-36.
Appeals from an order granting or refusing issues, § 22.
§ 17. Appeals where court apjioints commissioners to receive and examine claims,
Chap. 19,8, §§ 11, 16.
§ 18. Duties and compensation of court stenographers. Chap. 221, §§ 87,91.
§ 21. See Chap. 214, § 19.
§ 22. As to the effect of appeal in special cases, see —
Chap. 193, § 10 (special administrator).
Chap. 201, § 14 (temporary guardian).
Also see four following sections.
§ 29. As to the provision for dismissing an appeal in equity. Chap. 231, §§ 133, 134.
§ 36. As to the attestation of probate records, Chap. 217, § 15.
§ 43. Interrogatories in general. Chap. 231, §§ 61-67.
§ 44. As to examination of e.xecutors, etc., in connection with their accounts, Chap.
206, §§ 2-4.
§ 45. As to costs upon appeal in insolvent estates. Chap. 198, § 15.
§ 48. As to the authority of the register to appoint appraisers, Ch.ap. 217, § 22.
§ 50. As to the compensation of registers of deeds, Chap. 262, § 38.
§ 51. As to the legal fees for copies. Chap. 262, §§ 38, 40, 44, 45.
§ 57. As to the authority of the court to punish witnesses for contempt in faiUng to
appear under summons. Chap. 233, §§ 5, 6.
As to commitments to jail. Chap. 220, § 14.
See also § 34 of this chapter.
CHAPTER 216
COURTS OF INSOLVENCY.
Sect.
general provisions.
1. Courts of record, etc.
2. Courts of insolvency to be courts of
superior jurisdiction, etc.
3. JurisdictioQ.
4. Petitions filed in more than one county.
5. Equity jurisdiction.
6. Enforcement of orders in equity.
7. Courts, where held.
8. Approval of compositions, etc.
0. Contempt, administering of oaths, etc.
10. Proceedings m.itters of record. Evi-
dence.
11. Docket. Duties of register.
12. Warrants, etc., when returnable, etc.
13. Selection of newspapers for notices.
14. Counties to provide court rooms,
etc.
Sect.
15. Expenses.
16. Rules, etc.
17. Jurisdiction of supreme judicial court.
18. Rules as to notice.
19. Appearance by attorney.
PETITION BY DEBTOR. FIRST MEETING.
20. Petition.
21. Warrant to messenger.
22. Messenger to receive property.
23. Delivery of property and schedule by
debtor.
24. Late schedule.
25. Sale of perishable property.
26. Messenger to commence action by
order of court.
27. Delivery of schedule of creditors, etc.,
by debtor to register.
CiLU'. 216.]
COURTS OF INSOL\'ENCY.
2297
Sect.
28. Late schedules.
29. First meeting.
30. Death of debtor.
DEBTS AND PROOF OF CLAIMS.
31. Claims provable.
32. Equitable claims.
33. Leases, etc.
34. Set-off.
35. Proof of claim by assignee thereof.
36. Mortgage, pledge or lien.
37. Mortgage recorded more than four
months after date.
38. Allowance for legal services.
39. Claims to be proved on oath.
40. Oath by attorney.
41. Before whom oath may be made.
42. Postponement of claims.
43. CLaims not to be allowed.
44. Allowance and expunging of claims.
45. Appeal.
46. Proceedings.
47. Judgment on appeal. Costs.
4S. E\-idence of withdrawal of claim.
ASSIGNMENT AND ASSIGNEE.
49. Choice of assignee.
50. Bond of assignee.
51. Assignmeat by judge.
52. Record of assignment and notice.
53. Agent of non-resident assignee.
54. Effect of assignment.
55. Attachments, how preserved.
56. Assignee to demand and receive prop-
erty' and keep accounts.
57. Inventory.
6S. Assignee to account for property at
appraised value.
59. Assignee to commence and prosecute
actions, etc.
60. Limitation of actions.
61. Drafts, etc., assigned within six
months not to be offset.
62. Property to be kept separate by as-
signee.
63. Temporary investment of property,
when.
64. Carrying on of business.
65. Notice of dividends and meetings.
66. Compensation of assignee.
67. Submission to arbitration.
68. Sale of perishable property pending
dispute of title.
69. Accounts.
70. Removal of assignee by creditors.
71. Removal by court upon complaint.
72. Other grounds of removal.
73. Resignation of assignee.
74. Filling of vacancies.
75. Effect of resignation, etc.
76. Vesting of estate upon death, etc.
77. Former assignee to execute deeds, etc.
78. Preferred creditors not to vote for,
etc.
Sect.
79. Penalty for neglect, etc.
80. Appointment upon death of assignee
with accounts unsettled.
SI. Distribution.
EXAMIN.A.TION OF DEBTOR.
82. Examination of debtor and other per-
sons.
Examination of debtor if in prison.
Examination of debtor if ill or unable
to attend.
Examination of debtor if out of the
commonwealth.
86. Debtor to do all necessary acts.
87. Failure to execute instruments, etc.
S3.
84.
85
SECOND AND THIHD MEETINGS. 0.\TH AND
DISCHARGE.
88. Second meeting. Oath.
89. Oaths out of court.
90. Order of meeting by court.
91. Order of meeting by register on order
of court.
92. Third meeting. Certificate of dis-
charge.
93. Effect of discharge. How pleaded.
94. Discharge from imprisonment.
95. Discharge from arrest and property
exempt from attachment, etc.
96. Debts not discharged.
97. Action on claim omitted from sched-
ule.
98. Persons jointly liable not released.
99. Discharge by assent of creditors.
100. Discharge upon subsequent insolvency.
101. Assent of creditor notwithstanding ap-
peal.
102. Preferred creditors not to vote.
103. Discharge of debtor failing by acci-
dent, etc., to take oath.
104. Appeal on question of discharge.
105. Proceedings.
MATTERS AVOIDING DISCH.AlRGE.
106. Forfeiture of discharge by fraud of
creditor.
107. Discharge when books of account not
kept.
108. Discharge avoided by fraudulent
preference.
109. Discharge, how contested.
PREFERENCES.
110. Fraudulent pa.vments.
111. Fraudulent sales, etc.
112. Application of preceding sections.
ALLOWANCE AND SURPLUS.
113. Allowance to debtor.
114. Allowance, how paid in case of death.
115. Surplus to be returned to debtor.
2298
COURTS OF rNSOLVENCT.
[Ckap. 216.
Sect.
ACCOUNTS AND DIVIDENDS.
116. Accounts.
117. Dividend.
118. Preferred claims.
119. Allowance to petitioning creditor for
counsel fees, etc.
120. Wages due to an operative from an
operative working under contract.
121. Reservation for absent creditors.
122. Unclaimed dividends.
123. Unclaimed deposits.
124. Second dividend. Assignee's ac-
counts.
125. Sale, etc., of outstanding debts, etc.
126. Actions on claims sold by assignees.
Costs.
127. Further dividends.
128. Former dividends not to be disturbed.
PETITION BT CREDITORS.
129. Petition by creditors.
130. Notice of petition, etc.
131. Warrant. Proceedings thereon.
132. Stay of proceedings.
PETITION BY CREDITORS OF INSANE PERSON.
133. Petition by creditors of insane person.
134. Schedules.
135. Debtor, after recovering from insan-
ity, may apply for discharge.
CONCEALMENT OF PROPERTY.
136. Concealment, etc., of property.
PARTNERSHIPS.
137. Petition by or against partnership.
138. Choice of assignee. Joint and separate
property.
139. Limited partnerships.
140. Separate allowance to each partner.
141. Certificate of discharge to each part-
ner.
142. Proof of partnership debts assumed by
one or more partners, etc.
Sect.
CORP0R.\TIONS.
143. Petition by corporations.
144. Claims provable before last di'vidend.
145. Schedules. Duties, etc., of officers.
146. Powers and duties of assignee.
147. Land damages preferred claims.
148. Void preferences.
149. Petition by creditors.
COMPOSITION.
150. Composition.
151. Proposal for composition.
152. Stay of proceedings by court, etc.
153. Accounts and papers open to examin-
ation.
154. Provisions applicable.
155. Effect of notice of proposal.
156. Hearing and assent of creditors.
157. Confirmation of composition. Effect.
158. Unproved claims.
159. Disposition of property upon dis-
charge.
160. Return of deposits.
161. Effect of failure of composition.
162. Stockholder's liability not affected.
163. Effect of composition upon pending ac-
tion.
164. Proceedings.
165. Schedule of officers, etc.
166. Effect of discharge upon attachments.
167. Amendments and orders.
168. Penalty for placing fictitious debt upon
schedule.
169. Penalty for proving fictitious debt.
FEES AND COSTS.
'0. Fee for receiving petition, etc.
171. Accounts of register.
172. No fees in composition cases, when.
173. Messenger's fees.
174. Costs if attachment dissolved.
175. Costs, how paid.
VACATING PROCEEDINGS.
176. Vacating proceedings.
KETTJBNS.
177. Returns by registers.
GENERAL PROVISIONS.
record etc SECTION 1. Courts of insolvency shall be courts of record, and the 1
il's 93*' ^ '' i^'-^S^ ^^^ register of probate and insolvency for each county shall be tlie 2
G. s.'iis, § 1. judge and register of the court of insolvency therefor. 3
p. S. 157, § 1. E. L. 1G3, § 1.
Courts of
insolvency to
be courts of
superior juris-
diction, etc.
1894, 104, § 3.
R. L. 103, 5 2.
1902, 544, § 25.
18S Mass. 186.
204 Mass. 310.
207 Mass. 91.
Section 2. Courts of insolvency shall be courts of superior and
general jurisdiction with reference to all cases and matters in which they
have jurisdiction, and it shall be unnecessary for any order, decree,
sentence, warrant, writ or process which may be made, issued or pro-
nounced by them, to set out any adjudication or circumstances M-ith
greater particularity than would be required in other courts of superior
Ch.\P. 216.] COURTS OF INSOLVENCY. 2299
7 and general jurisdiction, and the like presumption shall be made in favor 211 Mass. 409.
8 of proceedings of the courts of insolvency as would be made in favor of 220 iuss.' 25s.
9 proceedings of other coiu-ts of superior and general jurisdiction.
1 Section 3. Courts of insolvency shall have original jurisdiction in Jurisdiction.
2 their respective counties of cases of insolvency under this chapter. isss! 93, '§ 10!
G. S. 118, § 2. P. S. 157, § 2. R, L. 163, § 3.
1 Section 4. If a petition in insolvency is within the jurisdiction of ,^^mo?rthin''
2 more than one court, the court in which it is first filed shall have exclusive ?S^,''°""'y; ,
„..,.. I (..-. .. , 1 ,. .. 1893, 405. § 5.
.3 juri-sdiction thereof if a warrant is issued, and proceedings upon a petition R- l. les, § 4.
4 filed in another county shall be stayed until the court in which the petition
5 was first filed determines whether a warrant shall be issued.
1 Section 5. Courts of insolvency shall have equity jurisdiction, con- Equity juris-
2 current with the supreme judicial court and the superior court, of all i894?i64. § i.
3 cases and matters pending in said courts of insolvency, and such juris- iBT^Mass! Ick'
4 diction may be exercised upon petition, according to the usual course of
5 proceedings in courts of insolvency.
1 Section G. Courts of insolvency shall have like power to enforce Enforcement
2 orders, decrees and sentences made by them in the exercise of any au- equi'tV^'^'' '"
3 thority or jurisdiction conferred upon them and to punish contempts of r*®l! lit', f e!
4 their authority as the supreme judicial court has in like cases.
1 Section 7. Courts of insolvency shall be held at the shire towns of hew'*^' '^^"'^
2 the county at times appointed by the 'court, and may be held at such }|4f • }7s' I le'
3 other places as will best promote the convenience of the public. They is^ei i«s' § 2.
4 shall always be open, except on Sunday and legal holidays, for hearings, §§ 3,' 13. '
5 matters in equity, contempt proceedings and for making orders and g. I.'iis,
6 decrees in all matters before them; but the times of all hearings shall I^I.'ist,
7 be discretionary with the judges of said coiuts. The judge or, in his f|g| %^
8 absence or in case of a vacancy in that office, the register may adjourn J^Pi' J'„ ^ _
9 any court or meeting as occasion requires, and all acts lawfully done at 7 Met 431.
10 an adjourned meeting shall have like effect as if done at the original s Gray! 193!
11 meeting.
1 Section 8. The judge may approve compositions and assignees' ^q^^™™/; "4
2 bonds, approve or order sales, recei\'e petitions, issue orders of notice et<^- _„ , „
3 and warrants and do such other official acts as are done as matters of isse! 284] § 4!
4 course and do not require notice.
G. S. lis, § 4. p. S. 157, § 4. R. L. 163, § 8. 165 Mass. 317.
1 Section 9. The judge may keep order in his court and punish any Contempt,
2 contempt of his authority, administer oaths, issue commissions, compel of oathl^t"^
3 the attendance of witnesses and the giving of evidence in like manner Hlf, Isi. ^^'
4 as the superior court; and may appoint necessary officers to attend upon q. s. lis, § 5.
5 the court to keep order therein and transact its business. ^ |; i^j^ i^g
1 Section 10. Proceedings in courts of insolvency shall be matters Proceedings
2 of record, and the assignment and certificate of discharge shall be re- ^tm" "
3 corded in full. Other proceedings need not be so recorded, but shall be isss.^S', § u.
4 carefully numbered, filed and kept in the office of the register. Copies cf^l'ffs, §6.
2300
COURTS OF INSOLVENCY.
[Chap. 216.
of all parts of the records and of records of prior proceedings in insolvency 5
deposited in his office, certified by the register, shall be prima facie 6
10 Gush. 545. 3 Gray, 252. 7
4 Allen, 77. 5 Allen, 126. 99 Mass. 64. 130 Mass. 368.
P. S. 157. § 6.
R. L. 163. § 10.
6 Met. 518.
6 Cash, iss! evidence of the facts therein stated
362.
Docket.
Duties of
register.
183-1, 329, § 3.
18.56, 284, I 13.
1858, 32;
141, § 5.
G. .S. lis, §§ 7,
8, 10.
1865, 259. § 2.
P. S. 157,
§§ 7-9.
E. L. 163, § 11.
Section 11, Each register shall keep a docket with an alphabetical 1
index of all cases in his court, in which he shall enter every case by its 2
appropriate title and number with brief memoranda of all proceedings .3
and papers filed therein. The docket, books, records, documents and 4
papers in his office relative to insolvency shall at all reasonable times be 5
open to public inspection. He shall make computations of dividends and 6
orders of distribution, shall furnish to the assignee a certified copy of the 7
schedules of creditors and assets filed in each case, and of the orders of 8
distribution, and with each copy of an order of distribution a dividend 9
sheet, without charge therefor. He may administer oaths in proceedings 10
before the court, except the oath named in section eighty-eight. 11
Warrants, etc.,
when retxirn-
able, etc.
1848, 304, § 6.
1S5B, 2S4, § 6.
G. S. 118, § 11.
P.S. 157, § lU.
E. L. 163, § 12.
Section 12. Assignments, and processes issued by the court shall be 1
under its seal, and shall be executed and obeyed throughout the com- 2
monwealth; and any person to whom they are legally directed may serve .3
them in any county. Warrants shall be returnable not less than ten nor 4
more than sixty days from the date of issue. 5
Selection of
newspapers
for notices.
1851, 138,
G. S. lis, § 12.
Section 13. Parties to insolvency proceedings may select the news- 1
papers where notices ordered upon their petitions shall be published, but 2
the court may order the notice published in one other newspaper. 3
P.S. 157, § 11. R. L. 163, § 13.
pr°ovidTcourt SECTION 14. Each county shall provide suitable court rooms and, in
i8s6!^284!'§ 3. the town where the registry of probate and insolvency is situated, a
^'i'llfli 12' suitable fireproof room where the records, books, documents and papers
R. L. 163, § 14. relative to the business of the court and the records in cases in insolvency .
shall be kept.
isie!"!!!', § 23. Section 15. Expenses attending the sessions of the courts and the 1
P.' I.' 157,' 1 13.' transaction of business therein, for blank books, records, blank forms and 2
R. L. 163. § 15. stationery necessary for the business of the courts shall be paid by the 3
commonwealth. 4
i8"38,%63!§ 18. Section 16. The judges or a majority of them shall, as provided in 1
ilse! ill! I lo! section thirty of chapter two hundred and fifteen, from time to time 2
?§' 15^16' make rules and prescribe forms for their courts. 3
p. S. 157,
14, 15.
1893, 372, § 1.
R. L. 163, § 16.
Jurisdiction
of supreme
judicial court.
1838, 163, § 18.
1851, 327, I 16.
G. S. 118, § 16.
P. S. 157, § 13.
1894, 164, § 4.
R. L. 163, § 17.
Section 17. The supreme judicial court shall have general superin- 1
tendence and jurisdiction of cases arising under this chapter; and, except 2
as otherwise provided, may, upon the bill, petition or other proper 3
process of a party aggrieved, hear and determine the case as a court of 4
equity. 5
4 Met. 302, 504.
6 Met. 537.
8 Met. 19.
9 Met. 23.
1 Gush. 449.
2 Gush. 294.
4 Gush. 448.
7 Gush. 183.
10 Gush. 173.
11 Gush. 582.
3 Grav, 239. 531.
8 Grav, 316.
9 Gray. 50, 335.
13 Gray, 564.
16 Gray, 137.
4 Allen, 545.
5 Allen, 530.
6 Allen, 118,560.
7 Allen, 57. 112.
9 Allen, 197.
107 Mass. 79.
129 Mass. 129.
131 Mas.s. 604.
132 Mass. 466.
138 Mass. 592.
139 Mass. 84.
Ill Mass. 283.
142 Mass. 47.
145 Mass. 366, 444.
150 Mass. 574.
152 Mass. 223.
155 Mass. 400.
157 Mass. 33, 252.
165 Mass. S82.
166 Mass. 379.
168 Mass. 100, 103.
171 Mass. 239.
182 Mass. 208.
199 Mass. 118.
204 Mass. 432.
Chap. 216.] coltets of insolvency. 2301
1 Section 18. The supreme judicial court and the courts of insolvency Rules as
2 shall make rules requiring notice to be given to parties interested or their isgo, 420, 5 2.
3 attorney of record of any motion, hearing or other proceeding before said ^' ''" ^''^' ^ ^*'
4 courts.
1 Section 19, A duly authorized attorney at law may enter his ap- Appearance
2 pearance as attorney for the party represented by him in any proceed- isalfiesnis.
3 ing in a court of insolvency. Processes and notices served upon such ji; |; J57 ■ 1 1|;
4 attorney shall have like effect as if served upon the party whom he ^^^' f~^' t Jg
5 represents.
PETITION BY DEBTOR. FIRST MEETING.
1 Section 20. An inhabitantjpf the commonwealth owing debts, con- Petition.
2 tracted while such inhabitant, may file a petition in the court of insol- \llf, Jul ^ ^'
3 vency for the county, if any, where he last resided or had a usual place Q^i; us.Vi?.
4 of business for three consecutive months, otherwise in the court for p^|''i^5^7^s ig
5 the county where he resides or has a usual place of business, stating his ^^3, 405, 1 1
6 inability to pay his debts and his willingness to assign his property for s Met. 129. " '
7 the benefit of his creditors, and praying that such proceedings may be 4 AUen' 77, 170.
8 had as are provided in this chapter. 6 Alien, 11s. iss Mass. 372.
1 Section 21. If it appears to the satisfaction of the judge that the warrant to
2 debts due from the petitioner amount to two hundred dollars or more, he 1838^163^
3 shall forthwith sign and issue a warrant to the sheriff' of the county or I84i',l24, § 1.
4 one of his deputies ordering him forthwith as messenger to take possession }||y' \lf | ^°-
5 of all property of the debtor not exempt from attachment, and of all his i||*' |0|' § '^■
6 deeds, books of account and papers, and keep the same safely until the i?5^.'329,| 4
7 appointment of an assignee; to publish notice in such newspaper or news- 1879', 107.
8 papers as the warrant specifies, send written notice by mail or otherwise r. l. 103, § 21.
9 to all creditors upon the schedule furnished him by the debtor and to 7 cush.^ile.
10 give such personal or other notice to any persons concerned as the war- lesa^fi's.^lir.
11 rant orders. Such notice shall state that a warrant has issued against
12 the property of the debtor; that the pajTnent of any debts and the de-
13 livery of any property belonging to such debtor, to him or for his use, and
14 the transfer of any property by him are forbidden; that a meeting of
15 the creditors of the debtor to prove their debts and choose one or more
16 assignees of his property will be held at a court of insolvency to be held
17 at a time and place stated in the warrant, not less than ten nor more than
18 sixty days after the date of its issue.
1 Section 22. The messenger shall forthwith demand and receive from Messenger
2 the debtor and other persons all the property in his or their possession, p?opert>\
3 ordered in the warrant to be assigned, with all deeds, books of account and g.^|; if|; | f^.
4 papers of the debtor relative thereto. p. s. 157, § is. r. l. les, § 22.
12 Met. 4G4. 2 Gush. 48. 8 Allen, 134. 148 Mass. 69.
1 Section 23. Upon demand by the messenger under the preceding Delivery of
2 section, the debtor shall forthwith deliver to him such of the property schedule by'
3 and other things demanded as is in his possession or power, and shall is3s?h;3, § 6.
4 disclose the situation of such portion thereof as is not in his possession. ^^^|; 'f'^^i | fj,
5 The debtor shall also, except as provided in the following section, within f?'Jf'i5™'|i9
6 three days after the date of the warrant make on oath and deliver to the R- l. iu3',"§ 23.
7 messenger a schedule, containing a full and true account of his creditors, s Cusi.. 375.
8 with the residence of each, if known to the debtor, and the amount due 137 Mass. 224.
2302
COURTS OF INSOLVENCY.
[Chap. 216.
to each, and the nature of each debt, whether founded on ■WTitten security, 9
account or otherwise, and also the true cause and consideration thereof, 10
and a statement of any existing mortgage, pledge or other collateral 11
security given for its payment. 12
isse.'lflo'^"'^' Section 24. If by accident or mistake such schedule is not delivered
R. L. 163, § 24. tQ t}jg messenger within said three days it shall be so delivered within
such time thereafter as will enable the messenger to comply with the
warrant, and such delay shall not affect the granting of a certificate of
discharge unless caused by the debtor's default.
fbie pro^p^rty" SECTION 25. If the court finds that the property of the debtor or any
G^i' us 1 2i' P^^^ thereof is perishable or likely to deteriorate in value before an as-
p. s. 157. § 20. signee can be appointed, it may order the same sold in such manner as it
orders under the direction of the messenger who shall hold the funds
received in place of the property sold.
R. L. 163, § 23.
TO^race '° Section 26. After warrant has issued against the estate of an insol- 1
of'court^ °^'^" vent debtor and before the appointment of an assignee, the judge may 2
1862, 179, 1 2^ order the messenger to commence action for recovery of a debt due the 3
r'. l. 163, § 26. debtor or do any other act which might be done by an assignee. The 4
messenger shall thereupon in his own name commence and prosecute 5
such action or do any other act so ordered as if he were assignee. If, 6
upon the appointment of an assignee, an action or proceeding commenced 7
by the messenger has not been determined, the assignee may in his own 8
name or in the name of the messenger with his consent prosecute it or 9
otherwise proceed. 10
Delivery of
Schedule of
creditors, etc.,
by debtor to
register.
1838, 163, § 6.
1841, 124, § 2.
1854, 329, § 3.
G. S. 118. § 22.
1862, 179, § 1.
P. S. 157, § 22.
Section 27. The debtor shall, except as provided in the following 1
section, within five days after the date of the warrant make on oath and 2
deliver to the register a schedule of his creditors as pro\'ided in section 3
twenty-three, and a schedule of all his property, with a description thereof, 4
stating where situated, and all encumbrances thereon, with the date of 5
each and the consideration thereof. r. l. las, § 27. 6
Late schedules.
1863, 71.
P. S. 157. § 23.
R. L. 163, § 28.
Section 28. If by accident or mistake such schedules are not de-
livered to the register within said five days they shall be so deli\ered
before or at the first meeting of the creditors and such delay shall not
affect the granting of a certificate of discharge unless caused by the
debtor's default.
First meeting,
1838, 163, § 6.
1841, 124, § 2.
1848, 304, § S.
1854, 329, § 3.
e.g. 118,
§§ 22, 23.
P. S. 157. § 24.
R. L. 163, § 29.
Section 29. At the meeting held in pursuance of the notice, the 1
messenger shall make return of the warrant and his doings thereon, and 2
deliver to the register the schedule of creditors received from the debtor. 3
If the court finds that the notice to creditors required by section twenty- 4
one has not been given, it shall adjourn the meeting and order such notice. 5
Section 30. If the debtor dies after the warrant has been issued, the 1
Death of
debtor.
G^s'ni'tii proceedings shall be concluded in like manner and with like effect as if 2
p.s:i57:§25: he had lived. r.l.ics, §30. 3
Ch.^P. 216.] COUETS OF mSOL-VTENCY. 2303
DEBTS AND PROOF OF CLAIMS.
1 Section 31. Debts due and payable from the debtor at the time claims
2 of the first pubhcation of notice of issuing the warrant may be proved isssfife, §§ 2.
3 and allowed against his estate at any meeting; and debts at that time g. s.¥is^,^§ 25.
4 absolutely due, although not payable, may be proved and allowed as if r i^es 111'
5 payable, with a discount or rebate of interest if no interest is payable by ^ Met. ei'^
6 the contract. Money due on a bottomry or respondentia bond or policy 7 Met! 34s!
7 of insurance may be proved and allowed, if the contingency or loss hap- 2"c'ush.^i73.
8 pens before the making of the first dividend, in like manner as if it had 7 Culh. III'.
9 happened before the first publication of the notice. If the debtor is i^o^ayNos^'
10 Liable for a debt by reason of having made or endorsed a bill of exchange fo^Cray^eob
11 or promissory note before said first publication, or of the payment by a {Jq"'^^'!?'''
12 party to a bill or note of a part of the money secured thereby, or of pay- is Gray! 274.
13 ment of an amount by a surety of the debtor in a contract, if the pay- 5 auL; 133,
14 ment is made before the making of the first dividend, such debt may be g Aiien. 314.
15 pro\ed and allowed as if due and payable by the debtor before the first lio^Ma'ss.^sts.
16 publication. All demands against the debtor for or on account of goods \ll H^^- H^-
17 or chattels wrongfully obtained, taken or withheld by him, may be proved J^s Mass. iii.
18 and allowed as debts, up to the value thereof.
156 Mass. 515. 166 Mass. 379. 177 Mass. 224. 220 Mass. 486.
157 Mass. 33. 174 Mass. 470. 1S5 Mass. 178. 224 Mass. 347.
1 Section 32. An equitable liability of an insolvent debtor may be Equitable
2 proved and allowed against his estate in like manner and subject to like i8^s4!^293.
3 conditions as a legal claim. R. l. les, § 32. 8 AUen, ssi.
141 Mass. 283. 143 Mass. 326. 158 Mass. 388. 177 Mass. 224.
1 Section 33. If any of the property of a debtor consists of a lease Leases, etc.
2 or written agreement, whereby he is liable for the rent therein reserved p.s.'i.l7.'§ 26.
3 or for the use and occupation of premises as therein stipulated, tlie as- fs/'Mass'. i6^8.'
4 signee at any time may, and upon written request by the debtor, or by flo^iass 73
5 the lessor or those having his estate in the premises shall, within twentv }t§ il^^"- J?^-
„ , „ , °, . . „, f . , , * 155 Mass. 3S9.
6 days alter such request, by a writing filed in the case, elect to accept 245 u. s. 597.
7 and hold under said lease or agreement or to disclaim it. If he elects to
8 disclaim, such lease or written agreement shall be considered to have
9 been surrendered as of the day when said disclaimer was so filed. If the
10 debtor is discharged, he shall be discharged from all liability under or by
11 reason of said lease or agreement, whether the assignee does or does not
12 so disclaim it; and the lessor or those having his estate in the premises
13 may prove any damages, caused by such surrender, as a debt against
14 the e.state of the debtor; but this section shall not apply to leases or
15 written agreements as aforesaid in force on the twentj'-second day of
16 April in the year eighteen hundred and seventy-nine.
1 Section 34. Mutual credit or mutual debts between the debtor and f838°^i'63, § 3.
2 a creditor shall be set off and the balance allowed or paid. ^- ^- ^i^- ^ 26.
p. S. 157, § 27. 5 Cush. 194. 3 Allen, 111. 138 Mas.s. 330.
R. L. 163. § 34. 3 Grav, 257. 4 Allen, 367. 148 Mass. 396.
6 Met. 537. 4 Gray, 284. 131 Mass. 14. 223 Mass. 553.
10 Met. 194. 7 Gray, 425. 137 Mass. 262.
1 Section 35. The assignee, by written assignment of a non-negotia- Proof of claim
2 ble legal chose in action, may prove a claim in insolvency, in his own thereof"""
2304
COUKTS OF INSOLVENCY.
[Ch.\p. 216.
1897, 402. name, subject to all defences and rights of counter-claim, recoupment or 3
' *■ ■ set-off to which the debtor would have been entitled if the claim had been 4
proved in the name of the assignor. 5
Mortgage,
pledge or lien.
183S. 163, § 3.
G. ,S. US. § 27.
P. S. 157, § 2S.
R. L. 163, § 36.
0 Met. 305.
8 Met. 19.
2 Cush. 294.
3 Cush. 469.
4 Cush. 99.
4 Gray, 553.
6 Grav, 523.
9 Gray, 55.
11 Gray, 134,
261.
12 Grav. 27.
15 Gray, 3S1,
453.
9 Allen, 175.
Section 36. A creditor having a mortgage or pledge of property of 1
tlie debtor, or a lien thereon, to secure payment of a debt claimed by 2
him, may require such property to be sold, and the proceeds applied 3
toward pajTnent of his debt, and he shall be admitted as a creditor for 4
the residue. The sale shall be made in such manner as the court orders 5
and the creditor and assignee shall execute necessary and proper deeds 6
and papers. If the creditor does not require such sale and join in the 7
conveyance, he may release and deliver to the assignee the property S
held as security, and be admitted as a' creditor for all of his debt. If the 9
property is not so sold or released and delivered the creditor shall not 10
prove any part of his debt. iso Mass. 132. 133 Mass. 71, 534. 1 1
134 Mass. 291.
137 Mass. 412.
138 Mass. 515.
143 Mass. 376, 455.
150 Mass. 317.
175 Mass. 547.
Mortgage re-
corded more
than four
months after
date.
1888, 393.
R. L. 163, § 37
Section 37. A mortgage of land recorded more than four months
after its date shall not be valid against an assignee of the estate of the
mortgagor if insolvency proceedings are begun within one year from the
recording of the mortgage. les Mass. 85. 172 Mass. 384.
Allowance for
legal services.
1889, 420.
R. L. 163, § 3S.
150 Mass. 343.
Section 38. A mortgage or pledge of property, or payment of money 1
given or made by an insolvent debtor for legal services rendered or to be 2
rendered in, or in contemplation of, insolvency proceedings, shall be valid 3
for such amount as the court allows. An appeal from the decision of said 4
court shall be allowed in the manner pro\'ided in section forty-fi^■e. 5
Claims to be
proved on oath.
1S3S, 163, § 4.
1848, 304. § 14.
1851, 189, § 1;
349. § 1.
1852, 189,
§U,2. ^
1856, 284, 5 35.
G. S. 118, § 28.
P. S. 157, § 29.
R. L. 163. § 39.
8 Allen, 581.
139 Mass. 84.
147 Mass. 122.
Section 39. No debt shall be proved or allowed unless the creditor,
or, if he resides in a foreign country and the debt is fouiifled on a con-
tract made by the debtor with the consignee or agent of the creditor
residing in the United States, such consignee or agent makes oath in sub-
stance as follows:
I, , do swear that , of , by (or against)
whom proceedings in insolvency have been instituted, at and before the date
of such proceedings was and still is justly and truly indebted to me in the sum of
, for which sum or any part thereof I have not, nor lias any other
person to my use, to my knowledge or behef, received any security or satisfaction
whatever, beyond what has been disposed of agreeably to law. And I do further
swear that said claim was not procured by me for the purpose of influencing the
proceedings in tliis case. And I do further swear that I have not directly or in-
directly made or entered into any bargain, arrangement or agreement, express or
implied, to sell, transfer or dispose of my claim, or any part of my claim, against
said debtor, nor have directly or indirectly received or taken or made or entered
into any bargain, arrangement, or agreement, e.xpress or implied, to take or re-
ceive directly or indirectly any money, property, or consideration whatsoever to
myself, or to any person or persons to my use or benefit, under or with any under-
standing or agreement, express or imphcd, wherel)y my vote for assignee or my
assent to the debtor's discharge is or shall be in any way affected, influenced,
or controlled, or whereby the proceedings in this case are or shall be affected,
influenced or controlled.
No claim shall be allowed unless all the statements set forth in the oath 6
are true. 7
CbL^P. 216.] COUETS OF INSOLVENCY. 2305
1 Section 40. If the creditor is disabled by absence from the common- oath by
2 wealth, illness or other cause from proving his claim, the above oath may issT.Tsg,
3 be made by his agent or attorney testifying to the best of his knowledge |j^ g' f ,g § 29
4 and belief; but the court may require further proof of the statements RL^ies §40
5 therein.
1 Section 41. The oath may be made within the commonwealth before Before whom
2 a justice of the peace, notary public or special commissioner and, with- made"''^ ""^
3 out the commonwealth, before a justice of the peace, notary public or Jlsl; gs^'s^g*'
4 commissioner for Massachusetts, and, if the creditor is in a foreign coun- ^g-|- 1^| | !"•
5 try, before an ambassador, minister, consul or vice-consul of the United ^^°'?^Y-^ii
6 States. But the court may at any time require the affiant to appear ism, its. § 4.'
• R L 163 5 41
7 personally before it to be further interrogated on oath. The debtor and 3 bray, lis.
8 any party proving a debt may be examined on oath in presence of the
9 judge on all matters relative thereto.
1 Section 42. If a claim is presented for proof before the election of an Postponement
2 assignee, and the court is of opinion that the validity or right of such is56?'284, § 33.
3 claim ought to be investigated by the assignee, it may postpone proof of p.f.iw.'lfi'
4 the claim till after the assignee is chosen.
R. L. 163, § 42. 16 Gray, 137. 165 Maaa. 582.
1 Section 43. A person who has accepted a preference, having reason- ciaima not to
2 able cause to belie\e that it was made or gWen by the debtor contrary isss.ws, § lo.
3 to any provision of this chapter, shall not prove the debt or claim on g .Is'.' ns,' | ll.'
4 account of which such preference was made or given, nor receive a divi- r. l.\o3'_| 43.
5 dend thereon. 172 Mass. 227. 177 Mass. 257.
1 Section 44. The court shall allow all debts proved and shall cause Allowance and
2 a list thereof to be made and certified by the register. It may upon cWmT'"* °'
3 application by the assignee, a creditor, or the debtor, examine on oath G^I'nl.'Hs
4 any person who has made proof of a claim and may summon any person ^^g'f^y' ^ ^■
5 to give evidence relative thereto, and may alter or expunge such claim if H 34, 35'.
6 the evidence shows it to be founded in whole or in part in fraud, illegality iss Mass'. 592.'
« • , 1 145 Mass. 444.
7 or mistake. les Mass. 582. 190 Mass. 507.
1 Section 45. A supposed creditor whose claim is wholly or in part Appeal.
2 rejected or an assignee who is dissatisfied with the allowance of a claim g. s.'u8,'§ 34.
3 may appeal from the decision to the superior court; but no appeal shall isss, 384, § 5.'
4 be allowed unless claimed and notice thereof given to the register, to be ^olshflVi.*^'
5 entered with the record of the proceedings, and also to the assignee or | c"^};; I™-
6 creditor, as the case may be, within ten days after the decision appealed ^ g^^'' ^s^
7 from. The appeal shall be entered at the return day of the superior court ^ ^y<^y- 1*^-
8 for the county next after the expiration of fourteen days from the time 1 Ai'ien, 403. '
9 of claiming it. If the appellant in writing waives his appeal before the hi Masslsog!
10 entry thereof, proceedings may be had in the court of insolvency as if 295.^''"'^' ^^'
11 no appeal had been taken. las Mass. 582.
1 Section 46. Upon the entry of an appeal the appellant shall file in Proceedings.
2 court a statement of his claim substantially as in a declaration at law. a^l,' n^l,' | .35.
3 The subsequent pleadings and proceedings shall be substantially as in r.l.\m',\46.
4 an action at law, except that no execution shall be awarded against the ^^^ ^^'^^- ^^*-
5 assignee for the amount of a debt found due the creditor.
2306
COUHTS OF INSOLVENCT.
[CiLiP. 216.
Judgment on
appeal. Costa.
1S38. 163. § 4.
G. S. lis. I 36.
P. S. 157, § 38.
R. L. 163. § 47.
7 Met. 85.
Section 47. The final judgment of the court shall be conclusive, and 1
the lists of debts shall, if necessary, be altered to conform thereto. The 2
prevailing party shall be entitled to costs, to be taxed and recovered 3
as in an action at law; if recovered against the assignee, they shall be 4
allowed out of the estate. 5
Evidence of
withdrawal
of claim.
1852. 189, § 3.
G. S. 118, § 37.
P. S. 157, 5 39.
R. L. 163, § 48.
Section 48. A bill of exchange, promissory note or other instrument 1
used as evidence upon the proof of a claim and left in court or deposited 2
in the registry may be delivered by the register to the person who used 3
it, upon his filing a copy thereof attested by the register, who shall also 4
endorse upon it the name of the party against whose estate it has been 5
proved and the date and amount of any dividend declared thereon. 6
Choice of
assignee.
1838. 163, § 3.
1838, 141. § 1.
G. S. lis.
15 38, 39.
1862. 179, I 3.
1879. 95. § 2.
P. S. 157.
1140.41.
R. L. 163. § 49.
165 Mass. 317.
ASSIGNMENT .iND ASSIGNEE.
Section 49. The creditors shall, subject to the court's approval, 1
choose one or more assignees of the estate of the debtor in the presence 2
of the court at the first meeting. The choice shall be made by a majority 3
in value of the creditors who have proved their debts; but if the number 4
of creditors present amounts to &ye and less than ten, the votes of two 5
at least, and, if the number of creditors amounts to ten or more, the votes 6
of three at least, shall be necessary for a choice, and no creditor having 7
a preferred claim shall vote thereon, except on so much of said claim as 8
exceeds the amoimt preferred by law. If no choice is made by the creditors 9
at said meeting, the court shall appoint one or more assignees. If an 10
assignee so chosen or appointed fails within four days to accept in ■UTiting 11
the trust, the court may fill the vacancy. The court may appoint addi- 12
tional assignees or order a new election, or it may at the first meeting 13
without an election appoint one or more disinterested assignees. 14
Bond of
assignee.
1844, 178. § 11.
1853. 116.
G.S. 118.
§5 40,41.
1862. 179, 5 4.
1879, 245, § 9.
P. S. 157,
5§ 42, 43.
R. L. 163. 5 50.
4 Gray, 286.
6 Gray, 364.
Section 50. The court at any time may, and, upon WTitten request 1
by one fourth in number and value of the creditors who have proved their 2
claims, shall, require the assignee to file a bond, approved by the judge, 3
to the judge and his successors in office, conditioned for the faithful per- 4
formance of his duties, which shall enure to the benefit of all creditors 5
proving their claims and may be prosecuted in like manner as an admin- 6
istration bond. An assignee failing to give a bond within such time as 7
the court orders, not exceeding ten days after notice to him of such 8
order, shall be removed and another appointed by the court. 9
Assignment
by judge.
1838, 163, § 5.
G.S. 118, 5 42.
P. S. 157, 5 44.
R. L. 163, 5 51.
13 Gray, 18.
Section 51. The judge shall, by an instrument under his hand, 1
assign and convey to the assignee all the property of the debtor, not 2
exempt from attachment, and all his deeds, books and papers relative 3
thereto. 9 Alien, 156. 97 Mass. 246. 153 Mass. 311. 4
^Inment^and SECTION 52. The Hssignce shall forthwith cause the assignment to be 1
i83s"i63 § 11 recorded in the registry of deeds in each county or district where there 2
G. s.'iis.'§43.' is land of the debtor upon which it may operate; and shall give such 3
R. L. 163, 5 52. public notice of his appointment as the judge may order. 4
5 .\Jlen, 126. 102 Mass. 437. 130 Mass. 368. 219 Mass. 211.
Agent of
non-resident
assignee.
1889, 313.
1893, 118.
R. L. 163, § 53.
Section 53. An assignee appointed in, but residing out of, the com- 1
monwealth shall not receive the instrument of assignment until he shall 2
have appointed an agent as provided in sections eight to ten, inclusive, 3
of chapter one hundred and ninety-five, and said sections shall apply to 4
CH-iP. 216.] COUBTS OF INSOLVENCY. 2307
5 such appointment except that said writing shall be filed in the registry
6 of insolvency. Notice of a new appointment of an agent, with his name
7 and address, shall be given in the next notice required to be given by the
8 assignee, or as the court may order.
1 Sfxtion 54. The assignment shall vest in the assignee all the prop- Effect of
2 erty of the debtor, not exempt from being taken on execution, which he is38"iif3!*i s.
3 could have lawfully sold, assigned or conveyed at the time of the first q *s' j^|; ^ ^°-
4 publication of the notice of issuing the M-arrant in case of voluntary ilgg^'/jl^-^ 7
5 proceedings, or at the time of the first publication of notice of the fil- is79, 245! 1 3.
6 ing of the petition in case of involuntary proceedings, and shall, subject p. s.'i57,'§46.
7 to the following section, dissolve any attachment on mesne process made 2 Met. 258.
8 not more than four months prior to the said first publication. The as- tH''^' '^^'
9 signment shall vest in the assignee all debts due the debtor or a person Isy'^'' ^*®'
10 for his use, and all liens and securities therefor, and all his rights of action l^^^- ^^^'
11 for, and of redeeming, property. The assignee may redeem all mort- e Met. 537.
12 gages, conditional contracts, pledges and liens of or upon any property of 9 Met! 23'
1.3 the debtor, or sell it subject to such mortgage or other encumbrance, and 393"'' '
14 if a mortgage is foreclosed pending proceedings in insolvency and before, iocush^92*^'
15 or within sixty days after, the appointment of an assignee the assignee 3 G*?a5^!'245^
16 may redeem the same within sixty days after his appointment, with reme- 39s.^^ ^^^
17 dies similar to those provided for the redemption of mortgages before ssg.
18 foreclosure. 15 Gray. aie. 1 Alien, 373, 666.
6 Allen, 126, 382, 582. 125 Mass. 469. 153 Mass. 311.
8 Allen, 20, 134, 302, 597. 133 Mass. 140, 515. 154 Mass. 302.
10 Allen, 258, 460, 468. 134 Mass. 247. 159 Mass. 420.
11 Allen, 345. 135 Mass. 299. 163 Mass. 350, 530.
12 Allen, 345. 139 Mass. 33, 84. 172 Mass. 384.
98 Mass. 305. 140 Mass. 169. 185 Mass. 68.
99 Mass. 63. 144 Mass. 168, 207, 281. 201 Mass. 554.
100 Mass. 446, 453. 147 Mass. 8. 146'U. S. 303.
102 Mass. 475. 149 Mass. 158, 310. 175 U. S. 396.
1 Section 55. If a debtor whose property is attached conveys before Attachments,
2 judgment in the action any part of such property, and subsequently i8ri,''i24"§ s.'
3 thereto and before execution issues, proceedings are commenced by or Us?; 247.
4 against him as an insolvent debtor, or if a dissolution of an attachment p|iif'||f
5 under the preceding section might pre\'ent the property attached from ?m /I-q^ *^-
6 passing to the assignee, the court in which proceedings in insolvency are 13 Met. 20b.
7 pending or to which the writ of attachment is returnable, may, upon 4 Gray' 429!
8 application on or before the day of the third meeting of creditors by a .5 Alien', 452'.
9 person interested, for cause, order the lien created by the attachment to iii^'"^"' *^^'
10 continue. The action may be continued or execution stayed until the ^^g '^'"^^ ^''^•
1 1 assignee is chosen and takes charge of the action. The assignee may i^e Mass. 147.
12 proceed with the action and levy the execution at the expense of the
13 estate; and the amount recovered, exclusive of costs due to the original
14 plaintiff, shall vest in the assignee.
1 Section 56. The assignee shall demand and receive from the mes- Assignee to
2 senger and all other persons all the property in their hands assigned or receh-e n°op-
3 intended to be assigned under this chapter; and shall keep a regular aclountt.'"^''''
4 account of all money received by him as assignee, to which every creditor cf^|'af'|]o'
5 shall at reasonable times have free access, p. s. 157, § 48. r. l. i63, § 56.
1 Section 57. The assignee shall, unless the court otherwise orders, at !"Jf"',?|7v
2 or before the second meeting of the creditors, make and return on oath p. s.'i57,'§4ji.
3 to the court a true inventory of all the debtor's property, of all debts ' ' ' ^ '
4 due the debtor or another person for his use, of all his rights of action
2308
COURTS OF INSOLVENCY.
[Cbap. 216.
for and of redeeming property, which the assignment has vested in such 5
assignee and which have come to his possession or knowledge. The 6
property included in such inventory shall be appraised in like manner as 7
the estate of a deceased person, and the appraisal returned at or before 8
said meeting. 9
Assignee to
account for
property at ap-
praised value.
1861, 104. § 2.
P. S. 157, § 50.
R. L. 1G3. § 58.
10 Cush. 173.
98 Mass. 305.
116 Mass. 5S9.
154 Mass. 51.
Section 58. The assignee shall account for all property of the debtor 1
vested in him by the assignment, at the appraised value, except as herein 2
provided. He shall make no profit by the increase and sustain no loss by 3
the decrease or destruction, without his fault, of any part of the property; 4
if he sells any thereof for more than the appraised value, he shall ac- 5
count for the excess, but if he sells for less, the court may, if it appears 6
that the sale was expedient and for the interest of all concerned, allow 7
him for the loss. In either case the assignee shall return to the court a 8
true account of sales, and shall sell the property at public auction unless 9
the court, upon petition therefor, otherwdse orders. 10
Assignee to
commence and
prosecute
actions, etc.
1838, 163, § 5.
G. S. 118, § 47.
P. S. 157, § 51.
R. L. 163, § 59.
4 Met. 604.
I C;ray,416.
3 Gray, 239,
3S2.
10 Grav, 329.
II Gray, 222.
5 Allen, 582.
10 Allen, 36,
460.
130 Mass. 368.
148 Mass. 299.
137 Mass. 468.
Section 59. He may recover all the property and debts, in his ovm. 1
name, as the debtor might have done had no assignment been made. 2
If at the date of the assignment an action is pending in the name of the 3
debtor for the recovery of a debt or other thing which might or ought to 4
pass to the assignee by the assignment, the assignee shall, if he so requires, 5
be admitted to prosecute the action in his own name, in like manner and 6
with like effect as if commenced by him. No action pending in the name 7
of the assignee shall be abated by his death or removal; but the sur- 8
viving, remaining or new assignee, as the case may be, shall be admitted 9
to prosecute the action. The assignment by the judge shall be conclusive 10
evidence of the authority of an assignee to sue. i63 Mass. 350. 1 1
Limitation of
actions. .
1895, 432.
R. L. 163. § 60.
7 Met. 348.
219 Mass. 211.
Drafts, etc.,
assigned
within sir
months not
to be offset.
1856, 284, § 28.
G. S. 118, 5 48.
P. S. 157, § 52.
R. L. 163, §61.
8 Gray, 572.
Property to be
kept separate
bv assignee.
1838, 163, § 11.
G. S. 118, §49.
P. S 157, I 63.
R. L. 163, I 62.
Section 60. An assignee shall not commence or be made a party to 1
a proceeding at law or in equity relative to any property or rights thereto 2
unless it is commenced within six years from the time when the right 3
accrued to or against the insolvent. Section nine of chapter two hundred 4
and sixty shall apply to such proceedings. 5
Section 61. A draft, bill of exchange, promissory note, claim, de- 1
mand or other cause of action, which within six months before the fil- 2
ing of the petition by or against a debtor has been assigned, transferred, 3
conveyed or delivered to a person indebted or liable to the debtor shall 4
not be set off or pleaded in defence in an action by the assignee to recover 5
such debt or liability; but the assignee may recover the same, notwith- 6
standing such draft, bill of exchange, promissory note, claim, demand or 7
cause of action, if the person to whom it was assigned, transferred, con- 8
veyed or delivered had at the time of such assignment, transfer, convey- 9
ance or delivery reasonable cause to believe the debtor insolvent. 10
Section 62. The assignee shall, as soon as may be after receiving 1
any money belonging to the estate, deposit it in a bank in his name as 2
assignee, or otherwise keep it distinct and apart from all other money in 3
his possession; and shall as far as practicable keep all other property of 4
the estate separate and apart from all other property in his possession, 5
or designated by appropriate marks, so that it may be easily and clearly 6
distinguished and not be exposed or liable to be taken as his property or 7
for the payment of his debts. 8
Chap. 216.] courts of insolvency. 2309
1 Section 63. If the court finds that the distribution of the estate may Temporary
2 be delayed by litigation or other cause it may order the temporary invest- Jfroperty.^whL.
3 ment of the money of such estate in securities approved by it, or may cf^l.'i/s.§ so.
4 authorize its deposit in a bank in the commonwealth upon such interest ^- f^ ^yg' \^^
5 as the bank may contract with the assignee to pay thereon.
1 Section 64. The court may for cause order the messenger or as- Carrying on
2 signee to carry on the business of the debtor or any part thereof under i897Tl2a^'
3 its direction. R. l. i63, § 64.
1 Section 65. The assignee shall give ^\Titten notice to all known Notice of
2 creditors by mail or otherwise of all dividends, and such notice of meet- meetSgs^ *°
3 ings after the first as the judge orders. i846, les, § 4.
1850, 319. G. S. 118. § 51. P. S. 157, § 55. R. L. 163, § 65.
1 Section 66. He shall be allowed by the court from the money in his Compensation
2 hands the necessary disbursements made by him in the performance of isairfoa"! ii.
3 his duty, and a reasonable compensation for his services.
G. S. 118, § 52. P. S. 157, 5 56. R. L. 163, § 66.
1 Section 67. He may, under the direction of the court submit any Submission to
2 controversy arising in the settlement of claims by or against the estate i838,'^i63,°§ ii.
3 to the determination of arbitrators to be chosen by him and the adverse p.' f; Uj' | H;
4 party; and may under such direction compromise and settle any such n cush^sL^^'
5 controversy if in his judgment it is proper and for the interest of the
6 creditors.
1 Section 68. If the court finds that the title to any property of the Saie of perish-
2 estate in the hands of the assignee is in dispute and that the property is pendmgdwpute
3 perishable or liable to deteriorate in value, it may, upon petition by the ism.'Is.
4 assignee and notice to the claimant, or his agent, order it sold under pfisf'l^'
5 the direction of the assignee, who shall hold the proceeds in place of the R- l- les, § 68.
6 property sold; and such proceeds shall be the measure of the value of
7 the property in an action or controversy between the parties. But this
8 section shall not prevent the recovery of the property from the possession
9 of the assignee by replevin commenced at any time before the court
10 orders the sale.
1 Section 69. When an assignee has received from the estate assets Accounts.
2 sufficient to pay fifty per cent of the debts and claims proved against G^s.'iil.'fss.
3 it, he shall certify the fact and render his accounts therefor to the court; R.L.^es.^eg.
4 and when he has received twenty-five per cent more from the assets, he
5 shall in like manner certify and render his accounts therefor. He shall
6 also certify and render his accounts when required by the court.
1 Section 70. At a meeting called by order of the judge in his discretion Removal of
2 for the purpose, and which shall be called upon the petition of a majority credTtors. ^
3 of the creditors in number or value, the creditors may, with the consent ig59;69^' ^ '^'
4 of the court, remove an assignee by such vote as is provitled in section p ; |; jgf ■ | ^q
5 forty-nine for the choice of assignee. R. l. i63, § 7o. 9 Cush. 382.
1 Section 71. If the court, upon complaint of any person interested in Removal by
2 the estate, after notice and a hearing, finds that an assignee has fraudu- compiamT
3 lently received, concealed, embezzled or conveyed away any of the money (f*t m,' I h'.
2310
COURTS OF INSOLVENCY.
[CH-\P. 216.
P. S. 157, § 61.
R. L. 163, § 71.
12 Gray, 144.
or other property of the estate or has been interested in an action rela- 4
tive to said estate for the purpose of securing to himself a preference 5
or priority over the other creditors, or has in possession or control any 6
part of the estate with intent to appropriate the same unlawfully to his 7
own use, or has been guilty of a fraudulent act relative thereto it may 8
remove him. 9
of'removaf."''^ SECTION 72. The court may also remove an assignee who, having
1858: i4i! I?: removed from the commonwealth, unreasonably refuses or neglects to
p' I' 157' 1 62' obey a lawful order for calling meetings of the creditors, to settle his
R. L. 163, § 72. accounts, or otherwise to perform his duties; or for any other sufficient
cause.
Section 73. An assignee may with the consent of the court resign
Resignation
of assignee.
G^i' lis' 1 59 his trust and be discharged therefrom. p. s. 157, § ea. r. l. les, 1 73.
Filling of
vacancies.
1838, 163,
§§2.11.
1858, 141,
§§2,3.
G. S. 118, § 60.
P. S. 157. § 64.
R. L. 163, § 74.
Section 74. Vacancies caused by death or otherwise in the office of 1
assignee may be filled by the court or in its discretion by an election by 2
the creditors as provided in section forty-nine at a regular meeting or 3
at a meeting called therefor, after written notice thereof to all known 4
creditors by such person as the court orders. 9 Alien, 197, 199. 5
Effect of resig- SECTION 75. The resignation or removal of an assignee shall not 1
1858. i«.|3j release him from performing all things required of him for the proper 2
p.' s.' 157.' §65.' closing up of his trust and the transmission thereof to his successors, 3
' ' ' ' nor affect his liability or that of a surety on his bond. 4
Vesting of
estate upon
death, etc.
1838, 163, § 11.
1848, 304, § 12.
1851,349, I 2.
G. S. 118, § 62.
Section 76. If by death or otherwise the number of assignees is 1
reduced, the estate of the debtor not lawfully disposed of shall vest in 2
the remaining assignees, or the persons selected to fill vacancies, with the 3
same powers and duties relative thereto as if originally chosen. 4
p. S. 157, § 66. R. L. 163, § 76.
Former
assignee to
execute deeds,
etc.
1838, 163, § 11.
1851,349, I 2.
1858, 141, § 4.
G. S. 118, § 63.
P. S. 157, § 67.
R. L. 163, § 77.
Section 77. A former assignee, his executor or administrator, upon 1
request and at the expense of the estate, shall make and execute to the 2
new assignee all deeds, con^'eyances and assurances, and do all other 3
lawful acts, necessary to enable him to recover and receive all the estate; 4
and the court may pass orders to secure performance of the duties of a 5
former assignee, and the rights and interests of all persons interested in 6
the estate. 7
Preferred cred-
itors not to
vote for, etc.
1856, 284, § 34.
G. S. 118, § 64.
P. S. 157. § 08.
R. L. 163, § 78.
Section 78. No person who has received a preference contrary to 1
this chapter shall vote or be eligible as assignee; but no title to property, 2
sold, transferred or conveyed by an assignee shall be affected by reason 3
of his ineligibility. 4
Penalty for
neglect, etc.
Section 79. An assignee refusing or unreasonably neglecting to exe-
G.^1.' n 8,' 1 65.' cute an instrument when lawfully required by the court, or disobeying
E L Yos \ 79 ^ lawful order or decree of the court, may be committed to jail in the
county where found or where he resided when appointed, until he obeys
such order or decree.
Chap. 216.] coukts of insolvency. 2311
1 Section 80. If an assignee has died and it does not appear of record Appointment
1 1 • 1 11 1 1-1 upon death of
2 that his accounts iiave been settled or that the property or the estate has assignee with
3 been disposed of or distributed by him, and the court in which proceed- unsettled.
4 ings in insolvency were commenced, upon petition by a creditor or the r. l! lea! § so.
5 insolvent or a person claiming under either of them, after public notice
6 and a hearing, finds as alleged in such petition that there is property to
7 which the assignee would be entitled if living and which, if real estate,
8 does not appear of record to have been conveyed by him or his heirs,
9 representatives or devisees, it shall, unless cause is shown to the contrary,
10 although there may be no record of the proceedings in the case, appoint
11 an assignee who may be required to give bond in such form and with such
12 surety or sureties as it may order. Such property shall thereupon vest
13 in said assignee, shall be sold at public or private sale by him and the net
14 proceeds disposed of as hereinafter provided.
1 Section 81. The assignee shall give notice of his appointment in a Distribution.
2 daily newspaper published in Boston and in one published in the county §§ 2,'3. '
3 where appointed, once in each of five successive weeks, calling upon cred- ^' ^' ^®^' ^ *'•
4 itors to file their claims in said court within three months from a date
5 stated in the notice subsequent to the first publication thereof. The
6 court shall hear and decide all claims so filed within said period, subject
7 to appeal in like manner as other claims in insolvency, and all other claims
8 shall be barred. When the amount due on such claims finally allowed
9 has been ascertained or upon the expiration of said period without claim,
10 the assignee shall apply for a decree of distribution, which shall be made
11 after public notice, shall designate the claimants, to whom and in what
12 proportions the amount in his hands shall be paid, and shall bind all
13 parties. But this and the preceding section shall not divest any title
14 held by a bona fide purchaser claiming directly or indirectly under the
15 insolvent.
EXAMINATION OF DEBTOR.
1 Section 82. The debtor shall, if required by the court at any time Examination of
2 before the granting of his certificate, upon reasonable notice, attend and other pereons.
3 submit to an examination on oath before the court, by the assignee or by q ^|' j ff; | gg
4 a creditor, relative to his trade and dealings, his property and debts, and p^s'iiv'iro
5 all matters affecting the settlement of his estate; and upon cause shown R- l- io3.^§ 82.
6 by affidavit of any person interested in the estate, the court may summon * Cush. 443.
7 any person suspected of having fraudulently received, concealed, em- 2.50"^"^'
8 bezzled or conveyed away property of the debtor, or of having assets of ii^Afienflig.
9 the debtor in his hands, or having knowledge of anything material rela- \ll ^111'. ill'.
10 tive to the assets or dealings of the debtor, to appear and submit to an ^''^ ^^'^^^- ^^■
11 examination in like manner. If the person summoned fails after notice
12 to appear and submit to such examination, or to answer such interroga-
ns tories as are lawfully propounded to him, the court may commit him to
14 the jail of the county until he submits to the order of the court. The judge
15 may require such examinations to be in writing, signed by the person
16 examined, and filed in court.
1 Section 83. If the debtor is in jail on a proceeding for or on account Examination ot
2 of a debt or claim provable against his estate, at any time before the grant- prison.
3 ing of his certificate and if his attendance is required before the court or g*^I.'ii8,'§ w.
4 the assignee, or at a meeting of his creditors, the judge may, by a writ, r.l.'ibs.^ss.
2312
COTJHTS OF INSOLVENCY.
[Chap. 216.
require the jailer to produce the debtor for said purposes, at a time and 5
place specified therein. 6
Examination
of debtor if ill
or unable to
attend.
183S, 163, § 9.
G. S. 118. § 68.
P. S. 157. § 72.
R. L. 163, § 84.
Section 84. If the debtor, by reason of imprisonment, illness or 1
other sufficient cause, is unable to attend before the court or the assignee 2
or at a meeting of his creditors, the court or a person appointed by it and 3
the assignee, or a person appointed by him, shall conduct the examina- 4
tion of the debtor in jail or elsewhere, if within the commonwealth. 5
Examination of
debtor if out of
the common-
wealth.
1838, 163. § 9.
G. S. 118. § 69.
P. S. 157. § 73.
R. L. 163, § 85.
Section 85. If the debtor is without the commonwealth and unable 1
to return and personally attend at any of the times and for the purposes 2
specified in this chapter, and if the court finds such absence was not 3
caused by his wilful default, and as soon as may be after the removal of 4
such impediment he offers to attend and submit to an examination on 5
oath before the court and the assignee as herein provided and to do all 6
things required by this chapter for obtaining his certificate, he shall be 7
entitled thereto in like manner as if he had done the same things at the 8
times herein provided. 9
Debtor to do
all necessary
acts.
1838. 163, § 5.
G. S. 118, § 70.
P. S. 157, 5 74.
R. L. 163. § 86.
157 Mass. 468.
Section 86. The debtor shall, at the expense of the estate, make 1
and execute such deeds and writings and endorse such bills, notes and 2
other negotiable papers, draw such checks and orders for money deposited 3
in banks or elsewhere and do such other lawful acts as the assignee 4
reasonably requires and as are necessary or useful to confirm the assign- 5
ment, and enable the assignee to demand, recover and receive all property 6
so assigned, especially any part thereof without the commonwealth. 7
Failure to exe-
cute instru-
ments, etc.
1838. 163. § 23.
G. S. 118. § 71.
P. S. 157. § 75.
R. L. 163. § 87.
2 Met. 573.
157 Mass. 468.
Section 87. If the debtor refuses or unreasonably neglects to execute 1
an instrument lawfully required by the court or disobeys a lawful order 2
or decree, the court shall issue its Marrant to a civil officer, commanding 3
him to arrest and commit the debtor to the jail in the county where he 4
may be found, or where he dwelt at the time of his insolvency until he 5
obeys such order or decree. 6
Second
meeting.
Oath.
1838, 163. § 7.
1854, 329, § 3.
G. S. 118, § 72.
P. S. 157, § 76.
SECOND AND THIRD MEETINGS. OATH AND DISCH.'IRGE.
Section 88. The judge shall appoint a second meeting of the creditors,
to be held at a court not more than three months after the date of the
warrant. The debtor may then amend and correct his schedule of credi-
tors, and shall take and subscribe an oath before the court, which shall be
?i Cu3h?i64^^' certified by him and filed in the case, in substance as follows:
I, , do swear that the account of my creditor.? contained in the
schedule made and signed by me and now on file in court is in all respects just and
true, according to my best knowledge and belief. And I do further swear, that I
have delivered to , the messenger, all my estate, not exempt from
attachment, except such as has been necessarily expended for the support of my-
self and my family, and all my books of account and papers, relative to my said
estate, that were within my possession or power when the same were demanded
of me by the messenger; that I have delivered to my assignee such of my said
estate, books and papers as has since come to my possession; and that if any
other estate, books of account or papers, whicli shall or ought to be assigned and
delivered to the assignee, shall hereafter come to my knowledge or possession, I
wDl forthmth disclose or deliver them to him. And I do further swear that there
is not any part of my property made over or disposed of in any manner for the
future benefit of myself or my family, or in order to defraud my creditors.
Chap. 21G.] courts of insolvency. 2313
1 Section 89. If a debtor or assignee who is required to make oath oaths out
2 before the judge is unable by reason of illness or other cause to attend is62,"68. § i.
3 personally in court, the oath may be administered out of court by the r.l/i63,\89.
4 judge or by a person to whom a commission is issued therefor.
1 Section 90. If by reason of proceedings in the supreme judicial court prder of meet-
2 or for other cause, a failure to call or hold a second or third meeting 1854, 329"§ i.
3 within the time provided occurs, the court may, upon petition by an m- 1862, 179, 1 s.'
4 terested party, order such meeting held at a subsequent date. k.l. les, §90.
4 Cush, 529. 7 Gush. 341.
1 Section 91. Upon the death, resignation or neglect of the assignee, order of meet-
2 or his absence from the county, whereby a meeting to be notified by him IJJf orde/o?'^'^
3 is liable to be defeated, it may be notified by the register on order of the i8S4!'329, § 2.
4 judge upon petition by an interested party, with notice at the discretion psiIj'AU'
5 of the judge to the assignee if living. R. l. lea, § 91.
1 Section 92. The judge shall appoint a third meeting of the creditors Third meeting.
2 to be held within six months after the appointment of the assignee. If discharge' °
3 at such meeting or a meeting thereafter, the court finds that the debtor \lll[ J7I; 1 3;
4 has made a full disclosure and delivery of all his property as herein q*^- f °g; | fj
5 required, and that he has conformed to the laws relative to insolvent ^ |; ^^^^ 5.|°-
6 debtors, the judge shall grant him a certificate which shall state all fidu- 11 Cush. 355,
7 ciary debts exempt from discharge, and be in substance as follows: 7 Aiien, 112.
'' ■ •^ ■= ' 139 Mass. 84.
CoMMO>rWE.VLTH OF M.^SACHUSETTS.
, ss. Court of Insolvency.
To all people to whom these presents shall come, I, A. B., judge of the court of Form of cer-
insolvency for said county of , send greeting. discbarge.
Whereas it has been made to appear to me that C. D., of B., in said county
of , whose estate has been assigned for the benefit of his creditors
according to law, has made a full disclosure and delivery of all his estate, and that
he has conformed to the provisions of law in that behalf made and provided, I do
certify that said C. D. is absolutely and wholly discharged from all his debts
which have been or shall be proved against his estate assigned as aforesaid, and
from all debts provable against his estate, and which are founded on any contract
made by him within this commonwealth or to be performed within the same, and
from all debts which are provable aa aforesaid, and which are founded on any
contract made by him, and due to any persons who were resident within this
commonwealth on the day of last, being the day (of
the first publication of the notice of the warrant issued for the seizure of the
estate of said C. D. — or in inrohmtary proceedings ■ — of the first publication
of the notice of the filing of the petition against said C. D.) ; and from all claims
against him for or on account of any goods or chattels ■wTongfully obtained, taken
or withheld by him, according to the provisions of chapter two hundred and six-
teen of the General Laws. And I do further certify that said C. D. is by force
of said chapter forever discharged and exempted from arrest or imprisonment in
an action or upon any proceeding, for or on account of any debt or demand which .
might have been proved against his estate assigned as aforesaid.
Given under my hand and the seal of said court tliis day of
in the year
1 SECTif)N 93. The debtor shall thereupon, except as provided in sec- Effect of
2 tions ninety-six and ninety-seven, be discharged from debts proved how pWded.
3 against his estate and from all debts provable under this chapter and g.'^I; nl,' 1 76.
4 founded on any contract made by him while an inhabitant of the com- p^'g'i^^'/si
5 monwealth, if made within the commonwealth, to be performed tlierein k. l. 163, § 93.
2314
COURTS OF IXSOL\-EXCY.
[Chap. 216.
4 Met. 302.
8 Met. 129.
10 Met. 332.
1 Cush. 430.
2 Cush. 33.
6 Cush. 225.
7 Cush. 592.
8 Cush. 375.
10 Cush. 523.
11 Cush. 29,
355.
11 Gray, 400.
13 Gray, 203.
1 AUen, 456,
512.
5 Allen, 10.
8 Allen, 314.
9 Allen, 27.
or due to any person resident therein at the time of the first publication 6
of the notice of the issuing of the warrant in voluntary proceedings or of 7
the first publication of the notice of the filing of the petition in involun- 8
tary proceedings, and from all demands for or on account of any property 9
wrongfully obtained, taken or withheld by him, as provided in section 10
thirty-one, while such inhabitant. Such discharge may be pleaded by a 11
simple averment that on the day of its date it was granted to the debtor, 12
setting forth a copy thereof, as a full and complete bar to all actions 13
brought on such debts or claims. The certificate shall be conclusive evi- 14
dence of the fact and regularity of such discharge. 15
100 Mass. 87.
103 Mass. 21.
106 Mass. 563.
Ill Mass. 77.
130 Mass. 236, 503.
132 Mass. 186, 466.
133 Mass. 557.
134 Mass. 488.
150 Mass. 353.
151 Mass. 589.
156 Mass. 515.
165 Mass. 76.
166 Mass. 577.
168 Mass. 28.
172 Mass. 154.
173 Mass. 258.
177 Mass. 224.
1 WaU. 223.
Discharge
from imprison-
ment.
1838. 163, § 9.
G. S. lis, § 77.
P. S. 157, § 82.
R. L. 163, § 94.
Section 94. If the debtor at the time of obtaining his certificate is 1
in jail on a proceeding for or on account of a claim provable against his 2
estate, he shall be discharged therefrom, upon producing to the jailer his 3
certificate granted under this chapter. iso Mass. 4ii. 4
Discharge
from arrest
and property
exempt from
attacmnent,
etc.
1838. 163, § 7.
1850. 97.
G. S. 118, § 78.
P. S. 157, § S3.
R. L. 163, I 95.
7 Met. 257.
8 Met. 102.
12 Allen. 365.
136 Mass. 73.
139 Mass. 112.
150 Mass. 411.
152 Mass. 64.
164 Mass. 155.
166 Mass. 126,
128.
170 Mass. 405.
Section 95. The debtor shall also be forever thereafter discharged 1
and exempt from arrest or imprisonment in any proceeding for or on 2
account of a debt or demand provable against his estate. And the prop- 3
erty of the debtor acquired by him subsequently to the first publication 4
of the notice of the issuing of the warrant in voluntary proceedings or to 5
the first publication of the notice of the filing of the petition in involun- 6
tary proceedings shall not be subject to attachment by trustee process 7
or otherwise in any action to recover a debt which may have been so 8
provable and due to any person not resident in the commonwealth at 9
the time of such first publication, or founded on a contract existing at 10
the time of said first publication and made or to be performed out of the 11
commonwealth. 172 Mass. sio. 12
Debts not
discharged.
1844, 178, § 3.
1848, 3(M, § 10.
G. S. 118, § 79.
1879, 245, § 5.
1881,257, § 2.
P. S. 157. 5 84.
1885, 353, § 6.
R. L. 163, 5 96.
1915, 23.
10 Cush. 43.
9 Gray, 211.
15 Gray, 647.
1 Allen, 219,
456.
5 Allen, 210.
7 Allen, 264.
9 Allen, 106.
12 Allen, 366.
100 Mass. 498.
132 Mass. 283.
Section 96. No debt created by the debtor's defalcation as a public 1
officer, executor, administrator, guardian, conservator, receiver, trustee 2
or assignee of an insolvent estate, or by his fraud or embezzlement, or 3
claim for goods attached on mesne process or taken on execution by the 4
debtor as an officer or for misfeasance in office, or debt or claim against 5
a pledgee created by his sale of collateral securities in a manner not au- 6
thorized by his contract with the pledgor or by sections eight and nine 7
of chapter two hundred and fifty-five shall be discharged under this 8
chapter, but the dividend declared thereon shall be payment of so much 9
of said debt or claim. A claim for necessaries furnished to the debtor 10
or his family shall not be so discharged unless the claim has been proved 11
against his estate. 12
158 Mass. 250. 171 Mass. 111. 176 Mass. 460.
daim^omUted Section 97. A Creditor having a claim against an insolvent debtor
1897. 4*7.'*"'*' ""'hich was omitted from the schedule of creditors as filed by said debtor,
R. L. 163, § 97. and who has not proved his claim, may, subject to the preceding section,
recover from the debtor in an action at law, notwithstanding a discharge
in insolvency, the same amount that the other creditors received who
proved their claims.
Ch.\P. 216.] COURTS OF INSOLVENCY. 2315
1 Section 98. A discharge shall not release a person liable for the Persons
2 same debt as a partner, joint contractor, endorser, surety or otherwise n°ot released!
3 for or with the debtor.
1838. 163, § 7. P. S. 157. § 85. 1 Grav, 623. 168 Mass. 102.
G. S. 118. § 80. R. L. 163, | 98. 10 Gray, 333. 170 Mass. 179.
1 Section 99. A discharge shall not be granted to a debtor whose Discharge
2 assets do not pay fifty per cent of the claims proved against his estate, cr^eduor"' °^
3 unless the written assent of a majority in number and value of his credi- \lll[ Jyl; | J;
4 tors who ha\'e proved their claims has been filed within six months after Q*g' f^' | |j
5 the date of the assignment. P. s. 157, § 86.
R. L. 163. § 99. 3 Gray. 252. 5 Allen. 10.
8 Cueh. 104. 9 Gray, 364. 11 Allen, 566.
1 Section 100. A discharge shall not be granted to a debtor a second ?pon''8ub1e-
2 time insolvent whose assets do not pay fifty per cent of the claims proved ''"™'' ""^'^
r t/ t/ r tr vencv.
3 against his estate, unless the written assent of three fourths in value of 1|¥' J'^*'
4 his creditors who have proved their claims has been filed within six is56. 257.
5 months after the date of the assignment. No discharge shall be granted to p. s.' 157,' § sf.'
6 a debtor a third time insolvent, unless he has paid all the debts owed f 106.^^^'
7 by him at the time of his previous insolvency or has been voluntarily re- fo"Gray,^327.
8 leased therefrom by his creditors. ise Mass. 224.
1 Section 101. A creditor may assent to the debtor's discharge under Assent of
2 the two preceding sections, although an appeal from the allowance of wUh'standfng
3 his claim is pending, and such assent shall be valid if the claim is finally issl.^Lgs.
4 allowed. G. S. IIS, § SS. p. S. 157, § 88. R. L. 163, § 101. 3 Gray. 252.
1 Section 102. In determining the requisite assent of creditors, no Preferred cred-
2 preferred claim which is paid in full, and, if not paid in full, no part vote.°°
3 thereof which is paid, shall be regardetl.
1881, 257, § 1. P. S. 157, § 89. R. L. 163, | 102.
1 Section 103. If a discharge has been refused a debtor for the sole Discharge of
2 reason that the assent of the requisite majority of his creditors has not by accident!*^
3 been seasonably obtained or filed, or for the reason that he has not taken olTh.'" '"'"'
4 the oath required by section eighty-eight, the judge, upon petition by }^^^- Jfg- j g^
5 the debtor within two years after the date of the assignment and with ^^°'l^^'h*Q
6 the written assent of a majority, or, in case of his second insolvency, of R l i63,
7 three fourths in number and value of the creditors who have proved i6s Mass. 232.
8 their claims, may, if the debtor takes the oath and obeys all lawful orders
9 of the court, grant his discharge, if after notice and hearing, he finds
10 that the failure to obtain or file the assent was caused by accident or
11 mistake or other sufficient cause and by no fault of his own, or that
12 the omission to take the oath was owing to his inability by reason of
13 illness, accident or mistake to attend and take such oath.
1 Section 104. The debtor or the assignee may, within ten days after Appeal on
2 the decision of the judge upon the question of granting the certificate drscha^ge"
3 of discharge to a debtor, upon notice to the register to be entered with }|||; ^^\ | \\,
4 the record of proceedings, appeal from such decision to the superior court, p- 1- \lf^ | |f;
5 The appeal shall be entered at the return day next after the expiration of J**^' 3^*' ^ ^■
6 fourteen days from the time of claiming it. If the appellant in WTiting § lo*-
7 waives his appeal before the entry thereof, proceedings may be had in 7.\rien,'ii2.'
8 the court of insolvency as if no appeal had been taken. 177 mms! bsa.
2316
COURTS OF INSOLVENCY.
[Chap. 216.
Proceedings.
1838, 163. § 8.
G. S. 118, § 86.
1864. 254.
P. S. 157, § 92.
R. L. 163,
§ 105.
Section 105. The superior court shall, upon -nritten demand filed 1
with the clerk by the debtor, the assignee or a creditor, frame issues of 2
fact for jury trial, which shall be tried as nearly as may be as an action -3
at law; otherwise the appeal shall be heard and determined by the court. 4
The assignee or a creditor may appear and object to the allowance of the 5
certificate. If upon hearing the court finds that the debtor has made a 6
full disclosure and delivery of all his estate as herein required, and that 7
he has conformed to this chapter, it shall cause a certificate thereof sub- 8
stantially as provided in section ninety-two to be made under its seal, 9
signed by the clerk and delivered to the debtor. 10
Forfeiture of
discharge by
fraud of
creditor.
1838, 163, § 10.
1841, 124, § 3.
1844. ITS, § 8.
1848. 304, § 9.
1856, 284, § 31.
1858, 54.
G. S. 118. §87.
1881, 235, 5 2.
P. S. 157, § 93.
1886. 322.
1898, 465.
R. L. 163,
§ 106.
8 Met. 490.
13 Met. 62.
8 Gush. 103,
377.
12 Gush. 596.
6 Gray, 327.
3 Allen. 583.
5 Allen. 124.
6 Allen, 327.
11 Allen, 555.
13 Allen, 182.
1?8 Mass. 120.
132 Mass. 233.
136 Mass. 38.
340.
166 Mass. 379.
MATTERS AVOIDING DISCHARGE.
Section 106. A discharge shall not be granted or be valid, if the 1
debtor has wilfully sworn falsely to a material fact in the proceedings, 2
or if he has fraudulently concealed any part of his property or any books 3
or writings relative thereto; or has made a fraudulent payment, gift, 4
transfer, con\'eyance or assignment of any part of his property, or spent 5
any part thereof in gaming; or if, within six months before the filing of 6
the petition by or against him, he has obtained on credit from a person 7
any property or other thing of value, with intent not to pay therefor; 8
or has procured his property to be attached, sequestered or seized on 9
execution; or has destroyed, altered, mutilated or falsified any of his 10
books, documents, papers, writings or securities or has made or been 11
privy to the making of any false or fraudulent entry in a book of account 12
or other document with intent to defraud his creditors; or with intent 13
to defraud his creditors has expended, invested or used any part of his 14
property in the erection, alteration, repair or location of a building, 15
portion of a building, structure or other object, on land owned or leased 16
wholly or in part by another so that it cannot be lawfully removed; or 17
has removed himself or removed or caused to be removed any part of his 18
property from the commonwealth with intent to defraud his creditors; 19
or if, having knowledge that a person has proved a false claim against 20
his estate, he has not disclosed the same to his assignee within one month 21
after such knowledge; or, except as provided in the following section, 22
if, being a merchant or tradesman, he has not kept proper books of 23
account. A discharge shall be void if the debtor or a person in his behalf 24
has procured the assent of a creditor thereto by a pecuniary consideration. 25
b'ooS"fi^'"'° Section 107. If the sole reason for not granting a discharge to a
1894,' 4'96! *"''''■ debtor is that he has not kept proper books of account and if no fraud
?'io7''*^' ^^ proved and the debtor has never been discharged in insolvency, the
judge may after the expiration of six months from the date of the assign-
ment grant his discharge if the total amount of the claims pro\'ed do not
exceed five thousand dollars and two thirds in number and a majority in
value of the creditors who have proved their claims assent thereto in
writing.
Discharge
avoided by
fraudulent
preference.
1838, 163. § 10.
1841, 124, § 3.
1856, 284, I 25.
G. S. 118, §88.
P. S. 157, § 94.
R. L. 163,
§ lOS.
Section 108. If a person, in contemplation of becoming insolvent 1
and of obtaining a discharge in insolvency, makes a payment, pledge, 2
assignment, transfer or conveyance of any part of his property, directly 3
or indirectly, absolutely or conditionally, in order to prefer a creditor or 4
person having a claim against him, or who is or may be under any liability 5
for him, or in order to prevent the property from cOming to his assignee 6
Cblyp. 216.] COURTS OF ixsol\t:ncy. 2317
7 in insolvency, or from being distributed under the laws relative to insol- f^'e'n^iog'^'^'
8 vency, he shall not be entitled to a discharge, and a discharge, if received
9 by him, shall be void.
1 Section 109. A creditor whose debt was proved or provable against Discharge, how
2 an estate may, within two years after the date of a certificate of dis- i879, 245; § 4.
3 charge, apply by petition to the court granting it to annul the same, on r'. l. les,
4 the ground that it was fraudulently obtained, specifying all acts men- i73°Mass. 431.
5 tioned in section one hundred and six relied on in avoidance, and no
6 evidence shall be admitted as to any other of such acts; but the petition
7 may be amended in the discretion of the court. If after notice to the
8 debtor and a hearing the fraudulent acts charged or any of them are
9 proved and the court finds that the creditor had no knowledge thereof
10 until after the granting of the discharge, it shall be annulled; otherwise
11 it shall not be affected thereby.
PREFERENCES.
1 Section 110, If a person who is insolvent or in contemplation of Fraudulent
rk- 1 •!• • ii(» 1 ni- PI *•» pavments.
2 insolvency, withm six months before the nling of the petition by or isss, les, § 10.
3 against him, in order to prefer a creditor or person having a claim against isso! 234',
4 him or who is under any liability for him, procures any part of his property g i^'iisi § S9.
5 to be attached, sequestered or seized on execution, or makes a payment, r.l,\^63,^ ^^'
6 pledge, assignment, transfer or other conveyance of any part of his prop- | J}°j ggg
7 erty, either directly or indirectly, absolutely or conditionally, the person Lo'*"' ^^^'
8 receiving such payment, pledge, assignment, transfer or conveyance, or si^iet. 496.
9 to be benefited thereby, having reasonable cause to believe such person 469.
10 is insolvent or in contemplation of insolvency and that such payment, 434.
11 pledge, assignment, or conveyance is made in fraud of the laws relative acush: let'.
12 to insolvency, it shall be void; and the assignees may recover the property iJ^cush'545.
13 or its value from the person so receiving it or so to be benefited. 594"^*^' ^^^'
4Grav, 111. 10 Allen, 491. 136 Mass. 237. 161 Mass. 274.
6 Grav. 100. 11 Allen, 97. 13S Mass. 18. 164 Mass. 182.
11 Gray, 190. 14 Allen, 32. 142 Mass. 17. 166 Mass. 323.
13 Grav. 18. 97 Mass. 342, 434. 144 Mass. 188. 168 Mass. 401.
15 Gray. 358. 99 Mass. 535. 148 Mass. 69, 507. 169 Mass. 291.
1 Allen. 109. 102 Mass. 475. 151 Mass. 64, 142. 171 Mass. 74, 341.
2 .Mien. 18, 448. 128 Mass. 120. 152 Mass. 249. 177 Mass. 257.
3 Allen, 32. 131 Mass. 604, 589. 153 Mass. 242, 502. 189 Mass. 301.
5 Allen. 142. 133 Mass. 198. 156 Mass. 114. 204 Mass. 270.
6 Allen, 567. 135 Mass. 299. 159 Mass. 363. 164 U. S. 347.
9 Allen, 492.
1 Section 111. If a person who is insolvent or in contemplation of ^'jeg'^etc"'
2 insolvency, within six months before the filing of the petition by or isse,' 284, § 27.
3 against him, except as provided in section thirty-eight, makes a sale, p.'s.'i57,'§9s.'
4 assignment, transfer or other conveyance of any part of his property to s Met. 62.
5 a person having reasonable cause to believe him insolvent or in con- 2\iien*'2o*'
6 templation of insolvency, and that such sale, assignment, transfer or | ^j}™; ll\
7 other conveyance is made to prevent the property from coming to his lo'^l^nen^'lgi
8 assignee in insolvency, or to prevent it from being distributed under the " Alien! 97.^
9 laws relative to insolvency, or to defeat the object of, or to impair, hinder, is2.
10 impede or delay the operation and effect of, or to evade, any of said pro- 99 Mass! 53'5,"
11 visions, the sale, assignment, transfer or other conveyance shall be void, 131 Mass. 5S9.
1 2 and the assignee may recover the property or its value as assets of the es- \ll HHl] 29°:
13 tate. If such sale, assignment, transfer or conveyance is not made in the \l^ ^[m- |gg-
14: usual and ordinary course of business of the debtor, that fact shall be ^'? .j 09
15 prima facie evidence of such cause of belief. 147 Mass. 3S8, 510.
148 Mass. 48, 507. 153 Mass. 242. ,502. 171 Mass. 341.
150 Mass. 343. 159 Mass. 271. 363, 498. 164 U. S. 347.
2318
COTJETS OF INSOLATNCT.
[Ch.\p. 216.
of'"'recedi°n° SECTION 112. The SIX preceding sections shall not apply to a pajTnent
s"t'o°| of money or transfer of property in pajinent, not exceeding twenty-five
G. s.' 118.' § 90.' dollars in amount, upon a debt contracted for necessaries furnished the 3
p. S. 157, §97, ^
r'. l'. 163,' § 112. debtor or his family.
1
2
Allowance
to debtor.
1838. 163,
§§ 6,8.
G. S. 118, § 92.
P. S. 157. § 99.
1888, 67.
R. L. 163,
§ 113.
8 Cush. 109.
160 Mass. 232.
ALLOWANCE AND SLTIPLUS.
Section 113. The debtor shall receive from the assignee one dollar 1
a day for his attendance upon the court or the assignee if required under 2
section eighty-two. He shall also be allowed out of his estate, for the 3
necessary support of himself and family, such amount not exceeding the 4
rate of three dollars a week for each member of his family, and for such 5
time not exceeding two months, as the court orders. A debtor who is 6
discharged shall be allowed five per cent on the net proceeds of all his 7
estate received by the assignee, if such net proceeds after such allowance 8
is sufficient to pay the creditors entitled to a dividend the amount of 9
fifty per cent on their debts; but the allowance shall not exceed in all 10
five hundred dollars. In case of the absence of the debtor or his failure 11
to apply for either of said allowances the judge may allow the same 12
amount to his wife or any minor child or children of the debtor, 13
prid''in°case''°" SECTION 1 14. If an allowance to the debtor on the net proceeds of his
J83''g''^i63 5 5 estate becomes due and is not paid to him in his lifetime, it shall be paid
p'l'isf'li^o^d ^^ '^'^ executor or administrator, and be disposed of in like manner as
R. L. 163', § 114. other property of which he may be possessed at his decease.
Section 115. If after the pajTuent of all debts proved a surplus
Surplus to be
returned to
is38?i63. § 13. remains in the hands of the assignee, it shall be paid or reconveyed to or
G. s. 118, § 94. revest in the debtor or his legal representatives. P. s. 157, § 101.
R. L. 163, § lis. 6 Met, 203. 125 Mass. 469. 137 Mass. 397.
Accounts.
1838, 163, § 12.
G. S. 118, § 95.
1862, 179, § 6.
P. S. 157,
I 102.
1884, 126.
R. L. 163,
§ 116.
10 Gush. 173,
498
6 Gray, 364.
14 Gray, 154.
accounts and dividends.
Section 116. At the third meeting the assignee shall exhibit under 1
oath to the court and creditors present fair and just accounts of all his 2
receipts and payments relative to the estate, and may be examined rela- 3
tive thereto by the court. If there are two or more joint assignees their 4
accounts may be allowed on the oath of one of them. The notice of the 5
third and all subsequent meetings of creditors shall contain a statement 6
that the accounts of the assignee will be presented, and that creditors 7
may appear and object to the allowance thereof. Special notice of the 8
presentation of accounts may be ordered at other times by the court 9
to be given in such manner as it orders. In all cases the judge shall pass 10
upon the reasonableness of the accounts of assignees, although no creditor 11
objects. 12
Di\'idend.
1838, 163, § 12.
G.S. US, § 95.
1879, 245, § 6.
P. S. 157,
§ 103.
R. L. 163.
§ 117.
8 Allen, 318.
Section 117. The judge shall at said third meeting order a dividend
of the property, or a part thereof, among the creditors who have pro\ed
their claims, in proportion to their respective debts; but, at any time
after the assignment, upon request of the assignee or a creditor, and upon
notice to the creditors and assignee, the judge may order the payment,
in whole or in part, of claims entitled to priority or preference under this
chapter.
Cel^p. 216.]
COURTS OF INSOLVENCY.
2319
1 Section 118. In the order for a dividend under the preceding section, Preferred
2 the following claims shall be first paid in full in the following order: isas^^s,
3 First, The twenty-five dollars or expense of publication as provided iL'^lt. § e.
4 in section one hundred and seventy paid by a creditor and the legal fees, }|f^; |^f ; ^ 24.
5 paid by him, of an officer for the service of the order of notice to the q*|'ii|
6 debtor upon the original petition and for the service of a writ of injunc- §§25. ge!
7 tion issued to restrain the transfer or disposition of any part of the iss. §11.'
8 debtor's property, not exempt from attachment, and from any interfer- p. s.'is?,
9 ence therewith. 1895. sm. §§ e-s. r. l. i63, § iis. 215 Mass. ise. ^^ ^°*' ^^^'
10 Second, The legal fees of the messenger.
11 Third, Debts due to the United States, and debts due to and taxes issMass. 99.
12 assessed by the commonwealth, or a county, city or town therein.
13 Fourth, Wages to an amount not exceeding one hundred dollars, due 2 Cush. 371.
14 to a clerk, servant or operative for labor performed within one year last
15 preceding the first publication of the notice, or for labor for the recovery
16 of payment for which an action commenced within one year after the
17 performance thereof is pending, or has terminated within one year from
18 said first publication.
19 Fifth, Debts due to physicians for medical attendance on the debtor
20 or his family, rendered within six months prior to the institution of pro-
21 ceedings in insolvency, to an amount not exceeding fifty dollars.
22 SLxth, Debts due to persons who by the laws of the United States or of
23 this commonwealth are or may be entitled to a priority or preference in
24 like manner as if this chapter had not been enacted.
25 Seventh, Other legal fees, costs and expenses of suit, and for the cus- 13 Gray, 307.
26 tody of the property proved as preferred under section one hundred and 152 Masai sqb!
27 seventy-four.
1 Section 119. Upon petition by a creditor upon whose petition a Allowance to
2 warrant has issued against a debtor and after notice to such debtor and ^r'edVtOT'for
3 his assignee, if any, the court may allow as a preferred claim against the et""^"' ^^^^'
4 estate such amount as said creditor has actually paid for his expenses and ^^l' }J|-
5 for counsel fees incurred for services rendered upon such petition and 5 iw.
6 in the legal proceedings connected therewith prior to the issuing of the
7 warrant. Such petition shall be verified by the oath of the creditor and
8 of the counsel to whom such money was paid.
1 Section 120. The estate shall be liable for wages due to an operative wages due to
2 from another operative who has contracted or agreed to do certain fnmTnopeT&-
3 specified work for the debtor, to the amount of one hundred dollars, for under contract.
4 labor actually performed on such work within one year last preceding p^s*'!!'?*'! los.
5 the first publication of the notice, and in the division of the estate such fjJb,^'''''
6 wages shall have the priority given to wages due to operatives under
7 section one hundred and eighteen; but all payments under this section
8 shall be charged to the account of the operative who, as principal has con-
9 tracted or agreed to do the work, and such payments, and the liability
10 herein imposed, shall not exceed the amount due such principal operative
11 for such work performed within the time hereinbefore mentioned. This
12 section shall not apply to cases within the provisions of sections ninety-
13 six to one hundred, inclusive, of chapter one hundred and fifty-nine.
1 Section 121. If at the time of ordering the dividend it appears Reservation
2 probable that there are just claims against the estate which for sufficient creiStor".'
2320
COURTS OF INSOLVENCY.
[Chap. 216.
1838, 163. § 12 reason have not been proved, the judge in ordering the dividend shall 3
p.'s.i57.'§ 106. leave in the hands of the assignee an amount sufficient to pay every such 4
§ 121. ' absent creditor a proportion ecjual to that which shall be then paid to the 5
other creditors. Such amount shall remain thus unappropriated in the 6
hands of the assignee until the final dividend is declared, or until the 7
judge orders its distribution. 8
Unclaimed
dividends.
1883, 242.
1897, 303, § 1.
R. L. 163,
§ 122.
Section 122. If a dividend^ which the judge has declared or which has
become payable to a creditor who has proved his claim under a com-
position confirmed by the court remains for six months unclaimed, the
assignee, or, in a case of composition, the register, may deposit it in a
savings bank or other like institution or invest it in bank stock or other
stocks, as the court may order, to accumulate for the benefit of the per-
son entitled thereto. Such deposit or investment shall be made in the
name of the judge and shall be subject to his order and that of his sue- 8
cessors in office as hereinafter provided. The person making such de- 9
posit or investment shall file in court a memorandum thereof, with the 10
original certificate or other evidence of title thereto, which shall be al- 11
lowed as a voucher for such payment. When the person entitled to the 12
money deposited has satisfied the judge of his right to receive the same, 13
he shall cause it to be transferred and paid over to him. 14
Unclaimed
deposits.
1897, 303, §
R. L. 163,
§ 123.
1908, 168.
Section 123. If money deposited with a register to secure the pay- 1
ment of fees or to carry out a composition confirmed by the court remains 2
unclaimed for one year after the depositor or other person is entitled to 3
receive it, the register may, under the direction of the judge, deposit it 4
in a savings bank or invest it in the manner and subject to the preceding 5
section. 6
All moneys deposited with the registers of the courts of insolvency to 7
secure the payment of fees, and in composition, remaining unpaid to the 8
persons entitled thereto, or to their attorneys, for more than ten years 9
after the date of deposit, may be paid over to the state treasurer. The 10
courts of insolvency shall have full power to regulate such payments and 11
to decree what sums shall be paid and the time of payments thereof. The 12
treasurer shall give his receipt therefor, which shall be in full discharge 13
of the register for the same. 14
Any person asserting a right to money deposited with the state treas- 15
urer hereunder, may establish the same by petition to the court of insol- 16
vency having jurisdiction over the original case, and the treasurer shall 17
pay such money in accordance with the decree of said court. Such sums 18
as are not so paid within three years after the time of their receipt as 19
aforesaid by the state treasurer shall escheat to the commonwealth. 20
dfridlnd. Section 124. The assignee shall, at such time as the judge orders
accourfts^ withiu eighteen months after his appointment, declare a second dividend,
cf^l'nl'lgs' ^^ ^'^® property was not wholly distributed upon the first dividend, and
p.' s.' 157.' §107. shall give notice of a meeting of all the creditors of the debtor therefor.
§ 124. ' At such meeting the accounts of the assignee shall be produced and ex-
amined as provided in section one hundred and sixteen and settled by
the court; and any balance in the hands of the assignee shall, by order
of the judge be divided among all the creditors who have proved their
debts, in proportion thereto.
CbL^P. 216.] COURTS OF INSOLVENCY. 2321
1 Section 125. If at anv time before the final dividend anv outstand- saie etc, of
_ . , , , • , 11- , V • 1 outstanding
2 ing debts or other property due or belonging to the estate which cannot jg3o''',|\"-, ,~
3 in the opinion of the court be collected and received bv the assignee with- g. s.'ii8,'§ 99."
4 out unreasonable or inconvenient delay, remain in the hands of the as- r'. l. les,
5 signee he may under the direction of the court sell and assign such debts ^^^'
6 or other property in such manner as the court orders.
1 Section 126. An action upon a claim sold by an assignee shall be Actions on
2 brought in the name of the purchaser. The fact of sale and of purchase assignees. ^
.3 by the plaintiff shall be set forth in the writ, and the defendant may fs'lg^'igi.
4 avail himself of any matter of defence of which he could have availed p| Jlf'fJog'
5 himself in an action upon the claim by the assignee. Costs in such ac- ^-^^ i^s.
6 tions shall be recovered by or against the plaintiff, and the assignee shall 1 Alien, 213.
7 not be liable therefor. 3 Alien, 99. 132 Mass. SSS. 163 Mass. 70.
1 Section 127. The second dividend shall be final; but if an action Further
2 relative to the estate is then pending or part of the estate is outstanding iss's.Tel,' § 13.
3 or other property of the debtor afterward comes to the hands of the as- p; 1; \l~] | }?o;
4 signee, another dividend shall be made by order of the judge. Further ?i27^'^'^'
5 dividends shall be made in like manner as often as occasion recjuires.
1 Section 128. No creditor whose debt is proved at the time of the Former divi-
2 second or any subsequent dividend shall disturb a prior dividend, but be'disturbed.
3 he shall be paid so far only as the funds remaining unappropriated in the G^tni.'iioi.
4 hands of the assignee are sufficient therefor.
p. S. 157, § 111. R. L. 163, § 128.
petition by creditors.
1 Section 129. If a person arrested on mesne process in a civil action Petition by
2 for the amount of one hundred dollars or more founded upon a claim isis, i63, § 19.
3 provable against the estate of an insolvent debtor, has not given bail Hf ta^'^*' " ^'
4 therein on or before the return day of such process, or has been actually HH' ||^' ^ ^•
5 imprisoned thereon for more than thirtv davs; or if a person whose prop- |,§ 2*',??« ,n,
/,!! 11 "''■I'i'il Cj. b. 118, § 103.
D erty has been attached on mesne process in such action founded upon is79. 245, § 7.
7 such contract has not before the return day of such process dissolved 188U233!
8 the attachment as provided by law; or if a person has removed himself 1890,431.
9 or any part of his property from the commonwealth, with intent to defraud }|gj; 201'. ^ ^'
10 his creditors; or has concealed himself to avoid arrest, or any part of his k''^' jbI'
11 property to prevent its being attached or taken on a legal process; or |i29^ ^.^
12 procured his arrest or his property to be attached or taken on legal o Met. 292!
13 process; or made a fraudulent payment, conveyance or transfer of any 4Cush!i2i!
14 part of his property; or, being a banker, broker, merchant, trader, fcirayissb.
1.5 manufacturer, contractor, builder or miner, has fraudulently stopped t Gray! 329!
16 payment, or has stopped or suspended and not resumed payment of his ^ g^J^' IJ"-
17 commercial paper within fourteen davs; any of his creditors whose claims l^.'^''''y',*^,'^-
10 11 • 1 • * 1 7 1 1 11 • 1 • *^ Allen, 118.
18 provable against his estate amount to one hundred dollars, may, within 128 Mass. 120.
19 ninety days thereafter, or, in the case of any such fraudulent conveyance ho MkL. 385'.
20 of land, within ninety days after it has been recorded, if the debtor has 103 Mass' m!
21 resided in the commonwealth within one year, file a petition under oath
22 in the court of insolvency for the county, if any, where the debtor has
23 last resided or had a usual place of business for three consecutive months
24 before the filing of said petition, otherwise in the court for the county
25 where he resides or last resided, or has or has had a usual place of business.
2322
COURTS OF INSOLVENCY.
[Ch.\p. 216.
stating the facts and the nature of their claims and praying that his 26
property may be seized and distributed according to this chapter. 27
pe'tit?on°Uc Section 130. The register shall cause notice of the filing of such 1
ilso' ^46' 1 1' petition to be published twice in not more than two newspapers, and 2
i88i! 235! § 3. shall forthwith make and file a certificate of the fact and date of publi- 3
R. L. 163, ' cation. The actual expense of such publication shall be paid from the 4
'^°' amount deposited by the creditor therefor as provided in section one 5
hundred and seventj-; but a hearing upon the petition may be had or a 6
warrant issued thereon prior to the completion of the publication of said 7
notice. The court may, after the commencement of proceedings by or 8
against the debtor and before the hearing upon the petition, by injunction 9
restrain the debtor and any other person from making, transferring or 10
disposing of any part of the debtor's property not exempt from attach- 11
ment, and from any interference therewith; and if probable cause appears 12
for believing that the debtor is about to conceal or remove from the 13
commonwealth his property or his evidence of property, or any part 14
thereof or to make a fraudulent conveyance or disposition thereof, the 15
judge may issue a warrant under his hand to the sheriff of the county or 16
one of his deputies, ordering him forthwith as messenger to take possession 17
of all the property of the debtor, not exempt from attachment, and safely 18
keep it imtil the further order of the court. 19
Proceedings SECTION 131. If, after notice of the petition to the debtor by a copy 1
i83"Ti53 5 19 thsi'so^ served upon him personally or left at his last and usual place of 2
G.s.'iis,'§io4. abode, and a hearing of the petitioner and debtor, or a default by the 3
R. L. 163, ■ debtor to appear in pursuance of said notice, the court finds the facts 4
6 liit. 518. stated in the petition to be true, the judge shall forthwith issue a warrant 5
i37"Mass"224. to take possession of the property of the debtor. The warrant shall be 6
directed, and the property of the debtor shall be thereupon taken and 7
distributed in like manner and with proceedings similar to those herein 8
pro\'ided in case of voluntary petitions. 9
stay of pro-
ceedings.
Section 132. If a person has committed an act of insolvency from
G^"'i\f,'Ho'5 which he should be equitably relieved, the court may upon petition by
i8|o. 2«', § 6.^' ]iini^ \vith or without notice to the petitioning creditor, stay proceedings
1894. 139. ' in insohency and if, upon a hearing, it finds that he is solvent or that the
fes'Mass.^vL' proceedings ought to be stayed it may dismiss the petition in insolvency.
PETITION BY creditors OF INSANE PERSON.
freditOTs'S Section 133. Any of the creditors of an insolvent insane person,
isso! mr°°' whose claims provable against his estate amount to one hundred dollars,
ilsV 233 n^'^y fil^ ^ petition under oath in the court of insolvency for the county,
p. s.'isT.'s 116. if any, where the debtor has last resided or had a usual place of business
il^l: 163'. ^' for tiiree consecutive months before the filing of said petition, otherwise
^ ^^^" in the court for the county where he resides, or has a usual place of busi-
ness, stating his insolvency and the nature of their claims, and praying
that his property may be seized and distributed according to this chapter.
If after public notice and the appointment of a guardian ad litem for such
insane person, and a hearing, the court finds that the interests of the 10
debtor and creditors so require, the judge may issue a warrant to take 1 1
possession of the property of the debtor and thereupon like proceedings 12
shall be had as in the settlement of estates of other insolvent debtors. 13
ClL\P. 216.] COURTS OF INSOLVENCY. 2323
1 Section 1.34. In such case, the schedules of creditors and of property Scheduieg.
2 required by this chapter shall be made and filed by the messenger, upon p^si'i'sV.'/uV.
3 his best information and belief. The debtor shall not be required to attend f isi/'^^'
4 at any meeting of creditors nor be subject to examination, unless ordered
5 by the court.
1 Section 1.35. Within six months after recovering from his insanity. Debtor, after
2 the debtor may petition the court for his discharge, and shall thereupon from insanity.
3 be required to deliver to his assignee for the benefit of his creditors any SisSiafl'J^ '"'^
4 property which was in his hands or possession or to which he was entitled p^f 'f5V^'§^u8.
5 at the time of filing the original petition, and which had not come into fiss^*"^'
6 the hands or possession of his assignee; shall make a full disclosure
7 thereof, and shall take and subscribe an oath that he has so done; shall
8 submit himself to examination thereon, and may within three months
9 after the filing of his petition file the written assent to his discharge of
10 a majority in number and ^•alue of his creditors who have proved their
11 claims, as provided in section ninety-nine. If the court finds, at a meet-
12 ing of the creditors called therefor, that he has made a full disclosure and
13 delivery of his property as herein required, that he has conformed to this
14 chapter so far as applicable and that his assets have paid fifty per cent of
15 the claims proved against his estate, or that the written assent to his
16 discharge of a majority in nmnber and value of his cre<litors who have
17 proved their claims has been file<l, the judge shall grant him a certificate,
18 which shall state all fiduciary debts exempt from discharge and shall be in
19 the form and ha^-e the effect provided by this chapter for discharges of
20 other insolvent debtors.
CONCEALMENT OF PROPERTY.
1 Section 136. A debtor who after notice of the filing of a petition by Concealment,
2 or against him secretes or conceals property belonging to his estate, or any prope° ty.
3 books, deeds, documents or writings relative thereto, or removes or causes cf.ll.'ns.'Hoi;.
4 to be remo^'ed the same or any part thereof out of the commonwealth, or ^- ^ ^J^ ^ ^^^•
5 otherwise disposes of any part thereof, in order to prevent it from coming IgQ^jj^^^g ^^g
6 to the possession of the messenger or assignee, or to hinder, impede or
7 delay either of tiiem in recovering or recei\ing the same, or who makes a
8 payment, gift, sale, assignment or other conveyance of property belong-
9 ing to his estate; or spends any part thereof in gaming, or otherwise except
10 such as may reasonably be expended for the support of himself and fam-
11 ily, not exceeding the amount allowable by law, shall be punished by im-
12 prisonment in the state prison for not more than five years, or in jail for
13 not more than t\\o years.
PARTNERSHIPS.
1 Section 137. Upon petition by one or more partners who are in- Petition by or
2 solvent to the court for the county, if any, where the partnership has last n^^sSfp.^'"^'"
3 had a usual place of business for three consecuti^'e months before the HHl HI] 1 1\\
4 filing of such petition, otherwise to the court for the county where it has ^If.'nkVius.
5 or last had a usual place of business, after notice to the other partners if p^l^'j^g'/g ,20
6 within the commonwealth, or upon petition by a creditor of the partners, isss. 405, § 4.
7 the judge may issue a warrant as provided in this chapter, upon which the R. l! les,
8 property of the firm and the separate estate of each of the partners, not i Met. 398,
9 exempt from attachment, shall be taken, and the creditors of the firm 2 cush. 175.
2324
COUKTS OF INSOLVENCT.
[Chap. 216.
4 Cush. 127.
5 Cush. 224.
11 Cush. 236.
and the separate creditors of each partner may prove their respective 10
debts. 11
3 Grav. 239, 539.
6 Gray, 329.
3 Allen. 554.
101 Mass. 300.
148 Mass. 269.
167 Mass. 123.
Choice of as-
signee. Joint
and separate
property.
1838, 163, § 21.
G.S. 118,
§ 109.
P. S. 157, § 121.
R. L. 163,
§ 138.
4 Cush. 99.
9 Cush. 553.
10 Cush. 45S,
592
4 Gray, 120.
5 Gray, 574.
10 Grav, 254,
2fi0, 263.
13 Gray, 114,
462.
5 Allen, 183.
148 Mass. 269.
160 Mass. 171.
163 Mass. 352.
165 Mass. 312.
166 Mass. 379.
177 Mass. 52.
Section 138. The assignee shall be chosen by the firm creditors and 1
shall keep separate accounts of the joint property of the firm, and of the 2
separate estate of each member thereof; and after deducting from the 3
whole amount received by him the total expenses and disbursements 4
paid, the net proceeds of such joint property shall be appropriated to 5
pay the firm creditors, and the net proceeds of the separate estate of each 6
partner shall be appropriated to pay his separate creditors. Any balance 7
of the separate estate of a partner after payment of his separate debts 8
shall be added to such joint property for the paj-ment of the firm cred- 9
itors. Any balance of such joint property after payment of the firm 10
debts shall be divided and appropriated to and among the separate estates 11
of the several partners according to their respective rights and interests 12
therein, and as it would have been had the partnership been dissolved 13
without insolvency ; and the amount so appropriated to the separate es- 14
tate of each partner shall be applied to the payment of his separate debts. 15
^innlfshi g Section 139. The two preceding sections shall apply to insolvent lim-
G^i'ni'ino ^*^*^ partnerships formed under chapter one hundred and nine or the
p.s.'i57,'§ 122! corresponding provisions of earlier laws; but the separate estates and
101 Mass. '300.' separate debts of the special partners shall not be subject to the pro-
ceedings against the partnership.
Separate allow- SECTION 140. Each partner shall be entitled to allowance as provided
p|rtner Jn this chaptcr for the maintenance of himself and family; and the auow-
G.s.'iis,' ' ance from the net proceeds of the estates as provided in section one
p. shbj. § 123. hundred and thirteen shall be computed on the firm estate and also on
f'Ho.'''^' each of the separate estates as if there had been a separate warrant
i63"Mass°295. against each; but none of the partners shall receive in all more than
five hundred dollars.
Certificate of
discharge to
each partner.
1838, 163, § 21.
G.S. 118,
§ 112.
P. S. 157, § 124.
Section 141. The certificate of discharge shall be granted or refused
to each partner as it would or ought to be if the proceedings had been
against him alone; otherwise the proceedings against partners shall be
the same as against an individual.
R. L. 163, § 141. 5 Cush. 613. 5 Gray, 574.
Proof of part-
nership debts
assumed by one
or more part-
ners, etc.
1865, 113,
§§ 1,2.
P. S. 157.
§1 125, 120.
R. L. 163,
I 142.
13 Gray, 114.
14 Grav, 534.
3 Allen, 579.
97 Mass. 256.
101 Mass. 482.
156 Mass. 375.
181 Mass. 492.
Section 142. If upon dissolution of a partnership, one or more of
the partners or a new partnership formed by the addition of new mem-
bers has agreed to pay any outstanding debts of such partnership, or if
a person or firm, in consideration of the receipt or transfer of property,
has agreed to pay any outstanding debts of the person from whom such
property was received or transferred, and the person agreeing to pay has
become insolvent, such debts may, if the creditors so elect, be proved
against the estate of such insolvent debtor or debtors, and the proof and
allowance thereof shall discharge the person originally liable therefor.
If the original debtor, in either of such cases has been compelled to
pay the debt so agreed to be paid, he may prove the amount so paid 11
as the original creditor might have done. 12
1
2
3
4
5
6
7
8
9
10
Ca.vp. 216.] COURTS of insolvency. 2325
CORPORATIONS.
1 Section 143. A domestic corporation or a foreign corporation men- Petition by
2 tioned in section three of chapter one hundred and eighty-one, except issl??!?""^'
3 raih-oad and banking corporations and foreign insurance companies, ^^ g \\f^-
4 may file a petition signed by an officer duly authorized by a vote of a P J'i57^*-
5 majority of the corporators present and voting at a legal meeting called §§ i2~. lijs.
6 therefor, in the court for the county wliere the corporation has its prin- R. h. les,
7 cipal place of business, stating its inability to pay its debts and its will- 13'Anen, los.
8 ingness to assign its property for the benefit of its creditors, and praying 205 Mass! 261.
9 that such proceedings may be had as are hereinafter provided. The
10 judge shall forthwith issue a warrant, as upon a petition by a debtor
11 under section twenty, requiring that the notice gi\-en by the messenger
12 shall state further that the making of any contract by the corporation is
13 forbidden by law. The proceedings thereon, except as hereinafter pro-
14 vided, shall be the same as upon the petition of a natural person, and in
15 the case of foreign corporations shall apply only to property of the cor-
16 poration within the commonwealth and the oath provided for in section
17 one hundred and forty-five shall be modified in accordance herewith.
1 Section 144. Claims on account of bills of exchange, endorsements, claims prov-
2 money due on bottomry or respondentia bonds or paid upon endorse- dwfd^nd"^" '*^'
3 ments or as surety may be pro\ed against an insolvent corporation be- g \1' ff|' ^ ^"
4 fore the making of the last dividend, in like manner as against the estate |, ^^jgy . jgg
5 of an insolvent debtor before the making of the first dividend. isso. 321, § 1.
R. L. 163, § 144. 152 Mass. 596.
1 Section 145. The schedules to be furnished shall be prepared and fj^^fig^lt-^
2 furnished by the treasurer or other financial officer of the corporation, ?J,?poi'^7'
3 with such assistance from the other officers as he may require; and the §§ 7.'8.
4 provisions of this chapter which apply to the debtor or set forth his § ne. '
5 duties relative to executing papers, submitting to examinations, dis- rsoo.Wi'.Vi^-"'
6 closing, making over, secreting, concealing, conveying, assigning or f 145.^'''*'
7 paying away his money or property, shall apply to each officer of the ws Mass. 82.
8 corporation relative to the same matters concerning the corporation
9 and the money and property thereof. Said officers shall at the second
10 meeting severally make and subscribe an oath in substance as follows:
I, , (president, etc., or treasurer, etc.,) do swear that I verily Oath.
believe the account of the creditors of the corporation, contained in the schedule
signed by A. B., and now on file in court, is in all respects just and true; that I
do verily believe that all the property and estate of said corporation, and all its
books of account and papers, have been deUvered to the messenger or the as-
signee; and that if any goods or estate not so delivered hereafter come to my
knowledge, I will faitlifully and diligently apprise the assignee thereof. And I do
further swear that, to the best and utmost of my knowledge, information and
behef, there is no part of the estate or effects of said corporation made over or
disposed of in any manner in fraud of the laws relative to insolvency or of the
creditors of said corporation.
1 Section 146. An assignee of a foreign corporation shall have like Powers and
2 rights and duties as an assignee of a domestic corporation relative to tssiKnee.
3 property within the commonwealth or which may be put into his posses- J^""; 1^3; ^ ^"
4 sion by said corporation. He shall as far as practicable so distribute ^ ^■"'•
5 the assets that all the creditors within or without the commonwealth
G shall receive proportionate dividends from the assets whether in the
2326
COURTS OF ES'SOLVENCT.
[Chap. 216.
control of the assignee or not. The claims entitled to priority under 7
this chapter shall have like priority in the case of such corporations. 8
pre/erred"^*^ SECTION 147. Claims against a corporation authorized to take land 1
185™ 327, § 19. or materials for damages for such taking shall be preferred claims, next 2
^119 "*' ^^^^^ debts due to the United States and to the commonwealth. 3
p. S. 157, § 133. R. L. 163, § 147.
Void pref-
erences.
1S51, 327, § 9.
G. S. 118,
§§ 120. 121.
P. S. 157.
§§ 134, 135.
Section 148. Sections one hundred and ten and one hundred and 1
eleven shall apply to corporations subject to this chapter, and an allow- 2
ance or discharge shall not be granted to a corporation, nor to a person 3
as officer or member thereof. 4
R. L. 163, § 148. 10 Gray, 243. 121 Mass. 399.
Petition by
creditors.
1851,327. § 17.
1856, 284, § 25.
G. S. 118,
§ 122.
P. S. 157, I 136.
1890,321, § 1.
1897, 124.
R. L. 163,
§ 149.
1919, 350,
§§ 52. 53.
163 Mass. 171,
252.
Section 149. If a corporation described in section one hundred and 1
forty-three whose property has been attached on mesne process in a civil 2
action founded on a contract for the amount of one hundred dollars or 3
more, provable under this chapter, has not within fourteen days from 4
the return day of the writ, dissolved the attachment as provided by law, 5
or if such corporation has removed any part of its property from the 6
commonwealth, with intent to defraud its creditors, or conceals any part 7
of its property to prevent its being attached or taken on legal process, 8
or has procured its property to be attached or taken on legal process, or 9
has made a fraudulent payment, conveyance or transfer of its property 10
or any part thereof, or has stopped or suspended and has not resumed 11
payment of its commercial paper within fourteen days, any of its creditors 12
whose claims provable against its estate amount to one hundred dollars 13
may, wdthin ninety days thereafter, file a petition on oath in the court for 14
the county where the corporation has its principal place of business, 15
stating the facts and the nature of their claims, and praying that its 16
property or, if a foreign corporation, its property in the commonwealth, 17
may be seized and distributed according to this chapter; and thereupon, IS
if after notice to a domestic corporation by serving on its president, 19
treasurer or clerk, or to a foreign corporation by serving upon the com- 20
missioner of corporations and taxation, thirty days at least before the 21
return day of the notice a copy of the petition, and a hearing or upon 22
default of the corporation to appear at the time and place appointed in 23
the notice, the court finds the facts stated in the petition to be true, the 24
judge shall forthwith issue a warrant to take possession of the property 25
of the corporation or, if a foreign corporation, of its property in the com- 26
monwealth; and thereupon like proceedings shall be had as upon a war- 27
rant issued upon the petition of a corporation. 28
Composition.
1884, 236, § 1.
1897, 247, § 1.
R. L. 163,
§ 150.
COMPOSITION.
Section 150. Instead of proceeding as required by the laws relative 1
to insolvency, an insolvent debtor or an insolvent domestic corporation 2
having capital stock may obtain a discharge from his or its debts as 3
hereinafter provided. 4
Mmp'Stira. Section 151. At any time after the filing of the petition by or against 1
R *l' 1631 ^ ^' t^^ debtor and the schedules required by law, he may file a written pro- 2
I ioi. ' posal for composition with his creditors, stating the amount of the pro- 3
posed dividend, which shall be payable only in money, the date when 4
Ch.'VP. 216.] COURTS OF INSOLVENCY. 2327
5 payable and the security to be given for such payments so far as deferred.
6 Such proposal shall not be considered unless it conforms to such recjuire-
7 ments, nor unless it provides for pajonent in full of all debts and charges
8 entitled to priority.
1 Section 152. If the allegations of the petition appear to be true or stayofpro-
2 if a warrant has been issued, the court, upon the filing of the proposal court?etc?^
3 for composition, may stay or suspend any process or proceeding which HH] HI] 1 1_
4 would otherwise be required by law and may make appropriate orders 1^**^' les' ^ ^'
5 relative thereto or to the custody of the estate. It shall order a hearing ll^h ' .-.
6 on such proposal or a modification thereof under section one hundred i«5 Mass! 317!
7 and fifty-six, of which the register shall send notice by mail postpaid to 103.
8 all known creditors not less than seven days before the day appointed
9 therefor, stating the substance of the proposal or modification thereof.
1 Section 153. Books of account and papers of the debtor relative to Accounts and
2 his estate shall until the final hearing on confirmation of the composition exrm'inaSon.*"
3 be open at all reasonable times to examination by any creditor or his r.^l;?!!;^*'
4 agent, and the court may enforce production thereof; and during such ^ i53.
5 period the debtor or any other person may be examined by the court or
G by a creditor as provided by section eighty-two.
1 Section 154. The provisions of sections thirty-one, thirty-three, Provisions
2 thirty-four, thirty-six, thirty-nine, forty, forty-one and forty-three to issl'^lso!'! 5.
3 forty-eight, inclusive, relative to debts and proof of claims, shall apply ^^l] \ll] ^ ^•
4 to composition proceedings so far as applicable thereto; but the proceed- fgy^M^gg 175
5 ings shall not be stayed or suspended on account of an appeal from the ]^3 Mass. 26
_ ,i , . ' p I . loo J\lass. 5S2.
6 allowance or rejection 01 a claim.
1 Section 155. In composition proceedings where no warrant has been Effect of notice
2 issued the date of the notice by the register to the creditors of the debtor's iss4,°23ir§ 5.
3 proposal of composition shall have the same effect relative to the proof rI^l! lua! ^ ^"
4 of claims and the debtor's discharge as the date of the first publication of ^ ^^''■
5 the issuing of the warrant in voluntary proceedings in insolvency.
1 Section 156. The debtor shall be present at the hearing and may Hearing and
2 then be examined by the court or by a creditor relative to his estate, and creditors,
3 other evidence may be offered. At any time before the hearing is closed §§^6-1^'''
4 the debtor may file any modification of his proposal which shall there- §§*!.' 1.''^'
5 after be considered the proposal. The hearing shall then be adjourned ]^^^' *^- ^ ^■
6 not less than seven davs, and if at or before the day to which such or anv f i^J-,
* *' 161 nl3,ss 551
7 subsequent adjournment is made the debtor files in court the written
8 assent to the proposal of a majority in number and value of his creditors
9 who have proved their claims if the same be for the payment of not less
10 than fifty per cent to the general creditors, or if less than fifty per cent,
1 1 of three fourths in number and value of such creditors, the court shall at
12 the hearing, or at a further adjournment thereof determine M'hether the
13 composition shall be confirmed, and any creditor may be heard thereon.
14 Any matters which would prevent or avoid a discharge in insolvency may
15 be considered in ascertaining the expediency of confirming the same,
16 but not as an absolute bar thereto. If the only objection thereto relates
17 to the security for deferred pajTiients, other security may then be offered.
18 No claim entitled to priority shall be counted nor shall a creditor whose
19 claim is less than fifty dollars be counted in the number of creditors.
2328
COURTS OF INSOLVENCY.
[Chap. 216.
Confirmation of
composition-
Effect.
18S4. 236. § 9.
1890, 387.
R. L. 163,
§ 157.
147 Mass. 192.
150 Mass. 353.
155 Mass. 389-
IfiS Mass. 100.
171 Mass. 111.
Section 1.57. If the court finds that the composition has been duly 1
assented to and is consistent with justice and for the interests of the 2
creditors, it shall order the same to be confirmed; and bj^ the same order 3
shall limit the time within which money for cash payments and vouchers 4
and securities for deferred payments shall be deposited in court; and 5
upon such deposit within the time so limited therefor, the judge shall 6
grant to the debtor a certificate of discharge from his debts, which shall 7
be substantially in the form and have the same eflPect as though obtained 8
by the other proceedings in insolvency. It shall not be annulled for a 9
cause which was brought to the notice of the court on the hearing for 10
confirmation, or which was then known to the creditor petitioning to 11
have the same annulled; nor shall it bar the debt of a cre<litor whose 12
name was fraudulently and wilfully omitted from the debtor's schedule 1.3
of creditors. But the debt of a creditor omitted therefrom by mistake 14
only or want of knowledge, shall be barred and he shall be entitled to 15
and may recover against the debtor the amount of the dividend to which 16
he would have been entitled in the composition proceetlings. 17
Unproved
claims.
1390, 387.
R. L. 163,
§ 158.
157 Mass. 252.
170 Mass. 460.
Section 158. If there are unsecured claims included in the debtor's 1
schedule of creditors not proved at the time of the deposit, the deposit 2
shall include a dividend at the rate proposed on all such claims computed 3
on the amount set forth in the schedule; and after the expiration of five 4
months and within six months from the time of the first hearing on the 5
debtor's proposal for composition, the court shall order a hearing for the 6
proof of such unproved claims, of which notice shall be given in like 7
manner as of the pre\iou3 hearings; and upon proof and allowance 8
thereof at such hearing, the court shall order dividends paid on all 9
debts so proved at the rate allowed on debts formerly proved, and the 10
money deposited on claims then remaining unproved shall then be re- 11
funded to the depositor. 12
Disposition of
property upon
discharge.
1884, 236, § 10.
R. L. 163,
§ 159.
159 Mass. 190.
170 Mass. 9.
204 Mass. 432.
Section 159. Upon the granting of the discharge, the money, 1
vouchers and securities deposited in court shall be paid and delivered 2
by the register upon demand to the persons entitled thereto, and all 3
other property of the debtor shall revert to and revest in him; and the 4
court may order any necessary or proper release or reconveyance thereof 5
by an assignee or trustee to whom the same may have been assigned or 6
conveved. 7
Return of
deposits.
1885, 353, 5 5.
R. L. 163,
§ 160.
Section IGO. After the expiration of one year from the deposit in
court of the money, vouchers and securities, as provided in section one
hundred and fifty-se\'en, the court may, after notice by mail postpaid, to
creditors who have not taken up their dividends, order all such money,
vouchers and securities then remaining on deposit in said court, to be
paid and transferred to the depositor. '
Effect of
failure of
composition.
1884,236, § 11.
R. L. 163,
§ 161.
Section 161. If the money for the cash payments and the vouchers
and securities for deferred payments are not deposited in court within
the time limited by the order of confirmation, the case shall proceed in
insohency, and the register shall tleliver to the assignee all money and
securities which are the property of the debtor which shall ha\-e been
deposited in court; and all other securities and vouchers which shall
have been so deposited shall be returned by the register to the persons
Chap. 216.] courts of insolvency. 2329
8 ■uho fiirnishe<i or deposited the same or be othen\'ise disposed of as the
9 judge may order. In such case the stay or suspension of other proceed-
10 ings by reason of the attempted composition shall not affect any rights,
11 and the period of suspension shall be excluded in computing other periods
12 of time provided by the laws relative to insolvency.
1 Section 162. This chapter shall not release an officer or stockholder stockholder's
2 of a corporation from any liability under sections thirty-five to thirty- atTected.""'
3 seven, inclusive, of chapter one hundred and fifty-six, but if such cor- J^^l! losi ^ ^'
4 poration applies for a discharge as hereinbefore provided any creditor ^ i**^-
5 may, at any time after the filing of the offer in composition, file a bill in
6 equity in behalf of himself and other creditors of the corporation, against
7 it and all stockholders thereof at the time of the filing of the petition in
8 insolvency by or against the corporation, or against all the officers liable
9 for its debts and contracts, for the recovery of the amounts due from the
10 corporation to himself and the other creditors for which the stockholders
11 or officers may be personally liable by reason of any act or omission on
12 its part or on that of its officers, stating the nature of his claim and the
13 grounds upon which it is expected to charge the stockholders or officers
14 personally. It shall be unnecessary to allege or prove a judgment against
15 the corporation or the return of an execution unsatisfied. If the ground
16 upon which it is expected to charge the officers of the corporation is an
17 excess of debts above the capital stock, the extent of such excess shall
IS be taken to be that existing at the time of the filing of the petition in
19 insolvency by or against said corporation.
1 Section 163. If, at the time of the filing of the offer in composition Effect ot com-
2 by a corporation, an action is pending against it on behalf of a creditor who pending "ctton.
3 would be entitletl to enforce a liability against its officers or stockholders Jf^^' 1^3' ^ ^•
4 under chapter one hundred and fifty-six, the plaintiff may change his 5 163.
5 action into a suit in equity, making parties thereto the stockliolders and
6 officers who were such at the time of the filing of the petition in insol-
7 vency by or against the corporation, and may proceed thereafter in like
8 manner as provided in the preceding section. If the ground upon which
9 it is expected to charge the officers of the corporation is an excess of
10 debts above the capital stock, the extent of such excess shall be taken
11 to be that existing at the time of the beginning of said action.
1 Section 164. A suit in equity under the two preceding sections shall flgy'^ljg'f^ls
2 be subject to sections fifty to fifty-three, inclusive, of chapter one hun- k l^ lus!
3 dred and fifty-eight.
1 Section 165. A corporation making an offer of composition shall oJg'';.^j''r"'g°J
2 file, at the time of filing the schedules of assets and liabilities, a schedule isa^.i^B?, § 4.
3 of all its officers and stockholders who were such at the time of the filing § iei
4 of the petition in insolvency by or against it, with the holdings of stock
5 at such time.
1 Section 166. A discharge imder section one hundred and fifty-seven Effect ot dis-
2 shall dissolve any attachment on mesne process made not more than four auadm'ient".
3 months prior to the time of giving the notice to the creditors of the h.^l. ills', ^ ^'
4 debtor's proposal of composition. 170 Mass. 179. 5 loc-
2330
COURTS OF ESrSOLVENCT.
[Chap. 216.
Amendments
and orders.
1884, 236, § 12.
R. L. 163,
§ 167.
190 Mass. 507.
216 Mass. 459.
Section 167. The court, except as otherwise p^o^•ided in this chap- 1
ter, may allow amendments and make appropriate orders, in the course 2
of the proceedings or thereafter, necessary to carry the same into full 3
effect. 4
Penalty for
placing ficti-
tious debt
upon schedule.
1SS4, 236, § 13.
R.L. 163.
§ 168.
Section 168. An insolvent debtor who knowingly places upon his 1
schedule of creditors a false or fictitious debt with intent to deceive or 2
defraud his creditors, or who having notice or knowledge that a person 3
has proved or attempted to prove a false or fictitious debt against his 4
estate, fails to disclose the same forthwith to the court or who makes a 5
pajanent or gives or promises an advantage to a creditor with intent 6
thereby to procure his assent to a composition, shall be punished by 7
imprisonment in the state prison for not more than five years or in jail 8
for not more than two years. 9
Penalty for
proving ficti-
tious debt.
1SS4. 236, § 14.
R. L. 163,
§ 169.
Section 169. A creditor of an insolvent debtor who knowingly proves 1
a false or fictitious debt against the estate, or recei\'es or procures or 2
attempts to procure a pa^Tnent or advantage in consideration of his assent 3
to a composition, shall be punished by imprisonment for not more than 4
two years or by a fine of not more than one thousand dollars. 5
Fee for
receiving
petition, etc.
1S3S, 163, § 16.
1856, 284, § 24.
G.S. lis. § 125.
P. S. 157, § 137.
1895, 394,
§§ 1.2.
R. L. 163,
§ 170.
150 Mass. ISO.
FEES .AJrt) COSTS.
Section 170. A debtor's petition for the institution of ■s'oluntary in- 1
solvency proceedings shall be received and entered by the register only 2
upon payment to him of twenty-five dollars. A creditor's petition for 3
the institution of proceedings against a debtor shall be recei^•ed and 4
entered by the register only upon payment to him of the amount neces- 5
sary to defray the expense of publishing the notice of the filing of such 6
petition, but the warrant shall not issue until twenty-five dollars is paid 7
to the register. A proposal by a debtor for composition with his cred- 8
itors shall not be recei\'ed or entered by the register after the filing of a 9
creditor's petition for involuntary proceedmgs, and before the issuing of 10
a warrant thereon, until twenty-fi^'e dollars has been paid to the register. 11
Accounts of
register.
1856. 284. § 24.
G.S. lis, §126.
1862, 137.
P. S. 157, § 138.
1895, 394, § 3.
Section 171. The register shall, annually on the first days of Janu- 1
ary, April, July and October, render an account on oath of all fees so 2
received by him during the three months last preceding, and on or before 3
the tenth day of said months pay over the same to the commonwealth. 4
R. L. 163, § 171.
TOn/^osition Section 172. In composition cases no fees or compensation shall be 1
5^1'i''','^^''?-. payable to the register for giving notices to creditors pr for the custody 2
1S95; 394! § i. of money, vouchers or securities, or for the pajTnent of dividends. 3
R. L. 163, § 172.
Messenger's Section 173. In all cascs in a court of insolvency the messenger 1
issi' 284' I 24' ^^^^^ ^^ entitled to the following fees: for service of tlie warrant, two 2
G.s.'ii8,'|i25! dollars; for necessary travel, at the rate of four cents a mile; for each 3
1895, 394, § 5^ ' Written notice to creditors named in the schedule, ten cents; for the 4
'^ ' ■ custody of property, publication of notices and other services, the amounts 5
actually incurre<i and paid and returned by him in an itemized account on 6
oath and appro\etl by the court. For cause and upon a hearing the court 7
may make a further allowance. 8
CH-VP. 217.] JIT)GES AXD REGISTERS OF PROBATE AND INSOLVENCY.
2331
1 Section 174. If an attachment on mesne process has not been dis-
2 solved before commencement of proceedings in insolvency, or if such
3 attachment has been dissolved by bond and the claim upon which the
4 action was commenced is proved against the estate of the debtor, the
5 plaintiff may also prove the legal fees, costs and expenses of the action
6 and of the custody of the property to the date of the first meeting, and
7 the amount thereof shall be a privileged debt.
Costs if attach-
rnent dissolved.
1S41, 124, § 6.
G.S. 118, § 127.
1S62, 179, § 5.
P. S. 157, § 139.
1892, 359.
R. L. 163, §174.
1:^5 Mass. .'•S8.
147 Mass. 192.
152 Mass. 596.
1 Section 17.5. In matters of insolvency which are contested in a Costs, how
2 court of insohency, the superior court or the supreme judicial court, said i'|56; 284,
3 courts may award costs to either party to be paid by the other, or to q^ l^iig.
4 either or both parties to be paid out of the estate. If costs are awarded p l^%\^^-
5 to be paid by one party to the other, said courts, respectively, may issue |^^ }^°,vlH"i7:;
6. , „ * ix. L. 163, 8 175.
execution tnereior.
vacating proceedings.
1 Section 176. Upon petition by a creditor who has proved his claim Vacating
2 the court may order the proceedings to be staved and, after notice and a is4s, soi, § is.
3 hearing, if no objection is made by the debtor or any such creditor, enter p.s.' 157,' 1 142'.
4 an order vacating all proceedings therein.
R. L. 163, 1 176. 3 Gray, 531. 6 Gray. 243. 129 Mass. 129.
returns.
1 Section 177. Each register shall on or before the tenth day of each Returns by
2 month make a return to the state secretary of the name, residence and i846, les, 5 3.
3 occupation of each person by or against whom, as an insolvent debtor, g.s.'h's.'usi'.
4 and of the name of each corporation, the kind of business for which it ig97,'s9.' ^ ^*'^'
5 was organized, the place or places where its business was principally done, ^•I'-iss, § 177.
6 by or against which, as an insolvent corporation, a petition has been
7 filed in his court during the month last preceding, with the dates of
8 such petitions. The secretary shall enter such returns, conveniently for
9 reference, in a book open to public inspection.
CHAPTER 217.
JUDGES AND REGISTERS OF PROBATE AND INSOLVENCY.
Sect.
1. Judges.
2. Two judges in certain counties.
3. Special judges, appointment of and pro-
visions for holding court.
4. Registers of probate and insolvency.
5. Oaths of judge and register.
6. Judge, register, etc., to be disinterested.
7. Judge or register may be appointed
guardian of his minor child.
8. Assistance of other judges.
9. Decree out of county.
10. Bonds to acting judge.
11. Inspection of records, etc., by judges
and liability on bonds of registers
and assistant registers.
12. Bond of register.
Sect.
13. Temporary register.
14. Registers shall certify amount of as-
sistance.
15. Duties of register. Custody of records.
16. Register to send notices, copies of in-
ventories, etc., to commissioner of cor-
porations and taxation, except, etc.
17. Register to report vacancy in office of
assistant, and appointment thereto.
IS. Register to furnish copies.
19. Register to send notice of charitable,
etc., trusts to public welfare depart-
ment.
20. Register to account.
21. Register may receive petitions and
issue citations.
2332
JUDGES AND REGISTERS OF PROBATE -AND INSOLVENCY. [ChAP. 217,
Sect.
22. Register may issue attachments, ap-
point appraisers, etc.
23. Assistant registers.
24. Second assistant registers.
25. Tliird assistant register in Middlesex.
26. Official signature of assistant register.
27. Duties of assistant register.
28. Clerk in Suffolk county.
29. Clerk in Middlesex county.
30. Court officers for Middlesex, Plym-
outh and Suffolk counties.
31. Messengers in Middlesex county.
32. Messenger for Suffolk county.
33. Allowance to registers for clerical as-
sistance.
Sect.
34. Salaries of judges.
35. Salaries of registers and assistant reg-
isters.
36. Adjustments of salaries.
37. Salaries of judges, etc., in Dukes and
Nantucket counties.
38. Salaries of judges, etc., in Suffolk
county.
39. Salaries of clerks, etc.
40. Compensation of judges for certain
duties.
41. Compensation of special judges.
42. Traveling expenses.
43. Compensation of temporary register.
Certain fees, etc., forbidden.
Judges.
1S5S, 93, § 1.
G. S. 119, § 1.
P. S. 158, § 1.
R. L. 164, § 1.
Section 1. In each county except SufPolk, Middlesex, Essex and 1
Worcester, there shall be one judge of probate and insolvency, in tliis 2
chapter called the judge of probate. i907, 442, § 1. iqos, 541, § 1. 3
Two judges
in certain
counties.
1859, 110, § 1.
G. S. 119, § 3.
P. S. 158, I 3.
1893, 379.
1894, 527, § 1.
R. L. 164,
§§2,4.
1907, 442, § 2.
1908, 541, § 2.
15 Gray, 459.
senior z
Section 2. There shall be two judges of probate in each of the
counties of Suffolk, Middlesex, Essex and Worcester. The
judge shall be the first judge in each county, to whom, and to his suc-
cessors, all bonds required by law to be given to the judge of probate
for said counties shall be made payable. The probate court and the
court of insolvency for said counties may be held by one or both of
the judges, and, wlien so held, shall have and exercise all the powers and
jurisdiction committed to the respective courts. The judges shall so ar-
range the performance of their duties as to insure a prompt and punctual
discharge thereof. The judges may perform each other's duties when
necessary or convenient. Simultaneous sessions of the courts in said
counties may be held if public convenience recjuires. Citations, orders of
notice and all other processes issued by the register of probate and in-
solvency, in tliis chapter called the register, for any of said counties, 14
shall bear teste of the first judge of said court. Deposits or investments 15
made in the name of the judge of probate shall be in the name of the 16
first judge of the court, and. shall be subject to the order of the com-t. 17
9
10
11
12
13
Special judges,
appointment
of and pro-
visions for
holding court.
1908, 110.
1909, 160.
1913, 211.
Section 3. There shall be a special judge of probate and insolvency 1
in each of the counties of Berksliire, Erankhn, Hampsliire and Hampden, 2
who may perform the duties of the judge of probate in the county for 3
which he is appointed, in cases of vacancy in office, sickness, disability 4
on account of interest of such judge, or whenever the judge in a WTiting 5
filed with the register rec|uests the special judge to perform his duties; or, 6
in case of the absence of the judge from the county, whenever the register, 7
in a WTiting certifjdng such absence, shall so rec^uest. The register shall S
certify upon the records of the court the number of days, the dates upon 9
wliich, and the occasions for which, the duties of the judge are performed 10
by the special judge; and when the occasion is that of sickness, absence 11
from the county, interest or other legal disciualification, or vacancy in 12
office, he shall certify the same to the state auditor. 13
Registers of
probate und
insoivencv.
1858, 93, § 4.
Section 4. There shall be in each county a register of probate and 1
insolvency, in this chapter called the register, who shall hold office for six 2
CILA.P. 217.] JUDGES AND REGISTERS OF PROBATE AND INSOLVENCY. 2333
3 years beginning with the first Wednesday in January in the year sue- o. s. lo, § 4.
4 ceeding his election, and until his successor is qualified. ' ' ^°
1890, 423, § 191. R. L. 11, § 319. 1917. 255, § 1.
1893, 417, § 252. 1907, 560, 5§ 353, 456. 1913. 114, | 2.
1898, 548, § 316. 1913, 835, §§ 391, 503. 1919. 269, § 26.
1 Section 5. Each judge of probate and each register, before entering paths of
2 upon the performance of his official duties, in addition to the oaths pre- in/register.
3 scribed by the constitution, shall take and subscribe an oath that he ?°6Tarti''i.^'
4 will faithfully discharge said duties and that he will not during his con- amend 6.
5 tinuance in office, directly or indirectly, be interested in, or benefited by, <^°"^'^?''^'
6 the tees or emoluments wmch may arise in any suit or matter pending in isi^, i9o, § 2.
7 either of the courts of which he is judge or register, respectiyely. Such §§ 21, 26.
8 oath shall be filed in the registrj^ of probate of the county for which he §'§ 12, le.'
9 is appointed or elected.
1S58, 93, §§ 2, 3, 5. G. S. 119, §§ 2, 7. P. S. 158, §§ 2, 6. R. L. 164, §§ 3, 10.
1 Section 6. No judge of probate, register, assistant register or person Judge,
2 employed in any registry of probate and insolyency shall be interested in, toTe'di's-'""
3 or benefited by, the fees or emoluments wliich may arise in any matter 'yiir^f'^'^'
4 pending before the probate court or court of insolyency of liis county; }8j7'f95 54
5 nor shall he act as counsel or attorney, either in or out of court, in any |*i |^^i
6 matter pending before said courts or in an appeal therefrom; nor shall i856,'2S4,
7 he, except as otherwise p^o^■ided, be appointed executor, administrator, 1858,93,'
8 guardian, conser^•ator, commissioner, appraiser or assignee of or upon g I'.^ii9,
9 an estate witliin the jurisdiction of his court; nor shall he be interested is79',292, § 1.
10 in the fees or emoluments arising from any of said trusts; and no judge ^- 1; ^ol §^5
11 shall be retained or employed as counsel or attorney, either in or out of '915,23.'
,., , , ^ . . 5 Pick. 483.
12 court, in any smt or matter which may depend on or m any way relate to 9 Pick. 237.
13 a decision, warrant, order or decree made or passed by him; nor for or 22 Pickl507!
14 against an executor, administrator, guardian or conseryator appointed scush.ls^il'
1.5 witliin liis jurisdiction, in any action or suit brought by or against the 105 m^!;ss^219.
16 executor, administrator, guardian or conseryator as such; nor in any noMass. i89.
17 action or suit relating to the official coniluct of such party; nor for or
18 against a creditor, debtor or assignee, in a cause or matter arising out of
19 or connected with any proceedings before him; nor in an appeal in such
20 cause or matter.
1 Section 7. If a judge or register desires to be appointed guardian of jelfte? ma
2 his minor child, who is an inhabitant of or resides in the same county, be appointed
3 such appointment may be made, and all subsequent proceedings in regard his minor
4 thereto had, in the probate court of an adjoining county.
1870, 263. P. S. 158, § 22. R. L, 164, § 26.
1 Section S. If a judge of probate is unable to perform his duties, or Assistance of
2 any part of them, from sickness, interest or other legal disqualification, iisx.m.Ts.
3 or if, in his opinion, the court requires the assistance of another judge, or Isi?] 19b. § 5.
4 if there is a vacancy in the office of judge of probate, or if the judge is is56',2s'4f§ s.
5 absent, his duties, or such of them as he may request, shall, if there is no p|' jsl'l*'
6 special judge of probate in said county ready to act, be performed in Jinfp^'t}-
7 the same county by the judge of probate of any other county who may ism] 345! 1 1.
8 be designated by the judge, or, in case of his failure so to designate, who i904,'40i,'§ 1.'
9 may be designated by the register from time to time as may be necessary; lii'-i, 322.
10 but, unless objection is made by an interested party before the decree is los^/a'ss. 219.
2334
JUDGES AND REGISTERS OF PROBATE AND INSOLVENCY. [ChAP. 217.
110 Mass. 1S9.
1 Op. A. G.
232.
made, any case may be heard and determined out of said county in the 11
performance of such duties by such other judge, who may send his decree 12
to the registry of probate for the county where the case is pending. 13
Two or more simultaneous sessions of the court may be held, the fact 14
being so stated upon the record. 15
Decree out
of countv.
1S9S, 13i.
R. L. 16-1, § 9.
15 Gray, 459.
Section 9. A judge of probate may, in any case in which a decree, 1
order or allowance can be made without a hearing, and in any case 2
after a hearing, make such decree, order or allowance, and approve 3
bonds, at any place in the commonwealth, with the same effect as if so 4
made and approved in his county; and if such judge, under the pre- 5
ceding section, acts in a county other than his own, such decree, order 6
or allowance may be signed, and bonds appro\'ed, outside the county 7
where he may have been designated to act. This section shall not affect 8
the validity of any decree, order or allowance signed or bond approved 9
prior to INIarch third; eighteen hundred and ninety-eight. 10
Bonds to
acting judge.
1859,110, §3.
G. S. 119, 5 5.
P. S. 158. § 5.
R. L. 164, § 8.
Inspection of
records, etc.,
by judges and
liability on
bonds of
registers and
assistant
registers.
1861, 95.
P. S. 158,
§§15-17.
R. L. 164,
§§ 21-23.
Section 10. Bonds required to be given to the judge of probate 1
shall be given, in case of vacancy in the office of judge, to the acting 2
judge, and to Ms successors in office, and all business shall be done in his 3
name or in the name of the probate court or the court of insolvency for 4
the county where the case or matter is pending; but bonds may be 5
approved, and other acts required to be done or certified by the judge 6
may be done or certified, by the acting judge. 7
Section 11. Judges of probate shall semi-annually inspect the do- 1
ings of the registers of their courts, and see that the records and files 2
are made up seasonably and kept in good order; and if the records are 3
left incomplete for more than six consecutive months, such neglect, 4
unless caused by illness or casualty, shall be adjudged a forfeiture of 5
the bond of the register. In case of any neglect causing a forfeiture of 6
the bond of the register or assistant register, the judge shall forthwith 7
give MTitten notice thereof to the state treasurer, who shall thereupon 8
cause the bond to be put in suit; and the amount recovered in such suit 9
shall be applied to the exjjense of making up the deficient records under 10
the direction of the court in whose records the deficiency exists, and the 11
surplus, if any, shall be carried into the accoiuit of such treasurer. This 12
section shall not exempt registers or assistant registers from an action for 13
any other breach of their bond, or from other liability for neglect or mis- 14
conduct in office. 15
regi's1e°' Section 12. Each register shall give bond to the state treasurer for 1
178657^5' •^ "■ ^^^® faithful performance of his official duties, in a sum not less than one 2
R-S.'83!'§ 2r thousand nor more than ten thousand dollars, as ordered by the judge, 3
iS57| 15. ' "" with one or more sureties approved by him. 4
1858, 93, §§ 5, 8. G. S. 119, § 8. P. S. 158, § 7. R. L. 104, § 11.
Temporary
register.
1817, 190, § 2.
R. S. 83,
§§ 23-2.5.
1856, 173, § 8;
284, §§ 14, 15.
1858, 93, .
|§ 2, 3, 5, 0.
G. S. 119,
II 14, 15.
Section 13. Upon the death, resignation, removal or absence of the
register, if there is no assistant register, or if he also is absent, the judge
shall appoint a temporary register to act until a register is qualified, or
until the disability is removed. Such temporary register shall be sworn
before the judge, and a certificate thereof, with his appointment, shall
be recorded with the proceedings of each court in which he acts.
p. S. 158, §1 19, 20. R. L. 164, § 24.
Ch.\P. 217.] JH-DGES .-USTD KEGISTEKS OF PROBATE .«vD INSOLVENCY. 2335
1 Section 14. The register shall certify upon his records and to the Registers shall
2 state auditor the number of days, the dates upon wliich, and the occa- amount of
3 sions for which, the duties of the judge of probate are performed by a il5'9'*no''§ 2
4 judge of another county under section eight.
G. S. 119, §5. 1892, 337. §2. 1899, 345, § 2.
P. S. loS, § 5. lS9i, 377, § 2. E. L. 164, | 6.
1 Section 15. The register shall have the care and custody of all i^utiesof
2 books, documents and papers pertaining to his court, or deposited with Custody of
3 the records of insolvency or filed in the registry of probate, and shall isiT, Too, § 2.
4 carefully preserve them and deliver them to his successor. He may, issn. isi, §"1^3.
5 with tlie approval of the county commissioners and at the expense of a^l." 119,^/10
6 the county, cause copies of the indexes, or new indexes, to the records \g^ }|g' ^ '*•
7 which are in his custody, to be printed and sold at a price not less than f^^- ^||' I ^^■
S the cost of paper, printing and binding. He shall perform all other duties,
9 pertaining to his office, required by law or prescribed by the judge. He
10 may attest the records by the volume, and the attestation shall be suf-
1 1 ficient when the volume containing the same bears the attest, with the
12 written signature of the register or other person lawfully authorized.
1 Section 16. The register shall, except as herein provided, send by Register to
2 mail to the commissioner of corporations and taxation a copy of every copies of
3 inventory and appraisal filed in his court by an executor, administrator e'tc.'i'to' "om-
4 or trustee, within thirty days after the filing of the same. The register "^rations
5 shall also, within the same period, send by mail to said commissioner a e?£*retc°°'
6 copy of the will of the decedent, if such has been allowed by the probate J|9i. 425, § 10.
7 court. The register shall also furnish such copies of papers in his office R. l' is. '
8 as the commissioner shall require, and shall furnish information as to 1907,663,
9 the records and files in his office in such form as the commissioner may i908,'268'.~ '
10 require. A refusal or neglect by the register so to send a copy of such §§°i3,''u;' ^^ '
11 inventory and appraisal or to furnish such copies or information shall be fnJg^lgo ''"
12 a breach of his official bond; but the commissioner may excuse him from !^(f -'^^q
13 sending copies of inventories and of wills of estates no part of which, in 40, 52. '
14 his judgment, appears to be subject to a tax under chapter sixty-five.
1.5 If an executor, administrator or trustee fails to file said inventory and
16 appraisal within tliree months from the date of his appointment, the
17 register shall ^\■ithin tliirty days after the expiration thereof notify the
18 commissioner of such failure.
1 Section 17. The register shall forthwith report to the state secretary Register to
2 a vacancy in the office of assistant register and the name, residence and [n''o°ffice oT""^
3 date of appointment of the person appointed to fill such vacancy. appSntmeTt''
ISSO, 139, § 4. P. S. 158, § 13. R. L. 164, § 19. thereto.
1 Section 18. The register shall furnish copies of records or other Register to
2 papers in his custody and shall collect the legal fees therefor. lagsTieg"*? 2.
R. L. 104, § 15.
1 Section 19. Whenever any instrument creating or increasing an es- Register to
2 tate or fund for benevolent, charitable, humane or philanthropic pur- chanui'biT °'
3 poses is filed for record in a registry of probate, the register shall forth- pubiilTeUare
4 with send to the department of public welfare a statement setting forth fgl^s''!™""'-
5 the book and page in the registry where the instrument is recorded, i9i9,'3ob, §S7.
2336
JUDGES AND REGISTERS OF PROBATE AND INSOLVENCY. [ChaP. 217.
with the name, if any, of the estate or fund, and further stating by whom 6
said estate or fund has been created or increased, and by whom it is to 7
be administered. 8
?cTOum!'° Section 20. The register shall annually, on the first Mondays of 1
R ^L 164' 1 16 January, April, July and October, account for and pay over to the state 2
treasurer all fees and compensation which have been received by him 3
otherwise than by salary. 4
^ceivep™!^^ Section 21. He may at any time receive and place on file petitions
fsTue cimions ^^'-^ applications to the probate coiu-t or the coml of insolvency, and may
1860, 163. issue orders of notice and citations in like manner and with like effect as
p. s.'i58.'§ 9.' if issued by the judge; but if the judge considers such notice insufBcient,
■ he may order further notice.
Register may
issue attach-
ments, appoint
appraisers, etc.
1881,215, § 2.
P. S. 158, § 10.
1894, 199.
R. L. 164, § 14.
1915, 26.
Section 22. The register may issue process of attachment and of 1
execution, and all other processes and all warrants, letters and licenses 2
necessary to carry into effect any order or decree of the courts, and they 3
may run into any county and shall be executed and obeyetl throughout 4
the commonwealth. A facsimile of his signature imprinted by him on 5
all such warrants, letters and licenses and all processes except executions 6
shall have the same validity as his WTitten signature. He may appoint 7
appraisers to make any inventory required to be returned to said courts. 8
Assistant
registers.
Const, pt. 2,
c. 6, art. 1.
Const,
amend. 6,
(Const. Rev.
art. 149.)
1858, 93,
H 6, 8.
G. S. 119, § 11,
P. S. 158, § 11.
1893, 151, § 1.
1898, 234.
1899, 191, § 1.
1900, 144, § 1.
R. L. 164. § 17.
1904, 286, I 1.
Section 23. The judges of probate for each county except Dukes 1
and Nantucket may appoint an assistant register of probate and insol- 2
vency, in this chapter called the assistant register, who may be a woman 3
and who shall hold office for three years unless sooner removed by the 4
judge. Before entering upon the performance of his duties, an assistant 5
register shall take the oath prescribed by the constitution, and shall 6
gWe bond to the state treasurer for the faithful performance of his official 7
duties in a sum not less than five himdred nor more than five thou.sand 8
dollars, as ordered by the judge, with one or more sureties approved by 9
him. 1907, 207, § 1; 442, §§3, 6. 1909,248. 1912,332. 10
Second
assistant
registers.
1905, 323.
190S, 231.
1910, 266.
1912, 498.
1916, 264.
1918, 4.
Section 24. The judges of probate for the counties of Essex, INIid-
dlesex, Suffolk and Worcester may appoint a second assistant register
for their respective counties, who may be a woman, and who shall hold
office for three years unless sooner removed by the judge. They shall
be subject to the laws relative to assistant registers.
^giste^ln^**"* Section 25. The judges of probate for Middlesex county may appoint 1
igog^w"' ^ tliird assistant register for said county, who may be a woman, who shall 2
hold office for tliree years unless sooner removed by the judges. He 3
shall be subject to the laws relative to assistant registers. 4
Official
signature of
assistant
register.
1905, 323.
Section 26. The signing of the name of any second or third assistant 1
register followed by the designation, "assistant register ", shall be a suf- 2
ficient official signature. 3
190S, 231. 1909, 494. 1910, 2r.6. 1912, 498.
Duties of
assistant
register.
1858, 93,
§§ 6, 7.
Section 27. An assistant register shall perform liis duties under the 1
direction of the register, and shall pay over to liim all fees and amounts 2
received as such assistant. He may authenticate papers and perform 3
Chap. 217.] judges and registers of probate and insolvency. 2337
4 such other duties as are not performed by the register. In case of the g. s. ii9, § 12.
5 absence, neglect, removal, resignation or death of the register, the as- r.l.im.IIo.
6 sistant may complete and attest any records remaining unfinished and
7 may act as register until a new register is qualified or the disability
8 removed.
1 Section 28. The register for Suffolk county may, subject to the cierkin
2 approval of the judges of probate for said county, appoint a clerk and i878,'u9°""*^'
3 may remove him at pleasure. p. s. iss, § 12. r. l. i64, § is.
1 Section 29. The register for INIiddlesex coimty may, with the ap- cierk in
2 proval of the judges of probate for said county, appoint a clerk who odumy.'''^^
3 may administer such oaths required in probate proceedings as are not Yall'. tl'e, § 1.
4 prescribed by law to be administered by the judge or register, and shall
5 perform such clerical and other duties as may be required by the register,
6 with the approval of the judges, and he may be removed by the register
7 with the consent and approval of the judges in the manner pro\'ided by
8 section forty-three of chapter thirty-one.
1 Section 30. The judges of probate for Suffolk county shall, and P'"^i 9'lj''^™
2 the judge of probate for Plymouth coimty may, appoint an officer to Plymouth inJ
3 attend the sessions of the probate court and coiu-t of insolvency of the couinies.
4 county for which he is appointed, and may at their pleasure remove iss*! ise!
5 him and fill any vacancy caused by removal or otherwise. The sheriff of Jggg \%_
6 Middlesex county may appoint, subject to the approval of the judges of J*^^' fff
7 probate for said county, two officers to serve as coiu"t officers for at- ^^'^^^J
8 tendance at the sessions of the probate court and coiut of insolvency in moh'. 149!
1 • 1911 302
9 said county. Each court officer appointed hereunder for Suffolk and 1912! ess!
10 Middlesex counties shall give bond with sufficient sureties approved by a 1920', 383'.
1 1 judge of his court for the faithful performance of his duties, in the sum of
12 one thousand dollars payable to the county treasurer in Suffolk county,
13 and in the sum of ton thousand dollars payable to the sheriff in Middle-
14 sex county. The court officer for Plymouth county shall, if required by
15 the court, gi^'e a bond payable to said county for the faithful per-
16 formance of his duties with sureties satisfactory to the court. Each
17 officer appointed hereunder shall serve the orders, precepts and proc-
18 esses issued by the probate court for which he is appointed or by a
19 judge thereof; and, except in Plymouth county, shall at his own ex-
20 pense provide a uniform such as the court shall order, which he shall
21 wear while in attendance on said courts.
1 Section 31. The judges of probate for Middlesex county may ap- Messengers
2 point two messengers for the court of probate and insolvency for said coulJty!^'^*^''
3 county, may remove them at their pleasiu-e, and may jill vacancies caused |^°j'' ^^^- ^ ^^
4 by removal or otherwise. Said messengers shall wait upon said court joi?, 25|! 1 1.
5 and perform such duties as the judges may direct, including duty as 1919! 228- 372.
6 court officers of said court. They shall at their own expense provide
7 uniforms, such as the court shall order, which they shall wear while in
8 attendance on said court.
1 Section 32. The judges of probate for Suffolk county may appoint a Messenger for
2 messenger for the court of probate and insolvency for said county, may iujj','42f°""'^'
3 remove him at their pleasure, and may fill a vacancy caused by removal
4 or otherwise. Said messenger shall wait upon said court and perform
2338
JUDGES AND REGISTERS OF PROBATE AND INSOLVENCY. [ClL^P. 217.
such duties as the judges may direct, including duty as court officer. 5
He shall at his own expense provide a uniform, such as the court shall 6
order, and shall wear it while in attendance on said court. 7
Allowanoe to
registers for
clerical
assistance.
Barnstable.
1881, 215, § 1.
Section 3-3. Registers shall be allowed the following amounts for 1
clerical assistance in their respective counties, to be paid by the com- 2
monwealth except where otherwise specified, to the persons who actually 3
perform the work, upon the certificate of the register, countersigned by 4
the judge: 5
For the county of — 6
Barnstable, one thousand dollars. 7
1919, 236.
P. S. 158, § 24.
R. L. 164, § 28.
1907, 207, § 2.
1914, 559.
Berkshire.
1881,215, § 1.
Berkshire, twelve hundred dollars.
p. S. 158, § 24.
R. L. 164, §28.
1904. 286, § 3.
1908,328.
1914, 663.
1919, 236.
1920, 594.
Bristol.
1879, 292, § :
Bristol, fifty-three hundred dollars, plus one tliird the register's salary'. 9
1881, 215. § 1.
P. .S. 158, § 24.
1889, 136.
1900. 144. § 2.
R. L. 164, §§ 28, 29.
1902,412.
1904, 286, § 3.
1908, 327.
1911,452.
1912, 160; 353.
1916, 169.
1919. 310.
Dukes.
1881,215. § 1.
Dukes, one third the register's salary.
p. S. 158. § 24.
R. L. 164, § 28.
10
Essex.
1881,215, § 1.
p. S. 158, § 24.
1886, 114.
Essex, eighty-three hundred and fifty dollars, plus one third the reg- 1 1
ister's salary. is95. 174. R. l. 164. §§ 2S. 29. 12
1904.281; 286. § 3. 1908.374. 1916,125. 1920.594.
Franklin.
1881,215. § 1.
Franklin, one thousand dollars.
p. S. 158, § 24.
1893. 151. § 1.
R. L. 164, § 28.
1904. 286. § 3.
1909, 331.
1915, 262.
1919, 236.
13
Hampden.
1881.215. § 1.
Hampshire.
1881. 215. § 1.
Hampden, four thousand dollars, plus one third the register's salary. 14
p. S. 158, § 24.
1896, 219.
R. L. 164, §§ 28, 29.
19CM, 286, § 3.
1907, 206.
1910,335.
1914, 359.
Hampshire, one thousand dollars.
p. S. 158, § 24.
1899, 191, § 2.
R. L. 164, § 28.
1904, 286, § 3.
1908, 326.
1917, 123.
1919. 236.
1920. 594.
1919. 236.
1920. 602.
15
Middlesex.
1881.215, § 1.
P. S. 158,
§24.
1885, 304.
1890, 192.
1893, 344.
1895, 459.
1898, 332.
R. L. 164,
§§ 28, 29.
Middlesex, thirteen thousand five hundred dollars, plus one third the 16
register's salary; and in addition forty-eight hundred dollars and such 17
further amount as may be required to comply ^^^th section one of chapter 18
two hundred and sixty of the General Acts of nineteen hundred and 19
eighteen and with "chapter two hundred and seventy-six of the General 20
Acts of nineteen hundred and nineteen, payable by the county. 21
387.
1904,286, § 3;
1909, 353.
1913, 386.
1917, 95.
1919, 59; 236.
1920, 594.
Nantucket.
1881, 215, § 1.
Nantucket, one third the register's salary.
p. S. 158, § 24. R. L. 164, § 28.
1904, 286, § 3.
02
Norfolk.
1881,215. I 1.
P. s. 158. i 24. salarv
1901.302. Stlld.1.).
Norfolk, forty-five hundred dollars, plus one third the register's 23
i 28. 29. 24
1904. 286, § 3.
1U05, 183.
R. L. 164,
1913, 227.
1918, 140.
1920, 694.
CUAP. 217.] JUDGES AND REGISTERS OF PROBATE AND INSOLVENCY. 2339
25 Plymouth, fourteen hundred dollars, plus one tlih-d the register's Plymouth.
26 salary. p. s. iss, § 24. 1894, 322. ^**^' ^^^' ^ ^•
R. L. 164, §§ 28, 29. 1904, 219; 286, §3. 1908,319.
27 Suffolk, eighty-six hundred dollars; and in addition twenty-five Suffolk.
28 hundred dollars and such further amount as the city council of Boston k a' fsl, § 24.
.29 may lawfully approve, payable by the county.
1SS5, 205. 1892, 230. 1897, 317. 1918. 161.
1888, 280. 1893, 431. U. L. 164, § 29. 1919, 236.
1889, 418. 1895, 364. 1908, 396. 1920, 594.
30 Worcester, seventy-eight hundred and fifty dollars, plus one third the Worcester.
31 register's salary. p. s. i5s, § 24. ^^^' ^^^' ^ ^■
1887,39. 1898,117. 1909,384.
1889, 209. R. L. 164, §§ 28, 29. 1910, 329.
1894, 259. 1904, 286, § 3. 1919, 236.
1 Section 34. The salaries of judges of probate, including the junior s.iianes
2 judges in counties having two judges, shall be paid by the commonwealth, i,s23,'^i4i'.
3 and, except in Dukes, Nantucket and Suffolk counties, shall be based k^^I; 83^§ 49
4 upon population as determined by the census of nineteen hundred and Isss ll^'s ^3^'
5 fifteen, as follows: },859',i78. '
G. S. 119, § 16.
Judges and Senior Judges. Xmi, 35?! § i.
Population of County. Salary. 1874[ 242*
Under 40,000, $2,800 fi\ l^' ^«9-
40,000 to 50,000 2,900 P. .S-Tss; § 23.
50,000 to 60,000, 3,000 Jlfj' 244'
60,000 to 70,000, 3,100 1884:192:248.
70,000 to 80,000, 3,200 \fi; J^s' ^^^'
80,000 to 90,000, 3,300 ii^i;'iS9.'
90,000 to 100,000 3,400 {ggg' 1% ^®®-
100,000 to 110,000, 3,500 1889! 211; 251.
110,000 to 120,000, 3,600 J^UI' 1^.?; 5 1-
120,000 to 130,000 3,700 527, ■§ 3.""
130,000 to 140,000 3,800 f^^ Ifd
140,000 to 1.50,000 3,900 woo; 40s:
150,000 to 160,000, 4,000 fooi' l'^; I f.-
160,000 to 170,000, 4,100 455, '§§ 1.3. "
170,000 to 180,000, 4,200 I's^/'e^'*-'
180,000 to 190,000, 4,300 1911, 6'6s.
190,000 to 200,000, 4,400 Jolf'sfo' ^^^•
200,000 to 220,000, 4,,500 i9i8;284:
220,000 to 240,000, 4,600 rfi''l''7'8
240,000 to 260,000, ' 4,700 ' ' ' '
260,000 to 280,000 4,800
280,000 to 300,000, 4,900
300,000 to 330,000, 5,000
330,000 to 360,000, 5,100
360,000 to 390,000, 5,200
390,000 to 420,000, 5,300
420,000 to 4,50,000, 5,400
450,000 to 480,000, 5,.500
480,000 to 510,000, 5,600
610,000 to 540,000 5,700
540,000 to 570,000 5,800
570,000 to 600,000 5,900
600,000 to 630,000 6,000
630,000 to 660,000, 6,100
660,000 to 690,000, 6,200
690,000 to 720,000 6,.300
720,000 to 750,000 6,400
7.50,000 to 800,000, 6,500
$100 additional for each 50,000 of population over 750,000.
2340
JUDGES AND REGISTEKS OF PROBATE .iND INSOLVENCY. [ClL\P. 217.
Junior Judges.
Population of County. Salary.
400,000 to 420,000, S4,500
420,000 to 440,000, 5,000
440,000 to 460,000, 5,100
460,000 to 480,000, 5,200
480,000 to 500,000, 5,300
500,000 to 520,000, 5,400
520,000 to 540,000, 5,500
540,000 to 560,000, 5,600
560,000 to 580,000, 5,700
580,000 to 600,000, 5,800
600,000 to 620,000, 5,900
620,000 to 640,000, 6,000
640,000 to 660,000, 6,100
660,000 to 680,000, • 6,200
680,000 to 720,000 6,300
720,000 to 750,000, 6,400
750,000 to 800,000, 6,500
SlOO additional for each 50.000 of population over 750,000.
Salaries of
registers and
assistant
registers.
1823, 141.
1833, 173.
R. S. 83. § 50.
1856, 284, § 19.
1858, 93. § 14.
O.S.I 19, § 16.
1864, 298.
1867, 357, § 1.
1871, 300.
1874, 242;
269; 327;
369.
P. S. 158, § 23.
Section 35. The salaries of registers and all assistant registers shall 1
be paid by the commomvealth, and except in Dukes, Nantucket and 2
Suffolk counties, shall be as follows: 3
Registers, five hundred dollars less than the salaries paid the senior 4
judges of their respective counties. 5
Assistant registers, seventy per cent of the salaries paid their respec- 6
live registers. 7
Second and third assistant registers, sixty and fifty-five per cent, 8
respectively, of the salaries paid their ^especti^•e registers. 9
1884, 192; 248.
1887, 259; 273.
1S88, 152.
1891,318.
1893, 151, § 2; 469, § 1.
1898, 234.
1899, 191, I 2; 264.
1900, 144, § 1; 328; 347.
R. L. 164, § 27.
1904, 286, § 2; 455, §§1,3.
1905, 333.
1906, 265.
1907, 207, § 1; 442, § 5.
1909, 431; 494.
1910, 266.
1911, 73; 668.
1912, 332; 498; 654.
1913, 791.
1915, 280.
1916, 276, § 2.
1917,214; 336.
1918, 284.
1919, 353, §§ 3-6, 8.
1920, 626.
Adjustments
of salaries.
1904, 455,
§§2,4.
1919, 353, § 7.
Section 36. In the year following each state and national census,
the state treasurer shall adjust the salaries pro\'ided for in the two pre-
ceding sections in accordance with said sections, on the basis of said
census, and the salaries so adjusted shall be allowed from January first
in the year of adjustment.
Salaries of
judges, etc.,
Dukes and
Nantucket
counties.
Section 37. In Dukes and Nantucket counties the salaries of the
judges of probate and the registers shall be as follows: judges, eighteen
hundred dollars; registers, tliirteen hundred dollars.
1904, 455, §§1,3.
1912, 378.
1914, 620.
1917, S.^ie.
1918, 284.
1919, 353, §§ 9, 10.
1823, 141.
R. S. 83, §§ 49. 50.
1858, 93. §§ 13, 14.
1859, 178.
G. S. 119, § 16.
1804, 298.
1867, 357, § 1.
P. S. 158, § 23.
1885, 318.
1890, 115.
1893, 469, § 1.
1901, 485.
R. L. 164, § 27.
fudges^^'e"' in Section 38. In Suffolk county the salaries of the judges of probate
suffoik^jounty. shall be eighty-five huiulred dollars; of the register, sixty-five hundred
R. s.'s3, ■ dollars, and of the assistant registers, seventv per cent of that of the
§§49,50. . ^ ' "^ - ^
1858, 93, register.
§§13,14.
G.S.
119, § 16.
1S64, 298.
1867.357,5 1-
1871, 277.
1878, 119.
P. S. 158, § 23.
1882, 144.
1885, 203.
1891,91
1893, 469,
R. L. 164,
1904, 455,
1908, 231
1911,445;
§ 1-
§27.
§§1.3.
668.
1912, 585.
1913, 791.
1917, 336.
1918, 284.
1919, 353, §
1920, 623; 6
Chap. 217.] judges and registers of probate and insolvency. 2341
1 Section 39. Clerks of the registers shall reoei%-e from the common- Salaries ot
2 wealth salaries as follows: '='"''^' ^"^•
3 For the county of —
4 Middlesex, two thousand dollars. Middlesex
1915, 41, § 1.
1916, 276, §1. 1919,354.
5 Suffolk, fifteen hundred dollars. ?"?„°"^„
' 187S, 119.
P. S. 158, § 23. R. L. 164, § 27. 1914, 4S3. 1920, 477.
6 Court officers for attendance at sessions of the probate courts shall Court officers.
7 receive from their respective counties salaries and compensation as
8 follows:
9 For the county of —
10 INIiddlesex, twenty-four himdred and eighty-four dollars, and one Middlesex.
11 hundred dollars annually to provide a uniform, together with ten cents ill! im; § 34.
12 a mile for travel out and home once a week during such attendance if the il]i7',335, § 2.
13 distance exceeds &xe miles one way.
1918, 2G0, §1. 1919,276. 1920,494.
14 Plymouth, four hundred and fifty dollars, subject to the approval of f9^™6"5^•
15 the county commissioners. 1920, 383.
16 Suffolk, twenty-six hundred and forty dollars and one hundred dollars Suffolk.
17 annually to provide a uniform. iss7, ise.
1894, 66. 1904, 272. 1918, 260, § 1.
1898, 146. 1906, 149. 1919, 276.
R. L. 164, §33. 1912,658. 1920,494.
18 Messengers of the probate courts shall receive from their respective Messenger.
19 counties salaries and compensation as follows:
20 For the county of —
21 Middlesex, twenty-four hundred and eighty-four dollars, and one him- Middlesex.
22 dred dollars annually to provide a uniform, together with ten cents a r. l; 1&4; § 35.
23 mile for travel out and home once a week during attendance at sessions \l°j\ 253!
24 of the court.
1918, 166. 1919, 228; 372. 1920, 494.
25 Suffolk, twenty-two hundred and eighty dollars and one hundred dollars Suffolk.
26 annually to pro\'ide a uniform. 1919,42. 1920,494. 1904,272.
1 Section 40. A judge performing any duty under section eight shall ^°™§g"g°o°°
2 receive from the commonwealth, in addition to the amount otherwise certain duties.
1S')2 337 § 3.
3 allowed him by law, fifteen dollars for each day that he performs such 1S94! 377! | 3.
4 duties.
1899, 345, § 3. R. L. 164, § 7. 1904, 401, § 2. 1 Op. A. G. 232.
1 Section 41. Whenever a special judge holds a session of the probate compensation
2 court or court of insolvency, he shall receive from the commonwealth the "udTeT."''
3 same compensation that a judge of probate for another county would be }yi|; |} J; ^ ^•
4 entitled to receive for the same service.
1 Section 42. Judges and registers shall receive from their respective Traveling
2 counties their actual and proper traveling expenses incurred by them in igg^sTii.
3 the performance of their official duties in holding and attending court at ^- ^- ^^^' ^ ^"^
4 a place other than that where the registry of probate is situated, upon
5 an itemized statement of such expenses being certified to, and approved
6 by, the county commissioners of their respective counties.
2342
DISTRICT COtTRTS.
[ClLiP. 218.
Compensation
of temporary
register.
Certain fee,s,
etr,, forbidden.
1817, 190. 5 2.
1823. 141, I 3.
R. S. 8.3.
§§ 24, 52.
1856, 284,
§§ 14,21.
1857, 274,
1858, 93,
§§2,3.5.
G. S. 119,
§§ 17, 18.
P. S. 158,
§§ 25, 26.
R. L, 164,
§§31,32.
,12.
Section 43. A temporary register shall be entitled to the same com- 1
pensatiou as the register, and shall be paid by him if the appointment is 2
caused by his absence; but if the appointment is caused by his death, 3
removal or resignation, the temporary register shall be paid by the com- 4
monwealth. No judge or register shall recei\e any fee or compensation 5
in addition to his salary for holding or attending courts or acting as 6
judge or register in any county, nor for anything done in his official 7
capacity, except as expressly pro^^ded by law, but any judge of pro- 8
bate assisting another judge in the performance of his duties may 9
receive compensation from liim, if not entitled to recei^•e it from the 10
commonwealth. 1906,59. 11
REFERENCES.
§ 4. Filling vacancy in office of register, Chap. 54, § 142.
Election of registers, Chap. 54, § 156.
Removal of register, Chap. 211, § 4.
§ 6. Appointment of judge or register to be executor or administrator of his wife,
etc.. Chap. 192, § 7.
§ 12. Right of register to be reimbursed for premiums paid on bonds, Chap. 30, § 17.
§ 15. Duty to deposit money in bank, Chap. 35, § 22.
§§ 34-39. Salaries of certain individuals, 191S, 260, as amended by 1919, 276; also
1919, 353, § 14.
Annual estimates for Suffolk, 1910, 373.
Appointment of additional officers in Middlesex and Worcester counties who
may be assigned to attend sessions of the probate court. Chap. 221, § 70.
CHAPTER 218
DISTRICT COURTS.
Sect,
territorial jurisdiction and powers.
1. Territorial jurisdiction and place of
holding court.
2. Concurrent jurisdiction of Boston
municipal courts over waters, islands,
etc.
3. Criminal jurisdiction of certain courts
in Boston over waters and islands.
4. Courts of record and superior jurisdic-
tion. Seal.
5. Service of process in contempt cases.
JUSTICES AND SPECIAL JUSTICES.
6. Justices and special justices.
7. Administration of oaths.
CLERKS AND ASSISTANT CLERKS, ETC.
8. Clerks.
9. Temporary clerks.
10. Assistant clerks.
11. Temporary assistant clerks.
12. Clerks, etc., to be sworn. Duties and
powers.
MISCELLANEOUS PROVISIONS.
13. Destruction of old documents.
14. Facsimile signature permitted in certain
cases.
Sect.
15. Office hours of clerks.
16. Bond of clerk or justice.
17. Justice, clerk, etc., not to act as attor-
ney in his court.
IS. Justice, clerk, etc., not to receive cer-
tain fees.
CIVIL JURISDICTION.
19. Civil jurisdiction in general.
20. Scire facias.
SMALL CL.\IMS PROCEDURE.
21. Alternative procedure established by
rule for small civil cases.
22. Procedure.
23. Judgment final unless removal.
24. Transfer to ordinary docket.
25. Discretion as to costs.
CRIMINAL JURISDICTION.
26. Jurisdiction of o£fences.
27. Power to impose penalties.
28. Recognizances to keep the peace.
29. Jurisdiction of felonies by juvenile
offenders.
30. Binding over to superior court.
31. Delay in executing sentence exceeding
six months. Appeal.
CiLVP. 218.]
DISTRICT COUETS.
2343
Sect.
32. Complaints and warrants.
33. Clerk, etc., may issue warrants, etc.
34. Warrant dispensed with in certain
cases.
35. Justice, etc., may issue warrants, etc.,
individually.
36. Justice of peace with power to issue
warrants and take bail.
37. Process for witnesses and defendants in
criminal and juvenile cases, direction
and service.
SESSIONS AND PROCEEDINGS.
38. Courts always open, sittings and ad-
journments.
39. Books and supplies. •
40. Who may hold court, etc.
41. Powers and duties of special justice.
42. Adjournment when justice absent.
43. Uniform rules of courts.
44. Process, formal requisites. To run
throughout commonwealth.
45. Depositions.
46. Notice of decisions, etc.
47. Payments and accounts by clerks.
ADDITIONAL PROVISIONS RELATIVE TO MU-
NICIP-1L COURTS.
48. Sentences to Deer island.
49. Payment of certain fees by clerks, ad-
vances and accounting therefor.
ADDITIONAL PROVISIONS RELATIVE TO THE
MUNICIPAL COURT OF THE CITT OF
BOSTON.
50. Justices.
51. Allowance of accounts, etc.
52. Assignment of justices, additional ses-
sions. Special justices, assignuient,
compensation, powers and duties.
53. Clerks and assistant clerks.
54. Civil jurisdiction.
55. Medical service and equipment.
56. Accounts of clerks.
Sect.
special provisions relative to the bos-
ton juvenile court.
57. Territorial jurisdiction.
58. Justices and clerk.
59. Powers, duties and procedure.
60. Jurisdiction over offenders, etc. Rules.
COURT OFFICERS.
61. Appointment, tenure, powers and
duties.
62. Number.
63. Uniforms in Boston.
64. Bonds in Boston.
65. Temporary court officers.
MESSENGERS AND INTERPRETERS.
66. Messenger of Boston municipal court.
67. Interpreters in Boston municipal court.
68. Interpreter in East Boston district
court.
CLERICAL ASSISTANCE.
69. Clerical assistance to certain clerks.
70. Same subject.
71. Clerical assistance to clerk of central
Worcester.
72. Clerical assistance to clerks of Boston
municipal court.
73. Clerical assistance outside of Boston.
SALARIES.
74. Monthly payments.
75. Salaries in Boston municipal court.
76. Salaries in Boston juvenile court.
77. Salaries of justices in Dukes and Nan-
tucket.
78. Classified salaries, justices.
79. Same, clerks and assistant clerks.
80. Salaries of assistant clerks in municipal
court of the Charlestown district.
81. Traveling expenses.
82. Periodical readjustment of classified
salaries.
83. Salaries of court officers.
84. Computation of compensation.
TERRITORIAL JURISDICTION AND POWERS.
1 Section 1. The iudicial districts of the several district courts shall Territorial
. 1 p 11 • • • 1 J • jurisdiction
2 continue to comprise the following cities, towns, wards and territory, andpiaooof
3 in the following counties, respectively : couh.
p. 3. 154, § 2. 1893, 396, § 69. R. L. 160, § 2.
Barnstable.
4 The first district court of Barnstable, held at Barnstable and Bourne; First Barn-
5 Barnstable, Bourne, Yarmouth, Sandwich, Falmouth and Mashpee. i89o,''i77, § i.
6 The second district court of Barnstable, held at Harwich and Prov- second Bam-
7 incetown; Provincetown, Truro, Wellfleet, Eastham, Orleans, Brewster, tsgo,"!??, § 2.
8 Chatham, Harwich and Dennis.
2344
DISTRICT COURTS.
[Chaf. 218.
Central
Berkshire.
1850.310, I 1
G. S. 110, § 1.
1869,41(1. § 1.
1881. 10,5,
1917, 302.
Northern
Berkshire.
1854,277, § 1.
G. S. 116, § 1.
Southern
Berkshire.
1870, 202, § 1.
1917, 302.
Fourth
Berkshire.
1854, 277, 5 1.
G.S. 116, §1.
Police court
of Lee.
1853,312, § 1.
G. S. lit). § 1.
P. S. 1.54. § 1.
R. L. lliO, § 1.
1917, 302.
Police court
of Williams-
town.
1855, 83, § 1.
Berkshire.
The district court of central Berkshire, held at Pittsfield; Pittsfield, 9
Hancock, Lanesborough, Peru, Hinsdale, Dalton, Washington, Rich- 10
mond, Lenox and Becket; the police court of Lee exercising concur- 11
rent jurisdiction in Lenox and Becket. 12
The district court of northern Berkshire, held at North Adams; 13
North Adams, Clarksburg and Florida. 14
1S70, 201, § 1. . 1878, 143, § 6.
The district court of southern Berkshire, held at Great Barrington; 15
Sheffield, Great Barrington, Egremont, Alford, INIount Washington, 16
Monterey, New Marlborough, West Stockbridge and Sandisfield; the 17
police court of Lee exercising concurrent jurisdiction in Sandisfield. 18
The fourth district court of Berkshire, held at Adams; Adams, 19
Cheshire, Savoy and Windsor. 20
1870, 201, §§ 1, 10. 1878, 143, § 6. 1895, 176, §§ 1, 4.
The police court of Lee, held at Lee; Lee, Stockbridge, Tj-ringham, 21
Otis, Sandisfield, Lenox and Becket; the district court of southern 22
Berkshire exercising concurrent jurisdiction in Sandisfield and the dis- 2.3
trict court of central Berkshire exercising concurrent jurisdiction in 24
Lenox and Becket. 25
The police court of Williamstown, held at Williamstown; Williams- 26
town and New Ashford. 27
G. S. 116, § 1. P. S. 154, § 1. n. L. 160, § 1. 1917, 302.
First Bristol.
1858, 84, § 1.
G. S. 116, § 1.
1874, 293, I 1.
Second
Bristol.
1852,304, § 1.
G.S. 116, § 1.
1874,293. § 1.
Third Bristol.
1834, 33.
R. .S. 87, § 2fl.
G.S. 116, § 1.
1874,293, § 1.
1878, 152.
Fourth Bristol.
1874, 293, § 1.
1877, 189.
Bristol.
The first district court of Bristol, held at Taunton; Taunton, Reho- 28
both, Berkley, Dighton, Seekonk, Easton and Raynham. 29
1S77, 189. 1903, 214, § 1.
The second district court of Bristol, held at Fall River; Fall River, 30
Somerset, Swansea, Freetown and Westport; the third district court 31
of Bristol exercising concurrent jurisdiction in Freetown and Westport. 32
1878, 152.
The third district court of Bristol, held at New Bedford; New Bed- 33
ford, Fairhaven, Acushnet, Dartmouth, Freetown and Westport; the 34
second district court of Bristol exercising concurrent jurisdiction in 35
Freetown and Westport. 36
The fourth district court of Bristol, held at Attleboro; Attleboro, 37
North Attleborough, Mansfield and Norton. i903, 214, §§ 1, 4. 38
Dukes County.
1.898, 287, § 1.
1907, 27.
First Esses.
1831,70.
R. S. 87, § 29.
G.S. 116, § 1.
Second Essex.
1888, 193, § 1.
1917, 302.
Dukes County.
The district court of Dukes County, held at Oak Bluffs, Edgartown 39
and Tisbury; Dukes County. 40
Essex.
The first district court of Essex, held at Salem; Salem, Beverly, 41
Danvers, Hamilton, Middleton, Topsfield, Wenham and Manchester.
42
1874, 224,
1,2.
1917, 302.
The second district court of Essex, held at Amesbury; Amesbury, 43
INIerrimac and Salisbury; the police court of Newburyport exercising 44
concurrent jurisdiction in Salisbury. 45
Chap. 218.] district courts. ■ 2345
46 The third district court of Essex, held at Ipswich; Ipswich. i906'^2^9^^}'i
47 The central district court of northern Essex, held at Haverhill; central
48 Haverhill, Groveland, Georgetown, Boxford and West Newbury; the E°ss*ex'™
49 police court of Newburyport exercising concurrent jurisdiction in West cf^'ubS^i
50 Newbury. isei, 207, § 1. isee, 290.
1S67, 316. 1S96, 365. 1S99. 255. 1917, 302.
51 The district court of eastern Essex, held at Gloucester; Gloucester, Eastern Essex.
52 Rockport and Essex. g. s. iib, § i. . . s •
p. S. 154, § 1. 1888, 249. 1897. 403. 1900, 400.
53 The district court of southern Essex, held at Lynn; Lynn, Swamp- southern Essex.
54 scott, Saugus, Marblehead and Nahant. g. s. ur>, § i. p. s. 154, § i. 1849, se, §1.
R. L. 160, § 1. 1909,117. 1911, 414, §1. 1917,302.
55 The district court of Lawrence, held at LawTence; Lawrence, An- District court
56 dover. North Andover and Methuen. iS48. 26b, §i. g. s. ii6, 5 1- ofLa^-rence.
p. S. 154, § 1. R. L. 160, § 1. 1914, 532. 1917, 302.
57 The police court of Newburyport, held at Newburyport; Newbury- Police court
58 port, Newbury, Rowley, Salisbury and West Newbury; the second pon.^"''"'^'
59 district court of Essex exercising concurrent jurisdiction in Salisbury ^^g- |p§ 29"
60 and the central district court of northern Essex exercising concurrent pg^|- 1^' | ^■
61 jurisdiction in West Newbury. 1902, 455. 1917, 302.
62 The district court of Peabody, held at Peabody; Peabody and °'p^bod°'"^*
63 Lynnfield. 1917, 2si, §§ 1, 3; 302.
FranJclin.
64 The district court of Franklin, held at Greenfield, at Turners Falls Prankiin.
65 in Montague, and at Shelburne Falls in Shelburne and Buckland; ^*^®'^°^' ^'•
66 Frankhn county, except Orange, Erving, Warwick, Wendell and New
67 Salem.
68 The district court of eastern Franklin, held at Orange; Orange, Eastern
69 Erving, Warwick, Wendell and New Salem. is99, 391, § 1. Frankim.
Hampden.
70 The district court of eastern Hampden, held at Palmer; Palmer, Eastern
71 Brimfield, Monson, Holland, Wales and Wilbraham. Hamp<ien.
1872, 277, I 1. 1874, 180, § 1. 1907, 110.
72 The district court of western Hampden, held at Westfield and Chester; western
73 Westfield, Chester, Granville, Southwick, Russell, Blandford, Tolland fss^m
74 and Montgomery. ^^ ^' ^•
75 The police court of Chicopee, held at Chicopee; Chicopee. PoUce court
1855, 463, § 1. G. S. 116, § 1. P. S. 154. § 1. R. L. 160. § 1. °^ Chicopee.
76 The police court of Holvoke, held at Holvoke; Ilolvoke. Police court
' ^ ' . V q[ Holyoke.
1871, 173, § 1. P. S. 154, § 1. R. L. 100, § 1.
77 The police court of Springfield, held at Springfield; Springfield, of°g™™fl^g'j,
78 West Springfield, Agawam, Longmeadow, East Longmeadow, Hampden ism, m « 22'.
79 and Ludlow. is74, iso, §§ 1, 2. i878, ss, § 7. 1917, 302.
HaviysJiire.
80 The district court of Hampsliire, held at Northampton, Amherst, Hampshire.
_ .1 SCO 0*>7
81 Cummmgton, Belchertown, Huntington and Easthampton; Hampshire §§ r,'3. '
82 county, except Ware, Enfield, Greenwich and Prescott. 1903, 412.
2346
DISTRICT COUETS.
[Ch.\p. 218.
Eastern
Hampshire.
1882, 227,
§§1,3.
The district court of eastern Hampshire, held at Ware; Ware, Enfield, S3
Greenwich and Prescott. laos, 412, §§ 1, 3, 5. 84
Central
Middlesex.
1S74, 315, § 1.
First northern
Middlesex.
1872,269, § 1.
First eastern
Middlesex.
1874, 392, § 1.
Second eastern
Middlesex.
1881, 128. § 1.
Third eastern
Middlesex.
1854, 335, § 1.
G. S. 116, § 1.
Fourth eastern
Middlesex.
1874, 392, 5 1.
1882, 233, § 2.
1888, 59.
First southern
Middlesex.
1.874, 35, § 1.
1881, 223.
1882, 169.
Police court
of Lowell.
1833, 64, § 1.
R. S. 87, § 29.
Police court
of Marl-
borough.
District court
of Natick.
Police court
of Newton.
Police court
of Somerville.
Middlesex.
The district coiul of central ISIiddlesex, held at Concord; Concord,
Acton, Bedford, Carlisle, Lincoln, Maynard, Stow and Lexington.
The first district court of northern Middlesex, held at Ayer; Ayer,
Groton, Pepperell, Townsend, Ashby, Shirley, Westford, Littleton and
Boxborough.
The first district court of eastern Middlesex, held at Maiden; Mai-
den, Wakefield, Melrose, Everett and Medford. 1893, 350. 1909, 93.
The second district court of eastern Middlesex, held at Waltham;
Waltham, Watertown and Weston.
The tliird district court of eastern Middlesex, held at Cambridge;
Cambridge, Arhngton and Belmont.
P. S. 154,
1882, 233, I 1.
The fourth district court of eastern ]\Iiddlesex, held at Woburn;
Woburn, Winchester, Burlington, Wilmington, Stoneham, Reading and
North Reading. issg. 312. i898, 250. 1909, 93.
The first district court of southern Middlesex, held at Framingham;
Framingham, Ashland, Holliston, Sherborn, Sudbury, Wayland and 100
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
Hopkinton. i9i7, 302.
The police court of Lowell, held at Lowell; Lowell, Tewksbury,
Billerica, Dracut, Chelmsford, Dunstable and Tyngsborough.
101
102
103
G.S. 116, § 1.
P. S. 154, § 1.
R. L. 160, § 1.
1904, 264.
The police court of JNIarlborough, held at IMarlborough; Marlbor- 104
ough and Hudson. is82, 233, § 3. r. l. 160, § 1. i9i7, 302. 105
The district coiu-t of Natick, held at Natick; Natick. 106
1917, 274, §§ 1, 3.
The police court of Newton, held at Newton; Newton. 107
1876, 195, § 1. P. S. 154, § 1. R. L. 160, § 1.
The police court of Somerville, held at Somerville; Somerville. 108
1872, 233, § 1. P. S. 154, § 1. R. L. 160, § 1.
Nantucket.
1913, 508,
§§1.3.
Northern
Norfolk.
1898, 478.
East Norfolk.
1872, 289, § 1
1875, 6.
1912, 394, § 1
Nantucket.
The district court of Nantucket, held at Nantucket; Nantucket 109
county. 1915,101. 1918,245. no
Norfolk.
The district court of northern Norfolk, held at Dedham; Dedham, 111
Dover, Norwood, Westwood, IVIedfield, Needham and Wellesley. 112
1911,469, § 5.
The district court of East Norfolk, held at Quincy; Quincy, Ran- 113
dolph, Braintree, Cohasset, Wej^mouth, Holbrook and Milton; and, 114
in criminal cases, concurrently with the second district court of 115
Plymouth, that part of Scituate described in chapter three hundred 116
and ninety-four of the acts of nineteen hundred and twehe. Arrests 117
and service of process in such cases may be made by an officer quali- 118
fied to serve criminal process in Cohasset. This pronsion shall not 119
increase the judicial district of said court for the purposes of section 120
seventy-eight. 121
Chap. 218.] district courts. 2347
122 The district court of southern Norfolk, held at Stoughton and Canton; Southern
123 Stoughton, Canton, Avon and Sharon. i89i,273, §§ 1,3.
124 The district court of \Aestern Norfolk, held at Franklin and Walpole; westem
125 Franklin, Walpole, Bellingham, Foxborough, Medway, Millis, Norfolk, is9s,°497, § 1.
126 Wrentham and Plainville. i90s, 255, § 7.
127 The municipal court of Brookline, held at Brookline; Brookline. Municipal
court of
1SS2, 233, § 4. 1S98, 214. R. L. 160, § 5. Brookline.
Plymouth.
128 The second district court of Pljinouth, held at Abington and lij^outh.
129 Hingham; Abington, Hinghain, Whitman, Rockland, Hull, Hanover, }|7|'3|°i^iJ-
130 Scituate, Norwell and Hanson. isro. 243, § 3.
131 The tliird district court of Pljonouth, held at Plymouth; Plymouth, Third
132 Kingston, Plympton, Pembroke, Duxbury, Marslifield and Halifax. i87"'350,'§ 1.
1879, 248, § 3. 1917, 302.
133 The fourth district court of Plymouth, held at Middleborough and l^^^^^i^_
134 Wareham; Middleborough, Wareham, Lake\ille, Marion, ]\Iattapoisett, }||o|o°'^''
135 Rochester and Carver. 1917,302.
136 The police court of Brockton, held at Brockton; Brockton, Bridge- PoHce court of
137 water. East Bndgewater and West Bndgewater.
1874. 316, § 1. 1S75, 23. ISSo, 153, § 1. 1887, 322.
Brockton.
Suffolk.
138 The municipal court of the city of Boston, held at Boston; wards six. Municipal
139 seven, eight, nine, ten, eleven, twehe, sixteen, seventeen and eighteen BoTton.
140 of Boston as they existed on February first, eighteen hundred and eighty- r^'J; 87^'§ i!'
141 two; and in criminal cases, concurrently with the municipal courts of fgel; 279,' | /."
142 the Roxbury and Brighton districts, the second and third district courts J|^|' m^ 1 1-
143 of eastern Middlesex, and the police court of Newlon, respectively, so ^^''fi^'J^o
144 much of the Charles river basin, as defined in section two of chapter five R.'il i6d, § 4.'
145 hundred and twenty-four of the acts of nineteen hundred and nine, as 154 Mass'. 128.
146 affected by chapter two hundred and forty-five of the General Acts of
147 nineteen hundred and sixteen, as is within the districts of said courts.
148 The municipal court of the Brighton district, held at Brighton in Municipal
149 Boston; ward twenty-five of Boston as it existed on February first, BHEhton
150 eighteen hundred and eighty-two. is74, 271, § 14. district.
1875, 243, §4. 1876, 240, § 6; 242. P. S. 154. § 42. R. L. 160. § 4.
151 The municipal court of the Charlestown district, held at Charles- Municipal
152 town in Boston; wards tlu-ee, four and fi\'e of Boston as they existed chariestown
153 on February first, eighteen hundred and eighty-two. 1862, 107, § 1. district.
1873, 286, § 4. 1875, 243. § 4. P. S. 154, § 42.
1874, 271, § 4. 1876, 240, § 3. R. L. 160, § 4.
154 The police court of Chelsea, held at Chelsea; Chelsea and Revere. PoUce court
of Chelsea
1855,26,51. G. S. 116, §1. 1874, 201, §1. R. L. 160, § 2.
155 The municipal court of the Dorchester district, held at Dorchester Municipal
156 in Boston; ward twenty-four of Boston as it existed on February first, Dorchester
157 eighteen hundred and eighty-two. i87o, 333, § 1. is74, 271, § 3. district.
1875, 243, § 4. 1876, 240, § 7. P. S. 154, § 42. R. L. 160, § 4.
158 The East Boston district court, held at East Boston in Boston; East. Boston^
159 W^inthrop and wards one and two of Boston as they existed on March i874, 271, § li.
160 first, eighteen hundred and eighty-six. i875, 243, § 4.
1876, 240, § 2. P. S. 154, § 42. 1886, 15, I 2.
1877, 165. 1882, 146. R. L. 160, § 2.
2348
DISTRICT COURTS.
[Chap. 218.
courto?Rox- The municipal court of the Roxbury district, held at Roxbury in 161
b^y district Boston; wards nineteen, twenty, twenty-one and twenty-two of Boston 162
1875! 243! § 4! as they existed on February first, eighteen hundred and eighty-two. 163
1876, 240, § 5; 242. P. S. 154, | 42. R. L. 160, § 4.
™^tTsouth The municipal court of the South Boston district, held at South 164
?8°74°27i'tH' I^oston iu Boston; wards thirteen, fourteen and fifteen of Boston as 165
1875! 243', § 4. they existed on February first, eighteen hundred and eiglity-two. 166
1876, 240, § 4. P. S. 154, § 42. R. L. 160, § 4.
Municipal
court of West
Roxbury
district.
1874, 271, 5 14.
1875, 243, I 4.
1876, 240, § 6.
P. S. 154, § 42.
1898, 478.
R. L. 160, § 4.
1911, 469. § 5.
The municipal court of the West Roxbiuy chstrict, held at West 167
Roxbury in Boston; ward twenty-three of Boston as it existed on Feb- 168
ruary first, eighteen hundred and eighty-two, and the territory com- 169
prised within the Hmits of the former town of Hyde Park which was 170
annexed to Boston by chapters four hundred and sixty-nine and five 171
hundred and eighty-three of the acts of nineteen himdred and eleven. 172
Worcester.
worc'iter The Central district court of Worcester, held at Worcester; 173
G*l' 116^11 ^^'orcester, Millbury, Sutton, Auburn, Leicester, Paxton, West Boylston, 174
1872, 199! §1. Holden, Shrewsbury, Rutland, Barre, Princeton and Oakham. 175
1902,186. 1904.259. 1910,258. 1917,302.
First northern
Worcester.
1884,215, I 1.
1907, 98.
1917, 302.
First eastern
Worcester.
1872, 200, § 1.
1897, 401.
The first district coiut of northern Worcester, held at Athol and 176
Gardner; Athol, Gardner, Petersham, Phillipston, Royalston, Temple- 177
ton, !Hubbardston, Dana and Westminster. 178
Tlie first district court of eastern Worcester, held at Westborough 179
and Grafton; Westborough, Grafton, Southborough and Northborough. 180
1902, 161.
The second district court of eastern Worcester, held at Clinton; 181
182
Second cistern
Worcester.
1I96' ?4o' ^ *■ Clinton, Berlin, Bolton, Boylston, !Har^■ard, Lancaster and Sterling.
1S97, 401. 1902, 161.
First southern
Worcester.
1871.391, § 1.
Second south-
ern Worcester.
1872,201. § 1.
Third southern
Worce.ster.
1854, 160, § 1.
Western
Worcester.
1902.416,
§§1,2.
1917. 302.
1920. 527.
Police court of
Fitchburg.
1868, 124, § 1.
P. S. 154, § 1.
District coiu^
of Leominster.
District court
of Winchendon.
The first district court of southern Worcester, held at Southbridge 183
and Webster; Southbridge, Webster, Sturbridge, Charlton, Dudley and 184
Oxford. 185
The second district court of southern Worcester, held at Blackstone and 186
L'xbridge; Blackstone, Uxbridge, Douglas, Northbridge and !Mill\ille. 187
1916, Sp. 2S2, § 6.
The third district court of southern Worcester, held at !Milford; 188
Milford, ]\Iendon, I'pton and Hopedale. g. s. 116. § 1. is72, 152, § 1. 189
The district comt of western Worcester, held at East Brookfield; East 190
Brookfield, Brookfield, Spencer, North Brookfield, West Brookfield, 191
Warren, !Hardwick and New Braintree. Said court may adjourn to 192
any towra -n-ithin its district other than East Brookfield whenever the 193
public convenience seems to the presiding justice to render such ad- 194
journment expedient. 195
The police court of Fitchburg, held at Fitchburg; Fitchburg, Ash- 196
burnliam and Limenburg.
R. L. 160, § 1. 1904. 259. 1910, 258.
The district court of !Leoniinster, held at Leominster; !Leominster.
1910, 207. §§ 1, 3.
197
198
The district court of Winchendon, held at Winchendon; Winchendon. 199
1904, 372, §§ 1, 3.
CH-VP. 218.] DISTRICT COtTRTS. 2349
1 Section 2. The municipal courts in Boston shall have concurrent Concurrent
2 jurisdiction over all waters, islands and places not included in the dis- Boston munid-
3 trict of any one of said courts or of the police coiu-t of Chelsea, and within wateS!"^'^ °^"
4 the jurisdiction of the superior court for SufFolk county, except as pro- '/sm^'IVi!'^^ is.
5 Aided in the preceding and following sections.
p. S. 154, §44. II. L. 160, §51.
1 Section 3. The municipal coiu-t of the city of Boston, the municipal dictTon^'ot^""^'
2 com't of the Charlestown district and the municipal court of the South certain courts
3 Boston district, and the East Boston district court, shall have and exer- waters and
4 cise, concurrently with each other, the same criminal jurisdiction as said Tsts, 53.
5 courts have within their respective districts over all islands, except East r8s^6,\5!'§^3'^'
6 Boston, and waters, except so much of the Charles river basin as is fgog; HI] 1 1^'
7 described in section one, ■nitliin the criminal jurisdiction of the superior
8 court for Suffolk county.
1 Section 4. District courts shall be coiuts of record. They shall be Courts of
2 courts of superior and general jurisdiction with reference to all cases and supTrfo^luris-
3 matters in which they have jurisdiction, and no order, decree, judgment, sJaV.""'
4 sentence, warrant, writ or process made, issued or pronounced by them }8|3, 179, § 3.
5 need set out any adjudication or circumstances with greater particu- pf%jolJ-
6 larity than would be required in other courts of superior and general is93, 396, § ss.
7 jurisdiction, and the like presumption shall be made in favor of proceed- r. l! leo,' § 6.
8 ings of such courts as would be made in favor of proceedings of other i9?i;473;| };
9 courts of superior and general jurisdiction. Each district court shall }! Met^l'si.^'
10 have a seal, which shall be in the custody of its clerk, and shall be afiBxed ^ Cush. 5S4.
11 to all processes issued by such coiu-t requiring a seal.
1 Section 5. Processes issued in contempt cases may be served by any service of
2 officer qualified to serve criminal process. tem^rcaleT"'
R. S. 85. §33. p. S. 154, §11; 1893, 396, § 61. 2 Gray, 120, 410.
G. S. 120, § 50. 155, § 68. R. L. 160, § 8.
JUSTICES AND SPECIAL JUSTICES.
1 Section 6. The district court of Nantucket shall consist of one justices and
2 justice and one special justice. The central district court of Worcester sfeg'^^J^t'^es-
3 and the district court of southern Essex shall consist of one justice and ^ s°n6', § 3
4 three special justices. Each of the otlier district courts, except the mu- J|^^' 124, § 3.
5 nicipal court of the city of Boston, shall consist of one justice and two isto! 201! § 6-
6 special justices. 333! § sj
7 In the district court of Dukes County, special justices shall be paid by 39i,'§'5.^' ^ ^' '
8 the county five dollars for each day's ser%ice, except that compensation i99^'§'5f'2oo,'
9 for sitting in the place of the justice in excess of thirty days in any one ^^^ |®^' § ^'■
10 year shall be computed as hereinafter proA-ided. Except as hereinbefore 271^5^^7.^316
11 pro\ided, and except in the municipal court of the city of Boston, special i 6:' 337^'§ 6. '
12 justices of district courts, and of the Bcston juvenile court, shall be paid is??! isg-
13 by the county for each day's serAice at the rate by the day of the salary ?s79,^l67.^'
14 of the justice of the same court. Compensation so paid for ser\-ice in p^s^'i^m,'
15 excess of thirty days in any one year, except for ser\-ices in holding a f|^'||o
16 simultaneous session, shall be deducted by the county treasurer from Jssj'sm,
17 the salary of the justice. is94, 173, § 2- 431, § 1.
R. L. IRQ. §5 6, 69. 1905,339,5 2. 1911,473.
1902, 309; 416, § 3. 1906. 299, | 2. 1917, 274, § 2;
1903,412,5 2. 1909,219. 2.S1, § 2.
1904, 372, I 2. 1910, 207, J 2. 1918, 245. § 1.
2350
DISTRICT COUBTS.
[ClL^P. 218.
of^oaths'""'"" Section 7. Justices and special justices of district courts may, in or
c'. s 120 S^M °'^* °^ court, administer oaths in all cases in which an oath is required,
p.s. 154, § 11; unless other-wise expressly provided.
1S93, 396, § 60. R. L. 160, § 7. 145 Mass. 225.
155, § 2.
Clerks.
1821, 109, § 5.
R. S. S7, § 18.
1838, 147, § 2.
1854, 335, § 12.
G.S. 116, §§4,
5,23.
1866, 169.
1877,210, § 1.
P. S. 154, §§ 5,
6, 27, 58.
1893, 396,
§§ 3, 4, 8.
Temporarj'
clerks.
R. S. 87, § 18.
G.S. 116, § 7.
P.S. 154, § 8.
1888, 352, § 1.
1893, 396,
§§ 6, 67.
1895, 245.
R. L. 160,
§S 12, 70.
16 Gray, 88.
9 Allen, 488.
CLERKS AND ASSISTANT CLERKS, ETC.
Section 8. Each district court, except the district courts of Nan-
tucket and Dukes County, shall have a clerk, who shall be appointed by
the governor, with the advice and consent of the council, for five years.
The justices of the district courts of Nantucket and Dukes County shall
have and exercise all the powers and duties of clerks; but either may ap-
point a clerk, to be paid by him and to hold office during his pleasure, for
whose official acts he shall be responsible.
R. L. 160, §§ 9, 10.
1902. 416, § 3.
1903, 412, I 2.
1905, 133; 192.
1906, 194; 240;
248; 351.
1910, 207, § 2.
1912,412.
1917, 102; 124.
9 Gray, 3.
4 Op. A. G. 638.
Section 9. In case of the absence, death or removal of a clerk of a
district court, the court may appoint a temporary clerk, to act until the
clerk resumes liis duties or until the vacancy is filled. A temporary clerk
shall be paid by the county for each day's service an amount equal to the
rate by the day of the salary of the clerk; but compensation so paid to
a temporary clerk for service, in excess of thirty days in any one year,
shall be deducted by the county treasurer from the salary of the clerk.
153 Mass. 211.
Assistant
clerks.
1821, 109, § 5.
R. S. 87,
f§23, 24.
G.S. 116, §6
1874,36, §§ 11.
12- 154
1876, 227, § 3.
P.s. 154, § 7.
1893,396, ^ 5.
R. L. 160, § 11.
1904, 453, § 1.
1908,289.
1909,357.
1912,672.
1913,332, § 1.
1914, 604.
1916, 195; 261.
1917, IM; 2,52.
Ill Mass. 420,
422
iSS'Mass. 159.
224 Mass. 597.
4 0p. A. G.
294.
Temporary
assistant clerks.
1906, 256.
Section 10. The clerk of a district court may, subject to the approval 1
of the justice, appoint one or more assistant clerks, who shall be removable 2
at his pleasure or at the pleasure of the court, for whose official acts the 3
clerk shall be responsible, who shall be paid by him miless salaries payable 4
by the county are authorized in this section or in section fifty-three. 5
Any such assistant clerk may be a woman. Assistant clerks with salaries G
payable by the county may be appointed in each of the following courts, 7
namely, the central district court of northern Essex, the municipal court 8
of the Charlestown district, the district court of western Hampden, and 9
courts the judicial districts of which have, according to the national or 10
state census last preceding, a population of sixty thousand or more. 11
Second assistant clerks with salaries payable by the county may be ap- 12
pointed in each of the following courts, namely, the municipal court of 13
the Roxbury district, the East Boston district court and the municipal 14
court of the Charlestown district. 15
Section 11. In case of the absence, death or removal of a salaried 1
assistant clerk of a district court, other than the municipal court of the 2
city of Boston, the clerk, subject to the approval of the justice, may ap- 3
point a temporary assistant clerk, to act until such assistant clerk re- 4
sumes his duties or until the vacancy is filled. A temporary assistant clerk 5
shall be paid by the county for each day's service an amount equal to the 6
rate by the day of the salary of such assistant clerk; but compensation so 7
paid to a temporary assistant clerk for service, in excess of twenty days 8
in any one year, shall be deducted by the county treasurer from the salary 9
of such assistant clerk. 10
be^worn'"" *° Section 12. The clerks, assistant clerks, temporary clerks and tem- 1
powera.'""' porary assistant clerks of said courts shall be sworn. They or one of 2
1821, 109, § 5. them shall attend all sessions of the court and shall keep a record of all 3
Ch.\P. 218.] DISTRICT COURTS. 2351
4 its proceedings. The clerks sliall liave tlie care and custody of all the 1S22, 12.
5 records, books and papers appertaining to, or filed or deposited in, their ^i,!?^''' '^'
6 respective offices. A clerk paid by the county may make and issue Hlf I,"; 1 1\
7 writs and processes, shall make returns of the com-t, tax bills of costs ilsa^fytis
8 and receive fines, forfeitures, fees and costs accruing from the civil and Q^J'ijf'L^g
9 criminal business of the court, including fees for blanks and copies. 23,28.
p. R. 154. §§9, 33. 1918, 25T, § 407. 1920.2.
1893, 396. § 8. 1919, 5. 153 Mass. 211.
R. L. 160, § 13.
MISCELLANEOUS PROVISIONS.
1 Section 13. District courts may destroy complaints, warrants, docu- Destruction of
2 ments and other papers in criminal cases filed in said courts as completed i9io.°28™'^°
3 business for not less than twenty years, except dockets and record books, ^^^ ■ * ■ »
4 and shall enter the fact of such destruction upon the records of the court.
5 Thereafter the dockets and record books and the minutes and entries
6 therein shall be admissible as evidence of the facts stated therein. The
7 records, papers and documents of district courts relating to causes com-
8 pleted more than twenty years may, subject to the approval of the
9 supervisor of public records, be stored and kept in fireproof rooms,
10 vaults and safes, provided by the county commissioners in the towns
1 1 where the courts are respectively situated, or in the county court houses.
1 Section 14. Clerks and assistant clerks of district courts may sign Facsimile
2 process issued by the said courts, and court records, documents or other permitted in
3 legal papers or copies thereof, relating to criminal, delinquent, wayward 1917, ee!^^'
4 and neglected cases made or issued by such clerks or assistant clerks in ^®^*' *^'
5 conformity with law, except search warrants and process authorizing
6 arrests or commitments, by imprinting thereon a facsimile of the signa-
7 ture of the clerk or assistant clerk; and such facsimile signatures shall
8 have the same validity as their written signatures.
1 Section 15. Justices of district courts shall prescribe reasonable office hours
2 daily office hours for the clerks of their respective courts during which isoa, 396, § s.
3 the offices of the clerks shall be open. Such hours shall be fixed with r. l! Teo. § w.
4 reference to the business of said courts and the convenience of the public §\m.^^^'
5 and of attorneys, and notice thereof shall be posted in a conspicuous place Jggo! 2.
6 in each of said offices. Clerks shall also keep their offices open whenever
7 the court so orders.
1 Section 16. The clerk of a district court or, if no clerk is required by Bond of clerk
2 law, the justice, before entering upon the performance of his official 1821," 109, §5.
3 duties, shall give bond in the sum of one thousand dollars to the comity r*"|.'87", § 19.
4 treasurer, with sufficient sureties to be approved by a justice of the cf^I'mls.'
5 superior court, conditioned to account for and pay over as and when re- p^'^'i^^^j^'s^sg
6 quired by law all fines, forfeitures, fees and other money received by him is93. swi, 57.
7 in the exercise of his office. Failure to give such bond shall be sufficient 153 Mass.' 211.'
8 cause for his removal.
1 Section 17. A justice, clerk or assistant clerk of a district court shall erc'Totl^act
2 not be retained or emploj-ed as attorney in an action, complaint or pro- iJ-g"""""^ '°
3 ceeding pending in his court, or which had been examined or tried therein; }|i?' jL
4 and a special justice shall not be so retained or employed in any case in r."8.'87, '
5 which he acts or has acted as justice.
1855,321.8 11. G.S. 116, |9. 1893,396,5 10.
1857, 264, § 4. P. S. 154, § 10. R. L. 160, | 16.
2352
DISTRICT COURTS.
[CH.A.P. 218.
Justice, clerk,
etc., not to
receive certain
fees.
1852. 159.
1S5S. 10.3, § 3.
G. S. 116, § 34.
1877, 210,
§5 2,7.
1879, 264.
P. S. 154,
5§ 65, 66.
1893, 396. § 11.
R. L. 160, § 17.
Section 18. A justice, special justice acting in the place of the justice, 1
clerk or assistant clerk of a district court shall not receive any fee or com- 2
pensation to his own use, other than his regular salary or allowance, for 3
making complaints or issuing in any capacity warrants, subpoenas or 4
other criminal processes which he is authorized to issue, or for any official 5
services performed by him in court. A clerk or assistant clerk shall not 6
receive, in addition to his salary, any fee or compensation for making out 7
bail papers, or for admitting a prisoner to bail while the court is in session 8
or during the hours when his office is required to be open. 9
Civil juris-
diction in
general.
1821, 109.
R. S. 87,
§§ 11.34.
1852. 46.
1857. 51.
1887. 57.
G. S. 116,
§§ 10, IS.
1871, 144.
1877, 210, § 4.
P. S. 154. §11;
155, §§ 12, 13.
CIVIL JURISDICTION.
Section 19. District courts shall have original jurisdiction concur- 1
rent with the superior court of actions of contract, tort or reple\-in 2
where the debt or damages demanded or the value of the property 3
alleged to be detained does not exceed one thousand dollars, or, in the 4
mmiicipal court of the city of Boston, two thousand dollars, and also of 5
actions of summary process under chapter two hundred and thirty-nine, 6
and proceedings under section forty-one of chapter two hundred and 7
thirtv-one. is93, 396, § 12. is94, 431. 8
R. L. IfiO, §§ IS. 19.
1918,257, §5 409,410.
1919, 5.
1920, 2.
1 Met. 148.
164 Mass. 144.
Scire faci.as.
1753-4, 18, 5 3.
1783, 32, § 9;
42, § 4.
1803, 132, § 1.
R. S. 85,
§§ 16-lS.
G. S. 120,
§§ 3-5.
P. S. 154, §11;
155. §§ 14-16.
1893, 396,
§§ 14-16.
1894, 431.
R. L. 160,
§§ 21-23.
Section 20. District courts may issue writs of scire facias against 1
executors and administrators upon a suggestion of waste after a judgment 2
against them and also against bail taken in a civil action before them, 3
and proceed to judgment and execution as the superior court might do in 4
like cases. Such writs shall be served not less than seven days before the 5
return day, which shall be not more than sixty days after the date thereof. 6
Said com'ts shall have jurisdiction of actions upon such writs although 7
the debt and costs on the original judgment together exceed one thousand 8
dollars, or, in the municipal court of the city of Boston, two thousand 9
dollars; and judgment and execution may be awarded by the court for 10
the whole amount due to the plaintiff with costs of the new action. 1 1
Alternative
procedure
established by
rule for small
civil cases.
1920, 553, § 1.
SlLiLL CLAIMS PROCEDURE.
Section 21. The justices or a majority of them of all the district
courts, except the municipal court of the city of Boston, shall make
uniform rules applicable to said courts, and the justices of the municipal
com-t of the city of Boston shall make rules applicable to that court, pro-
viding for a simple, informal and inexpensive procedure, hereinafter
called the procedure, for the determination, according to the rules of
substanti^•e law, of claims in the nature of contract or tort, other than
slander and libel, in which the plaintiff does not claim as debt or dam-
ages more than thirty-fi^e dollars, and for a review of judgments upon
such claims when justice so requires. The procedure shall not be ex-
cIusiAe, but shall be alternative to the formal procedure for causes begun 1 1
by WTit. 12
1
2
3
4
5
6
7
8
9
10
r92of5M?§ 1. Section 22. The procedure shall include the beginning of actions 1
with an entry fee of one dollar but without writ, and without require- 2
ment, except by special order of court, of other pleading than a statement 3
to the clerk or an assistant clerk, who shall reduce the same to concise 4
ClL\P. 218.] DISTRICT COUKTS. 2353
5 -ftTitten form in a docket kept for the purpose. The procedure shall
6 include notice by registered mail instead of the mode of serAice hereto-
7 fore required, and shall include provisions for early hearing. The pro-
8 cediu"e may include the modification of any or all rules of pleading and
9 practice, anj-thing contained in other chapters, sections or acts notwith-
10 standing, and may include a stay of the entry of judgment or of the
11 issue of execution. The rules for the procedure may provide for the
12 elimination of any or all fees and costs, and that costs shall be in the
13 discretion of the court. In causes begun under the procedure, the court
14 may on application for cause shown issue wTits of attachment of prop-
15 erty or person as in causes begun by wTit.
1 Section 23. A plaintiff beginning a cause under the procedure shall unf^Tremova/.
2 be deemed to have waived a trial by jury and any right of appeal to the ll'S^^^^'
3 superior court and any right to a report to an appellate division; but if
4 said cause shall be removed to the superior court as hereinafter provided,
5 the plaintiff shall haA'c the same right to claim a trial by jury as if the
6 cause had been begun in the superior court. No other party to a cause
7 imder the procedure shall be entitled to an appeal or report. In lieu
8 thereof, any such party may, prior to the day upon wliich he is notified to
9 appear, file in the court where the cause is pending a claim of trial by
10 jury, and his affidavit that there are questions of fact in the cause requir-
1 1 ing trial, with specifications thereof, and that such trial is intended in good
12 faith, together with the sum of three dollars for the entry of the cause
13 in the superior court; and thereupon the clerk shall forthwith transmit
14 such original papers or attested copies thereof as the rules for the pro-
15 cedure may proNade, and the superior court may try the cause as trans-
16 mitted or may require pleadings as in a cause begun by writ, but the
17 cause may be marked for trial on the list of causes advanced for speedy
18 trial by jury. Section one hundred and five of chapter two hundred
19 and thirty-one shall apply in all district courts in causes begun under the
20 procedure.
1 Section 24. The coiu-t may, in its discretion, transfer a cause begun Transfer to
2 under the procedure to the regular civil docket for formal hearing and dockS"^
3 determination as though it had been begun by vrrit, and may impose ^®^°' ^^^' ^ ■*■
4 terms upon such transfer.
1 Section 25. In any cause begun by wTit which might have been Discretion as
2 begun under the procedure, the rules for the procedure may provide, or iglof^ss, § s.
3 the court may by special order direct, that the costs to be recovered by
4 the plaintiff, if he prevails, shall be eliminated in whole or in part.
criminal jurisdiction.
1 Section 26. District courts shall ha\-e original jurisdiction, concur- Jurisdiction
2 rent with the superior court, of the follow ing offences committed within iom-sI^s. § c.
3 their respective districts or otherwise made punishal)le therein : all vio- \rgl[ 2I'. 1 2.
4 lations of by-laws, orders, ordinances, rules and regulations, made by Js^iiioi).
5 cities, towns and public officers, all misdemeanors, except conspiracies and J,; ■"'^ i|-, § i^^
6 hbels, all felonies punishable by imprisonment in the state prison for not s'^Js 3 32;
7 more than five years, the crimes mentioned in sections eighteen and nine- isii;. 52.
8 teen of chapter two hundred and sixty-six, and the crimes of forgery of mg', 211; Iv!
2354
DISTRICT COUKTS.
[Ch.\p. 218.
1853, 196,
§ I^
1854, 277,
§ 2.
1855, 135,
& o
448. §§ 1,
2."
1857, 80;
157. § 1,
1858, 45, i
M.
a promissory note, or of an order for money or other property, and of ut- 9
tering as true such a forged note or order, knowing the same to be forged, 10
if in either case the sum of money or the value of the property named in 11
such note or order does not exceed fifty dollars. 12
G. s. lie
12-14;
120, §§ 38, 40; 101, § 85.
1866, 279, I 8.
1874, 271, § 5.
1876, 174; 227, § 1.
1881. 189.
P. S. 1.54, §§ 11. 17-20,
50; 155. §1 46. 48;
203, § 103.
1885, 149; 322.
1887, 293.
1893, 396. §§24.34.30.40.
1894, 431.
1897, 180; 349.
R. L. 160, §§24,26-31.
1904, 282, § 3.
1909, 442.
1911, 170, 5 1.
1910. 174, §2.
II Gray, 403.
13 Allen, 552.
III Mass. 427.
116 Mass. 349.
138 Mass. 489.
150 Mass. 63, 502.
151 Mass. 60.
152 Mass. 1.
156 Mass. 487.
203 Mass. 598.
206 Mass. 417.
210 Mass. 445.
215 Mass. 209. 525.
216 Mass. 480.
po^"enai"e5. SECTION 27. They may impose the same penalties as the superior
nssyli!! 1 ' ^°^^* ^°^ ^'^ crimes of which they have jiu-isdiction, except that they
i82i' 109 " ™^y "°* impose a sentence to a jail or house of correction for a longer
?4 ^.-.^^ 1,'^' term than two years or to the state prison for anv term.
87, §§ 3. 32; ^ * *
126, § 23. 1853. 196, § 1.
1854, 277, I 2; 328.
1855, 135, I 2; 448, §§ 1. 2.
1857, 80; 157, § 1.
G. S. 116, §§ 12-14;
120, § 38.
1871, 115.
1874, 271, § 5.
1876, 174.
1881, 189.
P. S. 164, §§ 11, 18, 19.
50; 155, § 40.
1885, 149; 322.
1887,293, §2; 349.
1893,390, §§ 34, 36-39.
1894, 431; 432.
1897, 180.
R. L. 160, §§ 24,
26-30.
1909, 442.
1911, 176, § 1.
1918, 257, § 420.
1919, 5.
1920, 2.
Recognizances
to keep the
peace.
R. S. 85, § 23,
G.S. 120, § 39.
P. S. 154, § 11;
155, § 47.
1893, 396, § 41.
1894. 431.
R. L. 100, § 32.
Section 28. District courts may require persons found guilty of any 1
crime within their final jurisdiction, except a violation of by-laws, orders, 2
ordinances, rules and regulations, made by cities, towns and public 3
officers, or of the laws and regulations relative to the public health or 4
relative to defective liighways, in addition to the punishment prescribed 5
by law, to recognize with sureties, in a reasonable sum, to keep the 6
peace or be of good beha\ior, or botli, for not more than one year, and 7
to stand committed until they so recognize. Sections thirteen, sixteen 8
and seventeen of chapter two hundred and seventy-five shall apply 9
to recognizances so taken. 10
Jurisdiction of
felonies by
juvenile
offenders.
1872, 358.
1877,211, § 0.
1880, 183.
P. S. 154. § 11;
155. § 49.
1893. 369. § 3.5.
1894. 431.
R. L. 160. § 25.
127 Mass. 4.50.
Binding over
to superior
court.
1853. 196. § 2.
1855, 448, § 2.
1857, 157, § 2.
G.S. 116. § 1.5.
P.S. 154, §21.
1893, 396. § 42.
R. L. 100,
§§ 33, 34.
1918, 257,
§411.
1919.5.
1920. 2.
206 Mass. 417.
216 Mass. 480.
Section 29. Except as provided in section sixty, they shall have 1
jurisdiction, as provided in section twenty-six, of felonies not punishable 2
by death or imprisonment for life committed by juvenile offenders under 3
seventeen; and, upon their conviction, may sentence them to any pun- 4
ishment authorized for such crime, except imprisonment in the state 5
prison, or may commit them to any institution established by law for 6
the reformation of juA'enile offenders, or may bind them over for trial in 7
the superior court. 8
Section 30. They shall commit or bind over for trial in the superior 1
court persons brought before them who appear to be guilty of crimes not 2
within their final jurisdiction, and may so commit or bind over persons 3
brought before them who appear to be guilty of crimes within their final 4
jurisdiction. In such cases the clerk of the district court shall transmit 5
to the clerk of the superior court a cojjy of the complaint and of the 6
record, the original recognizances, a list of the witnesses, a statement of 7
the ex-penses and the appearance of the attorney for the defendant, if any 8
is entered, and no other papers need be transmitted. 9
Delay in
executing
sentence
exceeding
six months.
Appeal.
Section 31 . No order shall be made for the commitment of a person to 1
a jail or house of correction upon a sentence of more than six months, im- 2
posed by a district court, until at least one day after the imposition of 3
CpUP. 218.] DISTRICT COURTS. 2355
4 such sentence. Before such order is made, he shall be notified of his right isn, i76, 1 2;
5 of appeal to the superior court, and he may exercise such right, as pro-
6 vided by law, until such order is made. Tliis section shall not apply
7 to sentences the execution of which is suspended.
1 Section 32. District courts may receive complaints and issue M-ar- Complaints
2 rants and other processes for the apprehension of persons charged with R.s^sUfss!
3 crime and found witliin tlieir county, or who after committing crime all.' ilo,' ^ ^'
4 therein escape therefrom, returnable before a court or trial justice of fl/y'^u § 4
5 the county having iiu-isdiction of the trial or examination of the person F^-" A'j.j ii;
n T. J VI J.I • 150, §§43, 44.
0 charged with the crime. i893, 398, § 42. is94, 431.
R. L. 160. § 33. 1918,257,5 411. 1919,5. 1920,2.
1 Section 33. A clerk, assistant clerk, temporary clerk or temporary cierk. etc,
2 assistant clerk, paid by the county, may receive complaints, admimster wwraSts^etc.
3 to complainants the oath required thereto, and issue warrants, search a^l.' ilo, § 36.
4 warrants and summonses, returnable as required when such processes p^"' 155 I g
5 are issued by said courts. isqs, 396, § 44. 1894, 431.
R. L. 160, 5 36. 153 Mass. 159. 182 Mass. 339. 224 Mass. 597.
1 Section 34. Said courts may dispense with the issuing of a warrant if ^nged^wfth'
2 the person charged with a crime has been arrested without a warrant '" certain
C3.SCS,
3 and brought before the court or admitted to bail; but in such case the isas.'sgs, § 45.
4 officer making the arrest shall endorse upon the complaint a statement r.'l'. leo, § 37.
5 of his doings.
1 Section 35. A justice or special justice of a district coiut, or a justice Justice, etc..
2 of the peace who is also a clerk or assistant clerk of such a court, may at w^^'rant's^etc.,
3 any time recei\-e complaints and issue warrants and summonses, under isM^wr's^M.
4 his own hand and seal, and such justice or special justice may likewise Jl^l' \ll' t f
5 issue search warrants, retiu-nable before a court or trial justice having °2o^s3fi'''^ ^'^'
6 jurisdiction of the trial or examination of the person charged with the i877, 211, § 1.
7 crime. p. s. 154, §22; 155, §2. 1893, 395, § 43. r. l. leo, § 35; lei, § 5.
3 Allen, 479. 119 Mass. 167. 126 Mass. 235. 145 Mass. 117.
1 Section 36. If, Tvitliin the judicial district of a district court, there justice of
2 is a town in which neither a justice nor the clerk of such coiu-t resides, the powe'rTo'Lue
3 governor, with the ad\-ice and consent of the council, may from time to J^^J'e'JJJin """^
4 time, upon the petition of the aldermen, or the selectmen, designate and p^'S-fp-
5 commission, a justice of the peace residing in such town to exercise the iss*. 286.
6 powers given to certain justices of the peace by the preceding section in isos! 381!
7 cases to be brought before said court, and to take bail in criminal cases §§' s.'i. '"
8 arising within said judicial district. The governor, with the advice and HI HlH] 1^^'
9 consent of the council, may from time to time so designate a justice of ^ '^p- ^' '^- ^'®-
10 the peace residing in Quincy, to exercise the powers given to certain jus-
11 tices of the peace as aforesaid in cases to be brought before the district
12 court of East Norfolk, and to take bail in criminal cases arising witliin
13 the judicial district of said court.
1 Section 37. District courts, justices, special justices, clerks, assistant Process for
2 clerks, temporary clerks and temporary assistant clerks thereof, trial defendants in
3 justices, and justices of the peace designated and commissioned under jwl'ife rases,
4 the preceding section, may issue summonses and other processes for ee'rvice™ ""''
5 witnesses in criminal cases, and such processes and likewise warrants and g13'iW'§^24
2356
DISTRICT COURTS.
[ClL\P. 218.
1876, 94.
P. S. 151,
§§28,31.
1885, 141.
1886, 247.
1893, 396, § 46.
1894, 431.
R. L. 100, § 38.
1918, 257.
§§ 412, 413.
1919, 5.
1920, 2.
137 Mass. 2.33.
164 Mass. 209.
other processes in such cases, issued by said courts or persons, may be 6
directed to a court officer or probation officer of the coiu-t issuing the 7
process, or either specifically or in general terms to any person in the 8
commonwealth qualified to serve criminal process, and any such process 9
may be served and executed in any part of the commonwealth by the 10
person to whom it is delivered for that piupose. This section shall apply 1 1
to summonses, warrants and other processes for parties and witnesses in 12
cases of wayward, delinquent or neglected children. 13
Courts always
open, sittings
and adjourn-
ments.
R. S. 87,
§§ 42, 4.3.
G. S. 116, § 20.
1861,115.
18G9, 385.
P. S. 154, § 23.
1893, 396, § 54.
1897,431.
1898, 488.
R. L. 100, § 39.
152 Mass. 566.
199 Mass. 44.
SESSIONS AND PROCEEDINGS.
Section 38. District courts shall always be open and business may be 1
transacted at any time, except as provided in section six of chapter two 2
hundred and twenty. Sittings of the com-ts shall be held in the court 3
houses or other places provided therefor by the county, at the times and 4
in the towns fixed by law; but if the times are not established by law 5
they shall be fixed by the courts by general rule. Sittings may be ad- 6
journed from time to time as occasion requires, and cases, civil or criminal, 7
may be continued to any future day fixed for the sitting of the court, and, 8
except as otherwise provided, complaints in criminal cases may be placed 9
on file. 10
Bookstand Section 39. Justiccs and clerks of district courts, except the mu-
?s6i 17^' ^ ^^' iiicipal court of the city of Boston, may procure all law books relating to
p. s.'i54, § 24. the laws of the commonwealth, including the reports of the supreme ju-
i89o; 440, § 11. dicial court, the Massachusetts digests, all blank books, blanks, stationery
1I93, 396, § 1. and other incidentals required by said courts and appro^-ed by the jus-
R^l'. 160, § 40. tices. The expenses thereof shall be certified by the justices monthly,
1913, 471, § 3. ^j^(j shall be transmitted to the county commissioners who shall audit the
bills therefor and order pajonent thereof by the county.
Who may hold
court, etc.
R. S. 87, § 31,
1848, 331, § 3.
1849, 86, § 10;
127, § 8.
1854, 34, § 8.
1856, 4.
1857, 26, § 2;
294, § 2.
G. S. 116. §22.
p. S. 154, § 25.
1882, 43.
1885, 132.
1892, 268.
1893, 396,
§§55,63.
R. L. 160,
§§41,44,50.
1906, 166.
1918, 257,
§415.
1919, 5.
1920, 2.
6 Gush. 333.
14 Gray, 14,
18, 19.
7 Allen, 349.
123 Mass. 525.
143 Mass. 187.
151 Mass. 380.
155 Mass. 134.
158 Mass. 168.
184 Mass. 92.
Section 40. District courts, except the municipal court of the city 1
of Boston, shall be held by the respective justices thereof; and, upon 2
request of the justice, either special justice may hold the court and have 3
and exercise all the powers and duties of the justice, or hold a second or 4
third session thereof, and two or more simultaneous sessions may be held. 5
In case of a vacancy in the office of justice, or liis illness, absence or other 6
disability, the special justice holding the senior commission shall, if no 7
request has been made as aforesaid, ha\-e and exercise all the powers and 8
duties of the justice. Upon the death, resignation, absence or disability 9
of the justice and special justices of a district court, except the municipal 10
court of the city of Boston, a justice or special justice of any other dis- 11
trict court, at the request of the clerk, may for the time being have and 12
exercise all the powers and duties of the justice. Justices and special 13
justices of district courts, except the municipal court of the city of Boston, 14
may perform each other's duties when necessary or convenient. When a 15
special justice holds the court or a session thereof or an inquest, or 16
certifies a bill of costs to a county, city or town treasurer, that fact, 17
and the fact which gave liim jurisdiction, shall be entered upon the 18
general records of the couit, but need not be stated in the record of 19
any case heard by liim. 20
dutiMlif"^ Section 41. A special justice of a district court shall at all times have 1
i9i3'*2^9'''''^'^' ^^^ exercise all the powers and duties of a justice of such court, so far as 2
to render decisions, make orders, and perform such other acts as he may 3
Chap. 218.] district courts. 2357
4 deem necessary or proper in connection with or relating to matters wliich
5 have been heard before liim.
1 Section 42. If no justice or special justice is present at the time and ^hj.™?'™;."'
2 place appointed for holding a session of a district court, the sheriff or any "cl*""' «
3 of his deputies or the clerk may adjourn the court from day to day or from isas', s^'e,', § sb.
4 time to time, gi^^ng notice thereof as circumstances may require. ■■ .
1 Section 43. The justices, or a majority of them, of all the district ^f°^^u™ '^"''^
2 courts, except the municipal court of the city of Boston, shall from time g- s. iie, 5 23,
3 to time make and promulgate uniform rules regulating the time for the isod, 359.
T COT QOP R ETA
4 entry of writs, processes and appearances, the filing of answers and for r. l'. leo §4s.
5 holding trials in civil actions, and the practice and manner of conducting j^ifi.^^'^'
6 business in cases which are not expressly pro\ided for bj^ law, including jgig 2
7 juvenile proceedings and those relating to wayward, deUnquent and neg-
8 lected children.
1 Section 44. Processes issuing from district courts shall be under the Process, formal
2 seal of the court, signed by the clerk or an assistant clerk or temporary Torin'througt-
3 clerk or temporary assistant clerk, and shall bear teste of the justice, or, waidT™™'
4 in the municipal court of the city of Boston, the chief justice, unless he R^l'gfg 17.
5 is a party or unless his office is vacant, and in such cases they shall bear ^t-J J,^.
_ I. 1 • 1 • • I 1 1 1 1 ■ • • , • 1S55, 270, § 5;
0 teste 01 the special justice who holds the semor commission or the senior *2s 5j.
7 associate justice. The process, civil or criminal, of a district court shall g s.' iie,' § 26;
8 run throughout the commonwealth for ser\'ice in any case or proceeding v. s. 154, § 30;
9 within its jurisdiction. isss, 415. is93, 396, §§ 15, 64. ^^^- ^ '*■
1894,431. 1916. 174, § I. 135 Mass. 519.
R. L. 160, §§ 22, 46. 13 Gray, 74. 145 Mass. 117.
1912, 649, § 1. 14 Gray, 14, 18, 19. 158 Mass. 108.
1 Section 45. District courts have the same authority to issue com- Depositions.
2 missions to take depositions in cases pending before them as the superior p*'s.'i.54,'|ii;
3 court has in cases pending therein. i893, 396, § 65. r. l. loo, § 47. ^^^' ^ ''°-
1 Section 46. When judgment is entered by a district court upon de- Notice of
2 murrer, or upon a case stated, or when a decision is rendered in an action, igis.'so!' *'"■
3 except in open court, the clerk of the court shall forthwith give notice
4 thereof to the parties or to their attorneys.
1 Section 47. Clerks of district courts, except the municipal court of Paj-ments
^,. «T-» J'* PI 1 111,1 a°*^ accounts
2 the City of Boston, and justices or such courts as have no clerk, shall, on t>y cieriis.
3 or before the tenth day of January, April, July and October, in every §§38,39.
4 year, account for and pay over to the county treasurer all money received 18,55! 26! § i.
5 by them from civil business, including fees for blanks and copies, and to g!''!.' iit,' ^ ^'
6 city and town treasurers all fines and forfeitures received by them payable ig77%^io, 5 3.
7 to said cities or towns, and render to said treasurers a detailed account on p*^?' "f •
8 oath of the same. Such payments shall include the balances due and ^L^i'?[i ^.^v
9 payable at the end of the quarter last preceding the day of pajTnent. isssiisoUig,
10 They shall, at the end of a criminal case, pay the fees and expenses of issV, 415, § 7.
11 officers entitled thereto from the funds in their hands payable to the city ri°44o?' ^^^'
12 or town liable for the payment of such fees and expenses, if they haAe ilo*"!, 313; 392.
13 sufficient funds therefor, and all such fees and expenses not so paid shall \l^f f^}^' 1 1-
14 be certified at the end of each month to the treasurer of the city or town isus! 204,' 1 1.
15 liable therefor, who shall pay them to the parties entitled thereto. They li. i.'. ifio. § 48:
168, § 7s.
2358 DISTRICT COURTS. [Chap. 218.
1904, 453, § 5. shall, at the end of a criminal case or inquest, pay the fees of witnesses for 16
2 0p'. A. G. ' the commonwealth and the fees and expenses of officers at inquests who 17
^' are entitled thereto, from the funds furnished them by the county treas- IS
urer for that purpose, or out of any funds which may be paid into court 19
and are payable to the county. They shaU be allowed for the amounts 20
so paid in their settlement with the county, city and to^\-n treasurers. If 21
they do not have in their hands sufficient funds returnable to counties 22
with ^\]neh to pay such fees, as herein pro\'ided, they may make written 2.3
requisition therefor upon the comity treasurer, who shall pay to them 24
not more than one hundred dollars each in any one month; but if it ap- 25
pears necessary to the director of accounts, he may approve a requisi- 26
tion for not more than two hundred dollars in any one month, and, upon 27
receipt of a requisition so approved, the county treasurer may pay to 28
them such amount as may be called for therein. They shall account 29
therefor in their regular settlements with the county treasurer and shall 30
be liable therefor on their official bonds. A clerk or justice violating any 31
provision of this section shall be punished by a fine of not more than one 32
hundred dollars. 33
ADDITIOX.^L PROVISIONS RELATIVE TO MUNICIPAL COURTS.
Dee/SSid" Section 48. In cases in which municipal courts in Boston or the 1
Ra'i,?i, §51. East Boston district court are authorized to sentence to imprisonment 2
«*3'5^' ^^ ^^^ house of correction or county jail, or to commit thereto for non- 3
iIIr 536 5 9 payment of fine, they may sentence to imprisonment in the house of 4
R. l'. 160, § 53. correction at Deer island or commit thereto. 5
wSn'fle"^ Section 49. In the municipal courts in Boston, except the mu- 1
advances'and nicipal court of the city of Boston, and in the East Boston district 2
the?efor"° court, witness fees and the fees and expenses of officers named in 3
1S98' 20^' 5 section fifty of chapter two hundred and sixty-two and of all other 4
R. l! 160, § 54. persons shall, at the end of a criminal case or inquest in which such 5
fees or expenses accrue, be paid by the clerks to the persons entitled 6
thereto. If they do not have sufficient funds in their hands with which 7
to make such pajments, they may make written requisition upon the 8
auditor of Boston, and thereupon the treasurer of said city shall advance 9
to them not more than one hundred dollars each in any one month, for 10
which they shall, before the tenth day of each month, account to said 11
citv and for which thev shall be liable on their official bonds. 12
ADDITIONAL PROVISIONS RELATI\'E TO THE MUNICIPAL COURT OF THE
CITY OF BOSTON.
isli^io'g. Section 50. The municipal court of the city of Boston shall con- 1
G. s. n6,V35. ^'^t o^ *^'^^ chief justice, eight associate justices and four special justices. 2
p^s^'ilf'fls S^'^i coiu-t may from time to time make rules for regulating the practice 3
isli' 419 5 u ^^^ conducting the business therein in all cases not expressly provided 4
1894] 30S.' for by law. 1S99, 313. R. L. 100, § 55. 1912, 649, § 11. 1913,430. 5
^oSts%tc. Section 51. The chief justice, or, in case of his death, illness, ab- 1
¥^'i5i'ii6 sence or incapacity, the senior associate justice, shall allow bills of 2
Moi 179' ^ ^^' ^ostS' accounts, charges and expenses which arise in said court, and 3
shall certify to the public officer by whom payable such amounts so 4
allowed. 5
Ch.\.P. 218.] DISTRICT COURTS. 2359
1 Section 52. The chief justice may from time to time make assign- Assignment
2 ments for the attendance of a justice at the several times and places add.ltonli'
3 appointed for holding court. The chief justice, or, in case of his death, fp|c?afjus-
4 illness, absence or incapacity, the senior associate justice, if in his t'^s assign-
5 opmion the public busmess so requires, may proyide for additional pensation
6 sessions of the court. A special justice may hold any such additional duties.
7 session at the request of the chief justice or senior associate as aforesaid, is79',2Go'. § 9.
8 or a regular session at the request of the justice whose duty it may be Ks'.'St §S7.
9 to hold it, or, in case of the illness or absence of any justice, or a ille.'lli.^ ^'
10 vacancy, at the request of any justice. During the continuance of such Jlgg'!™-
1 1 requests, or during such illness, absence or vacancy, a special justice R- l.' leo, § 57.
12 shall have and exercise all the powers and duties of a justice. The fact i9iii256.'
13 of holding court and the fact which gave him jurisdiction shall be en-
14 tered upon the general records of the court, but need not be stated in
15 the record of any case heard by him. His compensation shall be twenty-
16 five dollars for each day's service; and, except when holding an ad-
17 ditional session as above provided, the compensation for service in
18 excess of thirty days in any one year which may be rendered to or
19 for any one justice shall be deducted by the treasurer of Suffolk county
20 from the salary of such justice.
1 Section 53. There shall be a clerk and seven assistant clerks of said ^Jgis^ift"^
2 court for criminal business, and a clerk and seven assistant clerks of j'|gjf ;,79 . ^
3 said court for civil business. The assistant clerks shall be appointed bv is74,' 271,' § 26.
. . *' 1S79 257
4 the clerks, respectively, subject to the approval of the justices or a §i;'303.'
5 majority of them, and the clerks shall be responsible for the doings of p. s.' 154. §58.
6 their assistants, and may remove them at pleasure. The salaries of Jivfi^l.' ^ ^'
7 said assistant clerks shall be payable by the county. issq, i70.
1897, 183.
1908, 418.
1913, 446.
R. L. IfiO. § 58.
1912, 649, § 10.
1916, 69, § 1.
1906, 468.
1 Section 54. In addition to the jurisdiction otherwise conferred, ^Jtioi^^^'
2 said court shall have jurisdiction of actions of contract, tort or replevin, i|'^J' 279, § 9.
3 within the debt or damages or value prescribed by section nineteen, is74!27i, §6.
4 if one or more of the defendants, or, in actions by trustee process, if one 1877! is?!
5 or more of the persons named in the writ as trustees, live or have their 1804,431, § 2.'
6 usual place of business in Suffolk county, or, in actions brought under fgiVewili^
7 chapter two hundred and twenty-seven, if an attachment of property or
8 personal service of the WTit is made in said county.
1 Section 55. Said court may secure for its criminal business medical ^Jm™Ld
2 service, and the equipment necessary therefor, and for this purpose ^gy,^P'J'|^*-
3 may expend annually a sum not exceeding six thousand dollars, which 1920! sos.
4 shall be paid by the county of Suffolk upon vouchers approved by the
5 chief justice.
1 Section 56. The clerks shall, on or before the tenth day of each Accounts
2 month, account for and pay over to the collector of Boston, or to any 1887'; 438, § 5.
3 other officer authorized by law to receiA'e the same, the balance due and }ss9;4ls; 1 7^'
SflO. 216.
I 61;
4 payable at the end of the preceding month of all money received by }||jy gj.,
5 them paj-able by law to Suffolk county, and shall render to said collector J^^l' I'io ^ ^
6 or other officer a detailed account thereof under oath. Whoever violates les, § 7s.'
7 this section shall be punished by a fine of not more than one hundred
8 dollars.
2360
DISTRICT COUKTS.
[Chap. 218.
Territorial
jurisdiction.
1906. 489.
§§1.4.
SPECIAL PROVISIONS RELATIVE TO THE BOSTON JUVENILE COURT.
Section 57. The Boston juvenile court, established by section one of 1
chapter four hundred and eighty-nine of the acts of nineteen hundred 2
and six, shall continue to have and exercise jurisdiction within the same 3
territorial limits as are prescribed for the criminal jurisdiction of the mu- 4
nicipal court of the city of Boston. 5
Justices and
clerk.
1906, 489, § 2.
Section 58. Said court shall consist of one justice and two special 1
justices. It shall have a clerk, who shall be appointed by the governor, 2
with the advice and consent of the council, for five years. 3
Powers,
duties and
procedure.
1906, 489,
§§2-4.
Section 59. E.xcept as otherwise provided by law, said court shall 1
have and exercise, within its jurisdiction, the same powers, duties and 2
procedure as district courts; and all laws relating to district courts or 3
municipal courts in the county of Suffolk or officials thereof or proceedings 4
therein, shall, so far as the same are applicable, apply to said court. 5
Jurisdiction
over offenders,
etc. Rules.
1908, 489, § 4.
1907, 137.
Section 60. Within the territorial limits prescribed in section fifty- 1
seven, said court shall have and exercise jurisdiction, exclusive of the mu- 2
nicipal court of the city of Boston, over cases of juvenile offenders under 3
seventeen and cases of neglected, wayward or delinquent cliildren. Said 4
com't may from time to time make general rules in reference to, and pro- 5
vide forms of, procedure. - 6
(3:
Appointment,
tenure, powers
and duties.
1873,310.
1S74, 169.
1879, 257,
265. § S.
1881,261.
P. S. 154.
§§ 54, 63.
1886, 15, § 5.
1893, 396, § 62.
1895, 457,
§§ 1, 2, 5.
1898, 254.
COURT OFFICERS.
Section 61 . Court officers in district courts shall be appointed by the 1
justice of the court, or, in the case of the municipal court of the city of 2
Boston, by a majority of the justices, and may likewise be removed for 3
any cause considered by such justice or majority to be sufficient, and 4
any vacancy caused by removal or otherwise may likewise be filled. 5
Such officers shall attend the sessions of the court, shall preserve order, 6
and may serve warrants, mittimuses, precepts, orders and processes of 7
the court. 8
417.
1900, 433,
R. L. 160,
1909, 386.
1912, 253; 497.
1914, 700.
1916, 69, § 2.
1918, 257,
1919, 5.
1920, 2.
Number.
1873, 310.
1874. 169.
1879,257, §3;
265, § 8.
1881,261.
P. S. 154,
§§ 54, 63.
1886, 15, § S.
1893, 396, § 62.
1895,457, § 1.
1898, 254.
1900, 433, § 2.
Section 62. In the municipal court of the city of Boston the court 1
officers appointed shall not exceed eight for criminal business and four 2
for ci\'il business; in the municipal court of the Roxbury district, of the 3
South Boston district, of the Charlestown district, the East Boston dis- 4
trict coiu-t and the district court of East Norfolk two court officers for 5
each court may be appointed ; and in each of the other district courts in 6
the commonwealth one court officer may be appointed. 7
R. L. 160, §§ 62-64.
1909, 386.
1912, 253, I 1; 497,
1914, 700.
1916, 69, § 2.
1915, 257, § 417.
1919, 5.
1920, 2.
Uniforms in
Boston.
1902, 368.
1906, 355, § 2.
1914, 736.
Section 63. Coiut officers in district courts in Boston shall, while 1
on duty in said courts, wear uniforms to be approved by the justices of 2
said courts; and for such uniforms each officer shall be allowed and paid 3
annually by Suffolk county, in addition to his salary, the sum of one 4
hundred dollars in the municipal court of the city of Boston and seventy- 5
five dollars in the other said courts. 6
CUAP. 218.] DISTRICT COURTS. 2361
1 Section 64. Each court officer in a district court in Boston shall b°",'^^„'°
2 give bond for the faithful performance of his duties in the sum of one is^s. ■is^. 5 4.
1900 433 $ 1
3 thousand dollars payable to the treasiu'cr of Suffolk county, with suf- R. l! leoi § es.
4 ficient sureties, app^o^'ed by the cliief justice or the justice of the court,
5 as the case may be.
1 Section 65. In the absence of a court officer, or, in the municipal Jolll^foffiSrs.
2 court of the city of Boston, whenever a majority of the justices tliink \^°l- H^- . gg
3 the business requires, a temporary court officer may be appointed in the i^os, i9i.'
4 manner provided in section sixty-one, who shall ha^'e all the powers and
5 duties of a court officer. Every such temporary officer shall receive for
6 each day's service an amount equal to the rate by the day of the salary
7 of the court officer, but any compensation for service performed for an
8 absent court officer in excess of fifteen days in any one year shall be
9 deducted by the county treasurer from the salary of such court officer.
MESSENGERS .USTD INTERPRETERS.
1 Section 66. There shall be a messenger of the municipal court of the Messenger of
2 city of Boston, appointed by a majority of the justices. p^f court""""'
1906, 192.
1 Section 67. The justices of the municipal coiut of the city of Boston interpreters in
2 may appoint such official interpreters as they may deem necessary for p°f court"'""'"
3 the criminal and, upon the acceptance of this section by the city council \l\l[ 109.' ^ ^'
4 of Boston, ■nitli the approval of the mayor, for the civil sessions of the
5 court, and may fix their compensation. The interpreters shall hold their
6 positions at the pleasure of the court and shall render such additional
7 service as the chief justice may require. Said justices shall forthwith
8 discharge any such interpreter who shall be found by them to have re-
9 quested or received, directly or indirectly, any gratuity, bonus or fee in
10 connection with any criminal or, after the acceptance of this section,
11 any civil case pending or in course of preparation for presentation to
12 any court. Reasonable compensation to other interpreters niay be al-
13 lowed when the serA-ices of the official interpreter are not a^'ailable.
1 Section 68. The justice of the East Boston district court may ap- interpreter in
2 point an Italian interpreter for that court, and may fix his compensation, district°court.
3 which shall not exceed twelve hundred dollars annually. ^^'°' ^^'
clerical assistance.
1 Section 69. Except as otherwise provided in sections seventy and ^'^gjance to
2 seventy-two, clerks of the following district courts shall severally be al- certain clerks.
* ~ *' Sgg also
3 lowed annually for extra clerical assistance not more than the following section 73.
4 amounts, payable monthly by the county to the persons employed to
5 render it: •
6 Police court of Chelsea, twelve hundred dollars. }^°|' |5g
7 Second district court of Bristol, eight hundred dollars. isso, 62.
190S351. K.L.1G0,§67.
8 East Boston district court, eight hundred dollars. iDo?; 323;
1911,454.
2362
DISTRICT COURTS.
[Chap. 218.
1879, 257,
§§1,2.
P. S. 154, § SS.
1883, 47.
1897,397, § 1.
R. L. 160, § 67.
Same subject.
See also
section 73.
Municipal court of the city of Boston, for criminal business, forty- 9
four hundred dollars; for civil business, forty-two hundred dollars. 10
1906, 449, §§ 2, 3.
1909, 217.
1910, 224.
1910, 279.
1906, 195.
1908, 348.
1899, 353.
R. L. 160. § 67.
1909, 434.
1908, 395.
1920, 282.
1908, 475.
1919, 127.
1909, 364.
1889, 206.
R. L. 160, § 67.
1908, 4S8.
Clerical assist-
ance to clerk
of central
Worcester.
1888. 184.
1895, 260.
1901,336.
R. L. 160, § 67
Clerical assist-
ance to clerks
of Boston
municipal
court.
1916, 71.
ISSS, 419, § 13.
1893, 371.
1895, 125.
R. L. 160, I 67.
]\Iunicipal court of the Dorchester district, two hundred dollars.
Section 70. Clerks of the following district courts shall severally
be allowed annually for extra clerical assistance, not more than the
following amounts, payable monthly by the county to the persons who
are employed to render it, on the certificate of the justice, or in the
municipal court of the city of Boston, a majority of the justices, that
such assistance was rendered and was necessary:
Police court of Newton, six hundred dollars.
District court of Hampshire, five hundred dollars.
First district court of eastern IMiddlesex, seven hundred and twenty
dollars.
Second district court of eastern Middlesex, five hundred dollars.
1913, 339.
Municipal court of the city of Boston, for civil business, four thousand 12
dollars, exclusive of the allowance under the preceding section. 1912, 499. 13
Municipal court of the West Roxbury district, one thousand dollars. 14
]\Iunicipal court of the Roxbury district, one thousand dollars. 15
Municipal court of the Brighton district, two hundred dollars. 16
INIunicipal court of the Charlestown district, five hundred dollars. 17
Boston juvenile court, nine hundred dollars. 18
11
1
2
3
4
5
6
7
8
9
10
11
Section 71. The clerk of the central district court of Worcester
shall be allowed for extra clerical assistance, upon the certificate of the
justice and the clerk that the work was actually performed and was
necessary, with the time occupied in its performance and the names
of the persons by whom it was performed, and subject to the approval
of the county commissioners, not more than twelve hundred dollars
annually payable monthly to the persons rendering such assistance.
Section 72. The clerks of the municipal court of the city of Boston
for civil and criminal business may each expend for clerical assistance,
in addition to the sums allowed by sections sixty-nine and seventy,
such amounts as a majority of the justices may from time to time
approve; but no such amount shall be allowed unless approved by the
officers having in Boston the powers of county commissioners.
clerical assist-
ance outside
of Boston.
1888. 246.
1889, 62.
1897, 263.
1898, 286; 331.
1900,419, § 2.
1901. 295.
R. L. 160, § 07.
1904,331.
1906, 196;
197; 228; 289.
1909,365:366;
368.
1910,253.
1912,315; 330.
1914, 690.
1919, 219.
Section 73. Except in Boston, county commissioners may expend 1
for extra clerical assistance in district courts within their county, not 2
more than one thousand dollars for each court annually, except the 3
police court of Lowell, and not more than eighteen hundred dollars 4
for the police court of Lowell annually. 5
As to courts for which pro\'ision is made by sections sixty-nine and 6
seventy, tliis section shall apply only to the excess which it permits 7
above the sums certified under said sections. 8
In addition to the sums allowed by this and the four preceding sec- 9
tions, sufficient sums shall be allowed to comply with section one of 10
chapter two hundred and sixty of the General Acts of nineteen hundred 1 1
and eighteen, and -with chapter two hundred and seventy-six of the 12
General Acts of nineteen hundred and nineteen. 13
Chap. 218.] district courts. 2363
SALARIES.
1 Section 74. Salaries in district courts shall be paid in monthly Monthly
2 instalments by the respective counties where such courts are established. istt^IIo,' § 2.
p. S. 154, §64. 1902, 410. §3. 1906. 33.5, § 1. 1918, 227, §§ 3, 4.
R. L. 100, § 67. 1905, 452. 1913, 4SS. 1919, 362, § 6.
1 Section 75. The salary of the chief justice of the municipal court Salaries in
2 of the city of Boston shall be eighty-five hundred dollars, and the sal- ipai court.
3 ary of each of the associate justices shall be eight thousand dollars; pro- §§"4,'s. '
4 vided, that any cliief justice or associate justice appointed before June Ǥf6^2s.
5 fourth, nineteen hundred and twenty, who has not accepted the increase igpf; I'g; 1 1.^'
6 in salary provided by chapter six hundred and fourteen of the acts of |?^''' ^^^' ^ *>■
7 nineteen hundred and twenty shall receive annually two thousand dollars }|i?'|^;
8 less than the salaries above provided for. The salaries of the clerks and iha. 257'; 265!
9 assistant clerks of said court, for ci\il and for criminal business, shall p. s.'isi, § 64.
10 be as follows: clerks, five thousand dollars each; first assistant clerks, 245!''§*i.
11 tliirty-five hundred dollars each; second assistant clerks, three thou- Iff ^'§1^2^'
12 sand dollars each; tliird and fourth assistant clerks, twenty-nine hun- {Hy'Jgg'
1.3 dred dollars each; fifth, sixth and seventh assistant clerks, twenty-four isss, 195; 419,
14 hundred dollars each. iss9, 39; 143;
15 The salary of the messenger of said court shall be twenty-six hundred is92, 58.
lr J„n„»„ " o V 1893,479.
lb dollars. isos, 457, § 3.
17 The salary of each of the court officers in attendance at the sessions Jlg^; Hf
18 of said court shall be twenty-four hundred and eighty-four dollars. J^.^l. leo, § 07.
1905,452. 1912,649,110. 1917,262.
1906. 192; 355, §§ 1.3; 1913,446; 488; 726; 736. 1918, 195; 227; 260, § 1;287, | 1.
449, § 1; 450; 468. 1914, 666. 1919, 264; 276; 328; 329.
1908,418. 1916, 69, §1. 1920, 473; 491; 492; 496; 614.
1 Section 76. The salarv of the justice of the Boston juvenile court Saiai-ies in
*" " \ lioston juvenile
2 shall be four thousand dollars, and that of the clerk of said court three court.
3 thousand dollars. i906. 4S9, § 3. 1918, i78. i9i9. 255.
1 Section 77. The salaries of the justices of the district courts of fyj^eel in
2 Dukes County and of Nantucket shall be one thousand dollars each. gu^es and
•^ Nantucket.
1898, 287, § 2. 1904, 453, 5 1. 1919, 362, § 5.
R. L. 160, §67. 1918, 245, § 1; 260. § 2.
1 Section 78. The annual salaries of the justices of district courts, classified
2 except as provided in the three preceding sections, shall be determined justices'.
3 by the population of their respective judicial districts as ascertained by iset. hi '
4 the last preceding national or state census, as follows: ism, i27;256.
t3 I .• cT^- . • i =1 1866! 298,' § 9.'
Population of District. Salary. i867 316 I 6
Under 5,000, Sl,200 ises' 124.'
5,000 to 6,000, 1,300 f»,b 359-
6,000 to 7,000, 1.400 416 '§6. ■
7,000 to 8,000, 1,500 ■^■^'d-' ^ "'
8,000 to 9,000 1,600 .ml 3.
9,000 to 11,000, 1,700 376 391 §5'
11,000 to 13,000, 1,800 1872.77; 108:
13,000 to 15,000, 1,900 iqV§5"'2oo
15,000 to 17,000, 2,000 §5;' 201, §5;'
17,000 to 19,000 2,100f5.'2V7i5-
19,000 to 22,000, 2,200is9'§2. '
22,000 to 25,000, 2,300 is'l'i 171 '
25,000 to 28,000, 2,400 iso.M; 201.
28,000 to 31,000, 2,500 l-is 51: I71
31,000 to .34,000, 2,600 §§ 17 18; •
34,000 to 38,000, 2,700 § 20- 315 5 s-
38,000 to 42,000, 2,800 sic'S O; '337,'
2364
DISTRICT COURTS.
[ClL\P. 218.
§6; 33S; 350,
I 18: 304;
392, § 6.
1876, 195, § 4.
1877, 188;
210, § 2.
1879,201: 219,
§ 1; 220; 232;
233, « 1,2:
234; 247; 248,
§ 1;265,
« 3-6,
1880, 226,
1881, 128, § 4;
245: 246; 251:
259; 290.
P. S. 154, § 04.
1882,227, § 2;
233, § 6;
245, § 1.
1883, 76, § 1 :
111.
1884,208:211;
215, §4; 231.
1885,49; 79,
§ 1; 155. §3.
1886, 15, § 6;
123; 151; 154;
166; 190, §2;
307.
1887,61, § 1:
171; 180: 190.
1888,50; 110:
173: 193, §4;
234
1889, 12; 54;
97: 130; 158:
198; 217; 227;
242:201; 263;
281.
1890,93; 131;
177, §3: 238.
1891, 108;
160-162;
273, § 2.
Population of District. Salary.
42,000 to 46,000, $2,900
46,000 to 50,000, 3,000
50,000 to 54,000, 3,100
54,000 to 59,000, 3,200
59,000 to 64,000, 3,300
64,000 to 69,000, 3,400
69,000 to 74,000, 3,500
74,000 to 79,000, 3,600
79,000 to 85,000, 3,700
85,000 to 91,000, ■ . . . 3,800
91,000 to 97,000, 3,900
97,000 to 103,000, 4,000
103,000 to 109,000, 4,100
109,000 to 116,000, 4,200
116,000 to 123,000, 4,300
123,000 to 130,000, 4,400
130,000 to 137,000, 4,.500
137,000 to 144,000, . 4,600
144,000 to 151,000, 4,700
151,000 to 159,000, 4,800
159,000 to 167,000, 4,900
167,000 to 175,000, 5,000
175,000 to 183,000, 5,100
183,000 to 192,000 5,200
192,000 to 201,000, 6,300
201,000 to 210,000, 5,400
210,000 to 219,000 5,500
219,000 to 228,000, 5,600
228,000 and over, 5,700
And $100 additional for each 10,000 population above 228,000.
1892,93:100. 1901,4,57. 1911,414, §2.
1893, 479. H. L. 160, 5 67. 1912, 503; 604; 660; 672.
1894,321:373:470. 1902, 320: 360, § 1; 1913, 414; 748.
1895,176,12. 378:416, §3. 1914, 509, § 1; 532,
1896, 353, §2. 1903, 214, § 2; 412, § 2. § 2; 547; 686.
1897,318:324:325; 1904, 372; 453, §§ 1, 2, 4. 1915,286.
356; 358: 359: 390. 1905, 165: 339; 443. 1916, 261; 263.
1898, 216; 358; 362; 372; 1906, 299, § 2; 325. 1917,203:319:328;
388; 429; 460; 478, § 2. 1907, 128. 330, § 1: 333.
1899, 314; 315; 339; 391, § 2. 1908,323. 1918, 173; 208; 260, § 1.
1900, 229; 265; 268; 1910, 501. 1919, 362, |§ 1, 5, 6.
384; 400, § 6.
Same, clerks
and assistant
clerks.
G. S. 116, § 33.
1862, 92.
1866, 298, § 9.
1867, 316, § 6.
1869,359;
410, § ().
1870, 201, § 6.
1871,88, § 2;
314; 326;
349; 376.
1872,141; 159;
163, § 3; 199,
§7; 233, §4;
289, § 4.
Section 79. Except as proAaded in the following section, in courts 1
in which the salaries of justices are fixed by the preceding section, the 2
salaries of clerks shall be equal to seventy-fi^'e per cent of the salaries 3
established for the justices of their respective courts; and the salaries 4
of assistant clerks, other than second assistant clerks, shall be equal to 5
seventy-five per cent, and the salaries of second assistant clerks shall be 6
equal to sixty per cent, of the salaries of the clerks of their respective 7
courts. 1873, IS; 363, § 3. 8
1874, 35, § 2; 75: 123; 126;
154, § 2; 180, § 4; 201, § 5;
207, § 2; 235, | 2; 271,
§§ 18, 19; 281, § 1; 293, § 20;
316, «3: 337, §6; 338:
350, § 18: 364; 392, § 6.
1875, 182.
1876, 195, § 4; 198, § 1.
1877, 148; 210, §2; 212, § 2.
1879,201; 219, § 2; 232,
§ 1; 233: 234, §§ 1-4; 247;
248, §2; 257; 265, §§ 3-.5.
1880, 226.
1881, 148, § 3; 247-251; 290.
P. S. 154, § 64.
1882,63; 87; 176, §3:
233, § 6; 245, § 2.
1883, 53; 57; 97, § 3.
1884,65; 197; 215, § 4; 231.
1885, 79, § 3; 155, §3;
ISO; 286.
1886, 15, § 6; 106; 124; 155:
156; 158; 165; 167; 190, §2;
307, §2; 333, §2.
1887,61; 117; 174; 175;
208; 227; 265, § 2;
274, §2:318; 327.
1888,55: 60, § 2; 88;
89; 214; 235.
1SS9, 19; 28; 39; 41; S3;
92; 137; 152, § 2; 218;
239; 261; 277: 289.
1891, 71; 7S; 107; 190;
273, § 2.
1892, 93.
1893, 479.
1894,65, §2:330; 363,
§ 2; 374; 379; 470.
1895, 170, § 2; 600.
1896, 337; 353, § 2.
1S97, 200, § 2; 322; 422.
I.S'.IS, ;ili'.i; 382; 460; 478, § 2.
l.s'.i'.i, 1.->1: 204, § 2:217;
2;i4: 297: 315; 391, § 2.
1900, 138, § 1:320; 330;
332:400, § 0;419, § 1.
1901, 362; 372; 392; 415; 41S.
R. L. 160, § 67.
1902,299; 356; 360, § 2;
378:416, §3.
1903, 214, § 2; 412, § 2.
1904,453, §§ 1,2,4.
1905, 165; 192; 339; 443.
1906, 228; 240; 248;
325; 361.
1907, 128.
1908, 323.
1909, 357.
1910, 601.
1911, 414, § 2.
1912, 563:660:672.
1913,332, § 2; 414; 483; 748.
1914, .509, §2; 532,
§2; 604.
1916, 261; 262.
1917, 102; 124; 154; 252; 291;
319' 340
1918, 173: 178; 211; 260, § 1.
1919, ,362, § 2.
230 Mass. 236.
Chap. 218.] district courts. 2365
1 Section SO. The salaries of the assistant clerk and second assistant Salaries of
2 clerk of the municipal court of the Charlestown district shall be re- irmumcipai
3 spectively equal to seventy-fi^•e per cent and sixty per cent of the salary cTari°stown
4 of the clerk thereof holding ofBce on June fourth, nineteen hundred and i9i'2!'^672.
5 twenty. 1916, 195. 1917, 330, 1 2. 1919, 362, § 2. 1920, 615.
1 Section 81. The justices, special justices, clerks and assistant clerks TraveUng
2 of district courts, when sessions are held in more than one town, shall ilsl^fw; 205.
.3 each be allowed by the respective comities where said courts are estab- JIgg' II3 1 2.
4 lished, subject to the approval and audit of the county commissioners, }|9|' ^se.
5 traveling expenses necessarily incurred in connection with holding ses- R- l' leo',
G sions of said courts outside of the towns where the clerk's offices are i904,"453,
7 established. 1919, 362, §3. ^^^'''■
1 Section 82. The salaries of the justices, clerks and assistant clerks Periodical
2 of district courts, except the courts mentioned in sections seventy-five to orciassiM"'
3 seAenty-seven, inclusive, whenever the population of their respective uio.^Im.
4 judicial districts, as ascertained by the last preceding national or state }g}g- 353" § 4
5 census, permits it, shall so be readjusted in the year following such census
G by the officer paying the salary as to apply the population according to
7 such census to the schedule and computation of salaries contained in sec-
8 tions seventy-eight and se\'enty-nine, and salaries so readjusted shall be
9 allowed and paid from the first day of January in the year in which the
10 readjustment is made; but such readjustment shall not reduce the salary
11 of any official aforesaid while the incumbent then in office continues to
12 hold office.
1 Section 83. The salaries of court officers in the following courts shall Salaries of
. - -^ ^ court officers.
2 be as follows:
3 Municipal court of the Brighton district, twelve hundred dollars. issi, 261.
1886, 148. R. L. 160, § 67. 1918, 194. ^- ^- '^' ^ ''■*•
4 jNIunicipal coiu-t of the Charlestown district, nineteen hundred dollars. 1879, 265, § s.
p. S. 154, § 64. R. L. 160, § 67. 1917, 282, § 3. ^^*^' ^*'-
1886, 136. 1909, 367. 1920, 486.
5 Mmiicipal court of the Dorchester district, eighteen hundred dollars, issi, 2fii.
R, L. 160, § 67. 1917, 282, § 2. 1920, 487. ^' ^' ^**' ^ ^*'
1913, 725. 1919, 250.
6 East Boston district court, seventeen hundred doUars. 1879,265, §8.
p. S. 154, § 54. 1886, 15, § 6. 1907, 333. 1914, 700, §§ 1, 3. ^*®^' ^®^'
1882, 245, § 1. R. L. 160, § 67. 1912, 497. 1920, 490.
7 iSIunicipal court of the Roxbury district, two thousand dollars. 1881, 261.
1882, 245, § 1. R. L. IfiO, § 67. 1917, 292. 1920, 482. • ' '
1889, 174. 1913, 691. 1919, 184.
8 Municipal court of the South Boston district, eighteen hundred dollars. i879, 205, § s.
1 SSI 9^1
p. S. 154, §54. R. L. 160, §67. 1917, 2S2, § 1. looi, ^oi.
1882, 245, § 1. 1907, 324. 1920, 485.
9 ^Municipal com-t of the West Roxbury district, seventeen hundred Jlgi'lei'^^'
10 dollars. p. s. 154, § 64. isse, i48.
R. L. 160, §67. 1911,259. 1920,484.
11 Court officers in other district courts, except the municipal court of the is93, son, « 62.
12 city of Boston, shall receive salaries to be fixed by the justice, subject 1912,2531497.'
13 to the approval of the county commissioners, payable upon vouchers \l\t[ 25?; ^ ^'
14 approved by the justice and the county commissioners. ^*^^'
1919, 5. 1920, 2.
2366
TEIAL JUSTICES.
[ClL\P. 219.
Computation
of compensa-
tion.
1872, 199, § 5;
289, § 2.
1874, 35, § 2.
1879,219; 220;
247.
1881, 128, § 4.
Section 84. Justices, clerks and officers whose salaries are fixed in 1
this chapter shall be paid at the same rate for any part of a year, and in 2
computing the rate by the day of the compensation of justices and clerks 3
of district courts, Sundays and legal holidays shall not be included in 4
the days on which the courts are open for business. 5
p. S. 154, § 64. 1894, 142. R. L. 160, §§ 67, 71.
REFERENCES.
§ 1. Police court of Lowell may sit at Tewksbury in certain cases. Chap. 122, § 24.
§§ 1-3. Concurrent jurisdiction of certain local courts in case of escape from state
infirmary, Chap. 122, § 2.5.
§ 4. See similar provision as to probate courts. Chap. 21.5, § 2.
§ 37. Service of process by attendance officer. Chap. 149, § 84.
§ 60. Jurisdiction of Boston juvenile court over parents contributing to delinquency
of child. Chap. 119, § 63.
CHAPTER 219
TRIAL JUSTICES.
Sect.
1. Designation and commission.
2. Location.
3. Jurisdiction.
4. Term of office. Bond.
5. Sittings and adjournments.
6. Warrants, etc., returnable to district
courts.
7. Bail fees.
8. Cases may be filed.
9. Contempt.
10. Failure of justice to attend.
11. Making, preservation and deposit of
records. Penalties.
12. Powers when commissioned anew.
13. Completion of unfinished business.
14. Not to act as attorney on appeal.
15. Accounts.
Sect.
16. Annual returns.
17. Salaries.
18. General jurisdiction.
19. Breaches of the peace.
20. Trial or binding over.
21. Larcenies, etc.
22. Trespasses.
23. Taking of vehicles, etc.
24. Fish and game laws.
25. By-laws, etc.
26. Common nuisances.
27. Disorderly houses.
28. Drunkenness, intoxicating liquor, etc.
29. Dairy products.
30. Hawkers and pedlers.
31. Felonies by juvenile offenders.
32. Penalties.
Designation
and com-
mission.
1858, 138, §
1859, 193.
1860, 187, §
G. S. 120.
§S 33, 36.
1877,211, §
P. S. 155,
§§ 0, 7.
R. L. 161,
§1 5, 0.
Section 1. The governor, with the advice and consent of the coun- 1
cil, may designate and commission justices of the peace as trial justices 2
in the towns named in the following section, and may revoke such desig- 3
nation. A justice of the peace not so designated and commissioned shall 4
not have or exercise any judicial power, and shall not receive complaints 5
or issue warrants, except as pro\ided in section thirty-six of cliapter two 0
hundred and eighteen and in chapter two hundred and thirty-tlu-ee. 7
1917, 326, § 1. 126 Mass. 235. 134 Mass. 226.
i858,*'i38, § 2. Section 2. One such trial justice may be designated and commis- 1
?869 '44 ^ ^^' sioned in each of the following places : Ludlow, Hardwick, Barre, Hudson, 2
P s.'iV § 10. Hopkinton, Saugus, Nahant, Marblehead, North Andover, Andover and 3
1892, 40S. , ^ ,
R. L. 161, 1 9. Methuen.
1917, 326, § 1.
1918, 245.
Section 3. A trial justice may receive complaints and issue war- 1
Jurisdiction.
1858, 138, - . . 1 . ■ • ->
^.^ c.' ?on 5j oo rants and summonses against persons charged with crime and try criini- 2
35, 36. nal cases arising within the town where he resides at the time when he 6
CH-\.P. 219.] TRL^L JUSTICES. 2367
4 is designated and commissioned, and may interchange sendees 'with and l^'g'fgg'' ^"'
5 act for any other trial justice within the county in which he resides. The |§ }}\¥{
6 trial iustices residing in Barre and Hardwick shall have concurrent iuris- §§ i6, 28.'
7 diction of offences committed in the towns of New Braintree and Oakliam. §§ i,'4." '
1918, 97.
1 Section 4. A trial justice shall hold his office for three years from Term of office.
2 the time of his designation, unless during that period he ceases to hold a isTo.is?, § 2.
3 commission as justice of the peace or unless such designation and com- Jfyy; 211! | r.
4 mission as trial justice is revoked. A trial justice, before entering upon F;^l,55.
5 the duties of his office, shall give a bond similar to that required from cVyl®''
6 the clerk of a district court imder section sixteen of chapter two himdred 134 iviass. 226.
7 and eighteen, and failure to give such bond shall have like effect as in
8 the case of such clerk.
1 Section 5. Cases before trial justices mav be heard and determined sittings and
. *' •■ adjournments.
2 at any convenient and suitable place. The reasonable and necessary ex- i^sa. 42, § 2.
3 penses, not exceeding ten dollars a month, actually incurred by a trial r, s.'ss,'
4 justice for the rent of an office used by him for court purposes, shall be G.s.120!
5 paid by the county where the office is located, in the same manner as the p |' fis,
6 expenses for rent of district courts. Trial justices may adjourn their ilgf^'ssg.
7 courts in all cases to any other time or place, but not exceeding ten days ^°l' j*^-
8 at any one time against the objection of the defendant. §§ i6. !"• si-
1917, 326, §§3,6. 4 Gush. 455. 145 Mass. 205. 166 Mass. 303.
1 Section 6. A trial justice may receive complaints and issue war- warrants, etc,
2 rants ahd summonses in cases, arising within his town, outside his dtsteet courts.
3 jurisdiction but within the jiu-isdiction of a district court within the Q^i; iH; ^ ^'
4 county, making the warrant or summons returnable to a court having f|7??'2^n § 4
5 jurisdiction. p. s. 155, § 43. r. l. 161, § 28. i9i7, 326, § 4.
1 Section 7. A trial justice, taking bail between nine o'clock in the Bail fees.
2 forenoon and six o'clock in the afternoon in a case within his jurisdiction, ^^"' ^^^' ^ *"
3 shall receive no fee tlierefor.
1 Section 8. Trial justices shall have like power with district courts cases may
2 to ffie criminal cases. 1915, 101. 1917, 326, § 9. ""^ ^^•
1 Section 9. Trial justices may punish disorderly conduct interrupt- Contempt
2 ing any judicial proceedings before them, or which is a contempt of their r. s.'8o,'§ 33.
3 authority, by a fine of not more than ten dollars or by imprisonment for p.'s.ils.'i es.'
4 not more than fifteen days.
R. L. 101, §48. 12Cush320. 2 Gray, 120. 120 Mass. 118.
1 Section 10. If a trial justice fails to attend at the time and place to FaUure of
2 which an examination or trial has been adjoiu-ned by him, any other j,'J?end.*°
3 trial justice within the same county may attend and hear or try said case, J**^, Jjs- ^^^
4 and may further adjourn such examination or trial in the same manner i^e Mass. 270.
5 as the justice before whom the ca^e was first pending. The justice who
6 so takes cognizance of the case shall make a minute of the proceeduigs
7 before liimself on the complaint and certify the samc.^and it shall be
8 entered on the records of the justice who makes the final order, sentence
9 or decree in the case. Any recognizance taken by the justice before whom
10 the case was originally pending shall continue in full force and effect.
2368
TRLiL JUSTICES.
[CiLiP. 219.
Making, pres-
ervation and
deposit of
records.
Penalties.
17S3, 42, § 3.
R. S. 85. § 35.
G.S. 120. §51.
P. S. 155. § 69.
1888. 211,
§§ 1-5.
R. L. 161,
5§ 49, 61-63.
1917, 326, 5 5.
12 Met. 9.
2Grav, 115.
3 Grav. 574.
4 Grav. 29.
168 Mass. 234.
Section 11. Trial justices shall keep a record of all their judicial
proceedings. They shall safely preserve all dockets and records thereof
and other official papers in their custody, shall keep them open, under
proper regulations, to public inspection and examination, and shall
furnish copies thereof upon request and upon payment of such fees as
are allowed in similar cases to clerks of courts. Whoever knowingly and
wilfully destroys, defaces or conceals the dockets, records or other official
papers of a trial justice shall forfeit not more than one thousand dollars, 8
and shall be liable in damages to any person who is injured thereby. 9
Upon the death, resignation or removal from office of a trial justice, all 10
his dockets, records of liis judicial proceedings and other official papers 11
in his custody shall be deposited in the office of the clerk of the coiu-ts in 12
the county in which he was designated. A trial justice who neglects for 13
tliree months after his resignation or removal from office so to deposit 14
his dockets, records and other official papers shall forfeit not more than 15
five hundred dollars, and the executor or administrator of a deceased 16
trial justice who neglects for tliree months after the filing of his bond so 17
to deposit in the clerk's office the dockets, records and other official papers 18
of the deceased wliich come into his hands shall forfeit a like amount. 19
Powers when
commissioned
anew.
1788. 19. § 2.
R. S. 85. I 23.
1852. 283. § 4.
G. S. 120, § 56.
P. S. 155. 5 75.
R. L. 161. § 57.
Section 12. If a trial justice is commissioned and qualified anew at
or before the expiration of his former commission, his authority shall con-
tinue; and all business commenced by or before him under the former
commission may be prosecuted and completed in the same manner as if
that commission had continued in force.
Completion
of unfinished
business.
1860. 187, § 1.
1871, 386.
P. S. 155.
II 8. 66.
1890. 202.
R. L. 161.
II 47. 56.
1917. 326
1918, 257
§422.
,18.
Section 13. If a trial justice ceases to hold office, he may nevertheless
finish any case pending before him and certify copies of his records and
papers; but, in such case, as well as in case of his death, the district court
witliin whose judicial district such trial justice exercised jurisdiction may
cause and allow the papers in the case to be brought and entered in said
court, and may thereupon proceed as if the case had been originally
begun therein. i9i9, s. 1920. 2.
MtornVon"^ Section 14. Trial justices shall not be retained or employed as 1
1783^42 §2 attorneys before any court, upon appeal or otherwise, in any suit or 2
1815, 49. action previously determined before themselves. R. s. 85. § 34. 3
G. S. 120, § 54. 1917, 326. § 7. 9 Gray. 366.
P. S. 155, § 73. 6 Gush. 331. 1 .•Ulen. 210.
R. L. 161, § 53. 11 Gush. 315. 102 Mass. 372.
1
2
^To^T.'li. § 2. Section 15. Trial justices shall be subject to the same duties and
1791! li; If" liabilities as clerks of district coiu'ts under section forty-seven of chapter
R. s.'85.' § 37. two hundred and eighteen. G- s. 120, § 57". 3
p. S. 155. §78. 1890,204:216; 1S98, 204, § 1.
1887. 438, I 5. 440, II 6, 8. 1901, 126.
1888, ISO. 1891, 325. | 1. R. L. 161, §§ 54, 59.
'iSa^irTVy' Section 16. They shall annually, on January first, return to the
1876 4^°' ^ ^^' county treasurers of their respecti^'e counties all fees of sheriffs, deputy
RL^M'leo sheriffs, constables and witnesses which have been taxed and allowed
14 Allen, 217. during the preceding year and which then remain in their hands, and a
schedule thereof.
i9i7"32Q. 1 10. Section 17. The several trial justices in the places herein named
1919, 181. shall receive a salary, to be paid by the county in which the respective
ClL\P. 219.] TRL\L JUSTICES. 2369
3 places are situated, on the basis of the following named sums for each
4 year or portion thereof of their respective commissions: Ludlow, five
5 hundred dollars; Hardwick, two hundred and fifty dollars; Barre, three
6 hundred dollars; Hudson, five hundred dollars; Hopkinton, one hun-
7 dred dollars; Saugus, one thousand dollars; Nahant, twelve hundred
8 dollars; Marblehead, one thousand dollars; North And over, tlu-ee hun-
9 dred dollars; Andover, five hundred dollars; and Methuen, one thou-
10 sand dollars.
1 Section 18. Trial justices shall have jurisdiction, concurrent with General
2 the superior court and the appropriate district court, of all crimes which is58,45,'T2.
3 may be subject to the penalties of a fine or forfeiture of not more than p; |; 155,' | IJ;
4 fifty dollars or of imprisonment for not more than six months, or both. fgiV l%\ ^ ^°-
11 Gray, 64. 14 Gray, 35, 47.
1 Section 19. They shall have jurisdiction, as aforesaid, of the crimes Breaches
2 of assault and battery and of other breaches of the peace not of a high i692-3ris';^"
3 and aggravated nature; of disturbing the peace to the great damage and fyss.^fi.^ ^'
4 common nuisance of the inhabitants of the place where the disturbance R^s'|f-5 24
5 occurs; of affrays and riots; of going armed offensively to the terror of r?*|'^|^ .,0
6 the people; of uttering menaces or threatening speeches; and of being isn, ns'.
7 a dangerous and disorderly person ; and, upon conviction of the defendant, p. s.' 155,' § 46.
8 may punish him by a fine of not more than thirty dollars, or by imprison- fgis; 101! ^ ^^'
9 ment for not more than ninety days.
1 Section 20. Whoever is brought before a trial justice for any of the Trial or
2 crimes named in the preceding section shall be examined by him, and r."s.'^\Y25.
3 may be tried before him, and, if convicted, may be required to find sure- p |; il"; I47.'
4 ties to keep the peace for not more than one year and be punished by J^ j|- 1|^' 5 32.
5 fine or imprisonment as before provided; or, if the offence is of a high and \a?q\
6 aggravated nature, he may be committed or bound over for trial before 1920! 2.
7 the superior court.
1 Section 21. They shall have jurisdiction, as aforesaid, of the crime Larcenies, etc.
2 of larceny; of the crime of buying, receiving or aiding in the concealment n^'. 12!,' ^'
3 of stolen property, and of the crime of fraudulently obtaining property i85\^'i56, § 4.
4 by any game, device, sleight of hand, pretended fortune telling, or by \l^l' jgg , ^
5 any trick or other means by the use of cards or other implements or in- q"'?26
6 struments, if the value of the property in respect of which the crime is §§41,44.'
7 committed is not alleged to exceed ten dollars. In all such cases the §§sb, ss'.
8 defendant, upon a first conviction, shall be punished by a fine of not 9 brayf lil.^ '
9 more than fifteen dollars, or by imprisonment for not more than six '^°^ "^''""'- *''*■
10 months; and upon a subsequent conviction of the like offence, com-
11 mitted after a former conviction, he shall be punished by a fine of not
12 more than twenty dollars, or by imprisonment for not more than one
13 year; but if the person convicted of buying, receiving or aiding in the
14 concealment of such stolen goods or property makes satisfaction to the
15 person injured to the full value of the property stolen and not restored,
16 the punishment may be mitigated as justice may require.
1 Section 22. They shall have jurisdiction, as aforesaid, of all the Trespasses.
2 crimes mentioned in sections one hundred and thirteen, one hundred and §''13,"^' ^'''
3 fourteen, one hundred and fifteen, one hundred and .seventeen, and one i7s5;28,\^i.
4 hundred and twenty-seven of chapter two hundred and sixty-six, if the Jf '|' ^26, § 40.
2370
TKLVL JUSTICES.
[Ch.u>. 219.
1846, 52, § 2.
G. S. 120, § 42.
1868, 321, § 2.
P. S. 155. § 51.
R. L. 161. § 37.
141 Mass. 23S.
value of the trees, fruit, flowers or other property injured, destroyed, 5
taken or carried away, or the injury occasioned by the trespass, is not 6
alleged to exceed one hundred dollars; and may punish the same by a 7
fine of not more than one hundred dollars, or by imprisonment for not 8
more than six months, or both; but if the value of the property so de- 9
stroyed or injured or the amount of injury done is not alleged to exceed 10
fifteen dollars, the fine imposed for a violation of said section one hundred 1 1
and twenty-seven shall not exceed fifteen dollars or the imprisonment 12
exceed thirty days. 13
Taking of
vehicles, etc.
1S56, 39. § 2.
G. S. 120, § 43.
P. S. 155, § 52.
R. L. 161, § 38.
Section 23. They shall have jurisdiction, as aforesaid, of violations 1
of the laws relative to the taking or using a boat or vehicle, or the taking, 2
driving, riding or using a horse, ass, mule, ox or any draft animal; but 3
they shall not impose a fine of more than fifty dollars or imprisonment 4
for more than six months or both. 5
glSe^iats. Section 24. They shall have jurisdiction, as aforesaid, of violations 1
Sm' 282 i 3^' °^ *^^® '^'^'^ regulating the taking of fish and game, the penalty for which 2
does not exceed a fine of fifty dollars or imprisonment for six months. 3
By-laws, etc.
1692-
-3, 28, § 5.
1801,
62.
R.S.
15, § 13.
1849,
,211,
§7.
1852,
299.
1857,
,194,
§5.
G. S.
120,
§40
P. S.
155,
§48.
R. L.
161,
§33.
Common
nuisances.
1863,
78.
1865,
281.
1866,
280.
§3.
1878,
155.
P.S.
155,
§53.
R. L.
161,
§40.
1914,
624,
2
105 Mass.
1S5.
Ill Mass.
427.
147 Mass.
29.
157 Mass.
14.
232 Mass.
88.
Disorderly
houses.
1863,
78.
1865,
281.
1866,
280,
§3.
1878,
155.
P.S.
155.
§53.
R. L.
161,
§41.
Drun
kenness.
intoxicating
liquor, etc
1S66,
,235,
§4.
1869,
344,
§8.
1875,
99. I
5 19.
1878,
203.
§3.
1880,
239,
§7;
257,
H.
Section 25. They shall have jurisdiction, as aforesaid, of violations 1
of town ordinances, by-jaws and orders; of offences of unlawfully keep- 2
ing billiard tables or bowling alleys; of violations of the laws relative to 3
the public health; and of offences against property in cemeteries; but 4
no single penalty imposed for offences against property in cemeteries 5
shall exceed fifty dollars. 6
Section 26. They shall have jurisdiction, as aforesaid, of the offence 1
of keeping or maintaining a common nuisance, namely, a building, part 2
of a building, place or tenement resorted to for prostitution, assignation, 3
lewdness or illegal gaming, or used for the illegal keeping or sale of in- 4
toxicating liquor; and, upon conviction of the defendant, may punish 5
him by a fine of one hundred dollars and by imprisonment for not less 6
than three months nor more than one year, where the nuisance relates to 7
prostitution, assignation or lewdness, and in other cases by a fine of not 8
more than one hundred dollars and by imprisonment for not more than 9
one year. 10
Section 27. They shall have jurisdiction, as aforesaid, of the common 1
law offence of keeping and maintaining a common, ill-governed and dis- 2
orderly house; and, upon conviction of the defendant, may punish him 3
by a fine of not more than one hundred dollars or by imprisonment for 4
not more than one year. 5
Section 28. They shall have jurisdiction, as aforesaid, of cases of 1
drunkenness; of violations of the laws relative to intoxicating liquors; 2
and of violations of the laws relative to tramps, vagrants, vagabonds, 3
cruelty to animals, and obscene books, pamphlets, ballads, printed 4
papers, prints, pictures, figures, descriptions, and other obscene things. 5
P. S. 155. § 54. 1892. 160. 1894. 433. § 2. R. L. 161, §§ 42, 43, 45.
prSScts. Section 29. They shall have jurisdiction, as aforesaid, of cases aris- 1
189?' .349' '^^S under the laws relative to the inspection and sale of dairy products 2
R. l! 161, § 34. and imitations thereof, and of milk. 3
CoAF. 220.]
COUETS .\JfD NATUK.\LIZATION.
2371
1 Section 30. They may take jurisdiction of violations of law by Hawkers and
2 hawkers and pedlers in unlawfully selling or exposing for sale, and in iles^ii
3 such cases may impose a fine of not more than fifty dollars. r. l.\m', |44
1 Section 31. They shall have jurisdiction, as aforesaid, of felonies Felonies by
2 not punishable by death or imprisonment for life committed by juvenile offrndera.
3 offenders under seventeen, and, upon their conviction, may sentence JPf • Iff . g
4 them to any punishment authorized for such crime, except imprisonment jsso. is_3.'
5 m the state prison, or they may commit them to any mstitution estab- R l- lei ' ■"
6 lished by law for the reformation of juvenUe offenders, or may bind them
7 over for trial in the superior court.
3.5.
127 Mass. 450.
1 Section 32. For offences within their jurisdiction, if no penalty is Penalties.
2 fixed by the section giving them jurisdiction, they may impose the same
3 penalties as district courts.
CHAPTER 220.
COURTS AND NATURALIZATION.
Sect.
COURTS.
1. Courts to display flag.
2. General powers of courts.
3. Justices to be conservators of the peace.
4. First day of sitting, how designated.
5. Change of time and place of court.
6. Courts not to be open Sundays, etc.,
unless, etc.
7. Sheriffs, et«., to serve process.
8. Attorneys, etc., not to buy, etc., de-
mands for collection.
9. Criers.
Judge, etc., not disqualified by inter-
est, when.
11. United States judicial officer.
10
Sect.
12. Referee in bankruptcj' not to hold cer-
tain offices.
13. Minors may be excluded from court
rooms.
14. Commitment for contempt. Service of
process.
N-A.TURALIZATION'.
15. Jurisdiction of naturalization.
16. Adjourned and special sessions for nat-
uralization.
17. Evening sessions for same.
18. Court may fix time and place for re-
ception by clerk of declarations.
19. Returns of naturalizations to secretary.
coxniTS.
1 Section 1. The national flag of suitable dimensions shall be dis- courts to
2 played in every court of justice of the commonwealth while the court igTJrisg!^"
3 is in session.
1 Section 2. The courts of the commonwealth, the justices thereof General
2 and trial justices shall have and exercise all the powers necessary for the courts.
3 performance of their duties. They may issue all writs, warrants and nss, i'a, § i.
4 processes and make and award judgments, decrees, orders and injunc- lia 'h.'
5 tions necessary or proper to carry into effect the powers granted to ^fjf I'll;®'
6 them, and, if no form for such writ or process is prescribed by statute, j^29.®87ft'i3
7 they shall frame one in conformity with the principles of law and the Jf ^?' fJs' 1 1:
8 usual course of proceedings in the courts of the commonwealth.
p. S. 153. §3; 154. §12;
155. § 67; 156, § 23.
1893, 396, I 57.
R. L. 166, § 1.
155 Mass. 486.
206 Mass. 417.
222 Mass. 131.
Ufi. § 11; 117,
§ 20; 120, § 47.
2372
COURTS AND NATURALIZATION.
[CiLU'. 220.
Justices to be
conservators of
the peace.
1G92-3, IS. § 6.
1782, 9, § 1.
17S3, 51, § 1.
1794, 26.
R. S. 81, §7;
85, 5 27;
87, I 7,
1854, 335. § 5.
1858, 138. § 1.
G. S. 115, § 2;
120, § 32.
P. S. 153, § 2;
154, § 11;
155, I 1.
1893, 396, § 43.
R. L. 166, § 2.
11 Gray, 194.
Section 3. The justices of the supreme judicial court and of the 1
superior court, justices and special justices of district courts, by virtue 2
of their offices, and justices of the peace shall be conservators of the 3
peace tliroughout the commonwealth and as such may, upon view of 4
an affray, riot, assault or battery, without a warrant in writing, com- 5
mand the assistance of every sheriff, deputy sheriff, constable and police 6
officer and of all other persons present for its suppression and for the 7
arrest of all persons concerned therein as provided in chapters two 8
hundred and seventy-five and two hundred and seventy-sLx. Persons 9
so arrested shall be taken before a district court or trial justice for 10
examination. 1 1
First day of
sitting, how
designated.
R. S. 82. § 44.
1859, 196, § IS.
G. S. 115, § 15;
122, § 1.
Change of
time and place
of court.
1730-31, 12.
1797, 16, § 10.
R. S. 89,
§§ 2, 3.
G. S. 122.
I§ 2, 3.
P. S. 160,
§§2,3.
R. L. 166, § 4.
Section 4. In writs, processes, records and judicial proceedings,
civil or criminal, the day on which any sitting is to commence may be
designated as the first, second or other Monday, or other day in the
week, as the case may be, of the month in which the sitting commences.
p. S. 153, §21; 100, § 1. R. L. 166, §3.
Section 5. If it is unsafe or inexpedient to hold a court at the time
and place appointed, a justice of the court may appoint another time
and place within the same county for holding the same. Such adjourn-
ment shall be made by an order in WTiting, signed by the justice or
justices, and served by public proclamation by the person to whom it
is directed in the shire town or as near thereto as is safe, and also by
publication in such newspaper or in such other manner as is required in
the order.
Courts not to
be open
Sundays, etc.,
unless, etc,
R. S. 89. § 4.
1856, 113, § 1.
G. S. 122, §4.
1881,71.
P. S. 160. § 4.
1894. 130,
§§3,4.
1896, 162, § 1.
R. L. 166, § 5.
Sheriffs, etc.,
to serve
process.
1783,44, § 1;
46, § 1.
Attorneys,
etc., not to buy,
etc., demands
for collection.
1811,62.
R. S. 89. §
G. S. 122.
§§6,7.
P.S.160.§
R. L. 166. § 7.
13 Pick. 79.
109 Mass. 237.
138 Mass. 530.
148 Mass. IS.
Section 6. Courts shall not be open on Sunday, on a legal holiday
or the following day if a holiday occurs on Sunday, except as provided
in section four of chapter two hundred and thirteen except for the pur-
pose of entering or continuing cases, instructing or di.scharging a jury,
receiving a verdict or adjourning; but this section shall not prevent the
exercise of the jurisdiction of any magistrate in criminal cases to pre-
serve the peace or arrest oft'enders.
J5-7.
§6.7.
13 iMass. 324.
14 Allen. 156.
107 Mass. 209.
117 Mass. 1.
184 Mass. 575.
1 Op. A. G. 66.
IS17, 13; 190, § 1.
R. S. 14, § 68; 83, § 11;
84, § 3; 85, § 30.
G.S. 17. §15; 122,
P. S. 22. § 21; 160.
R. L. 20. § 23; 166,
Section 8. No attorney, justice of the peace, sheriff, deputy sheriff
or constable shall, directly or indirectly, buy or be interested in buying,
or, directly or indirectly, lend or advance or agree to lend or advance
any money or other goods, or give or promise any valuable considera-
tion whatever to any person, as an inducement to place, or in considera-
tion of having placed, in the hands of any person any bond, note, book
debt or right of action for collection, with intent to make for himself
any gain from the fees arising from such collection by legal proceedings.
Violations of this section shall be punished by a fine of not less than
twenty nor more than five hundred dollars.
Section 7. Sheriffs, deputy sheriffs, constables and other officers 1
shall serve all lawful processes issued by a court, judge, judicial officer 2
or county commissioners legally directed to them. 3
1
2
3
4
5
6
7
8
9
10
i859?207. Section 9. Clerks or assistant clerks of courts, sheriffs or their 1
G. s. 122, § 12. deputies, as the court may direct, shall perform the duties of criers, 2
Chap. 220.] courts and naturalization. 2373
3 without additional compensation; and any ofBcer may adjourn the p. s. hm. § 12.
4 court by order thereof. ^- ^- '""' ^ *•
1 Section 10. No person shall be disqualified from acting as judge. Judge, etc.,
2 magistrate, appraiser or officer of any kind in a suit or proceeding in iled bylnterest,
3 which a town is interested by reason of his interest as an inhabitant Jjloslig. § 2.
4 thereof. No juror shall be disqualified by reason of being an inhabitant J|.'g' Js^i 3^'
5 of Boston. R. s. 90, § 124. issg, i. § 13. g. s. 122, § 13.
p. S. 160, § 1%. 10 Cush. 494. 139 Masa. 315.
R. L. 166, § 9. 11 Cush. 406. 147 Mass. 585.
13 Mass. 324. 2 Allen, 396, 402, 596. 157 Mass. 14.
1 Section 11. No person who holds a judicial office under the laws United states
2 of the United States shall hold any judicial office of this commonwealth, i'855,'4S9, §^14.
3 except that of trial justice or justice of the peace. isss, 175, § 1.
G. S. 144, § 67. 1868, 24, § 1. P. S. 160, § 14. R. L. 166, § 10.
1 Section 12. No person who holds the office of referee in bank- Referee in
2 ruptcy shall at the same time hold any judicial office, except that of to hoid''ce'rte!n'
3 justice of the peace, nor the office of clerk or assistant clerk of any liiT.^ss?, § 2.
4 court, or register or assistant register of probate and insolvency. r. L.^ee.Vn.
1 Section 13. Any court or trial justice may exclude minors as spec- Minora may be
2 tators from the court room during the trial of any cause, civil or criminal, co^'t rTOms.™
3 if their presence is not necessary as witnesses or parties.
ISSl. 274. P. S. 160, § 16. R. L. 166, § 12.
1 Section 14. Commitments for contempt of court may be made to Commitment
2 any jail in the commonwealth; and processes issued in proceedings s°ervi°e'or''''
3 relative to alleged contempt may be served in any county by any sheriff issetlk.
4 or deputy sheriff to whom they are directed.
R. L. 166, § 13. 188 Mass. 443. 196 Mass. 384.
NATURALIZATION.
1 Section 15. The supreme judicial court and the superior court Jurisdiction of
^,,,1 ..... ,. ,. .. ..... naturalization,
2 shall have lurisdiction to naturalize aliens resident within their respec- is5,5, 28, § 2.
3 tive judicial districts in the manner set forth in the federal laws relative §§ i,'2. '
4 to naturalization. isss, 44.
G. S. 122, §§ 8, 9, 11. 1886, 45; 203. R. L. 166, § 14.
1879, 300. § 3. 1891, l.SO; 419. U. S. Comp. Sta. (1918),
P. S. 160, §§ 8, 9, 11; 199, § 4. 1897, 505. § 4351 el seq.
1885, 345, §§ 1, 2, 6, 8. 1900, 374, §§ 1, 3. 222 Mass. 87.
1 Section 16. The superior court in the several counties may make Adjourned and
2 the following adjournments from any of its regular sittings for naturali- for naturafi'zT-''
3 zation: in Berkshire, from Pittsfield to North Adams; in Bristol, m"'. 68; 483.
4 from New Bedford to Attleboro; in Hampden, from Springfield to jgll 5?s; "'^'
5 Holyoke, Westfield and Chicopee; in Hampshire, from Northampton to Jgfj'flj
6 Ware. Special sessions for naturalization may be held at Lynn in i9i9! lob.
. 1020 232
7 March and September, and at Quiiicy in February and July, on such
8 dates as the chief justice may fix, and in such other cities and towns and
9 at such times as he may determine.
1 Section 17. Evening sessions of the superior court for naturaliza- Evening aes-
2 tion may be held in each county except Suffolk. i9i3, 390. ^^°^ °'^ ^*"°'
2374
CLERKS, ATTORNEYS AND OTHER OFFICERS OF COURTS. [CH-U". 221.
tiS^lS^pifc^ Section 18. The superior court may authorize the execution and 1
bTcferit'o™ reception by the clerk of the court of declarations of intention in natural- 2
declarations, izatiou proceedings at such times and places as the court by general 3
order may direct. 4
1912. 159.
Returns of
naturalizations
to secretary.
1885, 345, § 5.
1887, 36.
R. L. 166, § 17.
Section 19. The clerk of each court shall annually, on or before 1
February first, make to the state secretary a return of the name, age, 2
occupation and residence of every person naturalized prior to the pre- 3
ceding January first, the date of the naturalization and the names and 4
residences of the witnesses. Such returns shall be preserved by the sec- 5
retary in a form convenient for reference. 6
REFERENCES.
Federal law giving jurisdiction to state courts, U. S. Comp. Sts. (1918), § 4351.
Disposition of fees in naturalization cases, Chap. 221, § 32, and U. S. Comp. Sts.
(1918), §§ 4372, 4372a.
Appointment of bar examiners, Chap. 221, §§ 35, 36.
CHAPTER 221
CLERKS, ATTORNEYS AND OTHER OFFICERS OF JUDICIAL COURTS.
Sect.
CLERKS OF COURTS.
1. Clerk of court for commonwealth.
2. His duties.
3. Election of clerks, term.
4. Assistant clerks.
5. Same subject.
6. Same. Suffolk county.
7. Deputy assistant clerks.
8. Temporary clerks.
9. Temporary assistant clerks.
10. Appointment by court of temporary
clerk.
11. Clerks to be sworn.
12. Bonds of clerks.
13. Notice to secretary of vacancy in office
of assistant clerk.
14. General duties of clerks.
15. Duties of clerk and assistant clerk
of the supreme judicial court in
Suffolk.
16. Duties of clerk of superior court in
Suffolk.
17. Facsimile of signature of clerk. Signa-
ture of assistant clerk.
IS. ASidavits in court proceedings.
19. Forwarding exceptions to attorney
general.
20. Notice of rescript.
21. Notice of judgment.
22. Clerks may issue orders of notice.
23. Alphabetical list of parties.
24. Clerks to make annual returns of
eases to secretary.
25. Preservation of records of trial justices.
Sect.
26. Clerks to report convictions of regis-
tered physicians or of unregistered
practitioners, etc.
27. Extension of papers on records.
28. Clerk to exhibit records.
29. Justices to inspect records.
30. Forfeiture of bond.
31. Liability for other breaches.
32. Clerk to account for fees, etc.
33. Duties of assistant clerk.
34. Disposition of unclaimed funds.
BAR EXAMINERS.
35. Appointment.
36. Admission to the bar of attorneys at
law. Expenses, how paid.
ATTORNEYS AT LAW.
37. Petition for examination for admission
as an attorney, etc.
Oath of office.
Admission of attorneys from other
states, etc.
Removal.
41. Penalties on disbarred or unauthorized
attorneys and for soliciting law busi-
ness.
Records to be kept as to the standing
of attorneys at law.
Attorneys at law prohibited from so-
liciting employment in claims for
damages.
44. May be disqualified in certain cases
for violating section 43.
3S,
39
40.
42
43
Ch.u'. 221.]
CLERKS OF COURTS.
2375
Sect.
45. Sheriff, etc., not to act as attorney.
46. Corporations not to practice law.
47. Same subject.
48. Parties may manage their own suits.
49. Persons specially authorized, etc.
50. Attorney's lien for fees, etc.
51. Penalty for not paying over to client.
52. Attorney not to act in suit pre%'iously
decided by him.
MASTERS, AUDITORS, REFEREES, ASSESSORS,
ETC.
53. Masters in chancery.
54. Completion of business if commission
expires.
55. Compensation of masters, etc.
56. Auditors. Appointment, findings, etc.
57. Auditors in probate court.
68. Notice to parties.
59. Discharge by court.
60. Hearings before auditors.
61. Compensation of auditors.
62. Reports of auditors, masters, etc.
REPORTER OF DECISIONS.
63. Appointment.
64. Preparation of reports.
65. Style of reports.
66. Preser^'ation of opinions until publi-
cation.
67. Deputy reporter.
68. Compensation of reporter.
COURT OFFICERS.
69. Number of deputy sheriffs, etc., to
serve as court officers.
70. Court officers in certain counties, ap-
pointment and removal, bonds,
powers.
71. Chief deputy sheriffs for Suffolk and
Middlesex, and chief court officer
for Worcester.
72. Term of office.
73. Salaries of court officers in supreme
judicial court in Suffolk county.
74. Compensation of court officers of su-
perior court in certain counties.
75. Fees for attendance at court.
.Sect.
76. Duties and salaries of messengers in
Suffolk county.
77. Premiums on bonds in Suffolk county
to be paid by county.
78. Service of venires by officers of the
supreme judicial court, county of
Suffolk.
79. Summoning of witnesses by officers in
Suffolk and Worcester.
50. Court officers to wear uniforms.
51. Officers not to draw double pay.
stenographers.
82. Appointment in the superior court.
S3. Assistant stenographers for superior
court in Suffolk.
84. Temporary stenographers.
85. Stenographer in supreme judicial court
and in criminal cases in superior
court.
86. Stenographer for grand jury.
S7. Duties of stenographers.
88. Same subject.
89. Interchange of services.
90. Stenographers for justices of the su-
preme judicial court.
91. Salaries and compensation of stenog-
raphers in the superior court.
interpreters.
92. Interpreters.
salaries and expenses of clerks and
assistant clerks op the supreme
judicial and superior courts.
93.
94.
95.
98.
99.
100.
101.
102.
Salaries of clerk and assistant clerk of
supreme judicial court for the com-
monwealth.
Salaries of clerks.
Salaries of assistant clerks.
Adjustments of salaries.
Salaries, how paid.
Dukes and Nantucket counties.
Traveling expenses.
Salaries of temporary clerk and assist-
ant clerk.
Salaries to be in full compensation.
Extra clerical assistance.
CLERKS OF COURTS.
1 Section 1. The iustices of the supreme iudicial court shall appoint cierk of court
ct 1 iipi • T ' 1 c 1 IIP ^°^ common-
Z the clerk or the supreme judicial court tor the commonwealth lor a term wealth.
3 of five years from the date of his appointment, and an assistant clerk of g.s.'i2i,'
4 said court for a term of three years from the first day of January next rs.'im, §11.2.
5 after his appointment, and may remove them.
R. L. 1G5, § 1.
27 Mass. 598.
1 Section 2. The clerk shall attend all sessions of the court, preserve His duties.
2 all the files and papers thereof, keep a docket record of all questions jf ^/is."
3 transferred, and of all petitions, complaints or other processes presented jj 3I5."''
2376
CLERKS OF COXTETS.
[Chap. 221.
p. S. 159,
H 3-5.
R. L. 165, I 2.
Election of
clerks, term.
Const,
amend. 19.
(Const. Rev.
art. 62.)
1853, 176,
§§ 2, 6, 7.
1857, 1.
G.S. 10, §3;
121, § 6.
1860, 11.
P. S. 10, § 3;
159, § 6.
to the court, and enter thereon the names of the parties in full and of 4
the counsel who appear in their behalf, and a brief description of the 5
nature of the action or proceeding. He shall also record thereon accurate 6
minutes of all orders, decrees or directions of the court in each case, 7
transmit forthwith to the clerks of courts in the several counties all 8
rescripts made or ordered by the court and the papers which belong to the 9
supreme judicial court or the superior court in each case, and receive 10
and keep safely all papers transmitted to him by the clerks of the courts. 1 1
He shall make copies of all papers on file in said court and of the docket 12
record thereof, if desired, and certify them under the seal of the coUrt. 13
He shall issue such writs or other processes as the court orders, shall 14
charge the fees provided by law for like services for clerks of courts, and, 15
if no express fee is provided, he shall receive a fair compensation for the 16
services required of him in analogy to like services for which a compen- 17
sation is fixed by law. He shall annually, before the last Wednesday 18
of December, account with and pay over to the state treasurer all fees 19
received by him. 20
Section 3. There shall be a clerk for the supreme judicial court 1
for the county of Suffolk, and two clerks for the superior court of said 2
county, one for civil and one for criminal business; and in each of the 3
other counties a clerk of the courts who shall act as clerk of the supreme 4
judicial court, of the superior court and of the county commissioners. 5
All of said officers shall hold office for six years beginning with the first 6
Wednesday of January following their election and until their succes- 7
sors are qualified. i89o, 423, §§ iss, 190. 8
1 384, 391, 503.
1893, 417, §§ 251, 25S. 1913. 835,
1898, 548, §1 315, 322. 1917. 255, § 1.
R. L. 11, §§ 318, 325; 165, § 3. 1918, 114, § 2.
1907, 560, §§ 34C, 353, 456.
1919, 269, §§ 19, 26.
205 Mass. 189.
2 Op. A. G. 536.
Assistant
clerks.
1850, 236, § 1.
1851,38, § I.
1855, 449, § 2.
1917, 100.
1907, 253, 5 1.
1917, 134,
111.2.
1917, 44, § 1.
1903, 137.
1910, 188, § 1.
1904, 287.
1907, 234.
1912, 547,
§§ 1. 2.
Section 4. The justices of the supreme judicial court shall appoint 1
for a term of tliree years from the date of their appointment, and may 2
remove, assistant clerks of courts, as follows: 3
) 6, 8, 9.
1856, 37, I 1.
1857, 1.
1859, 196, § 9.
G. S. 121, §§ 6, 8.
1860, 11.
1867, 295, § 4.
1873, 181.
1881, 266.
P. S. 159, §
1897, 220.
R. L. 165, i
I 3-5, 7.
For the county of —
Barnstable, an assistant, who may be a woman;
Bristol, an assistant;
Essex, an assistant, a second assistant, a third assistant and a fourth
assistant;
Hampden, an assistant and a second assistant;
Middlesex, an assistant, a second assistant, a third assistant and a 10
fourth assistant; 11
Norfolk, an assistant; 12
Pl;ymouth, an assistant; 13
Suft'olk, an assistant of the supreme judicial court; 14
Worcester, an assistant, a second assistant and a third assistant. 15
Assistant clerks of courts except in Suffolk county shall act as assistant 16
clerks of the supreme judicial comt, the superior court and the county 17
commissioners. 18
Same subject.
1873, 181.
P. S. 159, § 9.
R. L. 165, § 7.
1904, 287.
1912, 647, § 2.
Section 5. In addition to the assistant clerks proxaded for in the 1
preceding section, the clerks of the courts for the follo^\'ing counties may 2
appoint assistant clerks, with the same powers and duties, as follows: 3
CH-VP. 221.] CLERKS OF COURTS. 2377
4 For the county of — •
5 Norfolk, a second assistant, who may be a woman, subject to removal isO'', 234.
6 by the coiu-t or by the clerk.
7 Middlesex, subject to approval of a justice of the supreme judicial or 1919, 265, § 1.
8 superior court, not more than two assistant clerks, one of whom may be
9 a woman.
10 Suffolk, by the clerk of the superior com-t for criminal business, assist- i907, 234.
1 1 ant clerks pro tempore or for the term of one year, who may be women,
12 subject to remo\'al by the coiu-t or by the clerk; and by the clerk of the
13 supreme judicial court for said county, a second assistant clerk, designated
14 from his office force.
15 All other counties ha\4ng no permanent second assistant clerks, assist- 1907,234.
16 ant clerks pro tempore or for a term of one year, who may be women,
17 subject to removal by the court or by the clerk.
1 Section 6. The justices of the superior court may appoint, for a term Same. SuSoik
2 of three years from the date of their appointment, thirteen assistant isss^^is.
3 clerks of said coiu-t for ci\il business in the county of Suffolk, one of Jltlls?!
4 whom shall perform the duties of clerk pertaining to the equity proceed- 393?'4^8a'
5 ings in said court.
1S97, 334. R. L. 165, § 6. 1906, 276.
1899, 377. 1903, 472, § 3. 1919, 251.
1 Section 7. The clerks of the courts of the several counties except ^^P^i'^^^ks^"'^''
2 Suffolk may designate such employees in their offices, as in their judg- i9i9. 246-
3 ment may be necessary for the convenience of the public, as deputy
4 assistant clerks of the courts, who shall ha-\'e the same authority to
5 administer oaths as the assistant clerks of the courts.
1 Section 8. If by reason of illness or other cause the clerk of the Temporary
2 coiu-ts in any county, or of the supreme judicial court in Suffolk county, isli.^iss,
3 is unable to perform his duties, and there is no assistant clerk or he also iso9',^i'96, § 9.
4 is unable to perform the duties of his office, the justices of the supreme p |; J?g ; | fg
5 judicial court may appoint a temporary clerk, who shall perform the S- ^- 1'^^- 5 ^■
6 duties of the office until the clerk or assistant clerk resumes his duties.
7 The justices of the superior com-t may appoint a temporary clerk if a
8 clerk and assistant clerk of that court in Suffolk county cannot perform
9 the duties of the office. When after any such temporary appointment
10 the clerk or assistant clerk resumes his duties, he shall make a record of
11 that fact, -svith the date, under his signature, in the latest book of records
12 in each of his courts.
1 Section 9. If an assistant clerk of the courts is unable to perform Temporary
2 the duties of his office, a temporary assistant clerk may be appointed JflrkS""
3 in the same manner as an assistant clerk and he shall perform the duties r a'lM.Wi.
4 of that office until the assistant clerk resumes his duties. ^- ^- ^'^^^ ^ '•'•
1 Section 10. If at a sitting of any court neither the clerk nor assist- ^y court"™'
2 ant clerk is present, the court may appoint a temporary clerk, \\ho shall Jf^"^'^"™"^
3 perform the duties of the office during the sitting or until the clerk or as- isis.'s?.
4 sistant clerk resumes his duties, unless an appointment under one of the 8s,'f is."
5 two preceding sections is sooner made or unless a new clerk has qualified, jj; |; HI; 1 1°;
R. L. 165, § 10.
2378
CLERKS OF COUKTS.
[Chap. 221.
Clerks to be
sworn.
1782, 9, § 5.
1796, 95, § 2.
1799,81, § 1.
1811,8, § 3.
1815, 37.
Section 11. The clerk, assistant clerk, temporary clerk and tempo 1
rary assistant clerk of a court shall be sworn before a justice thereof, 2
who shall, upon administering the oaths of ofHce, forthwith make return 3
of such act ysith the date thereof to the state secretary. 4
R. S. 86, § 8;
88. §M. 11.
1850, 236, § 1.
1851,38, § 1; 158, I 2.
1856, 37, § 1.
1859, 196, §§ 40, 41.
G. S. 121, § 11.
1863, 64, § 2.
P. S. 1.59. § 13.
1894, 228.
R. L. 165, § 11.
Bonds of
clerks.
1762, 3;
24, § 1.
1786, 57, § 1.
1811,8, § 3.
1821,23, § 3.
R. S. 88, § 3.
1850, 236, § 1.
1851,38, § 1;
158, § 2.
1856, 37, § 3.
1859,196, 5 41.
G. S. 121, § 12.
1863, 64, I 2.
P. S. 159, § 14.
R. L. 165, § 12.
Section 12. The clerk and assistant clerk of the supreme judicial 1
court for the commonwealth shall, before entering upon the performance 2
of his duties, each give bond in the sum of two thousand dollars for the 3
faithful performance of his official duties, payable to the state treasurer, 4
with sufficient surety or sureties approved by the court. Each clerk, 5
assistant clerk, and each temporary assistant clerk appointed under sec- 6
tion nine, shall give bond in like manner to the county treasurer, in a 7
sum not less than five hundred nor more than two thousand dollars, to 8
be determined by the court; and each temporary clerk appointed under 9
section eight shall gi^'e bond in like manner, if required by the court. 10
te?^'o1t''a?an'cy SECTION 13. Each clerk shall forthwith report to the state secretary
as'?Santcierk ^ vacancy in the office of assistant clerk, and shall report the name and
is|o. i39'i 3^ residence of the person appointed to fill such vacancy, and the date of the 3
R. L. 165, § 13. expiration of the term of service.
1
2
General duties
of clerks.
1782, 9, § 5.
1786, 57.
1811,8, § 1.
1830, 129, I 2.
R. S. 88, § 5.
G. S. 121, § 13.
P. S. 159, § 16.
Section 14. The clerks shall attend all the courts of which they are
clerks when held in their respective counties, and the sessions of the
county commissioners, and shall record their proceedings; and shall have
the care and custody of all the records, books and papers which pertain
to, or are filed or deposited in, their respective offices. R. l. i63, § 14.
Duties of clerk
and assistant
clerk of the
supreme judi-
cial court in
Suffolk.
1887, 291. § 2.
R. L. 165, § 15.
1907, 145, § 1.
Section 15. The clerk or the assistant clerk of the supreme judicial
court for Suffolk county shall act as clerk of the supreme judicial court
when sitting in Boston for the hearing of cases from any other county,
except when sitting as a full court, and for such purposes as the court
may order; and when the assistant clerk is so acting his attestation as
assistant clerk shall be sufficient without further designation.
Duties of clerk
of superior
court in
Sufiolk.
1896,413.
R. L. 165, § IG.
Section 16. The clerk of the superior court for ci\il business in Suffolk 1
county, or such assistant clerk of said court as the justices thereof desig- 2
nate for such duty, shall act as clerk of said court when sitting in Boston 3
for the hearing of cases from any other county, and for such pm'poses as 4
the court may order. 5
Facsimile of
signature of
clerk.
1885, 321.
1880, 13.
R. L. 165, § 20.
1910, 94.
Signature of
assistant clerk.
1889, 215.
Section 17. A facsimile of the signature of the clerk of any court 1
in the commonwealth, imprinted by him upon any writ, summons, sub- 2
poena, order of notice or order of attachment, except executions, shall 3
have the same validity as his written signature. 4
The name of an assistant clerk of any court, followed by the designa- 5
tion "assistant clerk" shall be a sufficient official signature. 6
1895, 251. 1896, 413. R. L. 165, § 21.
Affidavits in
court pro-
ceedinps.
1920, 209.
Section IS. Any affidavit required in any action or proceeding 1
pending in any court in the commonwealth may be made and sworn to 2
before a clerk or assistant clerk of such court. 3
CH-^P. 221.] CLERKS OF COURTS. 2379
1 Section 19. The clerks shall cause one or more copies of all appeals, Forwarding
2 bills of exceptions and reports of cases in which the attorney general ap- attorney"^ '°
3 pears for the commonwealth to be printed and forwarded to him at f|§S|^374.
4 Boston as soon as may be after they have been allowed and filed. ^^l' f^f j ^^
1 Section 20. When a rescript is filed in a case or proceeding in the Notice ot
2 supreme judicial court, the superior court, the land court, or the municipal 5s69,''74.
3 court of the city of Boston, the clerk or recorder of such court shall forth- k.l/igWis.
4 with give notice thereof to an attorney of record of each party, and trans-
5 mit a copy of such rescript to the reporter of decisions.
1 Section 21. When judgment is entered by the superior court upon Notice of
2 a demurrer or upon a case stated, or when a decision is rendered in an Isra"'™*'
3 action heard without a jury, the clerk shall give notice thereof to the fslg, 357.^ ^'
4l parties or their attorneys. R. l. les, § 19.
1 Section 22. A clerk of the coiu-ts may issue any order of notice cierks may
2 upon any petition or other proceeding at law or in equity which might oTnot^cl'"^''
3 be issued by the court; but the court or a justice thereof may cause p*^s.'f59,'§ 17.
4 additional notice to be given. R. l. i65, § 22.
1 Section 23. Each clerk shall keep an alphabetical list of the names Alphabetical
2 of all parties to every action or judgment recorded in the records and a 1786, 57""*^'
3 reference to the book and page thereof; and, if there are two or more r s'.l's, §7.
4 plaintiffs or defendants, the name of each and a Uke reference shall be pfifg'lig'
5 inserted in its appropriate place in the alphabetical list. R- l. les, § 23.
1 Section 24. The clerks of the courts for the several counties and the cierks to
2 clerk of the superior court for civil business in Suffolk county shall annu- "Jurns'S""'
3 ally in July make returns for the last preceding year ending June thir- secrltlrv.
4 tieth to the state secretary, upon suitable blank forms provided by him, isos, 321, 5 1.
5 of the number of jury cases, of jury waived cases and of equity suits,
6 pending at the beginning of each year in the superior court in their re-
7 spective coimties; of the number of each of said three classes of cases
8 entered during the year; of the number of cases of each class actually
9 tried during the year; of the number of cases of each class disposed of
10 during the year by agreement of the parties or by order of the court;
11 of the number of cases of each class remaining untried at the end of
12 the year; of the number of cases wherein the verdict of the jury has
13 been set aside by the coiu-t on the ground that it was excessive; and of
14 the number of days during which the coiu-t has sat in their respective
15 counties for the hearing of each of said tlu-ee classes of cases.
1 Section 25. The clerks of the courts and in Suffolk county the Preservation
2 clerk of the superior court for civil business shall receive and safely keep ^riaf'jus'tfcel
3 the dockets, records and other official papers of trial justices which may R.L:i65;t24.
4 be deposited in their offices under section eleven of chapter two hundred
5 and nineteen, and shall make and certify copies thereof which shall have
6 the same effect as if certified by trial justices. They shall be allowed
7 the same fees for making such copies as are allowed to them in similar
8 cases.
2380
CLERKS OF COUETS.
[CiLiP. 221.
Clerks to
report con-
victions of
registered
physicians or
of unregistered
practitioners,
etc.
1916, 304,
§§1.2.
Section 26. The clerk of any court in which a physician registered 1
in this commonwealth is convicted of a felony or of a crime in connec- 2
tion with the practice of medicine, or in which an unregistered practi- 3
tioner is convicted of holding himself out as a practitioner of medicine, 4
or of practicing medicine, shall within one week thereafter report the 5
same to the board of registration in medicine together with a copy of 6
the court proceedings in the case. Failure to comply with this section shall 7
be punished by a fine of not less than one nor more than ten dollars. 8
Extension of
papers on
records.
1879, 268.
P. S. 159, § 19.
R. L. 165, § 25.
1917, 206.
235 Mass. 587.
236 Mass. 500.
Section 27. The supreme judicial court shall by general rule or 1
special order direct in what manner and to what extent, if any, the papers 2
in causes which are entered in said court or in the superior court shall 3
be extended upon the records, after final judgment or otherwise, and 4
shall be a final record. Such rule or order shall specify whether such 5
extension shall be in whole or in part, shall be in long hand, tj'pe-nTiting, 6
print or otherwise, or shall consist of the filing of original papers in such 7
causes by loose leaf system or otherwise. 8
Clerk to
exhibit
records.
R. S. 88, § 11.
G. S. 121, § 15.
P. S. 159, § 20.
R. L. 165, § 26.
Section 28. The clerks of the courts in the several counties and of 1
the supreme judicial and superior courts in Suffolk county shall at the 2
first sitting in each year of the supreme judicial court in their counties 3
exhibit their latest books of records to a justice of the court, who shall 4
cause errors and defects therein to be corrected. 5
Justices to
inspect records.
1762, 3; 24, § 4.
1786, 57, § 4.
R. S. 88, § 8.
G. S. 121, § 16.
P. S. 159, § 21.
R. L. 165, § 27.
Section 29. The justices of the several courts shall inspect the 1
doings of the clerks from time to time, and shall see that the records are 2
made up seasonably and kept in good order; and if the records are left 3
incomplete for more than six consecutive months, such neglect unless 4
caused by illness or casualty shall be adjudged a forfeiture of the bond 5
of the clerk. 6
Forfeiture
of bond.
1762, 3; 24, 5 4,
1786, 57, § 4.
R. S. 88,
§§ 9, 10.
G.S. 121,
§§ 17, 18.
P. S. 159,
§§ 22, 23.
R. L. 165, § 28.
Section 30. If any neglect causes a forfeiture of the bond of a clerk 1
or assistant clerk, the justices shall forthwith give -uTitten notice thereof 2
to the treasurer having custody thereof, who shall thereupon cause suit 3
to be brought thereon. The amount recovered in such suit shall be 4
applied to the expense of making up the deficient records under the direc- 5
tion of the court in whose records the deficiency exists, and the surplus, 6
if any, shall be carried into the account of such treasurer. 7
Liabihty for .QTrrTTniw "^1
other breaches. OECllON 01.
Gs'i2iS^i9 iissistant clerk from an action for any other breach of the condition of
R L \65' III' ^^^ bond or from his liability in any other way or to any party for neg- 3
lect or misconduct in his office. 4
The two preceding sections shall not exempt a clerk or 1
2
Clerk to
account for
fees, etc.
1811,8, §2. ,
1813, 77, § 2.
1820, 84, I 1.
1830, 129, § 3.
1835, 124, I 2.
R. S. 88, § 16. .
G. S. 121, § 22.
1879, 300, § 1.
P. S. 169, § 27.
1887, 291, § 1.
1888, 257, § 4.
1891, 236.
R. L. 165, §31.
Section 32. The clerks of the courts in the several counties, and of 1
the supreme judicial and superior courts in Sufi'oLk county, shall keep 2
cash books, which shall be county property and shall be and remain 3
a part of the records of the courts, in which they shall keep accounts 4
of all fees received by them for their official acts and services, includ- 5
ing fees for copies which they are not required by law to furnish, fees 6
and money in proceedings relative to naturalization or for naturaUzation 7
certificates, and all fees and money of whatever description or character 8
received by them, or by any assistant or other person in their offices or 9
Ch.\P. 221.] CLERKS, ATTORNEYS Xmi OTHER OFFICERS OF COURTS. 2381
10 employment, for any acts done or services rendered in connection with i90s, 253.
11 their said offices, and shall on or before the tenth day of each month pay 207^^/353. wv.
12 over to the treasurers of their respective counties, or to such other officers 531 u.^a'eeg.
13 as are entitled to receive them, all fees received during the preceding
14 calendar month, and shall render therewith a sworn account thereof;
15 provided, that said clerks shall account for and pay over to the United
16 States bureau of naturalization in accordance with the federal laws as
17 to naturalization such part of any moneys received by them under or by
18 authority of such laws as they are required thereby to account for and
19 pay over, and they may retain that part of any moneys so received, in
20 so far as such retention is authorized thereby; but from the moneys so
21 retained they shall pay all additional clerical force required in performing
22 the duties imposed by such laws.
1 Section 33. Each assistant clerk shall under the direction of the Duties of
2 clerk perform any of the duties of the clerk and shall pay over to him ciMk!*"'
3 all fees and amounts received as such assistant. In the absence or upon J||?; ss^si^'
4 the resignation, death or removal of the clerk, the assistant clerk shall }f^^' ^|j s ^■
5 perform his duties under the direction of the court untU he returns or § JJ^o, 21!
6 until a new clerk has qualified, and upon the death, removal or resigna- P- s.'iso,'
7 tion of the clerk, the assistant clerk shall account with, and pay over the r. l. le's, § so.
8 money in his hands to, the officer to whom the clerk is by law required ^^ °^^^' '*'
9 to account.
1 Section 34. A clerk of courts having in his custody money or divi- Disposition of
r»iii>'i •!! • in»* unclaimed
2 dends or an insolvent savmgs bank or msurance company whose affairs funds.
3 have been wound up in his court, remaining unclaimed for more than r. l! ms. § 32.
4 ten years after the order of final settlement by the court, shall, after ^^^ ' ^ • ^ ^ '•
5 deducting all amounts due him, the county or the commonwealth for
6 fees or expenses, pay the balance to the state treasurer and file with him a
7 schedule of the names and residences, so far as knowTi to liim or shown
8 by the record, of the parties entitled thereto. The fees and expenses so
9 deducted shall be audited and adjusted by the director of accounts and
10 paid forthwith to the persons entitled thereto. After the payment of
11 fees and expenses, and of the balance to the state treasurer, the liability
12 of the clerk for such money and di\idends shall cease. The state treasurer
13 shall hold such funds in trust for two years; and if they are not paid by
14 liim witliin that time to the persons entitled thereto, upon proper demand
15 and satisfactory evidence of the identity of the claimant and of the jus-
16 tice of the claim, they shall escheat to the commonwealth.
BAR EXAMINERS.
1 Section 35. There shall be a board of bar examiners consisting of f'g''g'7°'5o^7i-
2 five persons, residing in different counties, one of whom shall annually k. l. les, § 39.
3 be appointed by the justices of the supreme judicial court for a term of
4 five years from October first in the year of his appointment, and who may
5 be removed by them. Such justices may fill vacancies.
1 Section 36. Said board may, subject to the approval of the supreme Admission
2 judicial court, make rules with reference to examinations for admission attorney" °
3 to the bar and the qualifications of applicants therefor, and determine Exjfc^'aes,
4 the time and place of such examinations, and conduct the same; provided, ilgy^sos § 3
2382
CLERKS, ATTORNEYS AND OTHER OFFICERS OF COURTS. [CH-^P. 221.
1898, 312.
R. L. 165, § 40.
19(M, 355, § 1.
1914, 670.
1915, 249.
220 Mass. 472.
Petition for
examination
for admission
as an attorney,
17SS. 23, § 1.
1795. 80, I 4.
R. S. SS,
§5 19, 20, 23.
1852, 154.
G. S. 121,
5§ 28, 29, 32.
1876, 197.
P. S. 159,
§§ 34, 37.
1882, 139.
1888, 257, 5 5.
1897, 508, § 2.
1898, 384.
R. L. 165, § 41.
1904, 355, § 2.
6 Mass. 382.
10 Met. 239.
121 Mass. 600.
131 Mass. 370.
that any applicant for admission to the bar who is a graduate of a college 5
or who has complied with the entrance requirements of a college, or who 6
has fulfilled for two years the requirements of a day or e^-ening high 7
school or of a school of equal grade, shall not be required to take any 8
examination as to his general education. The expenses of said board, as 9
certified by its chairman and approved by a justice of the supreme 10
judicial court, shall be paid by the commonwealth, together with such 11
compensation to each member as the justices of the supreme judicial 12
court appro^•e, but said expenses and compensation shall not be in 13
excess of the amounts paid to the commonwealth imder the following 14
section. 15
ATTORNEYS AT L.\W.
Section 37. A citizen of the United States, or an alien who has made 1
the primary declaration of intention to become a citizen thereof, whether 2
man or woman, may, if over twenty-one, file a petition in the supreme 3
judicial or superior court to be examined for admission as an attorney 4
at law, and, if found qualified, to be admitted as such; whereupon, unless 5
the court otherwise orders, the petition shall be referred to the board of 6
bar examiners to ascertain his acquirements and qualifications. If the 7
board reports that the petitioner is of good moral character and of suffi- 8
cient acquirements and qualifications, and recommends his admission, he 9
shall be admitted unless the court otherwise determines, and thereafter 10
may practice in all the courts of the commonwealth. The petitioner shall 11
pay to the clerk of the court in which his petition is filed a fee of fifteen 12
dollars upon the entry thereof, and a further fee of ten dollars upon the 13
entry of any subsequent petition. Such fees shall be paid over to the 14
commonwealth. 15
Oath of office.
Const,
amend. 6.
(Const. Rev.
art. 149.)
1701-2, 7, I 2.
1785, 23, § 1.
R. S. 88,
§121,22.
G. S. 121.
H 30, 31.
P. S. 159,
H 35, 36.
R. L. 165, § 42.
Section 38. ^Mioever is admitted as an attorney shall in open court 1
take and subscribe the oaths to support the constitution of the United 2
States and of the commonwealth; and the following oath of office shall 3
be administered to and subscribed by him: 4
I (repeat the name) solemnly swear that I will do no falsehood, nor consent
to the doing of any in court; I will not wittingly or willingly promote or sue
any false, groundless or unla^\iul suit, nor give aid or consent to the same; I
will delay no man for lucre or malice; but I will conduct myself in the office
of an attorney within the courts according to the best of my knowledge and
discretion, and with aU good fideUty as well to the courts as my clients. So
help me God.
Admission of
attorneys from
other states,
etc.
R. S. 88. § 24.
G. S. 121, § 33.
P. S. 159, § 38.
R. L. 165, §43.
1904, 355, § 3.
Section 39. A citizen of the United States, or an alien who has made 1
the primary declaration of intention to become a citizen thereof, whether 2
man or woman, who has been admitted as an attorney or counsellor of 3
the highest judicial court of any state, district, territory or country of 4
which he was an inhabitant may, upon petition to the supreme judicial 5
or the superior court be admitted to practice in all the courts of the 6
commonwealth upon the production of satisfactory e\'idence of his good 7
moral character and professional qualifications. 8
Removal.
R. S. 88, § 25.
G. S. 121, §34.
P. S. 159. I 39.
R. L. 165, § 44.
1919, 260.
11 AUen, 472,
473.
126 Mass. 222.
Section 40. An attorney may be removed by the supreme judicial
or superior court for deceit, malpractice or other gross misconduct,
and shall also be liable in damages to the person injured thereby,
and to such other punishment as may be provided by law; and the ex-
penses and costs of the inquiry and proceedings in either court for the
CeLVP. 221.] CLERKS, ATTORNEYS AND OTHER OFFICERS OF COUETS. 2383
6 removal of an attorney shall be paid as in criminal prosecutions in the 137 Masa. 424.
7 superior court. Whenever a petition is filed for the removal of an at- \m mIII'. Im.
8 torney the proceedings thereafter shall be conducted by the attorney l°l HlH] lll[
9 general, or such person as he may designate with the approval of the |}J Hm- Jf^-
10 court; but such person shall receive no compensation for lus services. |i| m"^''' leg"
1 Section 41. Whoever has been so removed and continues thereafter Penalties on
2 to practice law or to receive any fee for his services as an attorney at unauthofi^d
3 law rendered after such removal, or who holds himself out, or who rep- for'TolStiSg''
4 resents or advertises himself as an attorney or counsellor at law, or 'jsgi'^Tis'^^'
5 whoever, not having been lawfully admitted to practice as an attorney R l' i^s. § 45.
6 at law, represents himself to be an attorney or counsellor at law, or to wn', 267!
7 be lawfully quahfied to practice in the courts of the commonwealth, by 211 Mass! 375!
8 means of a sign, business card, letter head or otherwise, or holds himself 227 Mass! 579!
9 out or represents or advertises himself as having authority or power in 233 Mass! les.
10 behalf of persons who have claims for damages to procure settlements
1 1 of such claims for damages either to person or property, or whoever, not
12 being an attorney at law, solicits or procures from any such person or his
13 representative, either for himself or another, the management or control
14 of any such claim, or authority to adjust or bring suit to recover for the
15 same, or solicits for himself or another from a person accused of crime
16 or his representative the right to defend the accused person, shall be
17 punished for a first offence by a fine of not more than one hundred dol-
18 lars or by imprisonment for not more than six months, and for a sub-
19 sequent oft'ence by a fine of not more than five hundred dollars or by
20 imprisonment for not more than one year.
1 Section 42. The clerk of the supreme judicial court for Suffolk Records to be
2 county shall cause to be made, and shall keep, a complete record in suita- stTndmg of "
3 ble form of all persons who are, or ever have been, or hereafter become, fa""™"^^ "'
4 attorneys at law in this commonwealth, and of the suspension, removal ^*^i^' ''^■
5 or disbarment of such as have been or hereafter shall be suspended,
6 removed or disbarred. Clerks of courts and other persons in whose
7 custody there may be any record of an admission to the bar of an attor-
8 ney at law, any record of a petition for suspension or removal therefrom,
9 or of a judgment or decree of suspension or removal from practice of any
10 attorney at law, shall within one month after the date of such record
11 report the same to the clerk of the su]Dreme judicial coiu-t for Suffolk
12 county. The record of said clerk relative to an admission to the bar,
13 or a suspension or removal therefrom, shall be prima facie evidence of
14 the facts recorded. A certificate thereof signed by the clerk or assistant
15 clerk shall be admissible as evidence of such record.
1 Section 43. No attorney at law shall through any runner, agent or Attorneys at
2 person who is employed by him solicit a person to employ him to present fj^nfediatmg
3 a claim for damages, or to prosecute an action to enforce such a claim, and f ,"'^1'^°^;™™'
4 no attorney at law shall directly or indirectly give or promise any person 'j'jjgi''^^|- § j
5 any money, fee, commission, profitable employment or other personal 214 Mass. aii.
6 advantage in consideration of his employing such attorney on behalf
7 of a person having a claim for damages, or soliciting or procuring the
8 person who has such claim to employ such attorney to present such claim
9 or to prosecute an action for the enforcement thereof. No attorney
10 shall appear in any suit for the enforcement of a claim in connection
11 with which he has violated this section.
2384
CLERKS, ATTORNEYS AND OTHER OFFICERS OF COURTS. [CiLYP. 221.
May be dis-
qualified in
certain cases,
for violating
section 43.
1907, 443, § 2.
Section 44. If it appears to the satisfaction of the court that an at- 1
torney ■whose appearance has been entered in any suit has in connection 2
therewith violated the preceding section, such attorney may in the dis- 3
cretion of the court be disqualified from fiu"ther acting in said suit, and 4
the court may make an order for continuance, or for another and speedy 5
trial, or such other order for the protection of the interests of the parties, 6
as justice may require, and may deny the right to collect costs whoOy or 7
in part to any party to the suit. 8
Sheriff, etc.,
not to act as
attorney.
1736-7, 3.
1742-3, 25.
175S-9, 14.
1783. 44, § 3.
1822, 20.
R. S. 14,
|§ 79, 80; 88,
§1 29, 30.
G. S. 17, § 64;
121, § 40.
Section 45. A sheriff, deputy sheriff or constable who appears in 1
court as attorney for any party to a suit, or draws, makes or fills up a 2
WTit, declaration, plea or process for such party, or, with intent to pro- 3
cure laimself to be employed in the collection of a demand, or in any 4
manner to make gain or profit therefrom, advises, counsels or encourages 5
a person, directly or indirectly, to commence a suit or process shall for- 6
feit fiftv dollars. 7
p. S. 159, I 45.
R. L. 163, § 51.
6 Pick. 483.
10 Pick. 45.
Corporations
not to practice
law.
1916. 292,
5§ 1-3.
Section 46. No corporation shall practice or appear as an attorney 1
for any person other than itself in any court in the commonwealth or 2
before any judicial body or hold itself out to the public or advertise as 3
being entitled to practice law, and no corporation shall draw agreements, 4
or other legal documents not relating to its lawful business, or draw wills, 5
or practice law, or hold itself out in any manner as being entitled to do 6
any of the foregoing acts, by or tlirough any person orally or by adver- 7
tisement, letter or circular; provided, that the foregoing shall not pre- 8
vent any bank or trust company lais-fully doing business in the common- 9
wealth from furnisliing to persons with whom it may deal or who may 10
apply for the same, through its officers or agents, legal information or 11
legal advice with respect to investments, taxation, or an issue or offering 12
for sale of stocks, bonds, notes or other securities or property, nor shall 13
ami:liing herein prohibit a corporation from employing an attorney in 14
regard to its owti affairs or in any litigation to wliich it is or may be 15
a party. Any corporation violating this section shall be punished by a 16
fine of not more than one thousand dollars; and every officer, agent or 17
employee of any such corporation who, on behalf of the same, directly or 18
indirectly, engages in any of the acts herein prohibited, or assists such 19
corporation to do such proliibited acts, shall be punished by a fine of not 20
more than five hundred dollars. 21
Same subject.
1916, 292, § 4.
1917, 168.
Section 47. The preceding section shall not apply .to any public 1
se^^^ce corporation or to any corporation lawfully engaged in the e.xam- 2
ination and insurmg of titles to real property, or lawfully engaged in the 3
business of insurance against liability for damages or compensation on 4
account of injury to persons or property, or lawfully engaged in assist- 5
ing attorneys to organize corporations, or organized for and lawfully 6
engaged in benevolent or charitable purposes, or organized under the au- 7
thority of the commonwealth for the purpose of assisting persons without 8
means in the pursuit of any civil remedy, or prohibit a newspaper from 9
answermg inquiries tlorough its columns or any corporation from pro- 10
viding legal advice or assistance to its employees, or a corporation law- 11
fully engaged in the business of conducting a mercantile or collection 12
agency or adjustment bureau from employing an attorney to give legal 13
Chap. 221.] clerks, attorneys and other officers of courts. 2385
14 advice concerning, or to prosecute actions in court relating to, the ad-
15 justment or collection of debts and accounts only.
1 Section 48. Parties may manage, prosecute or defend their owti Parties may
2 suits personally, or by such attorneys as they may engage; but not more JI^^^buHs. ""^
3 than two persons for each party shall, without permission of the court, Iroslg; 3,' 1 1'.
4 be allowed to manage any case therein. 1714, 3, § 2.
1785, 23, § 2.
R. S. 88, § 26.
P. S. 159, § 40.
1789, 58.
G. S. 121, §35.
R. L. 165, § 46.
1 Section 49. Any person of good moral character, unless he has been Persons sne-
2 removed from practice as an attorney under section forty, may man- C^.^etc.
3 age, prosecute or defend a suit if he is specially authorized by the party ^ *|; Hi 5 27.
4 for whom he appears, in WTiting or by personal nomination in open court. fgg|_ gj|' ^ ^®-
p. S. 159, 5 41. R. L. 165, 5 47.
1 Section 50. An attorney who is lawfully possessed of an execution. Attorney's
2 or who has prosecuted a suit to final judgment in favor of his client, shall et™ °'^ '^'^^'
3 have a lien thereon for the amount of his fees and disbursements in the \llo] foi,
4 cause, but this section shall not prevent the payment of the execution or §; | ili^^fy.
5 judgment to the judgment creditor by a person who has no notice of the ^ ^ ^^^^ i*|-
6 lien. 5 Mass. 309. 11 Mass. 236. 13 Mass. 525.
4 Gray, 357. 176 Mass. 161. 211 Mass. 406.
103 Mass. 33. 208 Mass. 195. 213 Mass. 203.
1 Section 51. An attorney at law who unreasonably neglects to pay Penalty for
2 over money collected by him for and in behalf of a client, when demanded ^ ri^ent"^ °^"
3 by the client, shall forfeit to such client five times the lawful interest of g.*s.'i2i,'|38.
4 the money from the time of the demand.
p. S. 159, § 43. R. L. 165, § 49. 216 Mass. 169.
1 Section 52. No person shall be employed or allowed to appear as Attorney not to
2 attorney before a court in any proceeding, civil or criminal, which shall preyfousi'y
3 have been previously determined before him as a judge of any court or il^f'^ ^^
4 as a trial justice. 1705-6, 7, § 2.
1815, 49, I 1. G. S. 121, § 39. 1S84, 170.
R. S. 89, § 8. P. S. 159, § 44. R. L. 165, § SO.
masters, atjditors, referees, assessors, etc.
1 Section 53. The governor, with the advice and consent of the coun- Masters in
2 cil, shall, as vacancies occur, appoint masters in chancery, who may act i826,'^io9. § 4.
3 throughout the commonwealth, so that the number thereof in the several ^2.^ **' ^* ^''
4 counties shall be twelve in Suffolk, eleven in Essex, eleven in Middlesex, j:|||; ^^^-73
5 seven in Worcester, six in Norfolk, and not more than five in any other J|*|' ||^
6 county. They shall be sworn, and shall hold their offices for five years, g. s.' 121,' 5 41.
1868, 185.
1904, 348.
113 Mass. 139.
1873, 365.
1905, 110.
115 Mass. 170.
1874, 1.
1906, 187.
131 Mass. 204.
1879, 142.
1914, 411.
216 Mass. 426.
p. S. 159, § 46.
1915, 304.
3 Op. A. G. 186.
R. L. 165, § 52.
1916, 70.
4 Op. A. G. 457.
1 Section 54. A master may complete any unfinished proceedings and ^^"',!;.'^''g''™ °^
2 processes pending before him or commenced under his direction not- comnnosion
3 withstanding the expiration of his commission. 1844, i38.
G. S. 121, §45. P. S. 159, §50. R. L. 165, §53.
2386
CLERKS, ATTORNEYS AND OTHER OFFICERS OF COtlRTS. [ChAP. 221.
Compensation
of masters, etc.
1S83, 216.
1886, 51.
1887, 289.
1899,458.
1901, 366.
R. L. 165, § 54.
1918, 257,
§423.
1919, 5.
1920, 2.
183 Mass. 254.
185 Mass. 535.
216 Mass. 426.
Section 55. The supreme judicial or superior court shall award 1
reasonable compensation to commissioners, assessors, referees, masters 2
in chancery and special masters, for duties performed under the direction 3
of said court, and to arbitrators appointed under chapter two hundred 4
and fifty-one upon whose awards judgment is entered, which shall be 5
paid by the counties in which they are appointed. Reasonable travel- 6
ing expenses shall also be allowed in the same manner as is provided 7
for auditors. 8
Auditors.
Appointment,
finciinga, etc.
1817, 142.
R. S. 96,
§§ 25, 30.
1856, 202.
G. S. 121, § 46.
1863, 197, § 1.
P. S. 159, § 51.
R. L. 165, § 55.
1914, 576. I 2.
11 Pick. 359.
I Met. 216.
II Met. 297.
7 Gush. 445.
9 Gush. 329.
8 Grav, 545.
10 Gray, 379.
13 Gray, 150.
15 Gray, 351.
16 Gray, 396.
1 Allen, 53,
277.
9 Alien, 181,
502:
10 Allen, 32.
14 Allen, 222.
100 Mass. 153,
191.
Section 56. Wlien a civil action is at issue, the supreme judicial or 1
superior court, in its discretion, and a district court, if both parties assent 2
thereto in UTiting, may appoint one or more auditors to hear the parties, 3
examine their vouchers and evidence, state accounts and report upon such 4
matters therein as may be ordered by the coiu-t. The auditor's findings 5
of fact shall be prima facie evidence upon such matters only as are em- 6
braced in the order; but the court at the trial shall exclude any finding 7
of fact which appears in the report to be based upon an erroneous opinion 8
of law, or upon inadmissible evidence. Whenever the auditor makes a 9
ruling as to the admissibility of evidence and objection is taken thereto 10
he shall, if requested so to do, make a statement of such ruling in his 11
report. The auditor shall not make any finding of fact which depends 12
upon the decision of a question of law, imless he makes alternative find- 13
ings or states in his report the view of the law upon which his finding 14
depends, together with such subsidiary facts as will enable the court to 15
pass upon the question. 16
104 Mass.
108 Mass.
109 Mass.
112 Mass.
115 Mass.
117 Mass.
122 Mass.
126 Mass.
127 Mass.
129 Mass.
130 Mass.
131 Mass.
132 Mass.
521,593.
570.
464.
320.
44.
167.
505, 522.
21.
530.
299.
424.
80.
489.
133 Mass.
136 Mass.
141 Mass.
143 Mass.
150 Mass.
161 Mass.
163 Mass.
170 Mass.
171 Mass.
172 Mass.
173 Mass.
174 Mass.
175 Mass.
546.
361.
298.
275, 448.
535.
294.
375.
419.
283.
398.
261.
490.
400.
176 Mass. 265.
179 Mass. 153, 276, 439.
180 Mass. 662.
184 Mass. 98.
188 Mass. 558.
197 Mass. 137.
199 Mass. 15.
204 Mass. 34.
208 Mass. 94.
217 Mass. 451.
225 Mass. 148.
227 Mass. 415.
232 Mass. 220.
Auditors in
probate court.
1889, 311, § 1.
R. L. 165, § 56.
190 Mass. 599.
197 Mass. 137.
Section 57. After any account of an executor, administrator, guard- 1
ian, conservator, trustee or other person required by law to render an 2
account in the probate court has been filed therein, the judge of said 3
court may, before approving it, appoint one or more auditors to hear the 4
parties, examine vouchers and evidence and report upon the same to the 5
court. The report shall be prima facie evidence upon such matters as are 6
expressly referred to such auditors. 7
Notice to
parties.
R. S. 96,
§1 26, 27.
U.S. 121,
§147,48.
P. S. 1.59,
§§ 52, 53.
R. L. 165, i
1914, 576, !
15 Gray, 351.
Section 58. Auditors shall give notice to the parties of the time and 1
place appointed for their meeting, and may adjourn from time to time as 2
may be necessary. If there is more than one auditor, all shall meet and 3
hear the cause, but a report may be made by a majority. If either party 4
neglects to appear at the time appointed for such hearing, or at any ad- 5
journment thereof, without just cause, or if at any such hearing either 6
party refuses to produce in good faith the testimony relied on by him, 7
the auditors may close the hearings and make a report recommending 8
that judgment be entered for the adverse party. Judgment shall be 9
entered accordingly at the first judgment day after the expiration of ten 10
days from the filing of the report, unless the court, for cause shown, 11
otherwise orders. 12
Chap. 221.] clerks, attorneys and other officers of courts. 2387
1 Section 59. The court may for cause discharge the auditors and ^^^^^'f
2 appoint others and may recommit the report for revision or further § |?2i^/|9
3 examination to the same or to other auditors.
p. S. 159, § 54. R. L. 165, § 58. * 4 Pick. 283.
1 Section 60. The court in which a cause is pending may, upon appli- f^relucuto^.
2 cation of either party, appoint a day certain for the hearing thereof before J^oO' ^is, § i^
3 the auditor. The hearing shall be had upon the day appointed, and shall wh] 576'. § 4.'
4 proceed, unless the parties otherwise agree or the auditor otherwise orders, i86 Mass! ue.
5 from day to day until the conclusion thereof.
1 Section 61. The court shall award reasonable compensation and ^f°"u'a,tors'°"
2 allow actual expenses of travel in attending hearings, if said expenses be j^^'l'gg-i 31
3 approved by the court as reasonable, to auditors, and the same shall be g s. 121, § so.
4 paid by the county if they are appointed by the supreme judicial court, 1873! 342.
5 the superior court or the probate court. If they are appointed by any p. s.' 159.' §55.
6 other court, the compensation awarded and expenses of travel allowed r^^l! ill', i m.
7 may be paid by either party and taxed in his bill of costs if he prevails; JI^Ma/g. 316.
8 but the plaintiff shall be liable for such payment, and the court may make 253 u. s. 300.
9 all orders and decrees, and issue process to enforce the same. No allow-
10 ance for the expenses of travel shall be allowed by the court, unless the
11 auditor shall file a true and correct account of such expenses, signed and
12 sworn to by him.
1 Section 62. Auditors, masters in chancery and special masters shall ^Xtore,"^
2 file their final report in the office of the clerk of the court by which they fgfg'^^^/*''-
3 are appointed within ninety days after the hearing before them has been R^ l: i6|. ||i-
4 closed or within such time as the court may allow, and, in default thereof,
5 shall not be entitled to any fees.
reporter of decisions.
1 Section 63. There shall be a reporter of decisions of the supreme Appointment.
2 judicial court. He shall be appointed by the governor, with the advice R*°a sl,^'
3 and consent of the council, and hold office at their pleasure. ^^ ^^' ^^■
G. S. 121, § 51. P. S. 159, § 56. R. L. 165, § 62.
1 Section 64. He shall attend the law sittings of the court unless ex- Preparation
2 cused therefrom by the chief justice, make true reports of decisions upon i803,''i33!§ i.
3 all questions of law argued by counsel, prepare them for publication with Jps'ls,'
4 suitable head notes, tables of cases and indexes, furnish them to the flag^'ioo.
5 publisher, and superintend the correction, proof reading and publication g. s^m,
6 thereof. He shall in his discretion report the several cases more or less i,87|.'28o.
7 at large according to their relative importance, so as not unnecessarily to 5§ V7,^5_8. ^
8 increase the size or number of the volumes of reports. The reports of r. i,:ifi5:|G3.
9 all decisions argued and determined before September first in each year '^°*' ^''*' '•
10 shall be published within ninety days thereafter.
1 Section 65. The volumes of reports shall be styled " Massachusetts style ot
2 Reports", and the name of the reporter shall not be added thereto. is67?l39.
p. S. 159, § 60. R. L. 165, § 64.
1 Section 66. The county of Suffolk shall provide a safe and con- Preser^-ationof
2 venient place in Boston where the reporter shall keep the written opin- publication.
2388
CLERKS, ATTORNEYS AND OTHER OFFICERS OF COURTS. [CiLiP. 221.
p%*' 1*5^9 1 61 '^'^^^ °^ *^^ court in all law cases argued in the several counties until their 3
R. L- 165, 165. publication in the reports, and his dockets and copies of papers in such 4
cases, and where he shall afford due facilities for their examination. 5
142 Mass. 29.
°p?rtJr. Section 67. If the reporter is prevented from attending at a sitting, 1
G i' 121 ^'^55 ^^ shall depute a suitable person to attend for him and take notes of the 2
RLwslel decisions; or the court may appoint a person to act for him until he 3
resumes the performance of his duties, or until another is appointed. 4
Compensation
of reporter.
1803, 133, § 2.
R. S. 88, § 42.
1843,49, § 1.
G. S. 121, § 56.
1879, 280.
P. S. 159, § 63.
1889,471, § 4.
1892, 380.
R. L. 165, § 67.
1908, 358, I 2.
1909, 230.
1920, 640.
Number of
deputy sheriffs,
etc., to serve
as court officers.
1862, 102,
H 1,2.
P. S. 159,
§§ 64-66.
R. L. 165,
§§ 68, 70, 71.
Section 68. The reporter shall receive from the commonwealth a 1
salary of six thousand dollars, and shall be allowed not more than eight 2
thousand dollars a year for clerical and incidental expenses of his office, 3
which shall be paid by the commonwealth. These amounts shall be in 4
full compensation for his services and said expenses. All fees received 5
by him for copies of opinions, rescripts and other papers shall be paid 6
by him quarterly to the commonwealth, with a detailed statement 7
thereof. 8
COURT OFFICERS.
Section 69. Not more than four deputy sheriffs shall receive com- 1
pensation for attendance upon any civil sitting of the supreme judicial 2
court or a sitting of the superior court for civil business or for both civil 3
and criminal business unless in the supreme judicial court the presiding 4
justice and in the superior court the presiding justice or the district 5
attorney in writing requires the sheriff to procure the attendance for 6
the whole or a portion of such sitting of an additional number. Not 7
more than six deputy sheriffs or constables shall receive compensation 8
for attendance upon any criminal sitting of the superior court for crim- 9
inal business unless the district attorney in writing requires the sheriff 10
to prociu-e the attendance for the whole or a portion of such sitting of 11
an additional number. 12
Court officers
in certain
counties, ap-
pointment and
removal, bonds,
powers.
1877, 169, § 2.
P. S. 159, § 67.
1888, 357,
§§ 1-3.
1892, 107,
§S 1.2,4.
1895, 246, § 1.
R. L. 165.
» 72-74.
1911,322,
§§ 1,3.
1920, 213,
§5 1-3, 5.
Section 70. The sheriffs of Suffolk, Middlesex and Worcester coun- 1
ties may each appoint, subject to the approval of the justices of the 2
superior court, officers for attendance upon the several sessions of the 3
superior court in their respective counties, as follows: 4
For Suffolk, not exceeding four for each session for civil business held 5
with juries; three for each session held without juries; and six for the 6
session for criminal business; said officers shall be interchanged between 7
the several sessions so as to seciu"e as nearly as may be equal service 8
by all. _ 9
For Middlesex, eight for civil or criminal business, who shall, when 10
required by the sheriff', attend the sessions of the supreme judicial or pro- 1 1
bate court when not in attendance on the superior court. 12
For Worcester, for ci\-il or criminal business, such number as may 13
be necessary, who shall also attend upon the sessions of the supreme 14
judicial, probate and insolvency and land courts. 15
Each of said officers shall give to the sheriff appointing him a bond 16
with sufficient sureties, in the sum of fifteen hundred dollars, for the 17
faithful performance of his duties. They shall have the authority of 18
constables to serve venires for jurors and the processes of said courts, and 19
in Worcester county to summon witnesses; and they shall be paid by 20
the county their actual expenses necessarily incurred in making such 21
ser\aces. 22
Ch.\P. 221.] CLERKS, ATTORNEYS AND OTHER OFFICERS OF COUBTS. 2389
1 Section 71. The sheriffs of Suffolk and Middlesex counties may each Chief deputy
2 designate one court officer to act as chief deputy sheriff for attendance iSlnd
3 on the superior court in his county. In Worcester county the sheriff mav ^n'rS'^!f,pr;n„,f
J 1 • fvy 1 • n * * itiiu ciiiti court
4 designate one court ofhcer as chief court officer for attendance on the worcesto
5 supreme judicial and superior courts. Such officers, under the orders of wis^m"'
6 the sheriffs of their respective counties, in addition to their regular duties wi?! sia
7 as court officers, shall supervise, direct and assign the officers of their vm.'u-'
8 respective courts. The salary of the chief deputy for Suffolk county fxi'xl^''
9 shall be thirty-three hundred and sixty dollars and "for Middlesex county flfig].^'
10 twenty-seven hundred and twenty-four dollars, to be paid by their re-
1 1 spective counties.
1 Section 72. Officers appointed as court officers to attend upon the Term of office.
2 sessions of the supreme judicial or superior court in any county, including 1912,' ill'
3 cliief deputies and the chief court officer in Worcester county designated Jgle; fsa;
4 under the preceding section, shall hold office during good beha\ior and ^gls 201'
5 until they are removed by the sheriff of the county for which they were 1920! 213! § 5.
6 appointed, for cause approved by the justices of the court for attendance
7 upon which they were appointed. Court officers appointed to attend
8 upon both of said courts may be removed for cause approved by the
9 justices of either of said courts.
1 Section 73. Each officer in attendance upon the supreme judicial eourt'oVcers
2 court in Suffolk county, not exceeding six officers, shall receive in full >" supreme
3 for all ser\ices performed by him twenty-four hundred and eighty-four in Suffolk
4 dollars a year, of which nineteen hundred and fifty-six dollars shall be iss2, 232, § 1.
5 paid by said county and five hundred and twenty-eight dollars by the Islo! 294.^ ^'
6 commonwealth. R. l. les, § 69.
1917, 335. § 1. 1918, 260, § 1. 1919, 276. 1920, 494.
1 Section 74. Each officer in Suffolk and Middlesex counties ap- Compensation
2 pointed under section seventy shall receive a salary of twenty-four ot superior^'""^^
3 hundred and eighty-four dollars, and each officer in Worcester county Jai^nUuntYes.
4 appointed under said section seventy such salary as the justices of the il??' log'^^^'
5 superior court may fix, in full for all services performed by him, which |>^s'i5fl\e9
6 shall be paid by their respective counties ; except that the salary of the iss^, 245, § 3."
7 deputy sheriff in charge of the session of the superior court for criminal isse! zi. % 1.
8 business in Suffolk county shall be twenty-six hundred and forty dollars isiiS! 246,' § \.
9 and said officers in Middlesex and Worcester counties shall, in addition, fgo?; I59; ^ ^"^
10 receive ten cents a mile for travel out and home once a week during igjy'iss'^"'
11 such attendance, if the distance exceeds five miles in one direction, fg,^^ l^o «i
12 Any additional officers whose attendance may be required in the superior ii3^9!276!
13 court in Suffolk county under section sixty-nine shall be allowed six 494. '
14 dollars for each day of service actually rendered, which shall be paid
15 by said county.
1 Section 75. Deputy sheriffs not on salary shall be paid seven dollars Fees for
2 a day for attendance upon the supreme judicial, superior or probate a"cou?t"'^^
3 court, or upon the sessions of the county commissioners, and ten cents a it^s.'f2'2,^ ''
4 mile for travel out and home once a week during such attendance. Con- fl.,!, 75. § 0
5 stables shall be paid for such attendance four dollars a day, and five cents ^^■'"^•' J||-
6 a mile for travel out and home once a week, except that when in attend- 5* *• <".
. i8()(i 190.
7 ance upon the supreme judicial court in Suffolk comity they shall re- is73;222;
2390
CLERKS, ATTORNEYS AND OTHER OFFICERS OF COURTS. [ChAP. 221.
1879, 227, § 1. ceive four dollars and fifty cents a day. Compensation under this section 8
i8l2,232,\ 2^' shall be paid by the respective counties, except that for attendance on 9
liisi 369! the supreme judicial court in Suffolk county when said court is sitting for 10
r^l' 165' § 75 the commonwealth it shall be paid by the commonwealth. i9i7, 29s. 11
Duties and
salaries of
messengers in
Suffolk county.
1877, 169, § 1.
P. S. 159, § 69.
1883, 54, § 1.
1886, 37, § 1.
R. L. 165, § 76.
1906, 470.
1907, 133.
1919, 267.
1920,494.
Section 76. The messenger of the justices of the supreme judicial 1
court in Suffolk county shall receive an annual salary of three thou- 2
sand dollars, of wliich twenty-six hundred dollars shall be paid by said 3
county and four hundred dollars by the commonwealth. The messenger 4
of the superior court in said county, who shall also act as clerical assistant 5
of the justices of said court, shall receive from said county a salary of 6
tliree thousand dollars, in full for liis services in both capacities. 7
Premiums on
bonds in Suf-
Section 77. Premiiuns on bonds of court officers and deputy sheriffs 1
be paid"by *° '^^ attendance on the supreme judicial or superior court in Suffolk county 2
and on the courts in Worcester county shall be paid by their respective 3
counties. 1920, 213, 53. 4
county.
1916,39.
1917.71.
Service of
venires by
officers of the
supreme
judicial court,
county of
Suffolk.
1907, 312.
Section 78. Any officer in attendance upon the supreme judicial 1
court in Suffolk county under section seventy-three, including the mes- 2
senger of the justices of said court, may be designated by the sheriff of 3
said county to serve venires for jurors and the processes of said court, 4
and when so designated shall have the authority of constables for said 5
purposes, and shall be paid by said coimty his actual expenses necessarily 6
incurred in making such services. He shall first give to the sheriff a 7
bond with sufficient sureties in the sum of fifteen hundred dollars for the 8
faithfid performance of his duties. 9
Summoning
of witnesses by
officers in
Suffolk and
Worcester.
1879, 193.
P. S. 159, § 70.
R. L, 165, § 78.
1911,322, § 3.
1920, 213.
§§2,5.
Section 79. Officers in attendance upon the sessions of the superior 1
court for criminal business in Suffolk county and the officers appointed 2
for attendance on the sessions of the superior court for civil or criminal 3
business in Worcester county shall summon witnesses on behalf of the 4
commonwealth from any part of the commonwealth, but shall receive 5
therefor no compensation in addition to their salaries except for expenses 6
actually incurred and paid. 7
Court officers
to wear
uniforms.
1888, 371.
1891, 181.
1892, 107,
§§ 3, 5.
1895, 246,
§§ 2, 3.
R. L. 165, I 77.
1911,322, I 3.
1920, 213, § 5.
Section 80. Court oiEcers receiving salaries and deputy sheriffs in
attendance upon the supreme judicial or superior court in Suffolk, Mid-
dlesex and Worcester counties shall, while on duty in said courts, wear
uniforms which shall be designated by the sheriff of the county and,
except the deputy sheriffs in Middlesex county, shall each be annually
allowed by the respective counties one hundred dollars in addition to
the salary allowed by law in order to provide such uniforms.
Officers not to
draw double
pay.
1862, 102, § 4.
1879, 227, § 2.
P. S. 159, § 71.
R. L. 165, § 79.
Section 81. No deputy sheriff or constable receiving a salary from
the county shall be designated to attend, for compensation by the day,
upon the sessions of the supreme judicial or superior court, and no
deputy sheriff or constable shall receive compensation for attendance
upon the sessions of more than one court, or upon more than one ses-
sion of the same court, on the same day.
CeL-IP. 221.] CLERKS, ATTORNEYS AND OTHER OFFICERS OF COURTS. 2391
STENOGRAPHERS.
1 Section 82. The justices of the superior court shall appoint a ste- Appointment
2 nographer for each regular session of said court held for civil business coult ^"''*"°''
3 and for each of the two divisions of the session of said court held for |§"°;|^^'
4 criminal business v\-ithin and for the county of Suffolk, and a stenog- |'j|b^f4
5 rapher for said court in all other counties. They may also, if the business Jf^^'l^i'
6 of the court requires it, appoint an additional stenographer in any county issr. 24,'
7 except Suffolk, who shall serve when designated. Each stenographer ism, 404.
8 shall be an officer of the court, and shall be sworn, and the same person §§^i*,'6.^*'
9 may be appointed stenographer for more than one county. The justices §§^i';8.^^'
10 may remove said stenographers, and may fill a vacancy caused by such fgjs' ^'l' 1 1?"
11 removal or otherwise. 1 Op. a. g. 87. 2 Op. a. g. 112. 295, § 1. '
1 Section 83. Each stenographer appointed for Suffolk county under Assistant
2 the preceding section may, with the approval of any justice of the court, {o™s°upeno"^
3 appoint one or more assistants, who shall be sworn; but no additional ^sto siL^m"''
4 compensation shall be paid or expense incurred by reason of such ap- Pg|^ ^^^^ ^^"^•
5 pointment. The presiding justice of said com-t may, in case of the ill- ism' 242! § 4.
6 ness or temporary absence of the stenographer, appoint a competent r. l! les! § si.
7 person to act during such illness or absence.
1 Section 84. The presiding justice of any special or temporary ses- Temporary
2 sion of the superior court for civil or criminal business may appoint one js94%™4,''§6.'
3 or more stenographers to attend therein, who shall be officers of the r ^l lia! | si
4 court and be sworn. But it shall not be necessary to appoint a stenog- l^^^l^^*^'
5 rapher for any session for civil business if the justices do not consider it ibis. s.
6 of a permanent and continuous character.
1 Section 85. At the trial of anv issue of fact in the supreme judicial stenographer
_ 1 ..... *■ . 1 1 1 ti 1 ^" supreme
2 court the presidmg justice may appoint a stenographer, who shall be judiiiai court
3 sworn. At the trial of any criminal case in the superior court, except in rases in Superior
4 Suffolk county, the presiding justice may, of his own motion or at the isor'^re, 1 1.
5 request of the district attorney or of the defendant, appoint a stenog- ^912; 289. ^ '*^'
6 rapher who shall be sworn; provided, that such request is made at a
7 reasonable time before the trial, so as to enable the court to secure the
8 attendance of a stenographer.
1 Section 86. A justice of the superior court may, upon the request of stenographer
. ^ ' i. Ti £qj. g[-{irid jury.
2 the district attorney, appoint a stenographer, who shall be sworn, and isg?, 47s, § 2.
3 who shall take stenographic notes of such testimony given before the 231 Mass. S84.'
4 grand jury as he may direct, and shall provide him with a transcript fully
5 written out of such part of said notes as he requires. This section shall
6 not authorize the taking of any statement or testimony of a grand juror.
1 Section 87. Stenographers shall attend the sessions of the courts for Duties of
2 which they are appointed, and those who are appointed for jury sessions is70°¥i'2,''§ 2.'
3 of the superior court for civil business in Suffolk county shall, when di- p^|^ '29^^' i'^-
4 rected by the justice presiding in such session, serve in any other of said If'f'xSA « 2
5 sessions as necessity requires. Said stenographers, unless excused there- isoi 133. '
6 from by the presiding justice, stenographers for criminal business in i896!459!
7 Suffolk county, upon the request of the presiding justice, the district 189^7,478, 5 1.
8 attorney or the defendant, stenographers for civil business in counties fss^Mass'. le.^'
9 except Suffolk, and stenographers appointed under sections eighty-four
2392
CLERKS, ATTORNEYS AND OTHER OFFICERS OF COITITS. [ChAP. 221.
and eighty-five shall take stenographic notes of all the evidence given at 10
each trial in their respective courts and of the rulings and charge of the 11
presiding justice, and, when requested by him, shall read from such notes 12
in open court any portion of the testimony so taken and, upon request, 13
shall provide him with a transcript of such notes fully written out, of 14
such part of said testimony, rulings or charge as may be desired, and, upon 15
request, shall within a reasonable time furnish to any party to the ac- 16
tion a like transcript, upon pajinent by the party requesting it of ten 17
cents a hundred words for each copy so furnished. If the transcript is fur- 18
nished at the request of the presiding justice, the stenographer shall be 19
paid therefor at the same rate by the county, upon a voucher approved 20
by the justice, and, in criminal cases in Suffolk county, such expense and 21
the expense of transcripts furnished to the district attorney shall be taxed 22
like other expenses. The stenographers appointed for the criminal ses- 23
sions of the superior court for Suffolk county, when not employed in said 24
court, shall perform such services as stenographers as may be required 25
by the district attorney, and shall receive the same compensation for 26
transcripts as is hereinbefore provided. 27
Same subject.
1S94, 424. § 3.
R. L. 165, § 86.
Interchange
of services.
1894. 424, I 8.
1S96, 439. I 6.
R. L. 165, § 87.
Section 88. Each stenographer appointed for the sessions of the 1
superior court for civil business without juries in Suffolk county shall 2
attend therein when requested by the presiding justice, and shall perform 3
the duties required by the preceding section of stenographers in the jury 4
sessions of said court, and shall render such other clerical assistance to 5
the justices of said court as they deem necessary. He shall receive for 6
transcripts furnished to parties the compensation provided in the pre- 7
ceding section. 8
Section 89. Official stenographers of the superior court in the same 1
or different counties may, with the consent of said court, interchange 2
services or perform each others' duties. 3
Stenographers
for justices of
the supreme
judicial court.
1919, 242.
Section 90. The justices of the supreme judicial court may employ
one or more stenographers in Suffolk county who shall perform such
stenographic service as may be required by the justices, at an annual
expense not exceeding twenty-five hundred dollars, which shall be paid
by the commonwealth upon the certificate of the chief justice.
Salaries and
compensation
of stenog-
raphers in the
superior court.
1870, 312, § 1.
P. S. 159. § 72.
1885, 291, § 1.
1887,24, § 1;
74, § 1.
1889, 324.
1893, 404; 4.52.
1894, 68; 330;
424, §§ 1, 6.
1896, 459,
§U,5.
1897, 478.
1901,329.
R. L. 165, § 88.
1913, 674.
1914, 759.
1915, 142, § 2;
295. § 2.
1919. 357.
115 Mass. 310.
Section 91. In counties having a population of more than two hun- 1
dred thousand, stenographers appointed by the superior court, except 2
the additional stenographers for Hampden and Worcester counties, 3
shall receive salaries of thirty-five hundred dollars, to be paid by the 4
respective counties. Said additional stenographers for Hampden and 5
Worcester counties and all other stenographers appointed by the supe- 6
rior court whose salaries are not herein established shall receive the sum 7
of fifteen dollars for each day's actual and necessary attendance, to be 8
paid by the county on the order of the presiding justice. If the service 9
is rendered in any court outside of the county in which the stenographer 10
resides or has his usual place of business, the justice may allow in addi- 11
tion to such compensation a reasonable sum for travel and board. The 12
stenographer appointed by the superior court for the county of Nan- 13
tucket shall be allowed the sum of eighteen dollars for each sitting of the 14
court in that county as compensation for time consumed in traveling, in 15
Chap. 221.] clerks, attorneys and other officers of courts. 2393
16 addition to any sum which may be allowed by the court for actual and
17 necessary attendance and expenses.
interpreters.
1 Section 92. The justices of the superior court may appoint such interpreters.
2 official interpreters as they may deem necessary for the sessions of the ^^'^' '^^^'
3 court, and fi.x their compensation. The interpreters shall hold their
4 positions at the pleasure of the court and render such additional service
5 as any justice of the court requires. The justices shall forthwith dis-
6 charge any such interpreter who shall be found to have requested or
7 received, directly or indirectly, any gratuity, bonus or fee in connection
8 with any case pending or in course of preparation for presentation to
9 any court. This section shall not prevent the justices from allowing
10 reasonable compensation to other interpreters when the services of the
11 official interpreters are not available. The expenses incurred hereunder
12 shall be paid by the county in which the prosecution or suit is pending.
SALARIES AND EXPENSES OF CLERKS AND ASSISTANT CLERKS OF THE
SUPREME JUDICIAL AND SUPERIOR COURTS.
1 Section 93. The clerk of the supreme judicial court for the com- salaries of
2 monwealth shall receive from the commonwealth a salary of thirty-five slltant'derk
3 hundred dollars, with five hundred dollars a year for clerk hire; and the °ucf,cSi%ourt
4 assistant clerk shall receive from the commonwealth a salary of fifteen ^°' "><' ™'n-
, (1.11. nionwealtn,
5 hundred dollars; proA-ided, that m case the office of assistant clerk is Sf^lAilL^'
6 not filled, the clerk shall receive eight hundred dollars a year for clerk g s. m.
7 hire. p. s. isg, §§5, 3i. is94, 136.
R. L. 165, § 33. 1909, 165. 1912, 219. 1918, 287, § 1.
1 Section 94. E.xcept as provided in sections ninety-three and ninety- salaries of
2 eight, the salaries of clerks of courts shall be based upon the population isaV'ng. § 4.
3 of their respective counties as determined by the census of nineteen hun- r.^I; Jg,"'
4 dred and fifteen, as follows: il57%72.
Counties, Population of. Salary of Clerk. ^^^^ ^|^' 1 1^*-
Under 40,000 $2,300 I'sh] sm.
40,000 to 50,000, 2,400 J^'s'ifrf fig
50,000 to 60,000, 2,500 i887, lii-.
60,000 to 70,000, 2,600 ^lls%\ \ i
70,000 to 80,000, 2,700 1892:95.'
80,000 to 90,000 2,800 ^m^,- l'^^' ^ ^^■
90,000 to 100,000, 2,900 1904! 45i;
100,000 to 110,000, 3,000 flo's ^179
110,000 to 120,000, ' 3,100 i90b:29o:
120,000 to 130,000, 3,200 JUJI' |^?-
130,000 to 140,000, 3,300 §§1.' 7. '
140,000 to 150,000, 3,400 |f\^'|^B'
150,000 to 160,000 3,500 30p'. A. G. 360.
160,000 to 170,000, 3,600
170,000 to 180,000, 3,700
180,000 to 190,000 3,800
190,000 to 200,000, 3,900
200,000 to 210,000 4,000
210,000 to 220,000, 4,100
220,000 to 230,000 4,200
230,000 to 240,000, 4,300
240,000 to 2,50,000, 4,400
250,000 to 260,000 4,500
260,000 to 270,000, 4,600
270,000 to 280,000, 4,700
2394
CLERKS, ATTORNEYS AND OTHER OFFICERS OF COURTS. [011^.?. 221.
Salaries of
assistant
clerics.
1850, 236.
1852,200; 267.
1854, 215.
1856, 37, § 1.
G. S. 121, § 26.
1865, 209.
1867, 295, § 5.
1870, 336.
1871, 203.
1872, 142; 307;
332; 333.
Counties, Population of. Salary of Clerk.
280,000 to 290,000 $4,800
290,000 to 300,000 4,900
300,000 to 320,000, 5,000
320,000 to 340,000 5,100
340,000 to 360,000, 5,200
360,000 to 380,000, 6,300
380,000 to 400,000, 5,400
400,000 to 420,000, 5,500
420,000 to 440,000, 5,600
440,000 to 460,000, 5,700
460,000 to 480,000, 5,800
480,000 to 500,000, 5,900
500,000 to 540,000 6,000
540,000 to 580,000 6,100
680,000 to 620,000 , . 6,200
620,000 to 660,000 6,300
660,000 to 700,000 6,400
700,000 to 750,000, 6,500
Counties heaving a jjopulation of 750,000 and over, salary of clerk, $6,600,
plus $100 additional for each 50,000 population above 750,000.
Section 95. Except as provided in section ninety-three, the salaries
of assistant clerks of courts shall be as follows: first assistant clerks,
sixty-five per cent, second and other assistant clerks, sixty per cent,
of the salaries of the clerks of their respective courts, except that the
salary of the assistant clerk of the superior court for civil business
in Suffolk county performing duties as clerk in equity proceedings shall
be five thousand dollars.
1877, 17, § 1. 1895, 251; 393; 480. 1906, 276.
1881, 252; 266. 1896, 218. 1907, 145, § 2; 253.
P. S. 159, § 31. 1897, 220; 334. 1910, 188.
1885,250. 1898, 376; 518. 1911,174.
1887. 199. 1899, 377. 1912, 219; 547.
1888,153. 1900,329. 1914,405.
1889. 11; 50; 444. 1901,510. 1917, 44; 100; 134; 273.
1890, 201. R. L. 165, § 35. 1918, 287, §§ 1, 7.
1891.92. 1902, 358; 499; 513. 1919, 251; 265, § 1;
1892, 87; 187. 1903, 137; 472, | 3. 347. § 1; 356, §§ 2, 3, 5, 6.
1893, 153; 190. 1904, 451, § 3. 4 Op. A. G. 294.
Adjustments
of salaries,
1911, 299, 5 1
1918, 287, I ;
1919, 356,
§§ 4, 7.
Section 96. In the year following each state and national census, 1
the state treasurer shall adjust the salaries provided for in the two pre- 2
ceding sections in accordance with said sections, on the basis of said 3
census, and the salaries so adjusted shall be allowed from January first 4
in the year of adjustment. 5
Salaries, how
paid.
1854,215, § 1.
G. S. 121. § 26.
1867, 295,
§§4,5.
1870, 336, § 1.
1872, 332, I 1.
1877, 17, § 1.
1881, 252;
262, § 2.
P. S. 159, § 31.
1888, 1.53, § 1.
1889, 11, § 1;
50, §1; 444, §1.
Section 97. The salaries of clerks and assistant clerks of the courts 1
shall be paid by the several counties, except that fifteen hundred dol- 2
lars of the salary of the clerk of the supreme judicial court for Suffolk 3
county and five hundred dollars of the salary of the assistant clerk of 4
the superior court for civil business in Suffolk county performing duties 5
in equity proceedings shall be paid by the commonwealth. The assist- 6
ant clerks of the superior com-t for Suffolk county may receive their 7
salaries in bi-weekly instalments if they so request in writing. &
1892, 87, 5 1.
1895, 251, § 1; 393, § 1;
480, 5 1.
1896, 218, § 1.
1897,220, § 1; 334, § 1.
R. L. 165, § 35.
1903, 137.
1904, 451, § 3.
1906, 276.
1907, 2.53.
1908,259. § 1.
1910, 188.
1912,547.
1917, 44; 100;
1918, 287, §§ 2
1919,356, §5.
134.
Dukes and
Nantucket
counties.
1830, 129, § 4.
Section 98. The salaries of the clerks of the courts for Dukes and
Nantucket counties shall be one thousand dollars each.
R. S. 88, § 17.
P. S. 159, § 29.
R. L. 165, § 34.
1918. 287,
5 1.
G. S. 121, § 24.
1887, 112, § J 1.2.
1912, 219.
1919, 356,
t|6.
1867, 296, § 2.
1888, 257, § 1.
1915, 245.
Ch.'VP. 222.] JUSTICES of the peace, notaries public, etc.
2395
1 Section 99. Clerks and assistant clerks of courts except in Bristol Traveling
,,..,.,,,, . ... ,. expenses.
2 county shall be allowed by theu* respective counties their traveling ism, 451, §c..
' .. . IPlS 287 § G
3 expenses necessarily incurred when holding sessions of said courts out- 1919! 269^
4 side of the cities or towns in which the clerks' cfBces are established, Io/ivims. 257.
5 which shall be audited by the county commissioners. In Bristol county 2 Op"^ a! 0.^592.
6 they shall receive such traveling expenses when the sessions are held in
7 a city or town other than where they live, wliich shall be audited in like
8 manner.
1 Section 100. Each temporary clerk shall be paid by the clerk for salaries of
2 whom he is acting such compensation as the court appointing him may cfer^Tnd^
3 determine. Each temporary assistant clerk appointed under section r.^'s'ss! §'i?'
4 nine shall receive from the county the same salary as the assistant clerk °g|- \l\^ | \^-
5 for whom he is acting, and the amoimt so paid shall be deducted from ^^'^g^'j^^ \^32
6 the salary of such assistant clerk. r. l. les, § 36.
1 Section 101. Except as otheraise provided, the salaries of clerks salaries to be
2 shall be in full compensation for all services rendered by them in the p°ensatioT
3 civil or criminal courts, to the county commissioners, in making any ^^fj ^H' | ^j
4 returns required by law or in the performance of any other official duty. 201 Mass. 257.
3 Op. A. G. 106, 290. 4 Op. A. G. 195.
1 Section 102. Upon the certificate of the clerks of the courts in the Extra clerical
2 several counties, or of the clerk of the supreme judicial or superior iIts^isl'
3 court in Suffolk county, that extra clerical assistance was actually per- p^^.'fg'gl'/jg.
4 formed and was necessary, stating the names of the persons by whom 3|^^ ^^^
5 it was performed and the time occupied, they shall be allowed such is99! sso.
6 amounts as the coimty commissioners, in a WTiting signed by them, or, 1909', 486, § i.'
7 in Suffolk county, the city council of Boston, by vote approve. Said p- • ■
8 amounts shall be paid by the county monthly to the persons employed,
9 including assistants pro tempore or for one year appointed \mder sec-
10 tion five.
REFERENCES.
§ 3. Election of clerks, Chap. 54, § 155.
§§ 95, 97. Special salary of present incumbent, and apportiomnent between com-
monwealth and county, 1920, 489.
CHAPTER 222
JUSTICES OF THE PE.\CE, NOTARIES PUBLIC AND COMMISSIONERS.
Sect.
justices of the peace akd notabies
PUBLIC.
1. Justices of the peace and notaries
public. Appointment and jurisdic-
tion.
SPECIAL COMMISSIONEBS.
2. Special commissioners.
COMMISSIONERS TO QUALIFY PUBLIC
OFFICERS.
3. Commissioners to qualify public offi-
cers. Appointment and returns.
Sect.
commissioners in other states and
foreign countries.
4. Commissioners in other states and
countries.
5. Oath, signature, seal, etc.
6. Powers and duties.
7. Instructions, etc.
S. Justices of peace, etc., to affix date of
expiration of commission.
9. Penalty for acting as justice of the
peace, etc., after expiration of com-
mission.
10. Penalty for destroying records of no-
tar>- public.
2396
JUSTICES OF THE PEACE, NOTAEIES PUBLIC, ETC. [ChaP. 222.
Justices of the
peace and no-
taries public.
Appointment
and jurisdic-
tion.
Const, amend.
4,37,57.
(Const. Rev.
art. 123.)
R. S. 85, § 36.
1S51, 29.
G. S. 14, § 34;
120, I 49.
JUSTICES OF THE PEACE AXD XOTARIE.S PUBLIC.
Section 1. Justices of the peace and notaries public shall be ap-
pointed, and their commissions shall be issued, for tlie commomvealth,
and they shall have jurisdiction tliroughout the commonwealth except
as pro\ided in section thirty-six of chapter two hundred and eighteen.
Unless otherwise expressly pro\'ided they may administer oaths or affir-
mations in all cases in which an oath or affirmation is required, and take
acknowledgments of deeds and other instruments. ises, 157, 1 1.
1S67, 250.
1870, 120.
1880, 132
P. S. IS, § 1; 155,55 2,5.
1891,38, §5 1.2.
1899, 178, 5 3.
R. L. 17, § 1; 161, §§ 1,2.
131 Mass. 345.
139 Mass. 162.
145 Mass. 224.
150 Mass. 586.
Op. A. G. (1918) 2.
Special com-
missioners.
1883, 252.
1889. 197.
1896, 476,
§§1,2.
1898, 574, § 1.
1899, 178,
§§3,9.
R. L. 17,
§§5,6: 161. §2
1918, 257,
§390.
1919,5.
1920, 2.
150 Mass. 586.
SPECLtL COMMISSIONERS.
Section 2. The governor, with the advace and consent of the coun-
cil, may appoint as special commissioners for terms of seven years,
women who are more than twenty-one years of age. Special commis-
sioners shall have like power as justices of the peace to administer
oaths, to take depositions, afEdants, acknowledgments of deeds and
other instruments and to issue summonses for witnesses. They shall
be entitled to like fees as justices of the peace for like services. A change
in the name of a special commissioner shall terminate her commission,
but she may be reappointed under her new name.
Commissioners
to qualify
public officers.
Appointment
ana returns.
1780, Res. 58.
R. S. 13, § 57.
G. S. 14, § 40.
1867. 138, § 4.
COMMISSIONERS TO QUALIFY PUBLIC OFFICERS.
Section 3. The governor, with the ad\'ice and consent of the coun-
cil, shall appoint commissioners to administer to public officers the
oaths of office required by the constitution. Upon administering such
oaths, the commissioners shall forthwith make return thereof, with the
date of the same, to the state secretary.
p. S. 18, §§ 7, 8. R. L. 17, § 8. Op. A. G. (1920) 70.
Commissioners
in other states
and countries.
1829, 125. § 1.
R. S. 13, § 53.
1854.17, 5 1.
1856, 253, § 1.
G. S. 14,
§§41,45.
COMMISSIONERS IN OTHER STATES .AND FOREIGN COUNTRIES.
Section 4. The governor, with the ad\dce and consent of the coun- 1
cil, may appoint commissioners in the states, territories, districts and 2
dependencies of the United States, and one or more commissioners in 3
every foreign country, to hold office for three years from the date of 4
their respective appointments. 5
P. S. 18, §§ 9, 13.
1901, 149.
R. L. 17, §9.
1918, 257, § 83.
1919,5.
1920, 2.
Oath, siena-
ture, seal, etc,
1829, 125, § 2.
R. S. 13, § 56.
1854, 17, I 2.
1856, 253, § 4.
G. S. 14,
§§ 42, 46.
1873, 11.
P. S. 18,
§§ 10, 14.
1SS5, 31.
R. L. 17, 5 10.
1918, 257, § 84.
1919, 5.
1920, 2.
Section 5. A person appointed commissioner in a state, territory, 1
district or dependency of the United States shall, within three months 2
after his appointment, take and subscribe an oath before a justice of the 3
peace or other magistrate of the town or county where he resides, or 4
before a clerk of a court of record within the state, territory, district 5
or dependency where he resides, faithfully to perform the duties of his 6
office, and shall cause an official seal to be prepared, upon which shall 7
appear his name, the words "Commissioner for INIassachusetts" and 8
the name of tlie state, territory, district or dependency, and town or 9
county where he resides. A person appointed commissioner in a foreign 10
country shall, before performing any duty of his office, take and sub- 11
scribe an oath before a judge or clerk of a court of record of the coun- 12
CH-VP. 222.] JUSTICES OF THE PEACE, NOTARIES PUBLIC, ETC. 2397
13 try where he resides or before an ambassador, minister or consul of the
14 United States accredited to such country, faithfully to perform the duties
15 of his office. In each case, a certificate of the commissioner's oath
16 of office and his signature and an impression of his official seal shall be
17 forthwith transmitted to and filed in the office of the state secretary.
1 Section 6. A commissioner may, in his state, territory, district. Powers and
2 dependency or country, administer oaths and take depositions, affida- i829!^i25, § i.
3 vits and acknowledgments of deeds and other instruments, to be used §§ ssils.
4 or recorded in this commonwealth, and the proof of such deeds, if the Hit] zssf ^'
5 grantor refuses to acknowledge the same, all of which shall be certified ^^ l~\^
6 by him under his official seal. p. s. is. §§ ii, is. 5§ 43, 47.
R. L. 17, §11. 191S, 257, § 85. 1919,5. 1920,2.
1 Section 7. The state secretary- shall prepare and forward to each instructions,
2 commissioner appointed under section four, instructions and forms in is54, 17, 1 4.
3 conformity to law, and a copy of the three preceding sections. p; f; is,' | fi'
R. L. 17, § 12.
1 Section 8. A justice of the peace, notary public or special com- Justices of
2 missioner, when taking acknowledgment of any instrument provided affix daVe'^of*"
3 by law to be recorded, shall affix thereto the date of the expiration of his com'mi'sSon.'
4 commission in the following language: " My commission expires ". rIY'I"'
5 Failure to comply with this section shall not affect the validity of any
6 instrument, or the record thereof.
1 Section 9. '\^^loever presumes to act as a justice of the peace. Penalty for
2 notary public or special commissioner after the expiration of his com- fust^Mofthe
3 mission, and after receiving notice of such expiration, shall be punished afTer^'expir'ation
4 by a fine of not less than one hundred nor more than five hundred ?|65™3if§°2.'
5 dollars. p. s. 205, 1 24. 1899, i78, § s. r. l. 210, § 34.
1 Section 10. Whoever knowingly destroys, defaces or conceals the Penalty for
2 records or official papers of a notary public shall forfeit not more than recordsot*
3 one thousand dollars and be liable for damages to any person injured lygiy^J',"!'!.'^'
4 thereby.
R. S. 13, § 50. G. S. 14, § 38. P. S. 18, § 5. R. h. 17, § 4.
REFERENCE.
State secretary to send notice of expiration of commissions to notaries public,
etc.. Chap. 9, § 15.
2398
COMMENCEMENT OF ACTIONS, SERVICE OF PROCESS. [ChAP. 223.
TITLE II.
ACTIONS AND PROCEEDINGS THEREIN.
Chapter 223. Commencement of Actions, Service of Process.
Chapter 224. Arrest on Civil Process.
Chapter 225. Process after Judgment for Necessaries or Labor.
Chapter 226. Bail.
Chapter 227. Proceedings against Absent Defendants and upon Insufficient Service.
Chapter 228. Survival of Actions and Death and Disabilities of Parties.
Chapter 229. Actions for Death and Injuries resulting in Death.
Chapter 230. Actions by and against Executors and Administrators.
Chapter 231. Pleading and Practice.
Chapter 232. Set-off and Tender.
Chapter 233. Witnesses and Evidence.
Chapter 234. Juries.
Chapter 23.5. Judgment and Execution.
Chapter 236. Levy of E.xecutions on Land.
CHAPTER 223.
COMMENCEMENT OF ACTIONS, SERVICE OF PROCESS.
Sect.
VENCE OF ACTIONS.
1. Venue of transitory actions.
2. In district courts.
3. Certain actions transitory.
4. Venue of actions of replevin.
5. Actions by the commonwealth.
6. Actions by and against counties.
7. Action for defect in way, etc., and for
negligence.
8. Actions by and against corporations.
9. Venue of transitory actions by and
against city of Boston.
10. Transfer from county of Suffolk.
11. Actions by and against executors, etc.
12. Actions relative to land in different
counties, etc.
13. Change of venue.
14. Venue for recovery of forfeitures.
15. Erroneous venue.
POKMS, ISSUING AND RETURN OF WRITS.
16. Civil actions, how commenced.
17. Separate summons after attachment.
18. When writ and summons may be com-
bined.
19. Proceedings if defendant's name is un-
known.
Sect.
20. Writs, how issued.
21. Subpoena in equity suit, how issued.
22. Writs, when returnable.
23. Same in district courts.
24. Return days in supreme judicial and
superior courts.
25. Return days in district, etc., courts.
SERVICE ON defendant.
20. Directions for attachment or arrest.
27. Service of original writs.
28. Service on county, etc.
29. Service of summons.
30. Same subject.
31. Service by lea\nng, etc.
32. Service of summons on absent de-
fendant, if co-defendant here.
33. Service in real action against absent
tenant.
34. Further notice to absent defendant.
35. Officer to state in return place of leav-
ing summons, etc.
36. Service on corporations, etc., by copy,
etc.
37. Actions against corporations, person
upon whom service shall be made.
38. Service on foreign corporations.
Chap. 223.] commencement of actions, service of process.
2399
Sect.
39. Service on foreign insurance company.
40. Service on certain voluntary associa-
tions.
41. Service of summons in suits in equity.
ATTACHMENT
OF PROPERTY -
PROVISIONS.
42. Property liable to attachment.
43. Attachment of cars and vessels.
44. Declaration to be inserted in writ, etc.,
before attachment of ship or vessel.
45. Property of newspaper offices.
46. Successive attachments on the same
writ.
47. Successive attachments on different
writs.
48. Keeper.
49. Property to remain on premises in
certain cases.
50. Attachment of bulky goods.
51. Same subject.
52. Attachment of proceeds of property
sold.
53. Further attachment of property re-
plevied.
54. Plaintiff in replevin liable for value.
55. Attachment after death, etc., of first
attaching officer.
56. Proceedings in such case.
57. Mode of attaching replevied property.
58. Attachment to continue after death
of attaching officer.
59. Attachment effective for thirty days
after judgment.
60. Same in equity for thirty days after
right of appeal has expired.
61. Final judgment defined.
ATTACHMENT OF REAL ESTATE AND LEASE-
HOLDS.
62. Attachment of land and leaseholds.
63. Deposit of copy of writ.
64. Duty of officer.
65. Duty of register.
66. When attachment takes effect.
67. Attachment of land fraudulently con-
veyed, etc.
68. Entry of name of holder of legal title,
etc.
69. Duties of registers as to papers in ac-
tions in United States courts.
70. Attachment of encumbered land.
ATTACHMENT OF SHARES OF STOCK.
71. Attachment of shares of stock.
ATTACHMENT OF PROPERTY IN POSSESSION
OF BAILEE.
72. No attachment or levy of goods for
which a negotiable document of
title is outstanding.
73. Attachment of property in possession
of carrier or warehouseman.
Sect.
attachment of encumbered personalty.
74. Attachment of mortgaged property.
75. Mortgagee to state account.
76. Penalty for excessive demand.
77. Debt to be repaid out of proceeds of
sales.
78. Defendant to pay attaching plaintiff
for redemption of mortgage.
79. Attachment of mortgaged personalty
in debtor's possession.
50. Determination of amount due.
51. Determination of validity of mort-
gage.
82. Creditor to retain amount paid by
him, etc.
83. Creditor not recovering judgment to
hold property until repaid.
SUPPLEMENTARY PROCESS.
84. Further service after defective service.
85. Attachments and arrests during pen-
dency of suit.
86. Precepts, form, etc.
SALE OF PERSONAL PROPERTY ATTACHED.
87. Sale of property attached.
88. Appraisal and sale of perishable prop-
erty.
89. Appraisal and sale of perishable prop-
erty; proceedings.
90. Notice to absent defendant.
91. Appraisers, how appointed.
92. Sale after appraisal.
93. Delivered to defendant.
94. Bond to be returned with the writ.
95. Action on bond by creditors.
96. Money recovered to belong to them.
97. Distribution by court.
98. Prior attachments to be protected.
99. Creditor not joining in action on the
bond, etc.
100. Limitation.
101. Creditor may be paid, when.
ATTACHMENT OF SHARE OF JOINT OWNER
OF PERSONALTY.
102. Appraisal at request of part owner.
103. Delivery to part owner.
104. Pledge of property.
105. Restoration.
FRAUDULENT ATTACHMENTS.
106. Fraudulent attachments, how
feated.
107. Affidavit and bond.
lOS. Dissolution of prior attachment.
109. Effect of pleadings.
110. Defences in such case.
111. Damages and costs.
112. Proceedings upon appeal.
113. Effect of judgment.
de-
2400
COMSIENCEMENT OF ACTION'S, SERVICE OF PROCESS. [ChAP. 223.
Sect.
keducnon or discharge of attachment.
114. Excessive and unreasonable attach-
ments, how reduced or discharged.
DISSOLUTION OP ATTACHMENT.
By Operation of Law.
115. Dissolution of attachment by judg-
ment.
116. Dissolution of attachment by death
of defendant.
117. Liability of officer for net proceeds,
lis. Liability of creditor for proceeds paid
over to him.
119. Set-off not allowed in such case.
By giving Bond.
120. Attachments dissolved by giWng bond.
121. Hearing before approval of bond.
122. Fees to be included in defendant's
costs.
123. Bond to be filed by defendant.
Sect.
124. Release of sureties of insolvent debtor.
125. Bond to pay value of property.
126. Fees.
127. Dissolution of attachment of realty
fraudulently conveyed.
128. Dissolution by deposit.
129. Dissolution of attachment of indi«d-
ual property of one defendant.
By Appointment of Receiver.
130. Dissolution of attachment by appoint-
ment of receiver.
131. Discharge of receiver.
By Entry or Release in Registry of Deeds.
132. Dissolution of attachment of real es-
tate by plaintiff.
EXECUTION OF BONDS.
133. Execution of bonds.
Venue of trans-
itory actions.
C. L.
2. §2.
1749-
-50, 9.
1784
28. § 13.
R..S.
90,
§§14
. 15.
1854
322.
1855
12.
1856
70.
G. S.
123, § 1.
P.S.
161, § 1.
R.L
167, § 1.
VENXJE OF ACTIONS.
Section 1. A transitory action shall, except as otherwise provided, 1
if any one of the parties thereto lives in the commonwealth, be brought 2
in the county where one of them lives or has his usual place of busi- 3
ness. If brought in any other county, unless remo^■ed under section 4
fifteen, the writ shall abate and the defendant shall be allowed double 5
costs. If neither party lives in the commonwealth, the action may be 6
brought in any county. 7
4 Mass. 591. 10 Gush. 415. 16 Gray, 116. 156 Mass. 522.
6 Mass. 331. 12 Gush. 284. 1 Allen, 529. 221 .Mass. 125.
3 Met. 209. 6 Gray, 122. 4 Allen, 17. 233 Mass. 162.
6 Gush. 560. 15 Gray, 50.
In district
courts.
R. S. S7, § 35
G. S. 116, § 19.
1866, 47.
1869, 17, § 3.
1874, 271, § 8.
1875, 106, § 2.
1876, 184.
1878, 72.
1879, 154.
P. S. 154, §§ 14,
15, 46, 48, 49,
60: 175, § 3.
1893, 396, I 13.
1894.398. § 1;
431.
R. L. 167, § 2.
1912,649, § 1.
1913, 644.
161 Mass. 440.
164 Mass. 144,
170 Mass. 569.
201 Mass. 557.
218 Mass. 333.
Section 2. A transitory action in a district court shall be brought 1
in the county where one of the defendants lives or has his usual place 2
of business, or, if commenced by trustee process, in the county where 3
all persons named in the writ as trustees live or have their usual places 4
of business, and, in either case, in a court within whose judicial district 5
one of the parties lives or has his usual place of business, except that an 6
action commenced by trustee process may be brought in the municipal 7
court of the city of Boston if any trustee resides or has his usual place 8
of business in Suffolk county. 9
Said courts shall have jurisdiction of a transitory action against a 10
defendant who is not an inhabitant of the commonwealth, if personal 11
service or an effectual attachment of property is made within the 12
commonwealth; and such action may be brought in any of said courts 13
in the coimty where the service or attaclunent was made. 14
SaStory'!""'" Section 3. Evcry action for rent, use and occupation or breach of 1
1915, 146, §3. covenant shall be considered a transitorv action. 2
Venue of
actions of
replevin.
1789, 26, § 4.
Section 4. An action of reple\in shall be brought in the county 1
where the goods or beasts are detained. 2
R. S. 113, §28. G. S. 143, §11. P. S. 184, § 11. R. L. 167, § 3.
Chap. 223.] commencement of actions, service of process. 2401
1 Section 5. A civil action in which the commonwealth is plaintiff or Actions by the
2 in which money due to the commonwealth is sought to be recovered isec, 233, § 1. '
3 may be brought in the county where the defendant lives or has his r.l.\*07,§4.
4 usual place of business, or in Suffolk county.
1 Section 6. A local or transitory action by a county shall be brought Actions by
2 in the county where the defendant hves or in a county adjoining the coimtfes. ^
3 plaintiff countj-. If the defendant lives in the plaintiff" county, it shall r. s.'9o, '
4 be brought in an adjoining county. Such action against a county shall, ^ a 123,
5 at the election of the plaintiff, be brought in the comity where he lives, ^ |' f-^^
6 in the defendant county or in an adjoining county. 55 s, 6.
R. L. 167, § 5. 2 Mass. 544.
1 Section 7. An action against a town or person to recover for injury Action for
2 or damage received by reason of a defect, want of repair or of an insufB- efcrandfor^'
3 cient raiUng in or upon a public way shall be brought in the county is77f |§4^§ s.
4 where said town is situated or in the county Avhere the plaintiff lives, ^- 1; \o7,V6.
5 except that such action against the city of Boston may be brought in J|]^^'|j5-
6 Middlesex county, in Norfolk county or in the county where the plain- § 145. '
7 tiff Ua'cs, and such action against the town of Nantucket or against any 218 Mask 333.
8 town in Dukes county may be brought in Bristol county. An action
9 against a town or person to recover for injury or damage received in
10 the commonwealth by reason of negligence other than that relating to
11 such defect, want of repair or insufficient railing shall be brought in the
12 county where the plaintiff lives or has his usual place of business, or in
13 the county where the alleged injury or damage was received.
1 Section 8. Transitory actions, except those mentioned in the pre- Actions by
2 ceding section, to which a corporation, other than a county or the city corjjorations.
3 of Boston, is a party, may be brought as follows: isse, 4,'§ 12.'
4 (1) If both parties are cities, toA\iis or parishes, in the county where p|;i|f;||;
5 either party is situated. f Met^ 2^12! ^'
6 (2) If both parties are corporations, other than a city, town or parish, ecush.sM
_ . K , . , . , . , 11 PI- 16 Gray, 116.
7 in any county in which either corporation has a usual place oi business, 9s Mass. 95.
• , •,■,,,•, 1 , 1 ,• 11 1 1 1 -i i- 99 Mass. 534.
8 or in which it held its last annual meetmg, or usually holds its meetings. 137 Mass. 252.
9 (3) If one party is a city, town or parish, and the other a corporation Hf Mass! 557.
10 named in clause (2), in any county in which either party might sue or
11 be sued.
12 (4) If one party is a corporation named in clause (1) or (2), and the
13 other an indi\idual, in any county in which the corporation might sue
14 or be sued, or in the county in which the indiA-idual lives or has a usual
15 place of business.
1 Section 9. An action by or against the city of Boston, except .^^^^^^fi^'^^^y
2 actions mentioned in section seven and actions by the collector of said and against
... . fl J . citv 01 Boston.
3 city under sections thirty-five and tliirty-six of chapter SLxty,^ may isos, i9^§ 1.^
4 be brought in Suffolk, Essex, Middlesex or Norfolk county, or in the is28; 13, § 1. '
5 county in which the plaintiff lives. k. s, 90, §§ 120, 121.
1836, 4, I 13. 1878, 225. R. L. 167, § 8.
G. S. 123, § 6. P. S. 161, § 9. 223 Mass. 367.
1 Section 10. The defendant in an action brought in Suffolk county Transfer^from
2 by the city of Boston or by its collector may, if the action is brought suCik."
3 in the supreme judicial or superior court, witliin thirty days after the r'^'JoI
4 day for appearance, or if the action is commenced in a district court ||3of4',\'i3.
2402
COMMENCEMENT OF ACTIONS, SERVICE OF PROCESS. [CbL\.P. 223.
G. s. 123, § 7. and removed to the superior court or taken thereto on appeal, witliin 5
1SS5. 384, § 14. thirty days after the entry in the superior court, file a motion in writing 6
R. L. 167, 1 9. i^j. ^j^g removal of the action to Essex, Middlesex or Norfolk county; 7
and the court shall thereupon order it to be removed to the same court 8
in such one of said counties as the attorney of the city of Boston elects. 9
andagainat Section 11. A transitorv action by or against an executor or ad-
i865"\T'§^i?' ministrator may be brought in a county in wliich it might have been
p. s. 161, § 2. brought by or against the testator or intestate at the time of his decease.
R. L. 167, § 10.
Actions relative
to land in
different
counties, etc.
1859, 37.
G. S. 123, § 2.
P. S. 161, § 3.
R. L. 167, § 11.
102 Mass. 458.
Section 12. If a tract of land lies in two or more counties, an action
relative to it, to which neither a county, the city of Boston nor any
corporation named in section eight is a party, may be brought in any
of said counties, and the declaration shall be so drawn as to include the
whole tract.
Change of
venue.
1887, 347.
R. L. 1B7. § 12.
208 Mass. 162.
Section 13. If tlie supreme judicial or superior court finds that a 1
party to an action or proceeding pending therein cannot, by reason of 2
local prejudice or other cause, have an impartial trial in the county 3
where the action or proceeding was commenced, it may, upon the appli- 4
cation of either party, order it to be removed for trial to another county. 5
Upon the entrs' of such order, the clerk of the court in wliich the action 6
or proceeding is pending shall forthwith transmit all the papers in the 7
case and a certified copy of said order to the clerk of the court for the 8
county to wliich it has been ordered to be removed. The clerk who 9
receives such papers and order shall forthwith enter them on liis docket, 10
and the case shall thereupon proceed as if it had been originally com- 11
nienced in the countv to which it has been removed. 12
Venue for re-
covery of for-
feitures.
R. S. 90, § 17.
G. S. 123, § 8.
P. S. 161, § 11.
R. L. 167, § 13.
216 Mass. 344.
Section 14. A civil action for the recovery of a forfeiture, except 1
an action in which the commonwealth is plaintiff, or in which money is 2
sought to be recovered for the commonwealth, shall be brought in the 3
coimty where the offence was committed, unless the statute imposing 4
the forfeiture otherwise provides. 5
Erroneous
-venue.
1851, 233,
^ 117.
1852, 312, § 80.
G. S. 129, § 70.
1880, 251.
P. S. IGl, § 12;
167, § 73.
R. L. 167, § 14.
130 Mass. 335.
133 Mass. 466.
152 Mass. 268.
233 Mass. 162.
Section 15. If a local action commenced in the supreme judicial 1
or superior court has been brought in the wrong county, the com-t may, 2
if the error is discovered at the trial, of its own motion order a non- 3
suit, unless good cause is shown why the trial should be allowed to pro- 4
ceed; or, if the error is discovered at any stage of the proceedings of an 5
action, local or transitory, the court may, upon motion of either party, 6
order the action, ^^^th all papers relating thereto, to be removed to the 7
proper county upon terms to the defendant; and it shall thereupon 8
be entered and prosecuted in the same court for that coimty as if it had 9
been originally commenced therein, and all prior proceedings other^\'ise 10
regularly taken shall thereafter be valid. 11
Civil actions,
how com-
menced.
Const, pt. 2,
c. 6, art. 5.
(Const. Rev.
art. 144.)
FORMS, ISSUING AND RETURN OF WRITS.
Section 16. Actions at law, unless founded on scire facias or other 1
special writs, or unless otherwise authorized by statute or by established 2
practice, shall be commenced by original writs. Such 'WTits shall be 3
signed, sealed and bear teste as required by the constitution, and shall 4
CH-^P. 223.] COMMENCEMENT OF ACTIONS, SERVICE OF PROCESS. 2403
5 be framed either to summon the defendant, with or without an order 17,S4,28.
6 to attach his goods or estate, or to attach his goods or estate and, for u.''s.'9o. '
7 want thereof, to take his body; or, in an action commenced by trustee io9V§t Irl.'
8 process, to attach his goods or estate in his own hands and also in the ^^f Jo^i3_i5.
9 hands of the trustee. Original writs shall be in the form heretofore i^l ^Ig' f -,7.
10 established bv law and by the usage and practice of the coiu-ts. If ifii. §§ I'a. u,'
* • . 17—19' 183 5 2
1 1 changes in their form are necessary in order to adapt them to changes r. l. io7, § is.'
12 in the law, or for any other sufficient reason, the courts may make such 22411333.9;
13 changes, subject to the final control of the supreme judicial court, which
14 may by general rule regulate such changes in all the courts.
1 Section 17. A separate summons shall be served on the defendant Separate sum-
1 p 1 • 1 1 'IP "^'^'^^ after
2 after an attachment of property on the writ, and the service thereof ?,"?'''l,"'f".'-
3 shall be a sufficient service of the original summons. 1700-1,20, § 1.
1797, 50, § 1. P. S. 161, § 15. 106 Mass. 217.
R. S. 90. § 4. R. L. 1G7, § 16. 124 Mass. 468.
G. S. 123, § 11. 13 Met. 471. 145 Mass. 340.
1 Section 18. In actions again.st corporations, and in other actions when writ and
2 in which property may be attached, but in which the defendant is not be^TOmCrnTcf.^
3 liable to arrest, the writ of attachment and original summons may be ai;i23,S^i2.
4 combined in one, requiring the officer to attach the goods and estate and ^ ^ \*ii'7,yi''7
5 to summon the defendant. s Mass. 193. 1 Pick. 497.
1 Section 19. If the name of a defendant is not known to the plain- Proceedings if
2 tiff, the writ may be issued against him by a fictitious name, and, if nameis"
3 duly served, shall not be abated for that cause, but may be amended, r"!" 9o"§ 54.
4 and terms may be imposed.
G. S. 123, § 16. R. L. 167, § IS. 142 Mass. 558.
P. S. 161, § 20. 10 Met. 436. 216 Mass. 459.
1 Section 20. Writs and processes in the supreme judicial and the Writs, how
2 superior court shall be signed, and may be issued, by the clerk, may conlt.' pt. 2,
3 be returnable to the same court in any other county, may run, and shall Js^brra,^^ 3.
4 be executed and obeyed, throughout the commonwealth.
R.S. 82, §35; 90, §12, 6. G. S. 123, § 17. R. L. 167, § 19.
1836, 4, § 9. P. S. 161, § 21. 224 Mass. 9.
1 Section 21. Subpoenas on bills in equity shall bear teste of the subpoena in
2 first justice of the court who is not a party to the suit, and shall be how issued!
3 under the seal of the court and signed by the clerk.
R. S. 90. §118. P. S. 161,5 22.
G. S. 123, § 18. R. L. 167, § 20.
1 Section 22. An original writ issued by the supreme judicial or writs, when
2 superior court, if required to be served fourteen days before the return if ^"90, §ii6.
3 day, shall be returnable at the election of the plaintiff at any return R' f; icf; 1 23.'
4 day which occurs after the expiration of fourteen days from, and ■R'ithin i^ss, 3S4, | l
5 three months after, the date of the writ; and, if required to be served 153 Mass'. 104.
6 thirty days before the return day, sliall be returnable at the election
7 of tJie plaintiif at any return day which occurs after the expiration of
8 thirty days from, and within three months after, the date of the writ.
1 Section 23. Except in actions by trustee process, an original writ ,^f",tt"enurts.
2 issued by a district court shall be returnable not more than sixty days ji-js. hs. ^ ^^
3 after the date thereof. is94, 39s, § 2; 431. r. l. i67, § 22.
2404
COiniENCEMEXT OF ACTIONS, SERVICE OF PROCESS. [ClLVP. 223.
Return days
in supreme
judicial and
superior courts.
R. S. 90. § llii.
G. S. 123, § 19.
P. S. 161. § 23.
1885,384, § I.
R.L. 1R7, §24.
1907, 176.
153 Mass. 104.
Section 24. The first Monday of every month shall be a return day in 1
every county for ^mts, processes, notices to appear and citations in all 2
actions, suits and other civil proceedings in the supreme jutlicial court 3
and the superior com-t, and for the entry in the superior court of actions 4
removed or appealed from district courts. If said first JNIonday is a legal 5
holiday, such writs, processes, notices and citations shall be returned, 6
and such suits entered, on the day follomng. Such x\Tits, processes, no- 7
tices and citations may be made returnable, at the election of the party 8
who takes out the same, at any return day within three months after the 9
date thereof; but said courts may make them returnable at other times. 10
If they issue out of the supreme judicial court for Dukes or Nantucket 11
county, they shall be returnable in Bristol county. 12
Sslricltt?.','" Section 25. Saturday of each week shall be the return day for
is93?396. § 22. ^'"ts, proccsscs, noticcs to appear and citations in all civil actions and
ms' 338" ^ ^^' proceedings in district courts; but said courts may make them return-
able at other times, ^^lien the court is required to be held at two or
more places, writs shall be made returnable at the place where the
clerk's office is kept, except that when the regular session of the court
for the trial of civil cases is held upon the return day at some other
place, such writs may be made returnable at the place where such session
is held, and notices and citations may be made returnable at any place
appointed by law for holding the court.
1
2
3
4
5
6
7
8
9
10
SER^^CE ON DEFEND.\NT.
Section 26. If the writ requires the officer to attach the goods or
Directions for
attachment
R. s"9o!§ 56. estate of the defendant and for want thereof to take his body, the
p'liei'He^' plaintiff or his attorney may by written or verbal directions require the
R- L. 107, § 26. officer to serve the writ by an attachment of goods or estate or by the
arrest of the defendant, if such arrest is authorized, and the officer shall
serve the writ according to such directions.
Ser\nce of
original WTits.
C. L. 330. § 4.
1699-1700,
3, §4.
1783,42. § 1.
R. S. 85, § 8;
90. § 21.
G. S. 123. § 21.
P. S. 1.54. § IG;
161, § 27.
1893, 396. § 17.
1S94. 398, I 2,
R. L. 167, § 27.
5 Met. 334.
12 Gush. 78.
Section 27. An original \mt issued by the supreme judicial or the 1
superior court shall be served fourteen days at least before the return 2
day. An original wTit issued by a district com-t may be directed to and 3
served by any officer qualified to ser^■e ci^^l process in actions im'olving 4
the amount of damages claimed in the wTit, and shall be served not less 5
than seven nor more than sixty days before the return day; but if such 6
writ is to be served in a county other than that in wliich the court issuing 7
it is held, it shall, except in trustee process, be served at least fourteen 8
da.ys before the return dav. 9
SerWce on
countv, etc.
1694-5, 15. § 3.
1726-7, 15, § 3.
1783, 39, § 6.
1785. 75. § 8.
R. S. 90, § 22.
G. S. 123, § 22.
P. S. 161. §28.
R. L. 167. § 28.
1906. 201. § 1.
1911, 628, I 17.
1920. 591. I 2.
109 Mass. 313.
Section 28. A writ in an action against a county, city, town, parish 1
or religious society, or against proprietors of wharves, general fields or 2
real estate lying in common, who are mcorporated, or against a foreign 3
fraternal benefit society, shall be served thirty days at least before the 4
return day, except that when a county, city, town, parish or religious 5
society is summoned as a trustee, or the incorporated proprietors of 6
whar\-es, general fields or real estate hing in common are summoned 7
as trustees, by a writ which is issued by a district court, it shall be served 8
seven days at least before the return dav. 9
CH.4.P. 223.] COMMENCEMENT OF ACTIONS, SERVICE OF PROCESS.' 2405
1 Section 29. A separate summons which is served after an attach- service of
2 ment of property shall be served by delivering it to the defendant or nSr^sofs i.
3 by leaving it for him as hereinafter provided ; and an original summons §; |; ?§3,^§^23.
4 without an attachment shall be served by reading it to the defendant, ^ l\''67\|9
5 by delivering to him a copv thereof attested by the officer who serves is Met. 471
. . 124 Mass 468.
6 it or by leaving such copy for him as hereinafter provided. i35Ma5a:4iL
145 Mas3. 340. 171 Mass. 303.
1 Section 30. The separate summons may be served at any time same subject.
2 after the attachment has been made, if it is served the number of days §! i: 123! §*24.
3 before the return day required for the service of the original writ; and r.l.'iot.^so.
4 a certificate of the service of the summons shall be endorsed on the
5 original writ.
1 Section 31. If the summons is not served personally on the de- service by
2 fendant, the original or a copy, as the case may be, shall be left at his iTO™f,'2a§i.
3 last and usual place of abode, if he has any within the commonwealth }7g775b,'"'
4 known to the officer. If he has none, it shall be left with his tenant, ^ i' ^^
5 agent or attorney, if he has any within the commonwealth known to ffi^-A^n ^05
6 the officer. If he has no such last and usual place of abode and no p.s.iei.'jsi.'
7 tenant, agent or attorney, no ser\ice on him shall be required except as e bush. 354.
S provided in the three following sections.
13 Grav. 270. 131 Mass. 359. 144 Mass. 10. 188 Mass. 80.
15 Gray, 353. 140 Mass. 488. 147 Mass. 536. 230 Mass. 254.
1 Section 32. If an absent defendant whose property has been at- service of sum-
2 tached is sued with one or more others on a joint contract, and he has defent°a"nf, if
3 no such last and usual place of abode and no tenant, agent or attorney, jo^'Jefendant
4 within the commonwealth, the summons for him shall be left with one r's^;|o;|46
5 of the co-defendants, if there is any within the commonwealth. g- s. 123, § 26.
p. S. 161, § 32. R. L. 167, § 32. 6 Gush. 354. 3 Gray, SOS.
1 Section 33. If the tenant in a real action is out of the common- service in real
2 wealth and has no last and usual place of abode here known to the aLe^'tfnant.
3 demandant, the summons or an attested copy shall, in addition to any R.*a'96.^§'47.^'
4 other service required, be left for him with the tenant or occupant, if p- 1; J|^' | |J;
5 any, of the land demanded; otherwise, it shall be left in a conspicuous f^ ^^^''^v^^^-
6 place on the land. 2 Cush. 32.
1 Section 34. If the defendant is out of the commonwealth, or if his Purthemotice
2 residence is not known to the officer, and no personal service is made d°f™dTnt.
3 on him or on his agent appointed under section five of chapter two hun- g; | jSaf g^fg.
4 dred and twenty-seven, he shall, in addition to the service herein pre- R.t.\"7,\34.
5 scribed, be entitled to further notice of the action as provided in said J^^^j^^t-lv^ '•
6 chapter.
9 Gray, 311. 12 Gray, 198. 105 Mass. 93.
10 Gray, 164. 4 Allen, 94. 188 Mass. 80.
1 Section 35. When a writ, bill, petition or complaint in law or officer to state
2 equity, or any order thereon, is served by an officer by lea\-ing the o" \L""nJ' ""^
3 summons, subpoena or copy thereof at the last and usual place of abode loSg"
4 of any person, the officer serving the same shall state in his return the
5 place as definitely as is practicable, giving, if possible, the street and
6 number, where service was made.
suiiiiiions, etc.
116.
2406
COMMENCEMEXT OF ACTIONS, SERVICE OF PROCESS. [ClL\P. 223.
Service on cor-
porations, etc.,
by copv. etc.
1913,611, §4.
1915, 23.
Section 36. Process against a county, city, town, corporation, body
corporate, joint stock association, voluntary association described in
chapter one hundred and eighty-two, parish or rehgious society, pro-
prietors of wharves, general fields or real estate lying in common, who
are incorporated, executor, administrator, guardian, conservator, re-
ceiver, trustee or assignee shall be served by copy or by copy and
summons.
Actions against
corporations,
person upon
whom service
shall be made.
1S33, 124.
1S35. Ho.
E. S. 90,
§§ 42. 43.
C;. S. 123,
§§ 29, 30.
1S65, 136.
P. S. 161,
§§ 35, 36.
R. L. 167,
§§ 35, 36.
1913, 309.
1920, 591, § 2.
4 Allen, 357.
173 Mass. 28.
201 Mass. 557.
224 Mass. 379.
Section 37. In an action against a county, city, town, parish or 1
religious society, or against the proprietors of wharves, general fields or 2
real estate lying in common, who are incorporated, service shall be made 3
upon the treasurer thereof, or if no treasurer is found, upon one of the 4
county commissioners, the city clerk or one of the aldermen, the town 5
clerk or one of the selectmen, upon one of the assessors or standing com- 6
mittee of the parish or religious society, or upon one of the proprietors 7
of such land or other estate, as the case may be. If there are no such 8
officers as are mentioned in this section, service shall be made upon one 9
of the inhabitants of the county, city or town, or upon one of the mem- 10
bers of the corporation. In an action against a domestic corporation 11
other than those mentioned heretofore in this section, service shall be 12
made upon the clerk, cashier, secretary, agent or other officer in charge 13
of its business, or, if no such officer is found within the county, upon 14
any member of the corporation. 15
SerWce on
foreign cor-
porations.
1906, 269.
1907, 332.
1913, 257.
224 Mass. 379.
228 Mass. 5S4.
Section 38. In an action against a foreign corporation, except an
insurance company, which has a usual place of business in the common-
wealth, or, ^^ith or ^^^thout such usual place of business, is engaged in or
soliciting business in the commonwealth, permanently or temporarily,
service may be made in accordance with the pro\'isions of the preceding
section relative to ser\4ce on domestic corporations in general, instead
of upon the commissioner of corporations and taxation under section
three of chapter one hundred and eighty-one.
Service on
foreign insur-
ance company.
1914. 626.
132 Mass. 432.
144 Mass. 81.
191 Mass. 115.
Section 39. In an action against a foreign insurance company
transacting business in this commonwealth, service may be made upon
an agent of the company, licensed as such in the commonwealth, who,
having authority to issue policies and bind risks for the company, has
issued the policy the liability on which is sought to be enforced, or an
agent who lives or has his usual place of business in the county and has
control over or superintendence of subordinate agents of the company,
instead of on the commissioner of insurance under clause third of section
one hundred and fifty-one of chapter one hundred and seventy-five.
Service on
certain volun-
tary associa-
tions.
1916, 184.
Section 40. In an action against a voluntary association described
in chapter one hundred and eighty-two, engaged in business in the com-
monwealth, service may be made upon any trustee thereof.
Service of sum-
mons in suits
in equity.
R. S. 90,
§§ 118. 119.
G. S. 123, § 31.
P. S. 161, § 37.
Section 41. A writ of original summons or subpoena issued in a suit
in equity shall be served the same number of days before the return day
and in the same manner as an original writ in an action at law in the
same court. R- l. i67, § 37.
Chap. 223.] commencement of actions, service of process. 2407
ATTACHMENT OF PROPERTY — GENER,.S.L PROVISIONS.
1 Section 42. All real and personal property liable to be taken on Property liaWe
2 execution, except such personal property as, from its nature or situa- iTs^i^r.^g"™!!'
.3 tion, has been considered as exempt according to the principles of the nil; 77', 1 1'.
4 common law as adopted and practiced in the commonwealth, and ex- f^ ^- ^°' ^^ ^^'
5 cept as provided in the three following sections, may be attached upon jps. 269. § 2.
6 the oricrinal writ in any action in which debt or damages are recoverable, g". s.'i23,§ 32.
7 and may be held as security to satisfy such judgment as the plaintii? may r. l. 107, § as.
8 recover; but no attachment of land shall be made on a writ returnable i^Mass.^isi.
9 before a district court unless the debt or damages demanded therein s'^ptck^sG^s""'
10 exceed twenty dollars. lo Pick. 144.
2 Met. 510. 99 Mass. 172. 19S Mass. 315.
10 Cush. 269. 101 Mass. 10.5. 214 Mass. 466.
8 Grav, 517. 106 Mass. 505. 225 Mass. 217.
14 Gray. 220. 119 Mass. 241. 230 .Mass. 197.
8 .Mien, 583. 190 Mass. 522. 233 Mass. 481.
1 Section 43. Railroad cars and engines and street railway cars, in Attachment of
2 use and making regular passages on railroads or railways, and steam- vessels.
3 boats so in use upon water routes, shall not be attached upon mesne Ka'i"i^,'§39.
4 process unless the officer who makes the attachment has first demanded fg^- l^l' | ^^•
5 of the owners or managers thereof other property, upon which to make | ^ i ^
6 it, equal in value to the ad damnum in the writ, and such owners or iszMassisge!
7 managers have refused or neglected to comply with said demand; except
S that a steamboat so in use may be attached, if the attachment is made
9 more than forty-eight hours before its fixed time of departure. Such
10 attachment shall be void unless the officer certifies in his return that he
11 has made such demand and that the owners or managers have refused
12 or neglected to comply therewith.
1 Section 44. No ship or vessel shall be attached on mesne process in Declaration to
2 an action at law unless a declaration is inserted in the writ before serv- writTetc.!
3 ice thereof, nor unless the plaintiff or a person in his behalf makes minrof'ship''
4 affidavit and proves to the satisfaction of a justice of a court of record, i88Y'^j24
5 a master in chancery or, except in Suffolk countv, a trial justice that he gs- ku §39.
, , i> • 1 II ^ . « . R. L. 167, § 39.
0 has a good cause ot action and reasonable expectation or recovering an
7 amount, exclusive of all costs, equal to at least one third the damages
8 demanded in such writ, which affida\it and the certificate of the magis-
9 trate that he is satisfied that the same is true shall be annexed to the writ.
1 Section 45. The press, type, stands, cases, paper and other per- Property of
2 sonal property used in printing and publishing newspapers shall not, offi^ds!''""^
3 within forty-eight hours previous to the issue of any edition of a news- ^ "{J; j^f; § 40.
4 paper, be attached upon mesne process unless the officer who makes
5 the attachment has, at least twenty-four hours previously thereto, de-
6 manded of the owners or managers thereof other property, upon which
7 to make it, equal in value to the amount of the ad damnum of the writ
8 and such owners or managers ha\'e refused or neglected to comply with
9 such demand. Such attachment shall be void unless the officer certifies
10 in his return that he has made such demand, the time when it was made
11 and that it has not been complied with. Such attachment, made after
12 such demand, shall take effect from the time demand was made, so as to
13 take priority of any mortgage, pledge, conveyance or attachment made
14 subsequent to such demand.
2408
COMMENCEMENT OF ACTIONS, SERVICE OF PROCESS. [CH-U". 223.
attachments on SECTION 46. Succcssive attachments may be made upon the same 1
R.^s^'go^rM.' "^"^it by one or more officers and in one or more counties, before, but not 2
G. s. 123, § 33. after, service of the summons. p. s. lei, § 4o. r. l. i67, § 4i. 3
Successive
attachments on
different writs.
1870, 310.
P. S. 161, §41.
R. L. 167, § 42.
210 Mass. 90.
Section 47. Personal property which has been attached or taken on 1
execution by a constable may be further attached or taken on execution 2
by a deputy sheriff or other competent officer, upon any writ of attach- 3
ment or execution which such constable is not qualified to serve; and 4
thereupon such constable shall make return upon and deliver his writ 5
or execution, with the possession of the property, to such deputy sheriff 6
or other officer, who shall complete the service thereof. If such writ of 7
attachment has been returned into court, the constable shall file in the 8
case a certificate of the fact of such surrender of possession. 9
Keeper.
1878, 272,
§§1.2.
P. S. 161, § 42.
R. L. 167, § 43.
16 Pick. 144.
122 Mass. 541.
155 Mass. 259.
Section 48. The officer, if necessary, may appoint a keeper of per-
sonal property which has been attached or taken on execution, and in
such case shall, upon the ■written request of the defendant, remove such
property or the keeper without unreasonable delay.
194 Mass. 317. 208 Mass. 579.
Property to
remain on
premises in cer-
tain cases.
1878, 272, I 3.
P. S. 161. § 43.
R. L. 167, § 44.
12 Gray, 401.
101 Mass. 467.
120 Mass. 228.
136 Mass. 123.
155 Mass. 259.
208 Mass. 579.
Attachment of
bulky goods.
R. S. 90, §§ 33.
34.
G. S. 123, § 57.
P. S. 161, § 69.
R. L. 167, § 45.
8 Pick. 402.
2 Met. 36.
4 Cush. 425.
2 Allen, 185.
4 Allen, 329.
10 Allen, 414.
Section 49. Personal property which has been attached may, sub-
ject to the preceding section, be kept on the premises where it is found,
unless the owner or occupant of the premises in writing requests the
officer to remove his keeper therefrom; and if the defendant in writing
requests the officer to allow property which has been attached on the
premises of the defendant to remain there until he may give bond to
dissolve the attachment, the property shall not be removed until he has
had reasonable opportunity to give such bond.
Section 50. If an attachment is made of articles of personal property
which, by reason of their bulk or for other cause, cannot be immediately
removed, a certified copy of the WTit, without the declaration, and of
the return of the attachment, may. within three days after the attach-
ment, be deposited in the office of the clerk of the town where it is made;
and such attachment shall be as valid and ett'ectual as if the articles had
been retained in the possession and custody of the officer.
lis Mass. 502.
119 Mass. 241.
140 Mass. 131.
150 Mass. 158.
157 Mass. 384.
170 Mass. 142.
177 Mass. 526.
191 Mass. 494.
208 Mass. 579.
210 Mass. 90.
Same subject.
R. S. 90, § 35.
G. S. 123, § 53.
P. S. 161, § 70.
R. L, 167, § 46.
Section 51. The clerk of the town shall receive and file all such 1
copies, noting thereon the time when received, and keep them safely in 2
Iiis office, and also enter a memorandmn thereof, in the order in which 3
they are received, in the books kept for recording mortgages of personal 4
property. Such entry shall contain the names of the parties to the ac- 5
tion and the date of the entry. The clerk's fee for this ser\'ice shall be 6
twenty-fi\'e cents, wliich shall be paid by the officer and included in liis 7
charge for the ser^^ce of the writ. 8
Attachment of
proceeds of
property sold.
1822. 93, § 5.
R.S. 90, §§71,
72.
G. S. 123, 5 34.
P. S. 161. § 44.
R. L. 167, § 47.
Section 52. If personal property has been sold or disposed of by
consent of the parties, or after an appraisal as hereinafter provided, the
proceeds, while remaining in the hands of the officer, shall be liable to
be further attached by him as the property of the original defendant, in
the manner in which the property itself might ha^■e been attached; and
shall be held and disposed of in the same maimer as if the attachment
Chap. 223.] commencement of actions, service of process. 2409
7 had been made on the property itself before the sale thereof. The fore-
8 going pro\ision shall not prevent the officer from pajing over to the
9 defendant the sm-plus of the proceeds of such sale, after retaining
10 enough to satisfy all the attacliments actually existing at the time of
11 such payment.
1 Section 5.3. Property which has been replevied from an officer who Further
2 has attached it shall be considered as remaining in his custody and of property
3 control so as to be liable to further successive attachments, as if it had iffsl^gof § 99.
4 remained in his possession.
G. S. 123, § 35. P. S. 161, § 45. R. L. 167, § 4S.
1 Section 54. If there is judgment for a return of the property so piaintiffin
2 replevied, the plaintiff in reple\in and his sureties shall be liable for the fo?™iSe.'^ ^
3 whole of the property or the value thereof, although the attachment for §; |; ^^s.^/se!
4 which it is finally held was made after the property was replevied. ^- 1; ^^^j Yig
1 Section 55. If an officer dies or is removed from office while an Attachment
2 attachment which he has made remains in force, the attached property, etc"o1''first
3 whether reple\-ied or remaining in possession of the officer or of his om^er."'®
4 executor or administrator, may be further attached by any other officer g- 1- 123^^37"
5 so as to bind it or its proceeds, as if the later attachment had been g-Sisi-M^-
^ 1 1 I f ' ^ re R. L. 167, § 50.
6 made by the farst mentioned othcer.
1 Section 56. The officer who makes such later attachment shall not Proceedings in
1 • 1 1 1 11 1 c 1 such case.
2 take the property itself, but he shall make a return of an attachment r s.so.
3 in the common form, stating by whom the property was previously g. s. 123. §38.
4 attached, and, if it has not been reple\-ied, shall leave a certified copy r.l.^ot. §51.
5 of the writ, without the declaration, and of the return of that attach-
6 ment with the former officer, if li\-ing, or, if he is dead, with his execu-
7 tor or administrator or whoeAcr then has possession of the property. If
8 the property has been ^eple^^ed, and the officer who made the original
9 attacliment is dead, such copy shall be left with his executor or ad-
10 ministrator or with the plaintiff in reple\in. The attacluuent shall be
11 considered as made when such copy is delivered in any of the modes
12 provided in this section.
1 Section 57. Property which has been replevied from an attaching Modcofattach-
2 officer shall not be further attached as the property of the original de- property.
3 fendant in any manner other than is provided in the four preceding g:!: 123, § 39!
4 sections and in section forty-seven, so long as it is held by the plaintift" R.L.f67,V52.
5 in replevin or by any person holding under him, unless the original
6 defendant has acquired a new title thereto.
1 Section 58. Property which has been attached by an officer, whether Attachment to
2 in his custody at his death or taken from him by reple\in or otherwise, deatHf at-^"^
3 and also all claims for damages to property so taken from him, shall R.''|;ifo.°f9""
4 remain subject to the attachment as if the officer had lived, and shall p; |; J,ff; 1 50;
5 not be considered as assets in the hands of his e.xecutor or administrator. R- l. ig7, § 53.
1 Section 59. Property which has been attached shall be held for Attachment
2 thirty days after final judgment for the plaintiff or claimant so that it thirty riVs"^
3 may be taken on execution, unless the attachment is sooner dissolved; a" u'i!'§T''
4 but if attached in Nantucket county and judgment is rendered in an- {yg^^^s.^'j u"'
224 Mass. 501.
2410 COMMENCEMENT OF ACTIONS, SERVICE OF PROCESS. [ChAP. 223.
1S06, 107. _ other county, or if judgment is rendered in Nantucket county and it was 5
a', s. i2i5, § 42. attached in another county, it shall be held in like manner, subject to 6
R. L.\*G7.\ 55. the same condition, for sixty days after final judgment. ii Mass. 204. 7
106 Mass. 505. 118 Mass. 514. 19S Mass. 37. 233 Mass. 4S1.
foTthiVlvdlys Section 60. Property whicji has been attached in suits in equity 1
.ifter right of shall bc held for tliirty days after the right of appeal from a final decree 2
'='',p'.''''5'i„ 5 , expires. If an appeal is claimed from a final decree and subsequently 3
p. s.'ioi.'§53. waived or dismissed, property attached in the suit shall be held until 4
1907! 546! i 2. ■ thirty days after such waiver or dismissal, and the time for doing any 5
act or thing ordered to be done within a specified period from the entry 6
of the final decree shall be computed from the date of such waiver or 7
dismissal. 8
defined"'^""'^°* SECTION 61. "Final judgment", as used in sections fifty-nine, one 1
G i' i^sS^Ii hundred and fifteen, one hundred and twenty, one hundred and twenty- 2
R L \o7 1^57 ^^'^ **^ °"^ hundred and twenty-seven, inclusive, shall mean that wliich 3
167 Mass! 222.' is rendered in the original action, whether upon appeal or otherwise, and 4
174 Mass. 349. , , !_ j J V i^ -i. J! • r
not such as may be rendered upon a writ of error or writ of re\iew. 5
ATTACHMENT OF REAL ESTATE AND LEASEHOLDS.
itnd 'Jild'^"* °^ Section 62. In attaching land, or a right or interest therein, the 1
'fasehoids officer need not enter upon the land or be within view of it. In attach- 2
1847', 2(i'7, § 3. ing leasehold estates, the officer shall state in his return in general terms 3
p.' 8.161,' §61.' the leasehold property attached. 4
R. L. 167, § 58. 13 Mass. 128. 2 Met. 510. 13 Met. 200.
10 Mass. 421. 11 Pick. 341. 10 Met. 138. 142 Mass. 206.
?f''writ.' °^ ^''^ Section 63. No attachment on mesne process of land or of any 1
1839. 89.^^*' leasehold estate shall be valid against a subsequent attaching creditor, 2
G^snl'lii "^^ against a subsequent pm-chaser in good faith and for value, unless 3
'I™' 264, 1 1. the officer deposits a certified copy of the original writ, without the 4
p. s.'i6i,'§62. declaration, and so much of his return thereon as relates to the attach- 5
R. L. 167! § 69. ment of the estate, in the registrv of deeds for the countv or district 6
1 Met. 212.
10 Met. 138.
where the land lies. n Met. 244. 129 Mass. 27. 7
fgjg^ i|g°®°^''- Section 64. The officer who makes such attachment shall deposit 1
1847! 267 § 3 ^"■"^'h "^'opy '" th*^ registry of deeds. g. s. 123, § 52. 1870, 264, § 1. 2
1873, 297, § 1. p. S. 161, § 63. R. L. 167, § 60. 129 Mass. 27.
^giste"^ Section 65. The register of deeds shall note on every such copy 1
1856' 209^ ^°' ^'^^ ^^y' hoi"" ^'I'i minute of its receipt, and shall file it in his office. 2
G._s.'i23,'§53. He shall also enter in a book which he shall keep for that purpose the 3
1873! 297! § 2! name of the plaintiff and the name of each defendant whose land is 4
R. L.^OT./ui'. attached, the time when the attacliment was made and the time when 5
iis^Massl'flu.. the copy was deposited. His fees may be taxed as part of the plaintiff's 6
130 Mass. 16. costs. If a dissolutiou of an attachment which has been so entered in a 7
registry of deeds appears of record in the court in which the action is 8
pending, the clerk of such court shall forward to such register a certificate 9
of such dissolution, stating how such dissolution was made, and the reg- 10
ister shall file the certificate with the copy of the writ and shall make 11
an entry tlicrcof in his docket of attaclmients. 12
Chap. 223.] comjiencement of actions, service of process. 2411
1 Section 66. If the copy of the writ is deposited, as aforesaid, within whenattach-
2 three days after tlie day when the attacliment was made, the attach- rfSt.''''^''^
.3 ment shall take effect from the time it was made, otherwise, from the g- 1 jos^^fi
4 time when the copy is so deposited; but attachments of land, and of p^ s° /^j = es
5 leasehold estates which have an original term of more than seven years, R l. iot'. § 62.
6 shall not be valid against purchasers in good faith and for value, other lo Aiien, 494.
7 than parties defendant, except from the time when the copy is deposited III lillt Ih.
8 as aforesaid, or, in cases where the owner of the land sought to be at-
9 taclied is wrongly named in the writ, and the writ is afterward season-
10 ably amended in that respect, then except from the time when a cor-
11 respondingly amended copy is deposited as aforesaid.
1 Section 67. If an attachment on mesne process is made of land, or Attachment of
2 of a right or interest therein, which has been fraudulently conveyed by ientiy'co"n-""
3 the debtor to a third person, or which has been purcliased by the debtor, Il44!'io7?§ 2.
4 or the purchase money of which has been directly or indirectly paid by cflf'f^liss
5 him, and the title thereto has been retained in the vendor or conveyed ^ l\^v7\63'
6 to another person, with the intent and for the purpose of fraudulently wisiasvi
7 securing the land from attachment by a creditor of such debtor, or with 1919, s.
8 the intent and for the purpose of delaying, defeating or defrauding 6"Gray!52o.
9 creditors, or which is held on a trust for the debtor, ex-press or implied, 9 A^iienrioL'
10 whereby he is entitled to a present conveyance, it shall not be valid ??s^Mass*5i7
1 1 against a subsequent attaching creditor, or against a subsequent pur- jgS Mass. 427.
12 chaser in good faith and for value, unless the officer in addition to the 147 Mass.' 23. '
13 return required by sections sixty-two and sixty-three also retiu-ns a brief 225 Mass! 217;
14 description of the land which has been attached, by its locality, situation, 233 Mass! los'.
1.5 boundaries or otherwise as known to him, and the names of the persons
16 in whom the record or legal title stands.
1 Section 68. The register in such case, in addition to the names of Entry of name
r» 1 • •I'll* ■ 1 • 1 1 • ^^ holder of
2 the parties to the writ which he is required to enter as provided in legal title, etc.
3 section si.xty-five, shall also enter in his docket of attachments the g._s.'i23,'§56.
4 names of the persons in whom the record or legal title stands, as re- i873!297,'§ 1!
5 turned by the officer, in the same manner as if the estate of such persons r.l, uiV.^m.
6 were attached as defendants in the writ.
118 Mass. 517. 189 Mass. 390. 225 Mass. 217.
1 Section 69. Registers of deeds shall perform the same duties rela- Duties of
2 tive to the filing and entering of copies of writs and other papers in papersTn^^
3 actions commenced in the courts of the United States which affect the unltSi states
4 title to land by attachment or otherwise as are required relati\e to the 1173^097, § 3.
5 filing and entering of such papers in such actions commenced in the p- s- wi^ 5 68.
6 courts of the commonwealth.
1 Section 70. An attachment of land which is subject to a mortgage Attachment of
2 or other encumbrance shall, if the mortgage is redeemefl or the encum- fand"' °"
3 brance is removed before the levy of the execution, hold the land dis- h.'s.'9o.'§ 32.'
4 charged of the mortgage or encumbrance, and execution may be levied p ; |; i|f ; 1 51 ;
5 in the same manner and with the same eft'ect as if it had never existed, k. l. 107, § 54.
106 Mass. 505.
attachment of shares of stock.
1 Section 71. Shares of stock shall not be attached in an action at fi,a?e'L''of8'toc°k
2 law. 1910, 171, § 13. 222 Mass. 27. 234 Mass. 279.
2412
COMMENCEMENT OF ACTIONS, SERVICE OF PROCESS. [ChAP. 223.
No attachment
or levy of goods
for which a
negotiable
document of
title is out-
standing,
1907. 582, § 26.
1908. 237, § 39.
1910.214. §24.
211 Mass. 146.
214 Mass. 466.
220 Mass. 285.
234 Mass. 477.
ATTACHMENT OF PROPERTY IN POSSESSION OF B.ULEE.
Section 72. If goods are delivered to a carrier or other bailee by
the owner or by a person whose act in convej'ing title to a purchaser in
good faith for value would bind the owner and a negotiable document
of title is issued for them, they cannot thereafter, while in the possession
of such bailee, be attached by trustee process or otherwise, or be levied
upon, unless the document be first surrendered to the bailee or its negotia-
tion enjoined. The bailee shall not be compelled to deliver up the actual
possession of the goods until the document is surrendered to him or im-
pounded by the court.
Attachment of
property in
possession of
carrier or
warehouseman.
1907, 582. § 43.
1910.214, §33.
211 Mass. 146.
214 Mass. 466.
234 Mass. 477.
Section 73. Except as provided in the preceding section, property
in the possession of a carrier or warehouseman may be attached by
trustee process or otherwise; but if the bill of lading or receipt, though
non-negotiable, has been transferred, and the carrier or warehouseman
notified of the transfer, the title of the transferee shall not be defeated
by an attachment in a suit against a prior owner of the goods.
Attachment of
mort^^aged
property.
1829, 124. § 2.
R. S. 90. § 78.
1844, 148, § 1.
G. S. 123, § 62.
P. S. 161. §74.
R. L. 167, § 69.
3 Met. 268.
11 Met. 226.
ATTACHMENT OF ENCUMBERED PERSONALTY.
Section 74. Personal property of a debtor which is subject to a
mortgage, pledge or lien, and of which he has the right of redemption,
may be attached and held as if it were unencumbered, if the attach-
ing creditor pays or tenders to the mortgagee, pledgee or holder of the
property the amount for which it is so liable within ten days after de-
mand as hereinafter provided. is Met. 204.
1 Gush. 278. 6 .Mien. 80. 295. 137 Mass. 132. 1,88 Mass. 70.
3 Gush. 306. 106 Mass, 114. 142 Mass. 15, 203 Mass. 480.
10 Gray, 334. 110 Mass. 28, 167. 365. 143 Mass. 123. 205 M.^s. 576.
14 Gray, 566. 119 Mass. 535. 145 Mass. 277. 217 Mass, 555.
1 AUen", 29. 122 Mass. 303. 159 Mass. 203. 232 Mass. 428.
Mortgagee to
state account.
1829. 124, § 3.
R. S. 90. § 79.
1844, 148, § 1.
G. S. 123, § 63.
P. S. 161. §75.
R. L. 167. § 70,
23 Pick, 321.
I Met, 172, 294,
325, 515.
3 Met. 144, 268.
10 Met. 7.
II Met. 226.
Section 75. The mortgagee, pledgee or holder shall, when demand-
ing payment of the money due to him, state in -RTiting a just and true
account of the debt or demand for which the property is liable to him
and deliver it to the attaching creditor or officer. If the same is not
paid or tendered to him within ten days thereafter, the attachment shall
be dissolved, the property shall be restored to him and the attaching
creditor shall be liable to him for any damages he has sustained by the
attachment.
12 Met. 308, 333.
3 Gush. 306, 575.
11 Cush. 348.
1 Gray, 254.
3 Gray, 490.
4 Gray. 550.
8 Gray, 218.
10 Gray, 37.
14 Gray. 123, 566.
1 Allen, 29.
3 Allen, 241. 427.
6Allen. 80, 293.
14 Allen, 222.
98 Mass. 510.
100 Mass, 323,
103 Mass, 335.
105 Mass. 49.
106 Mass, 114.
110 Mass, 28, 365,
111 Mass, 273,
125 Mass. 164. 582.
136 Mass. 515.
140 Mass. 154,
145 Mass. 270, 571.
13 Met. 204.
151 Mass. 497.
157 Mass, 228,
166 Mass, 1,
170 Mass, 517, 523.
184 Mass. 547.
188 Mass. 146.
203 Mass, 480.
205 Mass. 576.
216 Mass. 197.
217 Mass, 555.
232 Mass. 42S,
Penalty for ex-
cessive demand.
Section 76. If he demands and receives more than the amount due
if^s'9o*§8o' t° 1"™' he shall be liable to the attaching creditor for money had and
G-|.i23.l64. received for the excess, with interest thereon at the rate of twelve per
R. L. 167,1 71. cent a year. n Cush. 348.
Section 77. If property which has been attached and redeemed by 1
Debt to be
repaid out of _ _ ^
^lus'"^ °' ^^^ attaching creditor, as aforesaid, is sold on mesne process or on execu- 2
Chap. 223.] commencement of actions, service of process. 2413
3 tion, the proceeds thereof, after deducting the charges of the sale, shall Glfas^^es
4 be first applied to repay to the attaching creditor the amount so paid p.'s,igi,'§77.'
5 by him, with interest. . . , -.
1 Section 78. If the attaching creditor, after having redeemed the Defendant to
2 property, does not recover judgment, he may nevertheless hold the phUnVisfor"^
3 property until the debtor repays to him the amount which he paid for mortg?g|.°° °'
4 the redemption, or as much thereof as the debtor would have been GgiSs^^ee
5 obliged to pay to the mortgagee, pledgee or holder of the property, if p- s. i«.' § ts.'
6 it had not been attached, with interest from the time when it was
7 demanded of the debtor.
1 Section 79. Personal property subject to a mortgage and in the Attachment of
2 possession of the mortgagor may be attached as if unencumbered ; and ^naUyTn'* ^"'
3 the mortgagee or his assigns may be summoned in the same action in ^e'Sfon"''"'"
4 which the property is attached as the trustee of the mortgagor or his }?*^- }iS' I ?:.
5 assigns to answer such questions as may be put to him or them by the Sf-'^.^'ll"-
6 court or by its order relative to the consideration of the mortgage and e bush. ibs.
7 the amount due thereon. 9 Gray, 45. 1 Alien, ssi.
8 Allen, 273. 114 Mass. 60. 136 Mass. 193. 170 Mass. 469.
13 Allen. 66. 119 Mass. 535. 140 Mass. 208. 175 Mass. 144.
99 Mass. 172. 121 Mass. 96, 204. 144 Mass. 385. 188 Mass. 70.
102 Mass. 414. 133 Mass. 78. 148 Mass. 566. 225 Mass. 451.
107 Mass. 122. 134 Mass. 347. 154 Mass. 34. 232 Mass. 424, 428.
1 Section 80. If upon such examination, or upon the verdict of a Determination
2 jury as provided in the following section, it appears that the mortgage is4Ti48,'§'3'^'
3 is valid, the court, having first ascertained the amount justly due upon p|i\u'||o'
4 it, may direct the attaching creditor to pay the same to the mortgagee p,g\/"' f^'o^-
5 or his assigns within such time as it orders; and if he does not pay or i33Mass!78. '
6 tender the amount within the time prescribed, the attachment shall be 154 Mass! 34. '
7 void and the property shall be restored. i70 Mass. 469.
1 Section 81. If the attaching creditor denies the validity of the Determination
of vaHdity
mortgage.
2 mortgage and moves that its validity be tried by jury, the court shall of™''di<yof
3 order such trial upon an issue which shall be framed under its direction. cf^s'/IMeo
4 If, upon such examination or verdict, the mortgage is adjudged valid, ^LVjii^yg
5 the mortgagee op his assigns shall recover his costs. i75 Mass'. 144.'
1 Section 82. When the creditor has paid to the mortgagee or his creditor to
2 assigns the amount ordered by the court, he may retain out of the pro- pl*id"by hfm?'
3 ceeds of the property attached, when sold, the amount so paid with f^^^^ j^g ^ 5
4 interest, and the balance shall be applied to the payment of his debt. p|iuMs2'
R. L. 167, § 77.
1 Section 83. If the attaching creditor, after having paid the amount Creditor not re-
2 ordered by the court, does not ^eco^'er judgment, he may nevertheless ment to hold
3 hold the property until the debtor has repaid with interest the amount repaw. *^ "" '
4 so paid. I844, us, § 6. G. S. 123, § 71. p. S. I6I, § SS. R. L. 167, § 78.
supplementary process.
1 Section 84. If the service of a writ, process or order is defective or Further service
2 insufficient, the court or tribunal to which it is returnable may, upon service!^
3 motion of the plaintiff or petitioner, issue further writs, processes and i*!s.'i'i?/.'§ S4.
4 orders, which shall be served in such manner as may be therein directed; 54o\/,[|4! L™.'
5 and upon due service thereof, the court or tribunal shall thereby acquire 215 Mass. 341.
2414
COMMENCEMENT OF ACTIONS, SERVICE OF PROCESS. [Ch.U>. 223.
the same jurisdiction of the subject and of the parties as it would have 6
obtained if such service had been made in pursuance of the original writ, 7
process or order. The action, suit or proceeding shall be continued from 8
time to time until such serNice is made. 9
Attachments
and arrests
during pen-
dency of suit.
1876, 167,
§§1,4.
1877. 18.
1879. 53.
P. S. 161, §§85.
88.
R. L. 167, § 80.
1907. 453.
193 Mass. 84.
209 Mass. 370.
212 Mass. 486.
215 M.ass. 341.
217 Mass. 213.
Section 85. At any time during tlie pendency of an action, suit, 1
libel, petition or other proceeding at law or in equity, upon the com- 2
mencement of which an arrest or attachment is authorized by law, the 3
court for cause may, on motion ex parte, order such arrest of the de- 4
fendant or such attachment of his property by trustee process or other- 5
wise to secure tlie judgment or decree which the plaintiff may obtain in 6
said cause; but no arrest of the defendant shall be authorized unless 7
the same facts as are required to be proved to authorize an arrest on 8
mesne process are proved to the satisfaction of the court by affidavit as 9
provided in section two of chapter two hundred and twenty-four. Ex- 10
cept in Suffolk county, a clerk of such court may, under the same con- 11
ditions, order such attachment of the property of the defendant. Such 12
arrest or attachment shall be subject to all the pro\asions of law relative 13
to arrest and attachment upon mesne process, so far as applicable. 14
formt^^c. Section 86. A precept for such arrest or attachment shall be in the
in.'s^'^' same form, so far as practicable, as an original writ of capias and at-
p s. 161, |§86, tachment; but the supreme judicial court may by general rules establish
R. L. 107, § 81. forms therefor. Such precept may be served by an officer authorized
to serve the original process in the cause, and shall be returnable as may
be ordered bv the court which issues it.
215 Mass. 341.
Sale of prop-
erty attached.
1822,93, § 1.
R. S. 90, § 57.
G. S. 123, § 72.
P. S. 161, § 89.
R. L. 107, § 82.
17 Pick. 429.
is Pick. 407.
1 Met. 34.
4 Met. 137, 504.
6 Met. 94.
10 Met. 231.
4 Gush. 393.
125 Mass. 278.
S.\LE OF PERSON.^L PROPERTY ATTACHED.
Section 87. Personal property which has been attached on one or 1
more writs may, if the debtor and all the attaching creditors consent 2
in writing, subject to sections seventy-four to eighty-three, inclusive, be 3
sold by the attaching officer in the manner provided by law for selling 4
like property on execution; and the proceeds of the sale, after deducting 5
the necessary charges, shall be held by the officer subject to the attach- 6
ments and be disposed of as the property would have been held and 7
disposed of had it remained unsold. 8
154 Mass. 34.
187 Mass. 421.
Appraisal and
sale of perish-
able property.
1822, 93, § 2.
R. S. 90. § 58.
G. S. 123, § 73.
P. S. 161, § 90.
R. L. 107, § 83.
IS Pick. 407.
3 Allen, 207.
97 M:iss. 07.
101 Mass. 2.59.
114 Mass. 60.
154 Mass. 34.
Section 88. If an attachment is made of animals or of goods which
are liable to perish, waste or greatly decrease in value by keeping, or
which cannot be kept without great and disproportionate expense, and
the parties do not consent to a sale thereof as before provided, the
property so attached shall, subject to sections seventy-four to eighty-
three, inclusive, upon the application of either of the parties interested
to the attaching officer, be examined, appraised and sold or otherwise
disposed of in the manner following.
Appraisal and
sale of perish-
able property:
proceedings.
1822. 93, § 2.
R. S. 90, § 59.
1851, 1, § 3;
58; 257.
G. S. 123, § 74.
P. S. 161,5 91.
R. L. 107, § 84.
Section 89. Upon such application, the attaching officer shall give
notice to all the other parties or their attorneys, prepare a schedule of
the goods and cause three disinterested persons acquainted with the
nature and \aluc of such goods to be appointed and sworn before a
magistrate or tiie attaching officer to the faithful performance of their
duty as appraisers. 6 AUcn, 505. 130 Mass. 247.
Chap. 223.] commencement of actions, service of process. 2415
1 Section 90. If the defendant is not within the commonwealth and ^"''de'endant.
2 has no attorney therein, the notice in writing shall be left at his last and Q^g'JIfsyg
3 usual place of abode, if any, in the commonwealth; otherwise, it shall be p. s. ifiM^oa.
4 delivered to, or left at the dwelling house or place of business of, the per-
5 son who had possession of the property at the time of the attachment.
1 Section 91. One appraiser shall be appointed by the creditor or Appraisers,
2 creditors in the several actions, one by the debtor or debtors, and one r° s.''90.°§"go. '
3 by the officer; and if the debtors or creditors, respectively, neglect to g!^s.' ill; § 76,
4 appoint such appraiser, or do not agree in the nomination, the officer R.L.fo7,\
5 shall appoint one in their behalf.
93.
S6.
1 Section 92. The appraisers shall examine the attached property saie after
2 and, if in their opinion it, or a part thereof, is liable to perish or waste r^''J.%o*.'§ ei.
3 or to greatly decrease in value by keeping or cannot be kept without p.l.il^.'lJJ;
4 great and disproportionate expense, they shall appraise the value thereof R^ pi/^ ^407*'''
5 and the property shall thereupon be sold by the officer and the pro- * ^ush. 393.^^
G ceeds held and disposed of as provided in section eighty-seven, unless
7 the goods are taken by the debtor as provided in the following section.
1 Section 93. The property so appraised shall, if he requires it, be Delivered to
2 delivered to the debtor upon his depositing with the attaching officer 1I2T 93? § 3.
3 the appraised value thereof in money, or upon giving bond to the officer §; | ^"sf §*'7s.
4 in a sufficient sum, with two sufficient sureties, conditioned to pay to r.l/iw.Vss.
5 him the appraised value of the property or to satisfy all such judgments is'o Mass. 247.
6 as may be recovered in the actions in which the property was attached,
7 if demanded within the time during which the property would have
8 been held by the respective attachments or within thirty days after the
9 time when the creditors, respectively, would have been entitled to
10 demand pajTuent out of the proceeds of the property if it had been
11 sold as before provided.
1 Section 94. The officer who takes such bond shall retiun it with Bond to be
2 the writ on which the first attachment is made in like manner as bail IhewHt. ""
3 bonds are returned, with a certificate of his doings therein; and if the r.I.'Io.'Ibs.
4 bond is forfeited, any of the attaching creditors may bring an action of p.f.ili.'lgo;
5 contract thereon in the name of the officer. R- l. i67, § 89.
1 Section 95. The writ in an action on such bond shall, in addition to Aetion on bond
2 the usual endorsement, have the names of the creditors by whom the ihT^iTi-
3 action is brought endorsed upon it; and if judgment is rendered for the aiiiM, § so.
4 defendants, executions for the costs shall be issued against all the credi- kI. k'7,Vbo.
5 tors whose names are so endorsed.
1 Section 96. If judgment is rendered for the plaintiff, the money Aioncy rerov-
2 recovered shall be first applied, under the order of the court, to pay the to'the?n.' °_
3 reasonable expenses of prosecuting the action, so far as they are not g! a 12.3, §'si.
4 reimbursed by the costs recovered of the defendant; and the resi(lue h.IVw.Vol
5 shall belong to all the attaching creditors according to their respective
6 rights.
1 Section 97. The court may, upon a hearing in equity, determine pisfrihution
2 the rights of the several attaching creditors and award a separate e.xecu- u. s"uo,§ 06.
2416
COMMENCEMEiSrr OF ACTIONS, SERVICE OF PROCESS. [ClL\P. 223.
G. S. 123, § S2.
P. S. 161. § 99,
R.L. 107, §92.
tion for the amount due or payable to each, to be served and levied to 3
his own use in the manner provided when a judgment is rendered on 4
an administration bond; or it may award one execution for the whole 5
amount due on the bond and cause the money received to be distributed 6
among the creditors according to their respective rights. 7
Prior attach-
ments to be
protected.
R. S. 90, § 67.
G. S. 123. § S3.
P. S. 161, § 100,
R. L, 167, § 93.
Section 9S. No judgment or execution shall be awarded for the use 1
of a creditor without reserving as much as may be due upon any prior 2
attachment, whether the creditor in such prior action is or is not one of 3
those bv whom the action on the bond is brought. 4
^infng°in"°' SECTION 99. A Creditor who is entitled to the benefit of the bond,
action on the and who has not joined in bringing the action thereon mav bring a ^Tit
bond, etc. ..„. i-ii " ^ i •
R. s. 90, § 68. or scire lacias upon the judgment and recover any amount due to nim
p.' s.' 161,' §101. upon the bond; or he mav, upon motion at anv time before final judg-
R.L. 107, §94. ^ . , ^. J. lu +• ^. "
ment, become a partv to the action upon terms.
S.^gaT^. Section 100. No creditor whose cause of action on such bond ac- 1
p|'m'§SM crued more than one year before the commencement of the action shall 2
R. L. 107, § 95. have judgment or execution, and no creditor shall bring a writ of scire 3
facias upon the judgment, unless within one year after his cause of 4
action accrues. 5
Creditor may
be paid. when.
R. S. 90, § 70.
G. S. 123, § 86.
P. S. 161, § 103.
R. L. 107, § 90.
Section 101. If property which has been sold, or appraised and
delivered to tlie debtor, in the manner before pro\ided is attached by
several creditors, any one of them may demand and receive satisfaction
of his judgment, notwithstanding a prior attacliment, if he is otherwise
entitled to demand the money, and if a sufficient amount of the proceeds
of the property, or of its appraised value, remains to satisfj' all prior
attachments.
Appraisal at
request of part
owner.
183.5. 143. § 1.
R. S. 90, § 73.
G. S. 123, § 87.
P.S. 161,§ 105.
R. L. 167, § 97.
2 Met. 36.
129 Mass. 127.
ATTACHMENT OF SH.iRE OF JOINT O^WNER OF PERSONALTY.
Section 102. If personal property of two or more part owners is
attached in an action against one or more of them, it shall, upon the
request of any other part owner, be examined and appraised in the
manner provided in sections eighty-eight to ninety-two, inclusive, except
that the part owTier who makes the application shall, and the debtor
shall not, appoint one of the appraisers. This section shall not apply
to partnership property.
Delivery to
part owner.
1835, 143,
§§2,3.
R. S. 90, §§ 74,
77.
G. S. 123,
i§ 88, 91.
P. S. 161,
§5 106, 109.
R. L. 167, § 98.
2 Met. 30.
108 Mass. 565.
129 Mass. 127.
Section 103. The property so appraised shall be delivered to the 1
part owner at whose request it was appraised, upon his giving bond to 2
tlie attaching officer in a sufficient sum, with two sufficient sureties, 3
conditioned to restore such property in like good order or to pay to the 4
officer the appraised value of the defendant's share or interest therein, 5
or to satisfy all such judgments as may be recovered in the action in 6
which it is attached, if demanded within the time during which the 7
property would ha\'e been held by the respecti\e attachments. Sections 8
ninety-four to one hundred, inclusive, shall apply to such bond and to 9
an action thereon. 10
pJ^!rt?! Section 104. If such appraised value or any part tliereof is so paid, 1
R^I.'oM 75; *'''^ defendant's share of the property sliall tliereby become pledged to 2
Ch.\P. 223.] COMMENCEMENT OF ACTIONS, SERVICE OF PROCESS. 2417
3 the party to whom it was delivered, and he may sell it, if not redeemed, pgiif'^loj
4 and shall account to the defendant for the remaining proceeds of the R- l- i67,§ 99.
5 sale.
1 Section 105. If the attachment is dissolved, the party to whom Restoration.
2 the defendant's share was delivered shall restore it to the defendant, or g! s! 123, § 90.
3 to the officer, to be by him delivered to the defendant. r.l. leV.1 100'.
fraudulent ATTACHMENTS.
1 Section 106. If real or personal property has been attached in an Fraudulent at-
2 action, any person, other than the parties, who claims title or interest defeated."' °"
3 therein by a subsequent attachment, purchase, mortgage or other title, §f\'2.* '
4 may dispute the validity and effect of such prior attachment on the r^^|;9o,'§§ 33,
5 ground that the amount demanded in the first action was not justly ^f-g ^^3
6 due or was not payable when it was commenced, by filing a petition in P|^;|?-
7 the court in which the first action is pending, at any time before final §§'no, 111.
8 judgment therein, stating the facts and circumstances on which his igpick. ssi.
9 petition is founded, and the grounds of his own claim, and praying that i78 Mass.' 272.
10 the prior attachment may be dissolved.
1 Section 107. The petitioner, or a person in his behalf, shall make Affidavit
2 oath that his claim is just and legal and that all the other facts stated 1823,142! §3,
3 in the petition are true or are believed by the deponent to be true; and, 91.*''®°' ^*'
4 upon filing the petition, the petitioner, or a person in his behalf, shall §§94.^99.'
5 give a bond or recognizance with sufficient surety, conditioned to pay 1*^^12^517
6 to the adverse party such damages and costs as may be awarded to him R- l. iot, § 102.
7 upon the petition.
1 Section 108. If the court finds that a part of the amount demanded °^o°atta°ch-°^
2 in the prior action is not justly due, or was not payable when the action S^"*go 5 gg
3 was commenced, it shall order the attachment dissolved in whole or in g. s. 123, § 95.
4 part as justice requires; but such order shall have no other effect on 1900. 447, §1. '
5 the prior action. If the hearing is in the supreme judicial or superior ^'ptck.'^ii- ^° '
6 court, the court shall, upon motion, order a jury trial of any cjuestion
7 of fact
10.
S Pick. 1G5.
1 Section 109. The proceedings between the adverse claimants or Effect of
2 plaintiffs shall not be affected by any answer, plea or other act of the ^f s. ga^s ss.
3 defendant in the prior action nor by the judgment rendered therein. p.l. ilf/un'.
R. L. 167, § 104.
1 Section 110. No attachment shall be dissolved as aforesaid by Defences in
2 reason of a defence to the action which is founded on the laws for the r.'s. 90. § 89.
3 limitation of actions or requiring certain contracts to be made in writing, p.I.iIm ns.
4 or by reason of any other like defence, if the court finds that the demand ^- ^- "''■ ^ '°^-
5 is otherwise well founded and is justly and equitably due.
1 Section 111. The court may, upon such inquiry, award to either Damages
2 party reasonable costs and, if the prior attachment is maintained, may 1823,142. §4.
3 award to the attaching creditor reasonable damages. R- s. 90, § 90.
G. S. 123, §98. P. S. 161, §116. R. L. 167, § 106. 2 Met. 229.
2418
COMMENCEMENT OF ACTIONS, SERVICE OF PROCESS. [ChaP. 223.
upon^app?ai. SECTION 112. If, during the pendency of the proceedings, the action 1
G I'mViM ™ which the attachment was made is transferred to another court, the 2
R i' 167 1 107' i^Q^'iry concerning the attachment shall be transferred to the same 3
' court and be there heard and determined. 4
Section 113. The judgment of the court upon such an inquiry.
Effect of
judgment.
G;i.?23.Vioi. whether the attachment is thereby vacated or held to be valid and
RL leVlios' effectual, shall be a bar to any action which may be brought by the
petitioner against the party who made the attachment for any supposed
fraud or deceit therein.
Excessive and
unreasonable
attachments,
how reduced
or discharged.
1851, 233, § 96.
1852, 312. § 59.
G. S. 123, § 103.
P. S. 161. I 121.
1897, 460.
R. L. 167, §110.
1909, 190.
225 Mass. 217,
608.
230 Mass. 197.
REDUCTION OR DISCHARGE OF ATTACHjVIENT.
Section 114. If an excessive or unreasonable attachment is made 1
on mesne process, the defendant or person whose property has been 2
attached may apply in writing, in any county, to a justice of the court 3
to which such process is returnable, for a reduction of the amount of the 4
attachment or for its discharge; and such justice shall order a notice to 5
the plaintiff, or, if the plaintiff is a non-resident, to liis attorney, which 6
shall be returnable before liimself or any other justice of the same court 7
as speedily as circumstances permit. If, upon a summary hearing of the 8
parties, it is found that the attachment is excessive or unreasonable, 9
the justice shall reduce or dissolve the attachment or order a part of 10
the goods or estate to be released. 11
DISSOLUTION OF ATTACHMENT.
By Operation of Law.
StochSra"tby Section 115. If the final judgment is for the defendant, the attach- 1
^d|mejit ^^ ment, except as provided in section sLxty, shall be forthwith dissolved. 2
' ' G. S. 123, §43. p. S. 161, §54. R. L. 167, § 111.
Dissolution of
:attachment by
<leath of
<iefendant.
1822. 93. § 6.
R. S.90.|§105,
106.
G. S. 123, §§ 45,
46.
P. S. 161, §§ 56,
57.
R.L. 167, §112.
1913. 305.
5 Met. 356.
11 Gush. 463.
6 Gray, 112,
523.
189 Mass. 390.
Section 116. An attachment of real or personal property shall be 1
dissolved if the debtor dies before it is taken or seized on execution 2
and administration of his estate is granted in the commonwealth upon 3
an application therefor made within one year after his decease. The 4
attaching officer shall also, upon demand, and upon receiving from the 5
executor or administrator of such debtor so appointed his legal fees and 6
charges for attaching and keeping the property attached by him, deliver 7
it to such executor or administrator. But no attachment of property, 8
real or personal, shall be so dissolved upon that part of the property 9
which the debtor had alienated before his decease. 10
201 Mass. 41.
208 Mass. 458.
220 Mass. 1.
222 Mass. 131.
226 Mass. 258.
Liability of
officer for net
proceeds.
K. S. 90. § 107.
G. S. 123, § 47.
P. S. 161, § 58.
R.L. 1G7,|113.
Section 117. If the officer has, before such demand, sold on execu- 1
tion the personal property attached or a right of redeeming land at- 2
tached as aforesaid, he shall not be a trespasser, but shall be liable only 3
for tlic proceeds of the sale after deducting his legal fees and charges for 4
attaching, keeping and selling tlie property attached. Such proceeds may 5
be recovered by the executor or administrator in contract. 6
Liability of
creditor for
proceeds paid
over to him.
Section 118. If the officer in such case has, before such demand, 1
paid over the proceeds of the sale to the judgment creditor, he shall not 2
Ch.\P. 223.] COMMENCEMENT OF ACTIONS, SERVICE OF PROCESS. 2419
3 be liable therefor, but the executor or administrator, if appointed as r. s. go, § los.
4 before provided, may recover in contract from the judgment creditor the p.s.'ili.'fsg.'
5 amount so paid to him. r.l. 167, §114.
1 Section 119. The defendant, in an action founded on either of the set-offnot
2 three preceding sections, shall not be allowed in any manner to set oft" si'dl'^cie"
3 a demand against the executor or administrator, or against the estate of §: i; 123^/49!
4 the deceased. p. s. lei. § eo. r. l. i67, § 115.
By giving Bond.
1 Section 120. A defendant whose property has been attached on Attachments
2 mesne process in a civil action may, at any time before final judgment, ^^ng bond.
3 dissolve the attachment by giving a bond with sufficient sureties, who isioily^S^^"'
4 shall be approved by the plaintiff or by his attorney in writing, by a ols'm'uw
5 master in chancery or by a justice of a court of record if the attachment isVs, 68.'§ 2.
6 is made within the jurisdiction of his court, conditioned to pay to the p. s.'ioi. § 122.
7 plaintiff, within thirty days after final judgment in such action or after r.l.'i67,'§ii6.
8 the entry of any special judgment therein under chapter two hundred fcusMsf:
9 and thirty-five, such amount, if any, as he may recover; and also to s^Aneny'sll^'
10 pay to the plaintiff" the amount, if any, for which such special judg- Jo4Mass'356'
11 ment shall be entered. Sureties shall not be sufficient unless they are lu Mass. 101,
12 satisfactory to the plaintift", or unless the magistrate finds that each, if iisMass. 27,
13 there are only two, is worth, in excess of his indebtedness, an amount ne Mass. 527.
14 equal to that of the attachment; or, if there are more than two, that i'^ '^'''^=- ^ss.
15 they are together worth twice such amount.
121 Mass. 516. 141 Mass. 154. 169 Mass. 61.
122 Mass. 176. 150 Mass. 473. 174 Mass. 349.
123 Mass. 363. 156 Mass. 166. 183 Mass. 290.
130 Mass. 16. 164 Mass. 316. 235 Mass. 471.
133 .Mass. 461. 167 Mass. 222.
1 Section 121. Before such bond is approved, the defendant, or a Hearing before
2 person in his behalf, shall make application in writing to the magis- bond"^" °
3 trate, specifying therein the names and residences of the proposed i85oi27,^§ i.
4 sureties and, except in case the proposed surety is a surety company ^■st.ioo.^'"^'
5 qualified to do business in the commonwealth, therein setting forth the r f,' \?;7 I { if
6 property with which each of said sureties proposes to qualify, and in J^S^?^-*- 3,0
7 case said property, as so set forth, be realty, then giving the name of "
8 the town wliere the same is located. Notice of the time and place of the
9 hearing, containing a copy of the application to the magistrate, shall be
10 given to the plaintiff or his attorney as provided in sections twenty-six to
11 twenty-nine, inclusive, of chapter two hinidred and tliirty-tlu-ee; but
12 the plaintiff or his attorney may in writing waive such notice or may
13 approve the bond at any time.
1 Section 122. If the attachment is dissolved and the defendant pre- Fees to be
2 vails, his costs shall include the fees of the magistrate. defendant"
1850, 27, §2. G.S. 123, §106. P. S. 161, § 124. ™^'^-
1867, 137, § 2. 1881,100. R.L. 167, § US.
1 Section 123. Such bond and the bond required by section one Bondtobefiied
2 hundred and twenty-seven shall be filed by the defendant with the i87o!2™i,T5.
3 clerk of the court to which the writ is returnable, or in which the action p*|^.'io°i!| 125.
4 is pending, within ten days after its approval, and the attachment shall f22^jJaJs'.6'^'*'
5 not be dissolved until the bond shall have been so filed. The plaintift" l^l l\lf^ Yn
6 may take such bonds from the files upon leaving on file a copy thereof
2420 COMSIENCEMENT OP ACTIONS, SERVICE OF PROCESS. [CliAP. 223.
attested by the clerk; and the plaintiff may tax the cost of such copy 7
as part of his costs in an action on such bond. 8
^rlmnfin- Section 124. If, within four months after an attachment of property 1
i^9°470**°'^' ^^^^ been made on mesne process in a ci\'il action founded on a claim 2
Rl! 167. §120. which would, if proved, be barred by a discharge in insolvency of the 3
defendant and after such attaclunent has been dissolved as pro\'ided 4
in the four preceding sections, proceedings in insolvency are instituted 5
by or against the defendant, the action shall,' upon the suggestion of any 6
party interested, be continued to await the residt of such proceedings 7
in insolvency; and if the debtor receives liis discharge in insolvency, the 8
sureties on the bond given by him to dissolve the attachment shall be 9
released from all liability thereon. 10
v&u^l°^'^^ Section 125. A defendant may, at any time before final judgment, 1
ilaiTisr. release from attachment the property attaclied, or such part thereof as 2
1875 68^5 2^' ^® ^^y elect, by giving bond to the plaintiff with sufficient sureties, 3
issi] 100 who shall be approved by the plaintiff' or by his attorney in writing, by 4
1888, 405. § 2. ■ a master in chancery or by a iustice of a court of record if the attach- 5
R T lfi7 S 191 • •• ...
1916; 148. ■ ment is made w'ithin the jurisdiction of his court, conditioned to pay to 6
§^426.^^'^' the plaintiff within thirty days after final judgment in such action or 7
i92o! 2. after the entry of a special judgment therein under chapter two hundred 8
121 Mass' 276' ^"^ thirty-fivo the amount fixed as the value of the property so re- 9
122 Mass. 6 leased, or so much of said amount as may be necessary to satisfy the 10
191 Mass! 236! amount, if any, which the plaintiff may recover; and the property so 11
released shall be described in such bond. The defendant, or a person 12
in his behalf, may make written application to any magistrate who is 13
authorized to approve the sureties upon said bond in the county where 14
the property is situated, stating the names of the parties to the action, 15
the name of the officer who made the attachment, a description of the 16
property which he desires to release from attachment, the names and 17
residences of the proposed sureties, and, except in case the proposed 18
surety is a surety company qualified to do business in the common- 19
wealth, setting forth the property with which each of said sureties pro- 20
poses to qualify, and in case said property, as so set forth, be realty, 21
then gi\ing the name of ^e city or town where the same is located. 22
The magistrate shall forth^\'ith cause a copy of the application, with no- 23
tice of the time and place for the hearing, to be served upon the plaintiff, 24
if he resides in the county, otherwise upon the officer who made the 25
attachment; but the plaintiff or his attorney may in WTiting waive such 26
notice or may approve the bond or sureties at any time, or may agree 27
that the amount of the bond is sufficient wthout approAing the sureties, 28
in which case the appraisal hereinafter pro\'idetl for need not be made. 29
The notice shall be served twenty-four hours, at least, before the time 30
appointed therein for a hearing and as much earlier as the magistrate 31
may order. At the time and place appointed, after hearing the parties, 32
the magistrate shall appoint three disinterested persons to examine and 33
appraise the attached property described in the application, who shall 34
be sworn, shall appraise the property at its fair market value and shall 35
make return of their doings in writing to the magistrate at a time and 36
place fixed by him to which the hearing shall be adjourned. At such 37
adjourned hearing the defendant may give bond to the plaintiff, with 38
sureties, who shall be approved by the magistrate as herein provided. 39
Upon the filing of such bond, as is required by the provisions of section 40
Chap. 223.] commencement of actions, service of process. 2421
41 one hundred and twenty-three, the attachment upon the property de-
42 scribed therein shall be dissolved. When successive attachments in favor
43 of different plaintiffs are made upon personal property the defendant
44 may release from the attachments the property attached, or such portion
45 thereof as he may elect, by giving bond with sufficient sureties to be
46 appro\ed as hereinbefore provided. The sheriff of the county in which
47 the first attachment was made shall be the obligee on the bond, which
48 shall be deposited immediately after it is given with the clerk of the
49 courts for the same county, except that in Suffolk county it shall be
50 deposited with the clerk of the superior court for ci\'il business. The
51 bond shall be conditioned on the defendant's paying to such sheriff
52 within thirty days after final judgment in any such action or after the
53 entry of a special judgment in any such action under said chapter two
54 hundred and thirty-five, as the case may be, the amount fixed as the
55 value of the property so released, and the amount so paid shall be held
56 by the sherifP, after deducting the necessary charges, subject to the
57 attachments in the order in which tlTey were made, and shall be disposed
58 of in the same manner as the proceeds of attached personal property
59 sold under section eighty-seven.
1 Section 126. The magistrate may adjourn such hearing from time Fees.
2 to time. He shall determine the fees of the appraisers. The applicant Jig?; \Iq ^ *■
3 shall pay the fees of the magistrate and the appraisers; but if final r;l,\67,|i22;
4 judgment is in his fa^•or, they shall be taxed as a part of his costs. The
5 magistrate's certificate of the amount shall be filed before said fees are
6 allowed as a part of the taxable costs.
1 Section 127. If an attachment of real property is made under Dissolution of
2 sections sixty-seven and sLxty-eight, the person in whose name the ^eafty fraudu-
3 record title of the property attached stands, or a person in his behalf, ve"'!!*^"""
4 may, before final judgment, dissolve the attachment by giving bond to J|^^; J|^; ^ 3
5 the plaintiff, with sufficient sureties, conditioned to pay to him, if he is^s. 68j^§ 2.
6 establishes his title to the land in a writ of entry against the person p.s'i6l§i2s.
7 having the record title thereto at the time of the attachment, the as- r l.'i67.'§i23.
8 certained value of the land, or so much thereof as shall satisfy the 179 Mass! 537!
9 amount, if any, which the plaintiff shall recover upon final judgment, i^i Mass. 236.
10 or upon a special judgment under chapter two hundred and thirty-
11 five, in the action in which such attachment was made. All proceed-
12 ings recjuired in the two preceding sections shall apply to the dissolution
13 of an attachment under this section. In the trial of such writ of entry,
14 the record of the attachment and of final or special judgment, as the
15 case may be, in the action in which the attachment was made shall be
16 conclusive evidence of a momentary seisin of the land in the plaintiff to
17 enable him to maintain an action therefor upon his own seisin; but no
IS such writ of entry shall be brought after the expiration of one year from
19 the date of such final or special judgment. If the demandant recovers
20 judgment on such writ of entry, he shall not have an execution for
21 possession, but may have an execution for costs.
1 Section 128. A defendant may dissolve an attachment by deposit- DissoiuUon
2 ing with the attaching officer an amount of monev equal at least to the is97, 404.
3 amount of the ad damnum in the writ, which the officer shall hold in 2i2ivias3'. 4i6.'
4 place of the property attached and which shall be subject to be disposed
5 of in the same manner.
2422
COMMENCEMENT OF ACTIONS, SERVICE OF PROCESS. [Ch,\P, 223.
?ttachm'en"t of Section 129. A defendant whose individual property has been at-
ifropeny'of tachcd in an action against several defendants may dissoh'e such attach-
onedefendant. meut, or auv part thereof, in any of the modes provided in the nine
issi! loo! preceding sections. But the bond to dissolve such attachment shall be
R. L. 167, § 125; so conditioned as to apply only to a judgment recovered against such
" defendant alone or jointly.
By Appointment of Receiver.
StT°hmen"tby Section 130. An attachment of property on mesne process shall be
appomtmentof clissolved by the appointment by any court of competent jurisdiction in
1898, 420, 1 1 the commonwealth of a receiver to take possession of such property, if
19S Mass. 159, ■ tlic bill or petition praying for the appointment of such receiver is filed
in said court within four months after such attachment was made.
unless the court at any time, in its discretion, continues such attach-
ment for the benefit of the estate of the defendant. In such case, the
court may authorize the receiver to prosecute the action upon which the
attachment was made for the benefit of the estate of the defendant and
may make further orders to enable the receiver to recover for its benefit 10
the amount due to the plaintifl^ in the original action. 11
Discharge of
receiver,
1898, 420, § 2.
R. L. 167,§127.
198 Mass. 159,
590.
207 Mass. 62.
Section 131. If an attachment has been dissohed in the manner 1
provided in the preceding section, the proceedings for the appointment 2
of a receiver shall not thereafter be dismissed and the receiver discharged 3
until all the assets which have come into his hands as receiver have been 4
fully distributed or the claim upon which the attachment was made 5
has been fully paid and discharged, unless the debtor, before such dis- 6
missal, deposits with the officer who made the attachment such amount 7
of money as the court before which such receiversliip proceedings are 8
pending, after notice to the attaching creditor and a hearing, finds 9
reasonable for the protection of his claim in the action in which the 10
attachment was made. Such money shall be held by the officer in place 11
of the property held under the attachment before its dissolution and 12
shall be disposed of as such property would have been disposed of had 13
the attachment not been dissolved. 14
Dissolution of
attachment of
real estate by
plaintiff.
1907, 334, § 1.
1912, 459.
By Entry or Release in Registry of Deeds.
Section 132. An attachment of real estate shall be dissolved by an 1
entry on the margin of the attachment book in the registry of deeds in 2
which the attachment is entered, signed by the plaintiff in whose behalf 3
the attachment Avas made, or by his executor, administrator or attorney 4
of record, and attested by the register of deeds or by an assistant in his 5
office thereto duly authorized; or it may be dissolved by a release signed 6
and acknowledged by the plaintiff, or by his executor, administrator or 7
attorney of record, and filed in the registry of deeds, or by a certifi- 8
cate from the clerk of the court in which the action was pending that 9
the attachment has been dissolved or that the action has finally been 10
determined. 1 1
Such a release describing sufficiently for identification any particular 12
parcels of real estate shall dissolve an attachment in so far as it may 13
affect the particular parcels described. The aforesaid releases, certifi- 14
cates of court and partial releases, shall be filed in the registry of deeds 15
in the county or district where a certified copy of the original return of 16
attachment is filed as required by section sixty-three. 17
Chap. 224.]
AEREST ON CIVIL PROCESS.
2423
EXECUTION OF BONDS.
1 Section 133. A bond which is required to be given by a party to a Execution of
2 civil action or proceeding may be executed by any person other than isesfiss.
3 the party to the action or proceeding, and may be approved in the i? a'l^e^®^ 104.
4 same manner as if executed by such party, if it appears to the magis- fge^JaJs ssl*'
5 trate who approves it that there is good reason why it is not executed les Mass. 415.
6 by him.
REFERENCES.
§6.
Service of process in penal and reformatory institutions, Chap. 127
Completion of service after death of officer. Chap. 235, § 49.
Attachment of property of deceased person, Chap. 230, § 7.
§§ 38, 40. Service on general agent of foreign e.xpress company. Chap. 159, § 5.
§§ 62-70. Attachment of registered land. Chap. 1S5, §§ 78-83.
§ 71. Attachment of shares of stock in equity. Chap. 214, § 3, cl. 8.
§§ 103, 120-129. Wherever two sureties are required, a surety companj' may be
sole surety, Chap. 175, § 105.
CHAPTER 224.
ARREST ON CIVIL PROCESS.
Sect.
1. Definitions.
2. Form and requisites of certificate for
arrest on mesne process.
3. Women exempt from arrest on mesne
process except in tort.
4. No arrest on mesne process in slander
or libel.
5. Reduction of ad damnum. Discharge
if arrest unjust, etc.
6. Arrest on execution. Application for
certificate, etc.
7. Venue of application for certificate.
8. Issue and service of notice on applica-
tion for arrest.
9. Form of notice.
10. Examination. Default and nonsuit
and removal thereof. Arrest on origi-
nal or successive execution.
11. Commitment for contempt because of
transfer of property pending exami-
nation. Exceptions.
12. Production or assignment of debtor's
property.
13. Redemption of property transferred.
14. Refusal or acceptance by creditor of
transfer.
15. Subsequent application for arrest.
16. Affidavit not required, when.
17. Arrest after sunset.
IS. Further arrest.
DISCHARGE FROM ARREST.
19. Time allowed to procure bail, etc.
20. Recognizance, etc.
Sect.
21. A person surrendered, etc., may recog-
nize anew.
22. Debtor may take oaths without sur-
render.
23. Notice of desire to take oath.
24. Service of notice.
25. New notice.
26. Examination of debtor.
27. Certain recognizances may be accepted
on Sunday.
2S. Defendant not recognizing may be im-
prisoned.
29. Discharge upon taking oath that de-
fendant does not intend to leave com-
monwealth.
30. Examination of poor debtor.
31. Discharge upon non-payment of fees,
etc.
32. If magistrate is satisfied, etc., he may
administer oath.
33. Certificate of magistrate, and effect of
discharge. Death of creditor.
34. Discharge of person giving bail or on
execution not requiring certificate.
35. Debtor not entitled to oath after scire
facias, unless.
IMPRISONMENT.
36. Commitment when arrested on mesne
process.
37. Commitment when arrested on execu-
tion.
38. Support in jail and discharge. Effect.
39. Property liable for support.
2424
ARREST ON CIVIL PROCESS.
[Ch.u>. 224.
Sect.
40. Charges of fraud, plea, etc.
41. Appeal, recognizance and proceedings
in superior court.
42. Evidence.
43. Oath may be denied. Sentence. New
application.
44. Discharge of debtors of commonwealth.
45. Same subject.
46. Appointment of special counsel.
47. Insane debtors.
48. Discharge upon final judgment.
49. Bond by person surrendered by bail
after final judgment.
50. Debtor may be committed within
thirty days after judgment.
61. Surrender of principal on recognizance.
52. Remedy on recognizances and bonds.
53. Remedy for an escape.
54. Continuance if magistrate fails to at-
tend.
55. Defendant not to be defaulted if magis-
trate absent, etc.
56. Appeals.
Sect.
57. Habeas corpus.
58. Notices, etc., to be under seal of court.
Affidarits.
PROCEEDINGS AGAINST FEMALE JUDGMENT
DEBTORS.
59. Citation and service.
60. Recognizances of female judgment
debtors.
61. Second default. Penalty.
62. Surrender of property.
63. Arrest on capias after sunset.
64. Property fraudulently conveyed by her.
65. Contempt by fraudulent transfer.
66. Second examination, when.
GENERAL PROVISIONS.
67. Judgments in favor of the common-
wealth, how enforced.
68. Effect of insolvency or bankruptcy.
69. Same subject.
70. Adjournment.
Definitions.
1888,419. § 12.
1898. 559.
1899. 445, 5 2.
R. L. 168. 1 68.
Section 1. The ^\-ord "court", in this chapter, shall include a 1
justice of such court, and a special justice thereof when exercising the 2
functions of a justice. i9i". 326. 3
Form and
requisites of
certificate for
arrest on
mesne process.
1830, 131, 4 1.
1834, 167, I 1.
R. S. 90, § 111
97, § 44.
1854, 63.
1855, 249, § 1 ;
444, § 11.
1857, 141, § 17
1859, 166. § 2.
G. S. 124,
§§1.2.
1873, 353. § 2.
P. S. 162,
I§1,2.
1901, 343.
R. L. 168.
§§1,2.
1910, 480.
1916, 272,
§11.2.
1918, 257,
§427.
1919,5.
1920, 2,
7 Gray, 59.
13 Gray, 575.
2 Allen, 431.
115 Mass. 236.
139 Mass. 461.
167 Mass. 31
190 Mass. 3'
197 Mass. 22,
200 Mass. 429.
212 Mass. 485.
Section 2. No person shall be arrested on mesne process unless 1
the plaintiff, or if the action is brought in behalf of the plaintiff by 2
a guardian, conservator or next friend, or, where there are several plain- 3
tiffs, one of the plaintiffs or a guardian, conservator or nexi; friend of 4
one of the plaintiffs acting as such in the action, or, in the case of a 5
corporation, an officer thereof, makes affidavit and proves to the satis- 6
faction of the court to which the writ is returnable — 7
First, That one of the parties is a resident of or has a usual place 8
of business in the commonwealth, and, except in actions upon negoti- 9
able instruments, that the plaintiff is an original party to the cause of 10
action or is his executor or administrator; 11
Second, That he has a good cause of action and reasonable expecta- 12
tion of recovering a sum amounting to twenty dollars exclusive of costs 13
which have accrued in any former action, in an action of contract, or an 14
amount equal at least to one third of the ad damnum in an action of tort; 15
Third, That he belie^'es and has reason to believe that the defendant 16
intends to lea-ve the commonwealth so that execution, if obtained, can- 17
not be served upon him; 18
Fourth, That he knows of no property of the defendant M'ithin the 19
78. commonwealth which can be reached by attachment or otherwise, suf- 20
ficient to satisfy any judgment he may recover; 21
Fifth, That he believes and has reason to believe that the defendant 22
has property, not exempt from being taken on execution, which he does 23
not intend to apply to the pajmient of the plaintiff's claim; 24
Or, instead of the third, foiuth and fifth, that the defendant is an 25
attorney at law or a person, member of a firm, agency or association 26
engaged in the business of collecting money, and that the debt sought 27
to be recovered is for money collected by the defendant for the plaintiff 28
and that the defendant unreasonably neglects to pay. 29
Chap. 224.] arrest on civil process. 2425
30 Such affidavit, and the certificate of the court that it is found to be i04 Mass. 354.
31 true, shall be annexed to the writ. The court may refuse such certifi- Ifl ulll'. lli.
32 cate if an arrest in the particular case would be unjust or unnecessary.
33 No arrest shall be made after sunset unless expressly authorized in the
34 certificate for cause. '
1 Section 3. No woman shall be arrested on mesne process except for women eiempt
2, , from arrest on
LOrt. mesne process
1S31, 131, § 2. 1855, 444, § 15. G. S. 124, § 7. R. L. 168, § 3. except in tort.
R. S. 97, § 46. 1857, 141, § 30. P. S. 162, § 3. 151 Mass. 363.
1 Section 4. No person shall be arrested on mesne process in a civil No arrest on
2 action for slander or libel. in slander or
1855, 249, § 2. G. S. 124, § 3. P. S. 162, § 3. R. L. 168, § 3. ''''^''
1 Section 5. The court issuing the process upon which the arrest Reduction of
2 was made may, on motion, reduce the ad damnum of the writ, or, if the Discharge if'
3 arrest was unjust or unnecessary, discharge the defendant from arrest. etT^' unjust,
1S9S, 397. R. L. 168, § 4. 1916, 272, § 3.
1 Section 6. Except as otherwise provided in this chapter and ex- Arrest on
2 cept in actions of tort, no person shall be arrested on execution in a AppiiSin for
3 civil action, unless the creditor or a person in his behalf, after execution il'iof m^' '"'^'
4 has issued on which there remains uncollected at least twenty dollars, J^gg' \l\- ^ ,
5 exclusive of costs which have accrued either in the last action or in any Jlgl' ^V,^ ■**•
6 action founded on the same orginal cause of action, makes application §§ i-3.
7 for a certificate authorizing such arrest, files affidavit with and proves to §§ i-a.
8 the satisfaction of a district court that he believes and has good reason iseo, 215'. 1 1.
9 to believe —
p. S. 162, § 17. 1917, 326. 117 Mass. 1. 162 Mass. 339.
1888, 419, § 1. 3 Gray, 496. 139 Mass. 458, 461. 166 Mass. 226.
1891, 407. 98 Mass. 530. 146 Mass. 89. 220 Mass. 137.
R. L. 168, § 17. 99 Mass. 36. 149 Mass. 96. 136 U. S. 468.
10 First, That the debtor has property, not exempt from being taken on 13 Gray, 575.
11 execution, which he does not intend to apply to the payment of the loeMassrsoi.
12 plaintift"'s claim; or 127 Mass. 550.
131 Mass. 204. 137 Mass. 467. 162 Mass. 17, 45. 189 Mass. 507.
13 Second, That, since the debt was contracted or the cause of action i30Mass. i89.
14 accrued, the debtor has fraudulently conveyed, concealed or otherwise
15 disposed of his property or a part thereof, with intent to secure it to his
16 own use or defraud his creditors; or
17 Third, That, since the debt was contracted or the cause of action isi Mass. 419.
18 accrued, the debtor has hazarded and paid money or other property
19 to the value of one hundred dollars or more in gaming prohibited by
20 the laws of the commonwealth; or
21 Fourth, That, since the debt was contracted, the debtor has wilfully
22 expended and misused his property or a part thereof to enable him to
23 swear that he has not property to the amount of twenty dollars, not
24 exempt from being taken on execution; or
25 Fifth, If the action was founded on contract, that the debtor con- 124 Mass. 92.
26 tracted the debt with intent not to pay it; or iss Mass. 384. i46 Mass. 439.
27 Six-th, That the debtor is an attorney at law or a person, member 1859, lee. § 2.
28 of a firm, agency or association engaged in the business of collecting
29 money, and that the debt upon which the judgment was recovered was
30 for money collected by the debtor for the creditor, which the debtor
31 unreasonably neglects to pay.
2426
ARREST ON Cr\'IL PROCESS.
[Ch.^. 224.
1S91, 407, § 1.
104 Mass. 354.
130 Mass. 29S.
144 Mass. 151.
149 Mass. 96.
153 Mass. 541.
196 Mass. 571.
Such affidavit, and the certificate of the court that there is reason- 32
able cause to beheve that one or more of the charges therein contained 33
are true, shall be annexed to the execution. If a debtor is entitled to 34
notice under section eight, such affidavit may, unless the court other- 35
wise orders, be made at any time before the certificate is issued. 36
Venue of
application for
certificate.
ISSl, 263. § 3.
P. S. 162, § 17.
R. L. 168, § 17.
1920, 378.
Section 7. If a debtor lives or has his usual place of business in 1
any county in the commonwealth, except INIiddlesex and Suffolk, the 2
application for such certificate shall be made before a district court 3
within whose judicial district he lives or has his usual place of business. 4
If he lives or has his usual place of business in Middlesex or Suffolk 5
county, the application shall be made before any such court within the 6
county. If he does not live or have his usual place of business in the 7
commonwealth, the application may be made before any such court in 8
anv countv. 9
Issue and
service of
notice on ap-
plication for
arrest.
1877, 250,
§§ 1,5.
1879, 283, § 2.
P. S. 162,
§§ IS, 25.
1SS7, 442,
§§ 1.2,4.
1888, 419,
§§ 2, 4.
1889,415, § 1.
R. L. 168, § IS.
129 Mass. 40.
131 Mass. 204.
1.34 Mass. 391,
473.
145 Mass. 221.
153 Mais. 541.
Section 8. A court to which application is made for a certificate,
under section six, shall, unless the creditor or a person in his behalf
makes affidavit and proves to the court that there is reason to be-
lieve that the debtor intends to leave the commonwealth, issue notice
to the debtor to appear before the court for examination upon any or
all of the charges specified in said section. Such notice shall specify
the charges on which the creditor intends to examine the debtor, and
may be served, by an officer qualified to serve civil process, by deliver- 8
ing to the debtor, or leaving at his last and usual place of abode, an 9
attested copy thereof, allowing not less than three days before the time 10
fixed for the examination, and at the rate of one hour additional for 11
each mile of travel. 12
162 Mass. 17, 45.
174 Mass. 307.
175 Mass. 451.
Form of
notice.
1877, 250, § 6.
P. S. 162, § 19.
R. L. 168, § 19.
217 Mass. 71.
Section 9. Such notice shall be substantially as follows:
To A. B.
C. D., the judgment creditor named in an execution against you, dated
, issued from (the court), having applied for a certificate au-
thorizing your arrest, you are hereby notified to appear before (name of the
court) at (the place of examination) on the day of
at o'clock in the noon for examination upon the following
charges, to wit: (Here specify the cliarges on which the debtor is to be
examined.)
Date, signature and teste as provided in section fifty-eight.
Examination.
Default and
nonsuit and
removal
thereof.
Arrest on
original or
successive
execution.
1877, 250, § 2.
1879, 283, § 1.
1881,263, § 2.
P. S. 162, § 20.
1887, 442,
§§2,4.
18.S9, 415, § 3.
1890, 128.
1897, 382.
R. L. 168, § 20.
1906, 203, I 1.
1914.429.
164 Mass. 150.
195 Mass. 440.
196 Mass. 571.
224 Mass. 122.
136 U. S. 468.
Section 10. If the debtor appears as ordered, he shall be examined 1
on oath on the charges specified in the notice. The examination shall 2
be oral or -^sTitten and in the presence of the court or otherwise, as it 3
may order. Either party may offer additional e^■idence. If written, 4
the examination of the debtor shall be signed and sworn to by him 5
and preserved by the court. If the debtor fails to appear at the ex- 6
amination or at any continuance thereof, or to comply with all lawful 7
orders of the court, or if at least one of charges numbered two to sLx, 8
inclusive, of section six is proved, the certificate may issue authorizing 9
arrest on the original or a successive execution; provided, that no cer- 10
tificate shall issue until the expiration of twenty-four hours from a 11
default of the debtor. If a debtor or creditor fails to appear at any 12
time when required by the court, a default or nonsuit shall be entered, 13
which may be removed and further proceedings had, upon motion 14
Chap. 224.] arrest on cia'il process. 2427
15 made within twenty-four hours after such default or nonsuit, if the
16 court is satisfied that failure to appear was not due to the fault of the
17 party not so appearing. If the execution expires while the proceeding
18 is pending, the arrest may be authorized on a successive execution. If
19 an execution to which a certificate has been attached expires before
20 arrest has been made thereon, a copy of the original certificate, certified
21 by the clerk of the court, when affixed to any successive execution, shall
22 have the same force as if the original certificate were thereto affixed.
1 Section 11. If at such examination it appears that after service Commitment
2 of the notice, and pending proceedings thereon, the debtor has con- b°ecaure o?"*
3 veyed, assigned or transferred property or money not exempt from propfrTy"^
4 being taken on execution with intent to prevent it from being trans- ^^"in'a'tfon''"
5 ferred to the creditor or applied by said proceedings to the satisfaction Fg^glPl''?,''*; ,
6 of the execution, and the court so certifies, the debtor may be com- i89o!i28.'
7 mitted as for contempt. This section shall not apply to payment of a iss Mass'. 220.'
S debt for necessaries, or pajTuent on an execution on which the debtor
9 has been previously cited to appear under this chapter, or payment of
10 a reasonable counsel fee relating to the examination.
1 Section 12. If it appears that the debtor has property above the Production
2 amount of twenty dollars, not exempt from being taken on execution, "f debforT"'
3 he shall, if possible, produce the excess to be taken on the execution ?s77?25o. § 3.
4 or otherwise applied to the satisfaction of the judgment and the costs p^s'i^^i'^ii
5 of the proceedings. If such excess cannot be taken on the execution, r.l. los. §22,
. . 189 Mass 34
6 the court shall order the debtor to execute and deliver to the creditor, ipi m^ss! 92!
7 or to a person in his behalf, a transfer, assignment or conveyance
8 thereof, in such form as it may determine.
1 Section 13. A debtor may redeem real property so transferred Redemption
2 within one year and personal property within sixty days from the date transf^ml
3 of such transfer, assignment or conveyance, upon payment of said debt ^p.'i.' it^.' Hi.
4 and costs and the necessary expense actually paid by the creditor for ^- ^- ■"'®' ^ ^•'■
5 the care or custody of such property. If not so redeemed, the property
6 shall forthwith be sold at public auction, unless otherwise provided in
7 the instrument of transfer, and the proceeds, less the expenses of such
8 sale, shall be applied to the payment of said debt and costs, and any
9 excess shall be paid to the debtor; or the creditor may take said prop-
10 erty at a valuation fixed by the debtor in such instrument and apply
11 such amount as aforesaid.
1 Section 14. The creditor may refuse to accept a transfer or assign- Refusal or
2 ment. His acceptance thereof shall not impair his right to have his credit'o1-°oF ^^
3 execution satisfied in whole or in part by a levy on other property. If '/g^y^/ Iso, § 3
4 the execution, after such transfer or assignment has been made and ^ | Yol § 2.i
5 before the sale of the property conveyed thereby, is satisfied in full, the
6 creditor shall forthwith reconvey said property to the debtor.
1 Section 15. If the debtor complies with all lawful orders made by Subsequent
2 the court, and if the truth of one at least of charges two to six, inclu- forVrrSt."
3 sive, set forth in section six is not proved, the certificate shall not be I^s^'uf2°'/24.
4 granted, and the judgment creditor shall not, within three years there- jf^L'iusfls
5 after, make application for the arrest or examination of such debtor 127 Mass'. s5o.
6 upon the same charge a,nd cause of action.
2428
ARREST ON CIVIL PROCESS.
[Chap. 224.
Affidavit not
required, when.
G.S. 124. § 6.
1862, 169, § 2.
P. S. 162, § 5.
R. L. 168. § 26.
12 Allen, 71.
143 Mass. 1S7.
Section 16. A certificate shall not be required to authorize arrest 1
upon an execution issued for costs only or upon an execution issued 2
upon scire facias or other suit upon a recognizance against bail or sure- 3
ties in a criminal case, if the debtor neglects upon demand of the officer 4
having such precept to deliver to him property, not exempt from levy, 5
sufficient to satisfy such execution. A debtor so arrested shall be com- 6
mitted on the execution unless he requests the officer to take him before 7
a court or magistrate named in section nineteen. 8
Arrest after
sunset.
Section 17. \Miere a certificate is required under section six, no 1
1857' i4i' 1 3o' ^'■rest shall be made after sunset unless expressly authorized in the 2
G. s.' 124,' § 8. certificate for cause. 3
p. S. 162. § 26.
R. L. 1C8, § 27.
1911. 192, § 4.
104 Mass. 354.
129 Mass. 156.
134 Mass. 391.
i896!'247."^^*' Section 18. A person, under arrest by a constable on mesne process
R.L. 168, §28. Qj. execution, may be further arrested by a sheriff or his deputy upon a
writ or execution which such constable is not qualified to serve, and
thereupon said constable shall deliver such person to said officer, make
return upon his writ or execution of his doings thereon and deliver it to
said officer, who shall hold such person in arrest thereunder and com-
plete the service thereof.
Time allowed
to procure
bail, etc,
1787, 29,
§§1,2.
R. S. 98.
§§ 1,4.
1853, 413.
1855, 444, § 12.
1857, 141,
§§ 4, 18; 258.
G. S. 124, § 9.
1873, 352, § 3.
P. S. 162, § 27.
1888, 419, § 5.
1889, 415,
§§5,6.
R. L. 168, § 29.
1917, 326.
7 Allen, 349.
100 Mass. 300.
143 Mass. 187.
157 Mass. 374.
236 Mass. 93.
DISCHARGE FROM ARREST.
Section 19. When arrested on mesne process, a defendant shall 1
be allowed reasonable time to procure bail, and when so arrested, or 2
arrested on execution, he shall be allowed reasonable time to procure 3
sureties for his recognizance. When arrested on mesne process, if he 4
does not give bail, and when arrested on execution in any case, he shall 5
be taken before a district court, or if he wishes to recognize, he may be 6
taken before a master in chancery. If the arrest is made when the 7
court is not sitting and the defendant or debtor does not desire to give 8
bail or to recognize, the officer making the arrest may deliver the de- 9
fendant or debtor to the keeper of the jail, to be there detained until 10
the next sitting of the court for the transaction of business, when he 11
shall be delivered to said officer to be taken before the court. The 12
officer making the arrest shall pay in advance to said keeper, for the 13
support of the defendant or debtor, twenty-five cents for each day's 14
detention, which shall be charged with the expenses of serving the writ 15
or execution. 16
Recognizance.
1855. 444,
§§4,9,12.
1857, 141,
§§ 10. 18.
G. S. 124. § 10.
P. S. 162. § 28.
1888.419. § 6.
1891, 271.
R. L. 168, § 30.
10 Gray, 236.
11 Gray, 226.
13 Gray. 396.
14 Gray, 324,
579.
16 Gray, 169.
1 Allen, 456.
463.
4 Allen, 72.
Section 20. When taken before the court or magistrate, the de- 1
fendant or debtor may recognize with surety or sureties in a sum not 2
less than the amount of the execution, or of the ad damnum in the 3
writ if he is arrested on mesne process, that within thirty days from the 4
day of his arrest he will deli%'er himself up for examination before a dis- 5
trict court, giving notice of the time and place thereof as herein pro- 6
vided, and appear at the time fixed for his examination and from time 7
to time until the same is concluded, and not depart without leave of 8
court, making no default at any time fixed for his examination, and 9
abide the final order of the court thereon; but if he is arrested on mesne 10
process and the writ is returnable within thirty days, the number of 11
Chap. 224.] arrest on civil process. 2429
12 clays within which he shall deliver himself up shall be limited by the sAiien.sss.
13 court or magistrate so as not to extend beyond the return day of as?!'""' ^*^'
14 the writ. 7 Alien, 349, 466.
' 8 Allen, 150. 122 Mass. 412, 534. 167 Mass. 327.
10 .yien, 344. 123 Mass. 333. 168 Mass. 102.
14 Allen, 156, 511, 514. 124 Mass. 260. 359, 557. 169 Mass 61
98 Mass. 31, 530. 126 Mass. 310. 177 Mass. 206.
99 Mass. 36. 130 Mass. 557. 180 Mass. 99.
103 Mass. 549. 142 Mass. 107. 184 Mass 92.
104 Mass. 221. 143 .Mass. 187. 193 Mass, 203.
106 Mass. 118. 144 Mass. 14, 79. 195 Mass. 440.
109 Mass. 61, 503. 146 Mass. 89. 201 Mass. 385.
Ill Mass. 484. 148 Mass. 448. 211 Mass 69
113 Mass. 355. 149 Mass. 221. 216 Mass. 242.
116 Mass. 487. 157 Mass. 508. 221 Mass 49.
117 Mass. 1. 162 Mass. 17. 226 Mass. 80.
118 Mass. 135. 163 Mass. 20. 232 Mass. 44.
120 Mass. 147, 240, 594. 165 Mass. 106. 233 Mass. 99
121 Mass. 283,316, 415. 166 Mass. 296. 236 Mass. 93.
1 Section 21. If a debtor arrested on execution is surrendered by his a person
2 surety, he may recognize anew for such appearance at the time, place et",™my""^"
3 and upon the conditions expressed in the former recognizance. anew'"''^
G. S. 124, §11. ■ P. S. 162, §29. R. L. 1C8, §31. 104 Mass. 433.
1 Section 22. A defendant arrested on mesne process who has recog- Debtor may
2 nized or given bail may, without a surrender by his sureties, take the witSo'S*''^
3 oath that he does not intend to leave the commonwealth, or the oath \f{i^i-^2, § i.
4 for the relief of poor debtors; and the taking of either of said oaths £• f • ^,% H^-
,,,,., ,' . ° K. L. 168, S 32.
5 shall discharge the sureties. i66 Mass. 296.
1 Section 23. If the defendant or debtor, when taken before the Notice of
2 court, or at any time when entitled thereto, desires to take an oath as ^l™^ *" '"''^
3 hereinafter provided, and to have a time fixed therefor, a district court lH^Zsif'll'
4 in the county where the arrest was made shall fix a time and place for 1^*1-? '■'. § 1.
..•^PiiP, ,, ,. . ,^ „ 1759-00, 12, § 1.
5 examination 01 the defendant or debtor and issue a notice thereof to 1762-3, is, § 1.
6 the plaintift' or creditor, substantially as follows : 1S34! le?, § 2.
R. S. 98,
Tn A K 55 2, 18.
1 u .A. £>. 1842, 56, § 1.
C. D., arrested on mesne process (or execution) in your favor, desires to take 1S44,' 154,
the oath for the relief of poor debtors (or the oath that he does not intend to HjI' ]^^^^
leave the commonwealth) at (naming the day, hour and place). §§4,'5, 12.
Date, signature and teste as provided in section fifty-eight. 11^4 '5*18 20
23; 258.
7 A defendant arrested on mesne process may give notice of a desire to ^^j f2/23,'
8 take both oaths, in which case the form may be varied accordingly. ^g|j ^^^^ iV-
R. L. 168, § 33. 8 Allen, 148. 126 Mass. 186.
i917, 326. 14 Allen, 29. 129 Mass. 451.
8 Gush. 289. 105 Mass. 341. 195 Mass. 440.
1 Gray, 167. 106 Mass. 1 IS. 201 Mass. 385.
8 Gray, 244. 109 Mass. 216. 211 Mass. 69.
1 Allen, 461. Ill Mass. 76. 216 Mass. 242.
7 Allen, 346, 354, 466. 124 Mass. 397, 399.
1 Section 24. Such notice shall be served by an officer qualified to Service of
2 serve civil process, by giving to, or leaving at the last and usual place 1736^7, 13, § 1.
3 of abode of, the plaintiff or creditor, or his agent or attorney, an at- 1741I2! of '§ V^'
4 tested copy thereof. The time of service shall be not less than one 1to2-3°'i8^m''
5 hour, and, if made at the last and usual place of abode, not less than J^w, 29, § 1.
6 one day, before the time fixed for examination, and not less than one 1S34! 167, § 2.
7 hour additional for each mile of travel shall be allowed. If there is 3, laVu.
8 more than -one plaintiff or creditor, or more than one agent or attorney, isll' 154, ''
9 service on one shall be sufficient. If the plaintiff or creditor is dead 1855.444.
10 or not a resident of the county where the arrest is made, and no such fg^' uV'^
11 agent or attorney is found therein, the notice may be served on the f|4. 5^
12 officer who made the arrest. The person who made the writ may be iseV, 112.
2430
AEREST ON CIVIL PROCESS.
[Chap. 224.
p. S. 162, §
R. L. 168, §
3 Met. 568.
11 Met. 73.
II deemed the attorney of the plaintiff or creditor, if an arrest is made 13
on the writ or on an execution issued thereon. 1-i
7 Cush. 263. 265.
1 Gray, 167.
10 Grav, 236.
1 .\llen, 456, 541.
2 Allen. 73.
4 Allen, 70.
7 Allen, 354.
9 Allen, 376, 378.
13 Allen, 39S.
101 Mass. 313.
103 Mass. 354.
104 Mass. 221.
109 Mass. 216.
112 Mass. 58.
113 Mass. 507.
114 Mass. 74.
115 Mass. 236, 358.
119 Mass. 191. 465.
121 Mass. 319.
123 Mass. 52.
124 Mass. 178, 181.
132 Mass. 214.
135 Mass. 411.
145 Mass. 340, 354.
174 Mass. 307.
195 Mass. 440.
229 Mass. 160.
New notice.
R. S. 98, § 39.
1848, 286.
1850,212.
1857, 141, § 27.
G. S. 124, § 14.
P. S. 162, § 33.
1888,419, § 8.
R. L. 168, I 35.
1 Allen. 541.
103 Mass. 549.
Section 25. If a defendant or debtor gives notice of a desire to
take the oath for the rehef of poor debtors, a new notice thereof shall
not be given within seven days from the service of the former notice,
unless the former notice was insufficient in form or service. If such
oath has been refused, the defendant or debtor shall not make a new
application therefor within seven days from the hour of such refusal.
105 Mass. 389.
113 Mass. 355.
124 Mass. 401,
125 Mass. 425.
128 Mass. 404.
157 Mass. 508.
158 Mass. 328.
159 Mass. 507.
232 Mass. 44.
Examination
of debtor.
1855. 444, § 5.
1S57. 141,
§§ 6, 7.
Section 26. If notice issued under section twenty-three has been 1
duly served, the court shall attend at the time and place therein speci- 2
fied, and examine the defendant or debtor as provided in this chapter. 3
G. S. 124. §15. R. L. 168. 5 36. 6 Allen, 287
1860. 215. § 2.
P. S. 162, § 34.
1888, 419, § 9.
3 Met. 568.
6 Gray, 251.
13 Grav, 396.
Ill Mass. 481.
122 Mass. 412.
132 .Mass. 214.
Certain
recognizances
may be ac-
cepted on
Sunday.
R. S. 98, § 37.
1855, 444,
§§9,12.
1857, 141,
§§ 10, 18.
G. S. 124, § 17.
P. S. 162, § 36.
R. L. 168. § 38.
1915, 9.
I Allen, 463.
6 Allen, 288.
7 Allen, 266,
360.
8 Allen, 148.
150.
9 Allen, 379.
II Allen, 395.
Section 27. Pending the examination and at any time after the 1
defendant or debtor is taken before a court, a court or magistrate 2
named in section nineteen may accept his recognizance with surety in 3
a sum not less than the amount of the execution, or of the ad damnum 4
in the -RTit if he is arrested on mesne process, that he will appear at the 5
time fixed for his examination, and from time to time until the same 6
is concluded, and not depart without leave of court, making no default 7
at any time fixed for his examination, and abide the final order of the S
court thereon. No recognizance under this chapter, except in case of 9
appeal under section forty-one, shall be accepted after the oath has been 10
once refused. Any recognizance authorized by this chapter may be 11
accepted on Sunday. 12
120 Mass. 240. 121 Mass. 415. 123 Mass. 333. 126 Mass. 310.
Defendant not
recognizing
may be
imprisoned.
1889,415, § 4.
E. L. 168, 1 39.
Section 28. If a defendant or debtor desires to take an oath and 1
to have a time fixed for his examination, but does not recognize to the 2
satisfaction of the court, it may make a certificate thereof, which shall 3
be attached to the writ or execution, and the defendant or debtor shall 4
be committed to jail until the next sitting of the court for the trans- 5
action of business or until the time fixed for his examination, when he 6
shall be delivered by the jailer to the officer who made the arrest, to be 7
b-\' him taken before the court. 8
Discharge
upon taking
oath that
defendant
does not intend
to leave com-
monwealth.
1855, 444, § 12.
1857, 141, § 20.
G. S. 124, § IS.
1873, 352,
§§ 1,3.
1877. 250, § 5.
Section 29. If a defendant or debtor, arrested on mesne process, or
on execution under section six without notice, has given notice that he
desires to take an oath that he does not intend to leave the common-
wealth, he shall be examined relative thereto, and either party may
introduce additional evidence. If the court is satisfied that the defend-
ant or debtor did not when arrested, and does not at the time of ex-
amination, intend to leave the commonwealth, it shall make certif-
Chap. 224.] akrest on civil process. 2431
8 icate thereof, and discharge the defendant or debtor from arrest; and rl\6|\4o
9 immediately upon such discharge, if the creditor so desires, such debtor 127 isiass' eo.
,- , „ , • 1 • 1 , !• ,1 • 1 . . • liiO Mass. 317.
10 shall be required, without further notice, to submit to examination 200 Mass. 429.
11 under sections ten to fifteen, incliisi\e, upon the charges in the affidavit
12 annexed to the execution on which he was arrested.
1 Section 30. If the defendant or debtor has given notice that he Examination
2 desires to take the oath for the relief of poor debtors, the court shall i.sit'.Tsk? § r'
3 examine him on oath relative to his property, the disposal thereof and l^'^s.'gs.'^' ^ ^'
4 his ability to pay the debt or satisfy the cause of action for which he \l^{ gv,^^- 3.
5 is arrested; and either party may introduce additional ervidence. The }s*5^444 se
6 plaintiff or creditor may upon such examination propose to the de- iss^! 141!
7 fendant or debtor interrogatories pertinent to the inquiry, and the g.s'. 124, § 19.
8 examination may be, at the discretion of the court, oral or written, in r.l.\o8,'§41.
9 which latter case it shall be signed and sworn to by the defendant or Ins'^Ma" s. 40^4.
10 debtor, and preserved by the court.
1 Section 31. If the plaintiff or creditor, after request, makes de- Discharge upon
2 fault in payment of the fees, or if the plaintiff or creditor or a person SffeesyeTc."
3 in his behalf does not attend the examination, the defendant or debtor Jlsf; Itt', § it'.
4 shall, without examination and without pa^Tnent of fees, be discharged pfiU'lel'
5 from arrest or imprisonment and shall be exempt from further arrest f^nen'^tb^*^'
6 upon the same execution or any process founded on the judgment, and 9 Alien! 37s:
7 a certificate of such discharge signed by the court shall be annexed to i33Massl256;
8 the writ or execution; but if, after the oath has once been refused, the
9 defendant or debtor again applies for the benefit thereof, the fees for
10 such subsequent application or examination thereon shall be paid by
11 him.
1 Section 32. If, upon the examination, the court is satisfied that 'Jg'ljf^g'^'"^
2 the facts set forth in the oath to be taken by the defendant or debtor, etc , he may
3 and in the certificate provided for in the following section, are true, it oath.
4 shall administer to him the following oath: 1727-8, 9 § i
1732-3,7, § 1.
OATH FOR THE RELIEF OF POOR DEBTORS. 1737-8! iV! § 1.
I (repeat the name) do solemnly swear that I have not any property to the 1759-60. 12, §i.
amount of twenty dollars except the property which is by law exempt from }787"29's'2^ ''
being taken on execution, but not excepting intoxicating hquors; and that I 1805', ibb, § 2.
have not any other property now conveyed, concealed, or in any way disposed j|J^' J^j, , j
of, with the design to secure the same to my own use or to defraud my creditors. 1834! 167! § 2.
So help me God. R. s. 9S, §§ 8, 9, 21. , 1S55, 444, §§ 6, 12.
1857, 141, §§ 8, 19. p. S. 162, § 39. 137 Mass. 467.
G.S. 124, §21. R. L. IBS, §43. 159 Mass. 446.
1873, 343. 9 Allen, 376.
1 Section 33. After administering the oath, the court shall make a Certificate of
2 certificate thereof as follows: "n'd^effe*t''of
discharge.
, ss. This certifies that A. B., a poor prisoner arrested upon execution, JJ^j'^^"'
(or on mesne process,) has caused E. F., the creditor (or plaintiiT) at whose suit :698. ii'. § 5.
he is arrested, to be notified according to law of his desire to take the benefit of Jlgglj' Jj* ^■
the law for the relief of poor debtors; that it appears that said A. B. has not §§ i,6.'
any property to the amount of twenty dollars, except the projierty which is by 1P,~~|' ^^'
law exempt from being taken on execution, but not excepting intoxicating liquors; i74i'-2', 6,
and has not any other property now conveyed, concealed or in any way disposed ||-1;_bq jj
of, with design to secure the same to his own use or defraud his creditors. And §§ i. 4. '
after due examination of said A. B., the oath for the relief of poor debtors was H^w' '*■
administered to him. 1787, 29.
Date, signature and teste as provided in section fifty-eight. 5§ 2, 4.
2432
ARREST ON CFVIL PROCESS.
[ClL^P. 224,
1816, 55.
R. S. 98.
H 10, 11, 14.
16.
1842, 56, § 4.
1844, 154,
§§7,8.
1855, 444,
§§ 7, 12.
1857, 141,
§§ 9, 19.
G. S. 124. § 22.
1873, 352, § 3.
P. S. 162. § 40.
R. L. 108, § 44.
7 Met. 287.
6 Gray. 251.
1 Allen, 456.
6 Allen, 285.
7 Allen, 266,
466.
Ill Mass. 288.
Upon taking the oatli, the defendant or debtor shall be discharged 3
from arrest or imprisonment, and shall be forever e.xempt from arrest 4
on the same execution, or on any process founded on the judgment, or 5
on the same cause of action, unless convicted of having wilfully sworn 6
falsely on his examination. If the arrest or commitment is on execu- 7
tion, the judgment shall remain in full force against his property, and 8
the creditor may take out a new execution against his property as if 9
he had not been committed; and if he is committed on mesne process, 10
any execution which may afterward issue on a judgment for the same 11
cause of action shall issue against his property and not against his body. 12
The death of the execution creditor shall not affect proceedings insti- 13
tuted under this chapter. iirMass. 4. 14
121 Mass. 554.
139 Mass. 471.
227 Mass. 350.
229 Mass. 363.
Discharge of
person giving
bail or on
execution not
requiring
certificate.
1873, 352, § 3.
Section 34. If a person has given bail, or is arrested or committed
on an execution not requiring a certificate, he may be discharged in
the same manner and subject to the same provisions of law as a person
arrested on execution under section six.
p. S. 162, § 41. R. L. 168. § 45. 105 Mass. 385. 196 Mass. 21.
Debtor not
entitled to
oath, after
scire facias,
unless.
1844, 154, § 9.
1857, 141, § 23.
Section 35. No debtor shall be entitled to the benefit of the oath
for the relief of poor debtors after a writ of scire facias on the bail bond
gi\en by him in the original action has been served upon his bail, unless
he pays all costs which have accrued on such scire facias.
G. S. 124, § 24. p. S. 162. § 42. R. L. 168, § 46.
Commitment
when arrested
on mesne
process.
1701-2, 5, § 11.
1784, 28, § 10.
R. S. 90, § 112.
1835,444, § 12.
1S57, 141,
§§ 21, 22.
G. S. 124, § 25.
P. S. 162, § 43.
R. L. 168, § 47.
10 Gray, 491.
8 Allen. 150.
112 Mass. 394.
127 Mass. 60.
imprisonment.
Section 36. If a defendant arrested on mesne process does not 1
desire to take an oath or falls to recognize and does not give bail, or 2
if on his examination he does not satisfy the court that he does not 3
intend to leave the commonwealth, and the oath for the relief of poor 4
debtors is refused him, and he does not give bail, the court shall make 5
a certificate thereof, and the defendant shall be committed to jail until 6
final judgment in the action in which he was arrested. If the final 7
judgment is against him, he shall, unless discharged by the plaintiff, 8
be held for thirty days thereafter, so that he may be taken on execu- 9
tion; but, if the oath for the relief of poor debtors has not been refused 10
him, he shall be discharged if he recognizes as aforesaid, gives bail or 11
bond as provided in section forty-eight, or takes the oath for the relief 12
of poor debtors or an oath that he does not intend to leave the 13
commonwealth. 14
Commitment
when arrested
on execution.
1787,29, § 3.
R. S. 98, § 12.
1857,141,511.
G. S. 124, I 26.
P. S. 162, § 44.
R. L. 168, §48.
9 Cush. 289.
2 Gray, 210.
1 1 Gray. 226.
112 Mass. 394.
121 M.1SS. 3S8.
137 M,ass. 2.5.
1.39 Mass. 38.
166 Mass. 33.
Section 37. If a debtor arrested on execution does not desire to 1
take an oath, or fails to recognize, or if, upon his examination, the oath 2
or oaths are refused to him, of which refusal a certificate shall be an- 3
nexed to the execution, he shall be committed to jail until he has recog- 4
nized as herein provided if the oath for the relief of poor debtors has 5
not been refused him, or until the execution is satisfied, or until he is 6
released by the creditor, or until he has given notice as before pro- 7
^•ided and taken the oath for the relief of poor debtors or the oath that 8
he does not intend to leave the commonwealth, in cases where such 9
oath is permitted. 10
CiLiP. 224.] ARKEST ON CrV'IL PKOCESS. 2433
1 Section 38. If a defendant or debtor is confined in jail on mesne support in
2 process or execution in a civil action, the jailer shall furnish his sup- 'charge^ ''"^
3 port at the rate of one dollar and seventy-five cents a week, to be paid c'^ff 'e § s-
4 by the plaintiff or creditor, who shall, on demand of the jailer, from {i^f-^j^^
5 time to time advance the money necessary for such support. Such isio, 94, '
6 demand may be made of the officer who made the commitment or of isii'. 22.
7 the plaintiff or creditor or his attorney, and if not complied with within r. s. lb*'
8 twenty-four hours thereafter, the jailer shall discharge the prisoner. II.Vms-ss,
9 The plaintiff or creditor, at any time, may order the discharge of the i|5f^i4i 525
10 person so confined; and if he is discharged on such order or by the jailer G- fiilg'
11 on failure to pay for such support, the debt and costs, with all amounts p- s. 162;
12 paid by the creditor for the debtor's support in prison, shall remain a ii. l. les,
13 legal claim against his property, and may be enforced in the same 9 ct?sk°2's9.
14 manner as if he had not been committed on the execution; but he shall Jos^'^iYss^sls.
15 not thereafter be liable to arrest or imprisoiunent for the same debt, Jo| ^jass' 373'
16 costs or charges. loe Mass. 234. 227 Mass, 350.
1 Section 39. If the defendant or debtor undertakes to satisfy the Property iia-
2 debt or execution, he shall not be entitled to be discharged until he R''s°g7"|'Go^''
3 has paid all charges for his support in jail, both on the arrest on the p|i|9'||s'
4 original writ and on the commitment on execution. R. l. les. § si.
1 Section 40. If any of the five charges last named in section six Charges of
2 is made as therein provided, or if the plaintiff or creditor or a person in Itc!"'' '''*''■
3 his behalf files any such charge in writing, on oath, subscribed by him, r^I'qI,' ^ ^'
4 pending the examination of a defendant or debtor, giving notice of his |^ |^j' ^^^ ^s.
5 desire to take the oath for the relief of poor debtors, the charges shall 1844, 154, § 11.
6 be considered in the nature of an action at law, to which the defendant isss,' m',
7 or debtor may plead guilty or not guilty, and which the court may iss?, hi,
8 thereupon hear and determine. If a person arrested on execution there- g^ IWt', ^^'
9 after misspends or misuses to the amount of forty dollars, or to an ||7|°'2|\; 5 1
10 amount equal to that for which he is arrested or committed, his g^- 1% I it-
11 property, not exempt irom execution, but which cannot be attached on 1 Gray, 172.
12 ordinary process of law, without first offering such property to the 100 Mass. 287.
13 creditor in whole or part satisfaction of the execution, the charge of il! Mass' 92*'
14 such misspending or misuse may be filed in the manner herein provided J27 Mass! 1%.
15 and like proceedings had thereon. i30 Mass. iso. 133 Mass. 127, 250.
142 Mass. 96. 150 Mass. 411. 162 Mass. 14, 339. 187 Mass. 202.
1 Section 41. A party aggrieved by a judgment rendered under the Appeal,
2 preceding section may appeal therefrom to the superior court in the and'l^iceedings
3 same manner as from a judgment of a district court in civil actions. '<."u"|f"'°'"
4 If the plaintiff or creditor appeals, he shall before allowance thereof ES:,^?;, „,
- , . ^ f^ . . , ,. ,SS 27, 32-35.
5 recognize with sumcient sureties to enter and prosecute nis appeal, to is57, i4i,
6 file therewith a copy of all the proceedings on said cliarges, and to pay g.s.'i24',
7 all costs if judgment is not reversed. If the defendant or debtor Ml.^ill;
8 appeals, he shall recognize in like manner, and with the further con- l^ l°'i68,
9 dition that if final judgment is against him he will, within thirty days ilj^y^'He
10 thereafter, surrender himself to be taken on execution and abide the ^ ?.''='■. ''*j^
11 order of the comt, or pay to the plaintiff or creditor the amount due 3 dray! sis!
12 him upon the claim or execution as the case may be. In the superior lo Gray, 491.
13 court trial shall be by a jury or, with the consent of both parties, by 100 Ma'ss.'ssT.
14 the court.
105 Mass. 617. 125 Mass. 47. 133 Mass. 256. 140 Mass. 171.
112 Mass. 394. 126 Mass. 2S. 137 Mass. 25. 162 Mass. 339.
2434
.AJIREST ON Cn'IL PROCESS.
[Ch.\p. 224.
Section 42. At a trial under section forty, the plaintiff or creditor
Evidence.
R. S. 9S, §31.
iii*'i?t'|ii- shall not offer evidence of a charge of fraud not made or filed as therein
looo. 444, so. ^, 1 i>
1857. 141. 1 12. provided or of a fraudulent act committed more than three years berore
G. S. 124, 8 -il. % rt . . . . .
P. s. 162, § 40. the commencement of the oris;inal action. R. l. les, § 52.
Oath may
be denied.
Sentence. New
application.
R. S. 98. § 36.
1857, 141, §1.5.
G. S. 124. § 34.
1872,281, §2.
P. S. 162, § 52.
R. L. 168, § 55.
9 Met. 447.
3 Gray, 318.
110 Mass. 18.
137 Mass. 25,
467.
Discharge of
debtors of
commonwealth.
1855, 276,
§§1.2.
G. S. 124, § 35.
P. S. 162, § 53.
R. L. 168, § 56.
Same subject,
1855, 276,
§§ 2, 3.
G. S. 124, § 36.
P. S. 162, § 54.
1888, 419, § 10.
R. L. 168, § 57.
1917, 326.
7 Gush. 536.
Section 43. If the defendant or debtor, after a charge has been 1
made against him under section forty, voluntarily defaults at a time 2
appointed for trial, or if upon trial he is found guilty of any such charge, 3
he shall not benefit by proceedings under this chapter, and may be 4
sentenced to imprisonment for not more than one year, except that, 5
after the expiration of any sentence, he may renew his application for 6
the oath for the relief of poor debtors, as though he had not been fomid 7
guUty and sentenced. isoMass. 4ii. 159 Mass. 446. is7 Mass. 202. 8
Section 44. If a debtor committed to prison on a warrant of dis- 1
tress in iavor of the commonwealth is unable to pay the debt for which 2
he is imprisoned, he shall be entitled to discharge in like manner as 3
poor debtors arrested on execution; and all the proceedings shall con- 4
form as nearly as may be to the law relative to such debtors, except as 5
hereinafter pro\-ided. 6
Section 45. If he represents to the jailer that he desires to take 1
the oath for the relief of poor debtors, the jailer shall notify a district 2
court. The court shall thereupon appoint a time and place for the 3
examination of the debtor and notify the district attorney for the dis- 4
trict by a notice, which shall be served by giving to him personally, 5
or by leaving at his usual place of abode, thirty days at least before the 6
time appointed for the examination, an attested copy thereof. 7
Appointment
of special
counsel.
1855, 276. § 5.
G.S. 124. §37.
P. S. 162, § 55.
R. L. 168, § 58.
Section 46. If the district attorney does not reside in the town 1
appointed for or is unable to attend the examination, he may appoint 2
counsel in his stead. For such attendance, suitable allowance shall be 3
made by the superior court for the county. 4
Insane
debtors.
1848. 320,
§§1.3.
G. S. 124,
§§ 38, 39.
P. S. 162,
§§ 56, 57.
R. L. 168,
Section 47. If a defendant or debtor imprisoned on mesne process 1
or execution is supposed to be insane and incapable of taking the oath 2
for the relief of poor debtors, any person may file a petition in any 3
court named in section fifty of chapter one hundred and twenty-three in 4
59. the county where he is imprisoned, stating the facts. The court shall 5
appoint a time and place for a hearing, and shall order notice thereof to 6
be given to the creditor or his attorney seven days before the time so • 7
appointed, and in other respects shall proceed under chapter one hun- 8
dred and twenty-three as in cases of insane persons not under arrest. If 9
satisfied upon the hearing that the person is insane, the court may order 10
his discharge or removal to a state hospital or to such other place as is 11
provided by law for insane persons in any town in the commonwealth. 12
The legal rights of the creditor shall not be affected by such discharge or 13
removal. 14
Section 48. A person imprisoned in a civil action when final judg-
Discharge upon
final judgment.
a¥.' 124.' 1 4a ment therein is rendered against him shall be discharged, upon giving
D ?■ \'iv \ rn to the creditor a bond, with sufficient surety to be approved bj' a court
K. Ij. loo. 8 OU. . . , , ,*■ **. 1111
or magistrate named in section nineteen, in a sum not less than double
the amount of the judgment and conditioned that he shall surrender
CllAP. 224.] AEREST ON CIVIL PROCESS. 2435
6 himself at the same jail to the jailer, between the hours of eight and
7 ten o'clock in the forenoon of the thirtieth day next after the rendition
8 of said judgment, or, if said day falls on Sunday, on the next business
9 da^, which day shall be specified in the bond, and there remain until
10 five o'clock of the afternoon of the same day, so that he may be taken
11 on the execution on said judgment. If such person does not give such
12 bond, his imprisonment on the original process shall continue for not
13 exceeding thirty days after the rendition of said judgment, to allow
14 proceedings oja the execution in accordance with this chapter.
1 Section 49. If a person who has given bail on mesne process in a Bond by
2 civil action is surrendered by his bail after final judgment in such I?endered"by
3 action, he shall be released upon giving to the creditor a bond as pro- Jlfdgment ^°'''
4 vided in the preceding section, except that the condition thereof shall (f^l'i^H'llg
5 be for his surrender at the same jail on the thirtieth day next after the p.s.'i62.'§6i.'
■ • • R, L 16S 6 6*1
6 surrender by his bail, or, if said day falls on Sunday, on the nexi; busi- ' ' '
7 ness day. The day on which the same will fall, and, if there is more
8 than one jail in the same county, the jail at which the surrender is to
9 be made, shall be specified in the condition of the bond, to which all
10 the other provisions relating to the bond mentioned in section forty-
11 eight shall apply.
1 Section 50. If otherwise authorized, the two preceding sections Debtor may be
2 shall not prevent an officer from taking the debtor and committing withm"hi>ty
3 him to jail on such execution within thirty days after the rendition fudgment
4 of judgment or surrender by the bail as he might have done if such g^s'i||'||4
5 bond had not been given; and such commitment of the debtor shall be p.s.ig2,'§ 62.'
6 equivalent to his surrender according to the condition of his bond, and
7 shall discharge it.
1 Section 51. Whoever recognizes as surety for another as provided Surrender of
r»'i'i 'ipii(>i • principal on
2 m this chapter may at any time before breach or the recognizance recognizance.
3 surrender his principal and exonerate himself from further liability, in c. s.'i24,'§45.'
4 the manner provided for surrender by bail, and all proceedings on such r l. les, § es'.
5 surrender shall be the same as provided in the case of bail. HI Mass! 53°;
19-4 Mass. 24.
1 Section 52. If the condition of a recognizance or bond taken under Remedy on
2 this chapter is broken, the creditor may, within one year after such amrbond"."^^
3 breach, commence an action thereon; and judgment shall be entered {ss?! hi,' I Is.
4 for the amount of the penalty, but execution shall issue for so much ^g^^- \~*^ | j*^-
102.
64, 65.
5 thereof only as may be justly and equitably due. If the recognizance P; |
6 was taken on an execution, the execution in such action shall not issue R- l^'ios. § as.
7 for less than the amount due on the original judgment, with costs and 5 Alien! 393.
8 charges arising after the issuing of the original execution. Such actions i7o^Mas3^428.
9 in favor of the commonwealth shall be brought in the court in which Jgf Ma^'sl^'
10 the original judgment was rendered. 197 Mass. 94. 221 Mass. 271.
1 Section 53. If a prisoner, arrested or committed on execution in Remedy for
2 a civil action, escapes with the consent or by the negligence of the issf TsT
3 officer, the creditor may recover in tort against the officer such damages |j yj^^j
4 as he has suffered by the escape, and may also have against the original pl/lo'lee'
5 debtor a scire facias or an action on the judgment.
R. L. 168, § 67. 2 Gray, 214. 4 Allen. 74.
2 Mass. 620. 10 Gray, 365. 6 Allen, 260.
2436
ABREST ON CIVlh PROCESS.
[Ch.^.p. 224.
Continuance if
magistrate fails
to attend.
1870, 77.
P. S. 162. § 67.
R. L. 168. § 69.
216 Mass. 242.
Section 54. If a justice fails to attend at the time and place to
which any process under this chapter is returnable or is continued,
any justice of a court named in section six may attend at such time and
place and may continue the proceeding for not more tlian thirty days,
without costs, saving the rights of all parties; and he shall make a certifi-
cate thereof, which shall be by him delivered to the court before which
such process is pending.
Defendant not
to be defaulted
if magistrate
absent, etc.
1SS7, 442, § 3.
R. L. 16S, § 70.
163 Mass. 79.
165 Mass. 106.
216 Mass. 242.
Section 55. A defendant or debtor, arrested on mesne process or
execution, shall not at any appointed hearing suffer default by reason
of the absence or disability of a justice qualified to act, if, within tliree
days thereafter, such defendant or debtor shall provide for a continu-
ance of the hearing by issuing a new notice to the creditor, which shall
be served as provided in section twenty-four.
Appeals.
1888, 419, § 12.
1S98, 659.
R. L. 168, § 71.
10 Gray, 491.
Section 56. There shall be no appeal from a judgment or order of 1
a court under any provision of this chapter, except as expressly pro- 2
vided in section forty-one. 8 Alien, iso. 3
Habeas corpus.
1888,419, § 12.
1898, 659.
R. L. 168, § 72.
Section 57. A court acting under this chapter may issue a wTit of
habeas corpus to bring before him for examination or for entering
into a recognizance a defendant or debtor imprisoned on mesne process
or execution, and the proceedings thereon shall be in accordance with
chapter two hundred and forty-eight so far as applicable.
Notices, etc.,
to be under
seal of court.
Affidavits.
1889,415, § 2.
R. L. 16S, § 73.
1910, 84.
157 Mass. 374.
Section 58. All certificates, notices and other processes required 1
by this chapter, if issued by a district court, shall be under the seal of 2
the court, signed by the clerk or an assistant clerk thereof, and bear 3
teste of a justice of the court who is not an interested party in the pro- 4
ceeding. All affidavits required under section six may be made and 5
sworn to before a clerk or assistant clerk of the courts named therein. 6
Citation and
service.
1862, 162,
§§1,2.
P.S. 162,
K6,7.
1897, 466, § 1.
R. L. 16S,
§§6,7.
1909,119.
1911,192, § 1.
1917, 326.
151 Mass. 363.
proceedings AGAINST FEMALE JUDGMENT DEBTORS.
Section 59. The judgment creditor in an execution issued against 1
a woman upon which there remains uncollected at least twenty dollars, 2
exclusive of costs which have accrued either m the last action or in any 3
former action founded on the same original cause of action, or a person 4
in behalf of such creditor, may file, in a district court in the county where 5
the debtor resides or has her usual place of business, a petition on oath, 6
with a copy of the execution, stating the fact of the last judgment and 7
alleging that he believes that the debtor has property, not exempt from 8
attachment, which she refuses to apply in payment of said execution, 9
and asking that a citation issue requiring her to appear at a time and 10
place to be fixed by the court and submit to an examination relative 11
to her property; and thereupon the clerk of said court shall issue such 12
citation, allowing the debtor not less than three days before the time 13
so fixed and at the rate of one hour additional for each mile of travel. 14
Such citation shall be served, by an officer qualified to serve the execu- 15
tion, by delivering to the debtor, or leaving at her last and usual place 16
of abode, an attested copy of the citation. 17
Recognizances
of female
judgment
debtors.
Section 60. Upon proof of service by the return of the officer, if 1
the debtor fails to appear as ordered, or if she fails to appear at any 2
ClLVP. 224.] AEEEST ON CH'IL PROCESS. 2437
3 adjournment of the hearing, the court, upon the request of the creditor, is62, 162. § 3.
4 may issue a capias to bring her before it for examination forthwith, r'. l. ibs. § s.
5 or at a time to be then fixed by it, which may be served by an officer ^®^^' ^^~' ^ ^■
6 qualified to serve the citation. A debtor taken into custody on a capias
7 issued under this or the following section shall be subject to the pro-
S visions of sections nineteen, twenty, twenty-one, fifty-one and fifty-two,
9 so far as they relate to male debtors arrested on execution, except that
10 the only condition of the recognizance following an arrest on a capias
11 issued under this section shall be that within ten days after the day
12 of her arrest she will present herself before the court issuing the capias,
13 for further proceedings as stated in the following section, first leaving
14 at the office of the attorney of record for the creditor in these proceed-
15 ings a -RTitten notice of the time and place at which she ■nill so present
16 herself, or, if there is no such attorney, by delivering it to the creditor
17 at least twenty-four hours before said time. A copy of the notice, ac-
18 companied by the debtor's sworn statement of the time and place where
19 said ser\'ice was made, shall be filed with the court, which shall cause a
20 record of the filing of the certificate and the appearance of the debtor to
21 be made in the proceedings.
1 Section 61. The debtor, when so brought before the coiu-t, or Second default.
2 when she appears before it in accordance with her recognizance, shall isgo, im, § 4.
3 be informed by it, or under its direction, of her liability upon a sub- r.l.\o8.|9.
4 sequent default. She then shall be sworn to make true, full and per- i^"' i^^, § 2.
5 feet answers relative to her property and the disposal thereof; and
6 she shall thereupon be examined by the creditor either forthwith, or
7 at such time as may be iLxed by agreement or by direction of the court.
8 The examination shall be oral or written, at the discretion of the court,
9 and if upon written interrogatories, in the presence of the court or
10 otherwise as it shall order; and after such examination she may add
11 such other facts as she may consider necessary, and the creditor may
12 re-examine her relative thereto. Such examination, if WTitten, shall be
13 signed by her and filed with the court. Either party may introduce
14 evidence relative to the subject matter of such examination. The ex-
15 amination may be adjourned from time to time in the discretion of the
16 court; and if the debtor, after having once been before the court by rea-
17 son of a capias issued under the preceding section, again makes default,
•18 she shall be considered in contempt of the coiut, which may issue a capias
19 to bring her before it to answer therefor, and after a hearing, if no satis-
20 factory reason is shown for the default, she may be punished for the
21 contempt by a fine not exceeding fifty dollars or by imprisonment in
22 jail for not more than fifteen days. The court may require the debtor
23 to continue the examination after the contempt proceedings have been
24 disposed of, with liability to punishment in like manner for failure to
25 attend any subsequent hearing. A capias issued under this section may
26 be ser\-ed by an ofiicer qualified to serve the execution, and if the
27 arrest is made when the court is not sitting and the debtor wishes to
28 recognize, the only condition of the recognizance shall be that she will
29 appear before the court issuing the capias at the opening of the next
30 sitting of the court, and remain until her case is reached for action. Un-
31 der this form of recognizance the debtor shall not be required to notify
32 the creditor or his attorney of her intention to appear. It shall be the
33 duty of the arresting officer to be present with the capias at the opening
34 of said sitting, and, unless sooner excused by the court, he shall remain
2438
ARREST ON CIVIL PROCESS.
[Ch.u>. 224.
in attendance t6 execute such further process as may be issued in connec- 35
tion with said arrest. Upon the return of the capias to the court, the 36
debtor shall be called and a record of the facts made in the proceedings. 37
Surrender of
property.
1862, 162, § 5.
P. S. 162, § 10.
R. L. 168, § 10.
1911, 192, § 3.
Section 62. If it appears upon the completion of such examination 1
that the judgment debtor has property of the ^•alue of twenty dollars, 2
not exempt from attachment or from being taken on execution or which 3
cannot be reached on execution, judgment to that effect shall be entered 4
and she shall produce such property, or so much thereof as may be 5
needed to satisfy such execution, with the costs of the proceedings upon 6
such citation; or if said property is not within the county where the 7
proceedings are had, or is not capable of being taken on execution, she 8
shall execute and deliver to the judgment creditor or to a person in his 9
behalf a transfer, assignment or conveyance thereof, or of so much 10
thereof as may be sufficient to satisfy said execution and said costs, or 11
to secure the paj-ment thereof. If, upon being ordered so to do, she 12
fails to comply with such order, she shall be committed by said court 13
as for a contempt, until she complies with such order or is otherwise 14
discharged by law. 15
Arrest on
capias after
sunset.
1S55, 444, § 15,
1857, 141, § 30.
G. S. 124, § 8.
P. S. 162, § 26.
R. L. 168, § 27.
1911, 192,
H 4, 5.
104 Mass. 354,
Property
fraudulently
conveyed by
her.
1862, 162, § 7.
P. S. 162, § 12.
R. L. 168. § 12.
Section 63. No arrest on a capias issued under section sixty or
section sixty-one shall be made after sunset unless expressly authorized
therein for cause. Every such capias shall contain a statement of the
amount and date of recovery of the judgment on which the execution
issued, the names of the parties to the action and the conditions under
which the debtor may recognize when arrested.
129 Mass. 156. 134 Mass. 391.
Section 64. If, after the commencement of the action upon which
the judgment was obtained, the debtor makes a voluntary or fraudulent
conveyance, transfer or gift of any property, she may be required to
transfer it to the creditor, who may thereupon demand such property
and recover it from the person who received it, or from any person who
may have taken it without consideration or with notice of the fraud
or want of consideration of the original transfer, conveyance or gift.
Contempt by
fraudulent
transfer.
1862, 162, I 8.
P. .S. 162, § 13.
R. L. 168, § 13.
Section 65. If, after the service of the citation upon the debtor 1
and during the pendency of the proceedings thereon, she makes a con- 2
veyance, assignment or transfer of property or a payment of money, 3
with intent to prevent it from being transferred or paid to the creditor 4
or applied by said proceedings to the satisfaction of said judgment, 5
she may, in the discretion of the court, be committed as for a contempt; 6
but this section shall not apply to the pa\iuent by the debtor of a debt 7
for necessaries, or pa^•ment on an execution upon which she previously 8
has been cited to appear under this chapter, or paATuent of a reasonable 9
counsel fee relating to the examination. 10
Second exam-
ination, when
Section 66. After the expiration of three years from the termina- 1
i\s"'i62%S'5.' tion of such proceedings and while the judgment remains in force, the 2
E. L. 168, § 15. creditor may cause like proceedings to be commenced anew. 3
1909, 119, § 1.
CliVP. 225.] PROCESS AFTER JUDGMENT FOR NECESS.U{IES OR L.\BOR.
2439
GENERAL PROVISIONS.
1 Section 67. A Judgment in fa\'or of the commonwealth against Judgments in
2 a male or female defendant may, if tlie attorney general or the district conimonweaith,
3 attorney for the district where such judgment was recovered so orders msTh"!.'"' '
4 in wTiting upon the execution, be enforced in accordance with sections I'sor/iral.VL'
5 fifty-nine to sixty-six, inclusive, and the following section. ^- ^- ^''*' ^ ^''■
1 Section 68. If a female judgment debtor during commitment under Effect ot in-
2 section sixty-one or sixty-two becomes an insolvent debtor under the bankruptcy.
3 laws of the commonwealth or a bankrupt under the laws of the United I^',s^'uiL^'§S^i.
4 States, or if it appears that she has been divested of her property fgig' 333' 1 32
5 chu-ing such commitment otherwise than by her own act, she shall be 1920! 2.
6 discharged upon her application to the court which committed her,
7 after such notice as the court may order. This section shall also apply
8 to male persons committed under section thirty-six or tliirty-se\en of this
9 chapter or under section four of chapter two hundred and twenty-five.
1 Section 69. If a person arrested on mesne process or on execution same subject,
2 becomes an insolvent debtor under the laws of this commonwealth or Jgooi 2^''' ^ ^^'
3 a bankrupt under the laws of the United States, or if it appears that
4 subsequent to his arrest he has been divested of his property otherwise
5 than by his own act, he shall be discharged upon his application to a dis-
6 trict court in the county where the arrest was made, after such notice as
7 the court shall order.
1 Section 70. In any proceeding under this chapter the court may Adjournment.
2 adjourn the case from time to time, and shall have the same powers isIoIq^s'I. ''
3 relative to all other incidents thereto as other courts have in civil i8.^',H'if§^'7.
4 actions; and witnesses duly summoned shall attend as required in civil ^g.^- ^£^ % \^-
5 cases. p. s. 162, §§ is, 35. r. l. ics, §§ is, 37.
6 Allen, 287.
7 Allen, 354.
8 Allen, ISO.
11 Allen, 29, 395.
14 Allen, 157.
124 Mass. 383.
147 Mass. 69.
164 Mass. 150.
177 Mass. 206.
REFERENCES.
Mariner who has shipped or contracted to go on a voyage shall not be arrested
on mesne process for a debt to a landlord or boarding house keeper. Chap. 102, § 2.
Poor debtor process upon arrest for failure to pay taxes. Chap. 60, § 31.
Soldiers exempt from arrest on civil process when ou duty, Chap. 33, § 70.
CHAPTER 225.
PROCESS AFTER JUDGMENT FOR NECESSARIES OR LABOR.
Sect.
1. Nature, grounds and jurisdiction of
process.
2. Procedure, evidence and finding.
3 Grotinds of new proceeding.
4. Enforcement of decree. Contempt.
Release of debtor.
5. Application by debtor.
Sect.
6. Suspension of other proceedings.
7. Intervening petition by second creditor.
8. Suspension or revision of decrees.
9. Costs.
10. Constable may serve process.
11. Certain sections of preceding chapter
applicable.
2440
PROCESS AFTER JXTDGMENT FOR NECESSARIES OR L.VBOR. [ClLVP. 225.
Nature,
grounds and
jurisdiction of
process.
1898, 549, §1.
1899, 445, i 1.
1901, 176.
R. L. 168, § SO.
1913, 471, § 5.
173 Mass. 498.
IDS Mass. 457.
233 Mass. 39.
Section 1. Upon application of a judgment creditor, with affidavit 1
by him or a person in his behalf that the judgment is founded upon a 2
claim for necessaries of life furnished to the judgment debtor or his 3
family, or for work or labor performed by the creditor for the debtor, 4
the district court of the judicial district where the debtor lives, or, if he 5
does not live within such district, a district court having a judicial dis- 6
trict within the county and adjoining or near the town where the debtor 7
lives, shall issue a notice to the debtor to appear at a time and place 8
named therein to show cause why an examination into his circumstances 9
should not be made and a decree entered that he pay such judgment 10
in full or by instalments. Said notice shall be served by delivering to 11
the debtor, or by leaving at his last and usual place of abode, a copy 12
thereof, at least seven days before the return day. If it appears that 13
said notice was not duly served, the court may continue the proceedings 14
and issue a new notice. 15
Section 2. At the hearing, which may be held in the absence of the
Procedure,
evidence and
1898?S49, § 1. debtor, the com't shall first determine whether the judgment is founded
i9oi' i7fi' ^ ^' o^ ^ claim for necessaries of life, or for work or labor performed by the
fsn In ^ 5°' creditor for the debtor, and, if it so finds, shall inquire as to his circum-
196 Mass! 384. stances, income and ability to pay said judgment. If it finds that he
is able to pay it in full or by instalments, it may, after allowing the
debtor a sufficient part of his income, which need not be stated, for the
support of himself and family, enter a decree fixing the time, place and
amount of payments to be made by him out of his income, to be applied
first to the costs of proceedings under this chapter and next to the reduc-
tion of said judgment. If it finds that the debtor is unable to pay the 11
judgment in full or by instalments, it shall enter the finding and dismiss 12
the proceedings. 13
1
2
3
4
5
6
7
8
9
10
Grounds of
new proceeding.
1898, 640, § 1.
1899, 445, § 1.
1901. 176.
R. L. IBS, § 80.
1913, 471, § 6.
Section 3. If proceedings are dismissed under the preceding section, 1
no new application shall be entertained unless the creditor or a person 2
in his behalf files an affidavit stating in substance the evidence relied 3
on to show a change in the debtor's circumstances, and the court finds 4
that there is occasion for a new inquiry. 5
ot'deCTe"""* Section 4. Decrees under this chapter may be enforced by pro-
Reieaso'Sf' cccdings for contempt as in a court of equity; but not more than fourteen
debtor ^ days' imprisonment shall be imposed for any one such contempt. The
R. l! 168, 1 si. debtor may be released by order of the court upon pajment of the judg-
196 Mass! 384. uient and costs or upon gi^^ng a bond to the creditor, vnth one or more
sureties approved by the court, conditioned to comply with existing or
subsequent decrees of the court; or, after seven days' imprisonment,
he may be released by order of the court, upon filing with the court his
personal bond, conditioned thenceforth to comply with decrees of the
court. If the debtor is released upon his personal bond, and fails to 10
comply with said decrees within sLxty days after his release or show good 1 1
cause for non-compliance, he may again be cited to appear and be punished 12
as for a further contempt. 13
Application
by debtor.
1898, 549. 5 3.
R. L. 108, § 82.
Section 5. A judgment debtor may apply by petition for the benefit
of the provisions of sections one to three, inclusive, and may cause a
creditor holding a judgment against him for the necessaries of life fur-
nished to himself or his family to be cited to appear and show cause why
Ch.\p. 226.] BAIL. 2441
5 an examination, as hereinbefore provided, shall not be made; and the
6 court may, after a hearing, proceed in the case as if such application had
7 been made by a creditor.
1 Section 6. If a creditor proceeds under section one, other processes Suspension
2 to enforce or recover on the judgment upon which such proceedings are proceedings.
3 based, and proceedings by other creditors against such debtor as to r.^l. lel', | t's.
4 wages, shall be suspended, except as provided in the following section,
5 until the judgment on which such proceedings under section one are
6 based is fully satisfied; but this section shall not apply to the attach-
7 ment of property of the debtor other than wages, or the le\'y of execution
8 thereon.
1 Section 7. A creditor who has recovered judgment up>on which intm-enmg
2 process would lie under section one against a debtor against whom pro- ^cond° ^
3 ceedings by another judgment creditor are pending under the preceding 5s98,'549. § a.
4 sections may, upon motion in said proceedings and after notice to all ^gj^- 25!' ^ **"
5 parties in interest, inquire into the validity and amount of the claim of l^^^\
6 any judgment creditor on which a decree under said sections has been 1926; 2!
7 entered. Upon hearing such motion, the court may order any creditor
8 then a party to the proceeding to account to the court for amounts
9 theretofore paid by the debtor upon such judgment, and may also, after
10 hearing, revoke or modify any previous decree, and order that payments
11 thereafter made by the debtor be apportioned between creditors then
12 parties to the proceedings.
1 Section 8. The court may at any time, upon written notice to the Suspension or
2 parties in interest or their attorneys of record, revise, modify or suspend decree" °
3 a decree made under the preceding sections, isos, &49, 1 5. r. l. les, § ss.
1 Section 9. The entry fee provided under section foiu- of chapter Costs.
2 two hundred and sixty-two, and the fees of witnesses and officers shall k. l! les'. I s'e.
3 be allowed to the creditor as costs, unless the court shall otherwise order, '^^■*' *'^' ^ ^'
4 and no other costs shall be allowed to either party.
1 Section 10. A constable qualified to serve civil process may serve Constable may
2 any process issued under this chapter. lois, 471, | 7. ^"""^^ process.
1 Section 11. Sections one, fifty-four, fifty-six, fifty-eight and seventy Certain
2 of chapter two hundred and twenty-four shall, so far as applicable, apply p^cedfug chap-
3 to proceedings under this chapter. ter appUcabie.
CHAPTER 226
BAIL.
Sect.
taking bail.
1. Defendant arrested on mesne process
may give bail, etc.
2. Manner of taking bail.
3. Officer may require two sureties, etc.
Sect.
4. Approval of bond.
5. Bond to bind those executing it.
0. Bond, filing, transmission on appeal.
7. Obligation of bail.
8. Suit on bond.
2442
BAIL.
[Ch.u>. 226.
Sect.
surrender of prixcipal.
9. Surrender of principal in court, etc.
10. Commitment.
11. Discharge by death of principal.
12. Surrender out of court.
1.3. Surrender to jailer.
14. Proceedings.
15. Same subject.
16. Bail to pay costs on scire facias, when.
17. Surrender on original action.
Sect.
b.til in actions before inferior courts.
IS; Bail before inferior courts.
19. Surrender of principal in such case.
20. Proceedings upon surrender.
21. Same subject.
22. Fees of officer.
SUPPORT OF PRINCIP.4.L.
23. Liability of plaintiff.
24. Liability of bail.
25. Liability in case of surrender.
TAKINX, BAIL.
Section 1. A defendant arrested on mesne process shall be released
upon giving bail. If he has been sentenced to imprisonment on a charge
Defendant
arrested on
mesne process
baii^ etc* of f raiid under chapter two hundred and twenty-four, the giving of such
a^s." 125, 1 ?' bail shall not discharge him from such imprisonment.
p. S. 163. § 1. E. L. 169, § 1. 10 Gray, 490. 206 Mass. 23.
Manner of
taking bail.
R. S. 91. § 1.
G. S. 125, § 2.
P. S. 103, 5 2.
R. L. 169, § 2.
2 Mass. 481.
10 Mass. 20.
12 Mass. 434.
Section 2. Bail in a civil action shall be taken by giving a bond to 1
the sheriff, if the wTit is served by him or his deputy, otherwise to the 2
officer by whom the WTit is served, conditioned that the defendant shall 3
appear and answer to the plaintif?, abide the final judgment of the court 4
and shall not avoid. 5
12 Met. 564.
4 Gray, 300.
103 Mass. 398.
113 Mass. 325.
116 Mass. 133.
119 Mass. 146.
146 Mass. 58.
233 Mass. 587.
OflGcer may
require two
sureties, etc.
R. S. 91, § 2.
1850, 199, § 1.
1852, 211.
G. S. 125, § 3.
P. S. 163, § 3.
R. L. 169, § 3.
9 Mass. 479.
Section 3. An officer shall not be required to accept a bail bond 1
unless ■with at least two sureties, each of them having sufficient property 2
within the commonwealth ; and he may examine on oath, to be adminis- 3
tered by him, the persons offered as sureties, as to their sufficiency. If he 4
takes a bail bond with only one surety, he shall be liable to the plaintif? 5
for any loss sustained by the insufficiency of the bail, although the surety 6
was actually sufficient when taken. 7
Section 4. The bond may be approved by a judge of a court of 1
Approval
of bond.
1S57, 141, § 22. record or a master In chancery, and, when so approved, the sureties shall 2
18S0, 132, § 1. be sufficient. p. S. les, § 4. R. L. 169, § 4. 1917, 326, § 2. 3
Bond to bind SECTION 5. A bail boud shall bind the persons executing it, although
those execut- . ^ • e \
ipeit. taken with one surety only, or with two or more sureties any of whom
T» Q Q-l C O
G. s! 125. § 5. have not sufficient property within this commonwealth, or although not 3
R. L. 169. §"5. approved as aforesaid. 2 Pick. 234. 2 Met. 490. 4
Bond, filing,
transmission
on appeal.
R. S. 91. §4.
G. S. 125, § 6.
Section 6. The bond shall be returned and filed with the writ, and 1
the clerk shall note on the WTit that a bond is so filed. Upon an appeal, 2
tlie bond shall be sent with the other papers to the court appealed to. 3
P. S. 163, § 6.
R. L. 169, § 6.
17 M.1SS. 591.
2 Met. 490.
9 Met. 564.
103 Mass. 398.
Obligation
of bail.
1693-4. 1.
1784, 10, § 1.
R. S. 91, § 5.
G. S. 125, § 7.
1881, 263, § 4.
Section 7. In case of the avoidance of the principal and a return 1
on the execution that he has not been found, or a return on the notice 2
mentioned in section nine of chapter two hundred and twenty-four that 3
after diligent search by the oflScer serving the notice the principal has 4
CsLiP. 226.] BAIL. 2443
5 not been found, his bail shall satisfy the judsjment, with interest thereon p. s. i63. § 7.
6 from the time it was rendered, unless he discharges himself by siuren- 2*Mass''4'si7'
7 dering the principal before final judgment against him on the writ of 2\iir327?^'
8 scire facias, or by other sufficient defence in that suit. n Cush. is. ^s?, sso.
103 Mass. 398. 146 Mass, 331. 197 Mass. 94. 233 Ma.ss. 587.
1 Section 8. The bail bond shall be so far a matter of record and of ?,vj,',°" ^°^'^-
2 the nature of a recognizance that the court in which the judgment against H^.^'i"'
3 the principal was rendered, upon application of the creditor to the clerk r. s'gi, §§o-8.
4 thereof, shall issue a writ of scire facias thereon in the name of the creditor §§ s-io. '
5 against the bail, which, without setting forth the bond, shall allege that HslJa'
6 the defendants became bail ; but no action shall be maintained on the ^■Mass'^4'si ®"
7 writ of scire facias unless it is served on the bail within one year after final i'l,^'?^?,„^,3i-
. ..... *' 2 Pick. 281.
8 judgment against the principal.
13 Pick. 339. 5 Grav, ,397. 113 Mass. 325.
2 Met. 490, 587. 103 Mass. 398. 197 Mass. 94.
SURRENDER OF PRINCIPAL.
1 Section 9. The bail may surrender the principal in the court in which surrender of
2 the scire facias is pending at any time before final judgment therein TO'v!'rt'.''e'tc!°
3 against them; and, upon payment of costs on the scire facias to that time, iToaloi 7^ § i.
4 they shall be discharged. i784, lo, § 2.
R. S. 91.5 10. P. S. Ifi3, § 12. R. L. 109, § 9. 117 Mass. 281.
G. S. 125, § 12. 1884, 260. 7 Mass. 109, 101 Mass. 55.
1 Section 10. The principal so surrendered shall be committed to the c_ommitment.
2 jail for thirty days so that he may be taken on execution, unless dis- i7S47'i'o!''§V^"
3 charged as provided in chapter two hundred and twenty-four. §; g; jJs.Vis.
p. S. 163, § 13. R, L. 169, § 10. 197 Mass. 94,
1 Section 11. Upon proof of death of the principal before final judg- Discharge by
2 ment on the scire facias, the bail shall be discharged, upon payment pHndpaV
3 of costs on the scire facias to the time when such proof is made. J^^^l! ira,' § ii
138 Mass, 384.
1 Section 12. The bail may, at any time before final judgment against Surrender out
2 them on a writ of scire facias, exonerate themselves from further re- isn, lio.
3 sponsibility by surrendering their principal as provided in the four fol- o.' s! 125, § li.
4 lowing sections. p. s. 103, § u. r. l, 109, § 12.
1 Section 13. Such surrender may be made to the jailer in the county Surrender
2 wliere the principal was arrested or where the original writ against the isi?! i46.
3 principal was returnable, who shall receive and hold him in like manner §§ fa^ls.
4 and with the same rights as if he had been committed on the original jsi^g'lo'
5 writ. P, S. 163,§§15, 20. R. L. 169, §13.
1 Section 14. The jailer shall not be obliged to receive a person so Proceedings,
2 surrendered, unless the bail deliver to him a copy of the bail bond, attested a s! i25,\ le.
3 by the officer who took it or by the clerk in whose custody it may be, r.l/iuo.Vu.
4 which shall be a sufficient warrant for the jailer.
1 Section 15. The bail shall, within fourteen days after such sur- Sanie subject.
2 render, deliver to the jailer a copy of the original writ or process whereby u, s.'9i. §§ 15,
3 the prisoner was arrested, with a copy of the return endorsed thereon, a"s, 125, §§i7.
IS. ' '
2444
BAIL.
[Ch.^.p. 226.
p. s. 163, §§ 17, attested by the officer who served the WTit or by the clerk into whose
R.L. ir,9. § 15. office it is returned, and they shall also within said time give written
fi^i1en,"94. iioticc to the plaintiff or his attorney of the time when and the place
121 Mass. 400. -jy-jiei-e tlic prisoner was so committed.
Bail to pay
costs on scire
facias, when.
1817, 146.
R.S. 91, §17.
G. S. 125, § 19.
P. S. 163, § 19.
R. L. 169, § 16.
11 Cush. 15.
Section 16. If the surrender is made after a wTit of scire facias is 1
issued against the bail, they shall, within fourteen days after the sur- 2
render, pay the costs of suit on the scire facias to the creditor or his 3
attorney, or to the jailer for the use of the creditor; but if the writ of scire 4
facias has not been served on the bail, they shall not be required to pay 5
the costs thereon until twenty-four hours after notice of the issuing of 6
the writ and demand by the creditor for such payment. 7
OTiSnat^cti^n. Section 17. The five preceding sections shall not impair the right
R.*s'9i''|i'9 o^ '^^'l i"^ ^"^ cases to sm-render their principal in the court in which the
p'l'ill'?^^' original action is pending, before final judgment; or, after judgment,
R. L. 169, § 17. to surrender him to the officer holding the execution, at any time before
its return.
Bail before in-
ferior courts.
1803, 132, § 1.
R. S. 91, § 20.
G. S. 125, § 22.
P. S. 103, § 22.
R. L. 169, § IS.
1917, 320.
BAIL IN ACTIONS BEFORE INFERIOR COURTS.
Section 18. If bail is taken in an action before a district court, it
may issue a scire facias against the bail, although the sum of the debt
and costs on the original judgment exceeds the amount to which its
jurisdiction is otherwise limited; and the rights and obligations of the
bail and all proceedings as to the surrender of the principal and the .action
against the bail shall be substantially the same as are provided relative
to bail when taken in actions in other courts.
pHnc^li^in^ Section 19. When bail in an action before a district court sur-
1S03 Til' render their principal in court, either during the pendency of the original
R I' 91 ' action or of the scire facias, they shall secure the attendance of an officer
§§' 21. 22. qualified to serve legal process in the case to whom the principal may
§§23,24.' be committed. Any such officer seasonably notified and requested to
§§li3,'24! attend for such purpose shall attend and shall receive and take charge
wiV 326. ^ ^^' of the principal, if committed to his custody by the court. 194 Mass. 24.
Proceedings SECTION 20. If the principal is surrendered in such action, an entry 1
render. of such Surrender shall be made on the record and he shall be forthwith 2
g! s! 125. § 25. committed to the officer in attendance. P. s. les, § 2s. r. l. log, § 20. 3
Same subject.
R.S. 91,
§§ 24, 25.
G. S. 125, § 26.
P. S. 163, § 26.
R. L. 169, § 21.
Section 21. If the principal is surrendered before final judgment 1
in the original action, the bail shall deliver to the officer a copy of the 2
original writ, with the return endorsed thereon, attested by the clerk of 3
the court, if any, otherwise by the justice. If the surrender is after final 4
judgment in the original action, the bail shall deliver to the officer a copy 5
of the entry of the surrender, attested in like manner. The officer shall 6
deliver the copy to the jailer upon committing the prisoner to his custody ; 7
and such copy shall be a sufficient warrant to the officer and to the jailer 8
for receiving, committing and holding the prisoner. 9
f803.°i32®§": Section 22. The officer shall be allowed the same fees, which shall 1
5- §• ?i'J 2§_ be paid by the bail, as upon the arrest and commitment of a defendant 2
G. S. 125, § 27.
P.S. 103, §27. on
mesne process.
R. L. 169, § 22.
Ch-^p. 227.]
ABSENT DEFEND.tNTS, ETC.
2445
SUPPORT OF PRINCIPAL.
1 Section 23. If a principal, surrendered by his bail and committed to Liability of
2 jail, claims support as a pauper, the jailer may requhe the plaintiff or i82r,'i2'4.
3 his attorney in the action to give security or to advance the money for §■ g ^osS^s
4 support of the defendant in like manner as if the commitment had been ^ s. i63, § 2|
5 made by an officer. If the plaintiff fails so to do for twenty-four hom-s
6 after being so required, the jailer may discharge the defendant.
1 Section 24. The jailer may, at the time of surrender, demand of liability
2 the bail the advance of money for support of the principal, or secm-ity is24, 124.
3 therefor, instead of demanding the same of the plaintiff; and if the bail, g'. s. 125, § 29.
4 for twenty-four hours after such demand, fail to gi\e such security or r.l.\69',|24'.
5 to advance the money for such support, the jailer may discharge him;
6 and the bail and the principal shall thereupon continue liable to the
7 plaintiff' in all respects as if the surrender had not been made.
1 Section 25. If such demand is made upon the baO, they shall be Liability in
2 liable for the support of the principal for seven days after they have render.""^'
3 given notice of the surrender to the plaintiff or to his attorney in the R.'s.'gl,**"
4 action. The plaintiff shall be liable for the support of the defendant ^^\%
5 after the exphation of said seven days; and if he fails to advance the |>5^°',5l'
6 money or to give security therefor as before provided, at or before the §§3o. sl
7 expiration of said time, the jailer may discharge the defendant. . . , .
REFERENCES.
§ 4. Fees, Chap. 262, § 23.
§ 22. The fees are one dollar for commitment, and one dollar for copy, Chap.
262, § 14.
CHAPTER 227.
PROCEEDINGS AGAINST ABSENT DEFENDANTS AND UPON INSUF-
FICIENT SERVICE.
Sect.
1. Actions against absent defendants.
2. Cross actions.
3. Service of writ.
4. Proceedings.
5. Certain individuals, etc., to appoint
agents for service of process. Pen-
alty.
6. Dismissal of action, when.
7. Notice.
S. Default.
Sect.
9. Bond.
10. Notice in district courts.
11. Execution levied on land.
12. Judgment in real action.
13. Actions of tort.
14. Actions of contract.
15. Prosecution against those served.
action.
16. Absence of one of several tenants,
17. Mixed actions.
New
1 Section 1. A personal action shall not be maintained against a Actions against
2 person not an inliabitant of the commonwealth unless he or his agent fe''ndants^
3 appointed under section five has been served with process in the com- qI' 126^*1'
4 monwealth, or unless an effectual attaclmient of his property within the ^ |- f^*^ | }•
5 commonwealth has been made upon the original writ, and in case of such wos,' 528,' § 1.
2446
ABSENT DEFEND.VNTS, ETC.
[Ch.\p. 227.
3 Cush. 578.
5 Cush. 52.
10 Cush. 1S3.
3 Grav. 608.
11 Allen, 134.
attachment without such semce, the judgment shall be valid only to
secure the application of the property so attached to the satisfaction of
the judgment. lOO Mass. 217. ISl Mass. 359.
170 Mass. 538. 206 Mass. 39. 224 Mass. 14. 193.
144 Mass. 10.
147 Mass. 530.
150 Mass. 550.
176 Mass. 48,
198 Mass. 82.
206 Mass. 39.
215 Mass. 341.
220 Mass. 285.
2.35 Mass. 471.
210 U. S. 82.
Cross actions.
1823, 118.
R. S. 90,
§§ 49, 50.
G. S. 126,
§§ 2, 3.
P. S. 164,
l§ 2. 3.
R. L. 170. § 2.
7 Mass. 140.
1 Met. 80.
170 Mass. 538.
175 Mass. 369.
185 Mass. 49.
215 Mass. 403.
Section 2. If an action is brought by a person not an inhabitant
of the commonwealth or who cannot be found herein to be served with
process, he shall be held to answer to any action brought against him
here by the defendant in the former action, if the demands are of such
a nature that the judgment or execution in the one case may be set off
against the judgment or execution in the other. If there are several
defendants in the original action, each of them may bring such cross
action against the original plaintiff and may be allowed to set off his 8
judgment against that which may be recovered against him and his 9
co-defendants in like manner as if the latter judgment had been against 10
him alone. " 11
Section 3. The writ in such cross action mav be served on the at- 1
Service of
writ.
G I' 126^^1' torney of record for the plaintiff in the original action, and such service 2
p.' s. 164,' § 4. shall be as valid and effectual as if made on the party himself in the 3
R. L. 170, § 3. . . .
168 Mass. 105. COmmOllWCalth. 170 Mass. 538. 4
Proceedings.
R. S. 90, § 52;
92, § 16.
G. S. 126. § 5.
P. S. 164, § 5.
R. L. 170. § 4.
185 Mass. 49.
225 Mass. 512.
Section 4. The court in which either of the actions is pending may 1
order continuances to enable the absent party to defend the action 2
brought against him, and to enable either party to set off his judgment 3
or execution against that which is recovered against him, but the actions 4
shall not be unreasonably delayed by the neglect or default of either 5
party. The provisions of the following sections, relative to actions 6
against persons absent from the commonwealth, shall not apply to a 7
cross action brought under the two preceding sections. 8
inSvidliais, Section 5. Every individual not an inhabitant of the common-
a'ents''for"'°'°' ^'^alth and e^'cry partnership composed of persons not such inliabitants,
service of
process.
Penalty.
S§i,'2. ' without a usual place of business here, in tlie construction, erection,
95 U. S. 714,
having a usual place of business in the commonwealth, temporarily or
permanently, or engaged here, temporarily or permanently, and with or
alteration or repair of a building, bridge, railroad, railway, or structure
of any kind, shall, before doing business in the commonwealth, appoint
in writing a person who is a citizen and resident thereof to be his or its
true and lawful attorney upon whom all lawful processes against such
individual or partnership may be served with like effect as if served on 10
such person or partnership; and said writing or power of attorney shall 11
contain an agreement on the part of tlie maker that the service of any 12
lawful process on said attorney shall be of the same force and validity as 13
service on such individual or partnership. The power of attorney shall 14
be filed in the office of the state secretary, and copies certified by him 15
shall be taken as sufficient evidence thereof. Such agency shall be con- 16
tinned so long as such individual or partnership does business as afore- 17
said in the commonwealth, and the power of attorney shall not be re- 18
voked mitil a similar power is given to another citizen and resident of 19
the commonwealth and filed as aforesaid. Every such individual or 20
Chap. 227.] absent defend-^tts, etc. 2447
21 partnersliip neglecting or refusing to appoint such attorney shall be
22 notified by the state secretary, upon information and request by any
23 citizen of the commonwealth, of the requirements of this section; and
24 every person who acts within the commonwealth as agent of any such
25 individual or partnership continuing to neglect or refuse, after receipt
26 of such notice from the state secretary, to appoint such attorney, shall
27 forfeit ten dollars, to the use of the commonwealth, for each day during
28 which such person has so acted after such neglect or refusal.
1 Section 6. If real property of a non-resident is attached and no Dismissal of
2 personal service is made upon him, the action shall be dismissed unless i8m,"26s^''°'
3 notice thereof is given, in such manner as the court orders, within one lio^Mass.' 1.^'
4 year after the entry of the action.
1 Section 7. If a defendant in an action in the supreme judicial or Notice.
2 superior court is absent from the commonwealth or his residence is r*'|; gof § 53;
3 unknown to the officer serving the writ, and no personal service has g.'I. ^20. §6.
4 been made on him or his agent appointed under section five, or if the ^gg| ^|*' ^ '^■
5 service of a writ is defective or insufficient by reason of a mistake of the R l'. ito, § 6.
6 plaintiff or officer as to where or with whom the summons or copy ought §§ i.'z.
7 to have been left, the court, upon suggestion thereof by the plaintiff, 9 ci'ray.'sii.'
8 shall order tlie action to be continued until notice of the action is given 4°Aiieny'94!'*'
9 in such manner as it may order. If the property of an absent defendant f i^Ailen.^iM.
10 has been attached and the residence of such defendant is known to the }2? M"^'- oIq-
131 Mass. 0.59.
11 plaintiff and no legal service can be made upon him within the common- }|*m^=- i9,-
' ,°. , ' . IS8 Mass. 80.
12 wealth, except by publication, the court may order personal service to iQSMass. 82.
13 be made on him in such manner as it may direct and, upon proof that 224Mas3: li,
14 service has been so made, such defendant shall be held to answer to the 23b'Ma83. i76.
15 action. If the defendant does not appear, the court may order the
16 action continued and further notice given to him in such manner as it
17 may direct.
1 Section 8. If, after such notice, the defendant does not appear Default.
2 within twenty-one days after the day specified tJierefor, a default shall r^^|;92.§3.
3 be entered and judgment rendered against him as provided in section p |; Jf^; | 7;
4 one. 18S5, 334, § S. n. L. ito. § 7. 144 Mass. 10. 20s Mass. 39.
1 Section 9. If judgment in a personal action is rendered under the Bond.
2 preceding section upon the default of a defendant who is absent from 1797^50!^' 1.^'
3 the commonwealth or whose residence is unknown, the plaintiff shall |j- g- ^'^■
4 not take out execution thereon within one year thereafter, unless he Psf/?®'
5 files with the clerk of the court a bond payable to the defendant with p. s.'im,
6 one or more sureties, approved by the clerk or, upon appeal from his r. l ito. § s.
7 decision as to the sufficiency of the sureties, by a justice of the court 13 Gray. 1.'
8 rendering the judgment, in a sum equal to double the amount recovered, \ll m^; ff^'
9 conditioned to repay the amount so recovered if the judgment is re- ^-^ ^'''^^- ^"•
10 versed, or so much of the amount as shall be recovered upon a review
11 brought by the original defendant within one year after the original
12 judgment.
1 Section 10. If an attachment has been made upon a writ return- Notice in
2 able to a district court and the defendant is absent from the common- i83s',''i2T,"r2.
2448
ABSENT DEFEND.VNTS, ETC.
[CH-^P. 227.
wealth, so that no service can be made on him and he has no agent or
attorney residing in the commonwealth, the court may order the action
to be continued until notice thereof is given to the defendant in such
manner as it may direct. If, upon proof that such notice has been given,
i|i|' |5''> H29. -tlie defendant fails to appear on the return day of such notice, judgment
1920! i.
4 Allen, 94.
224 Mass. 14.
G. S. 120. § 8.
P. S. 154, § 11;
155. § 19.
1893, 396. § 18.
1894, 431.
R. L. 170, § 9.
1917, 326.
may be entered for the plaintiff. Thereupon execution may issue for
the plaintiff, upon his giving bond to the defendant with sufficient surety
in double the sum for which execution is to be issued, conditioned to
repay the amount recovered, if, witliin one jear from the judgment, pro- 11
ceedings are begun upon wliich it is reA'ersed. 12
3
4
5
6
7
8
9
10
Section 11. If the execution in an action under this chapter, except
as otherwise provided, is levied on land, no alienation thereof by the
original plaintiff shall prevent the defendant from retaking the same or
as much thereof as may be necessary to satisfy the judgment which he
R. L. 170, 1 lo! recovers on review, if the ^Tit of review is sued out within one year after
the original judgment.
Execution
levied on
land.
1700-1, 20. § 3.
1797, SO, § 5.
R. S. 92. § S.
G. S. 126, § 10.
Judgment in
real action.
R. S. 92. § 9.
G. S. 126, § 11,
P. S. 164. § 11,
R. L. 170, % 11,
Section 12. If the original judgment was for seisin of the land de- 1
manded in a real action, the ^^•rit of seisin may be issued in favor of the 2
demandant without his giving bond; and if the judgment is reversed in 3
whole or in part upon a review, whether sued out within the year or after- 4
ward, the original tenant may have restitution of the land as upon a 5
reversal on a writ of error. 6
Section 13. An action of tort against several defendants, any one
Actions of tort.
1797. 50. .
G i' ileS^ii ^^ whom is absent from the commonwealth at the time of the service of
p.' s. 164,' 1 12. the WTit, shall be conducted with regard to him relative to the service
'of the ■OT-it, judgment, review thereof and execution as if he were the
sole defendant.
TOntra?t°^ Section 14. An action of contract against several defendants, any
R^s' 9°' 11 °^^ "^^ whom is in the commonwealth and any other of whom is absent,
G. s! 126, § 13. in which the plaintiff recovers judgment shall not be subject to the pro-
R. L. 170, § 13! visions of this chapter relative to review, gi^'ing bond and alienation of
land; but judgment shall not be rendered against any such absent de-
fendant, unless under such circumstances as would entitle the plaintiff
to judgment if the absent party were the sole defendant.
Prosecution
against those
served.
New action.
R. S. 92,
l§ 12, 13.
G. S. 126,
If 14. 15.
P. S. 164,
§§ 14, 15.
R. L. 170. § 14.
5 Mass. 193.
8 Mass. 423.
13 Mass. 148.
13 Met. 256.
16 Gray, 114.
Section 15. An action of contract against several defendants in 1
which legal service is not made upon all,. either by attachment or other- 2
wise, by reason of their absence from the commonwealth or for other 3
sufficient cause, may be prosecuted against those who are duly served 4
with process, without further proceedings against the others. If judg- 5
ment so rendered against one or more of several joint contractors re- 6
mains unsatisfied, an action on the same contract may be maintained 7
against any of the other joint contractors in like manner as if the contract 8
had been joint and several. lo .■uien, 4S5. 147 Mass. 201. 9
Absence of SECTION 16. Real actions against several tenants, anv one of whom 1
one of several , i i i 1 1 i i i' * i • c\
tenants, etc. is abscut from the commonwealth, shall be conducted relative to him as 2
R. S. 92. § 14. '
g'. s! 126, § 16. if he were the sole defendant.
p. S. 164, § 16.
R. L. 170, § 15.
Chap. 228.]
SrKVIVAL OF ACTIONS, DISABILITIES, ETC.
2449
1 Section 17.
2 bond and review
The provisions of this chapter relative to judgment, ^''g"'g5'^'i°j"f-
' in actions of tort shall applv to a mixed action if the g. s. lib. § iV.
PS Hi4 s 17
3 defendant or one of se^•e^al defendants is absent from the commonwealth, r. l. ud. § i&.
4 but, as to the service of the writ and notice to the defendant, it shall be
5 conducted as a real action.
CHAPTER 228.
SURVIVAL OF ACTIONS AND DEATH AND DISABILITIES OF PARTIES.
Sect.
SURVIVAL OF ACTIONS.
1. Actions which survive.
PERSONAL ACTIONS.
2. Death of party in suit against officer
not to abate action.
3. Judgment for and against executor,
etc., of officer.
4. Death of sole plaintiff or defendant.
5. Citation.
6. Nonsuit or default.
7. Death of joint plaintiff, etc.
REAL AND MIXED ACTIONS.
8. Prosecution of real and mixed action
by devisee or heir.
Sect.
9. Death of one of several demandants.
10. Prosecution by survivor.
11. Death of tenant.
SUITS IN EQUITY.
12. Death of party to suit in equity.
INSANITY.
13. Insanitj'.
REMOVAL, DEATH, ETC., OF PUBLIC OFFICER,
ETC.
14. Removal, death, etc., of public officer,
etc.
SURVIVAL OF ACTIONS.
1 Section 1. In addition to the actions which survive by the common Actios which
2 law, the following shall survive: actions of replevin, tort for assault, isos'.'gg. §2.
3 battery, imprisonment or otlier damage to the person, for goods taken Jsil; 112! ^ ^"
4 and carried away or con\erted, or for damage to real or personal prop- ^'^^■f\ ^qq.
5 erty, and actions against sheriffs for the misconduct or negligence of 93. § I- ^ '
„ , 1 1 • 1 • 1S42, 89, § 1.
6 themselves or their deputies.
G. S. 17, § 58;
127, § 1.
P. .S. 25, § 10;
165, § 1.
R. L. 171. § 1.
7 Mass. 393.
1 Pick. 71.
19 Pick. 47.
4 Gush. 408.
5 Gush. 543.544.
9 Gush. 10S.47S.
14 Gray, 183.
11 Allen, 34.
106 Mass. 143.
115 Mass. 346,552.
121 Mass. 550.
123 Mass. 254.
125 Mass. 166.
132 Mass. 359.
143 Mass. 280, 301.
147 Mass. 471.
155 Mass. 176.
173 Mass. 212.
179 Mass. 583.
181 Mass. 430.
188 Mass. 371, 515.
197 Mass. 474.
209 Mass. 278.
215 Mass. 657.
216 M.ass. 30, 160.
222 Mass. 418.
225 Mass. 599.
PERSONAL ACTIONS.
1 Section 2. An action of replevin or tort by or against an officer Death of party
2 for personal property attached by him and claimed or taken by another offfcernot't'o*
3 person shall not be abated by the death of any party, but may be pros- r'^ sf9o'|'§°96.
4 ecuted by or against his executor or administrator.
G. S. 127, § 2.
P. S. 165, § 2.
R. L. 171,
1 Section 3. If judgment in such case is rendered for the executor or judgment for
2 administrator of the officer, the property or money recovered shall be eM[.uror,"etc.,
3 disposed of in the same manner as it ought to have been by the officer r,s!'9o,§§97,
4 if he had recovered the same; but if judgment is rendered against such ^-g ^^i
5 executor or administrator, the property shall be returned or delivered §§ 3. 4.
2450
SURVrVAL OF ACTIONS, DISABILITIES, ETC.
[Chap. 228.
« 3 4^^' o"" *'^^ damages recovered shall be paid in full by him, if there is sufEcient 6
R. L. iVi, § 4. property therefor, although the estate of the deceased is insolvent. 7 '
Death of sole
plaintiff or
defendant.
1727, 6, §§ 1, 2.
1727-S, 12, § 1.
17S3, 32, § 10;
59, § 1.
1834, 86.
R.S,93, §§ 1-3.
G. S. 127,
H5-7.
P. S. 165,
§§5-7.
R. L. 171, § 5.
133 Mass. 409.
195 Mass. 242.
225 Mass. 422.
Section 4. In a personal action the cause of which survives, if there 1
is only one plaintiff or one defendant and he dies after the commence- 2
ment of the action and before final judgment, the action may proceed 3
and be prosecuted by or against his executor or administrator, and if 4
the action, or an appeal therein, has not been entered prior to his death, 5
it may be entered thereafter. The death shall be suggested on the 6
record, and the executor or administrator may, within such time as the 7
court shall allow, appear and prosecute or defend the action, Mhich 8
shall thenceforth be conducted in the same manner as if it had been 9
originally commenced by or against the same executor or administrator. 10
If the executor or administrator does not voluntarily appear, the sur- 11
viving party may take out a citation from the court requiring the exec- 12
utor or administrator to appear and take upon himself the prosecution 13
or defence of the action. 14
Citation.
1783, 59, § 1.
R. S. 93, § 4.
G. S. 127, § S.
1878, 200.
P. S. 163,
§§8,9.
R. L. 171. § 6,
1919, 333, § 34.
Section 5. Such citation shall be returnable at such time as the 1
court may order and shall be served fourteen days at least before the 2
return day; but it shall not issue after the expiration of one year from 3
the time such executor or administrator has gi\'en bond, if he has given 4
the notice of his appointment as required by law. 5
1920, 2. 13 Allen, 221.
Section 6. If the executor or administrator does not appear on the
Nonsuit or
default.
1727-S,' i2^§ 1. return of the citation or witliin such further time as the court allows, he
R^s'gs'lfsii' s^i'i^ll '-"^ nonsuited or defaulted and judgment rendered against him in
G- 1- 127, like manner as if the action had been commenced by or against him in
p. s.' 165, §§ 10, his said capacity, except that he shall not be personally liable for costs;
R.L. 171, § 7. but the estate of the deceased in his hands shall be liable for the costs,
136 Mass. 249. ^^ ^^.^jj ^^ j^^ ^j^^ ^j^j^^ ^^ clamages recovered.
Death of joint
plaintiff, ete.
R. S. 93, §§ 12,
13.
G.S. 127, §§11,
12.
P. S. 165, §§ 12,
13.
R. L. 171, § 8.
4 Pick. 308.
9 Pick. 528.
Section 7. If any of several plaintiffs or defendants in a personal 1
action, the cause of which survives, dies before final judgment, the 2
action may be prosecuted by the sm-viving plaintiff or against the sur- 3
viving defendant, as the case may be. If all the plaintiffs or defendants 4
die, the action may be prosecuted or defended by or against the executor 5
or administrator of the last surviving plaintiff or defendant, respectively. 6
119 Mass. 361.
133 Mass. 409.
166 Mass. 4G6.
16S Mass. 415.
195 Mass. 242
Prosecution of
real and mixed
action by dev-
isee or heir.
1826, 70, § 1.
R. S. 93, § 14;
101, § 12.
1851, 233, § 72.
1852.312, § 55.
G.S. 127, § 13;
134, § 11.
P. S. 165, § 14;
173, § n.
REAL AND MIXED ACTIONS.
Section 8. If, in a real or mixed action, the demandant dies before
final judgment, his heir or devisee of the land demanded or of the right
of action may, within such time as the court allows, appear and prose-
cute the action in the same manner as if commenced by him. If the
first estate in possession under a devise is not a fee simple, the devisee
of the first freehold estate in possession may appear and prosecute, and
the judgment, if in his favor, shall be conformed to his title.
9;
R.L. 171,
179, § 11.
17 Pick. 103.
10 Met. 294.
12 Met. 501.
1 Cush. 395. .
8 Gray, 154.
12 Gray, 283.
13 Gray, 272.
136 Mass. 126.
152 Mass. 257.
Ch.vp. 228.] siTtvnaL of actions, disabilities, etc. 2451
1 Section 9. If any of several demandants dies before final judgment, °«^th °' °°<=
2 his heir or devisee shall be admitted, upon motion, to prosecute the demandants.
3 action with the survivors, in the same manner as if he had been originally r."s.'93,' § is.
4 a party thereto. g. s. 127, § u. p. s. les, § 15.
R. L. 171, § 10. 10 Mass. 179. 11 Mass. 56. 155 Mass. 461.
1 Section 10. If the interest of the deceased party passes to the sur- rrosccution by
2 viving demandants, or if there is no motion for the admission of an heir isSi'.'fo.' § i.
3 or devisee at the sitting when the death of the deceased party is sug- §■ |; 127,^5^15.
4 gested or within such further time as the court allows, the surviving RL\n Vu
5 demandants may prosecute the action for so much of the land in question
6 as they may then claim.
1 Section 11. If the tenant dies before final judgment, his heir or DeatKof
2 devisee of the land demanded may, within such time as the court iSto. § 2.
3 allows, appear and defend the action, which shall be conducted as if fdi^'ui^ ^^'
4 commenced against him. If the heir or devisee does not voluntarily Q^^-fo*'
5 appear, the court before whom the action is pending shall, upon the « 10. i^l
6 application of the demandant, summon such heir or de\isee to appear p. s._i65,§§i7,
7 and defend the action. If any of several tenants in such action dies R.L.'ih, § 12:
8 before final judgment, the action may be prosecuted against the sur- 2^Mal8'. 479.
9 \'i\'ing tenants for so much of the land as they liold or claim. i9^Pick.^243.
suits in equity.
1 Section 12. If a party to a suit in ecjuity dies and the cause by the Death of party
2 rules of equity may be revived against or in favor of an executor, ad- is65!42.^'^""^'
3 ministrator, heir, devisee or other person, such representative may, in R.L.m'.Vi?.
4 lieu of proceedings to revive the same, appear or be summoned to prose- JlsSvfii^ile
5 cute or defend in like manner as in an action at law. 2.33 Mass. 62. 166 Mass. 547.
insanity.
1 Section 13. If, during the pendency of an action or suit, any party insanity.
2 becomes insane, it may be prosecuted or defended by his guardian in §! i: ihfih.
3 like manner as if it had been commenced after the appointment of the r l m'|i|
4 guardian, or the court may appoint a guardian for the action, as the i^ptc'r43'i'^"
5 case may require. s .4iien, 311.
REMOVAL, death, ETC., OF PUBLIC OFFICER, ETC.
1 Section 14. An action on a note, bond, contract or other liability Removal,
2 made to or with any public officer or trustee appointed under a statute of p'ubilc""
3 may, after his removal, resignation or death, be commenced or, if pend- inf^'it.'^'
4 ing, may be prosecuted by his successor, as it might have been by the ^sf 23^^00'
5 person with whom the contract was made. § 25. '
G. S. 127, § 24. 2 Mass. 440. 6 Gush. 229.
P. S. 165. § 26. 12 Mass. 575. 236 Mass. 336.
R. L. 171, § 19. 2 Met. 47.
REFERENCES.
As to survival of petition for damages for taking by eminent domain, Chap. 79, § 21.
Same as to petition to abate betterment, Chap. 80, § 8.
Same as to recognizance for debt, Chap. 256, §§ 5-7.
Manner of payment, in case of death, of money awarded in writ of entry. Chap.
237, § 36.
Survival of poor debtor proceedings, Chap. 224, § 33.
§ 4. Right of special administrator to appear and prosecute or defend, Chap. 193,
§ 11.
2452
ACTIONS FOR DEATH, ETC.
[Ch.\p. 229.
CHAPTER 229.
ACTIONS FOR DEATH AXD INJURIES RESULTING IX DEATH.
Sect.
1. Damages for death from a defective
way.
2. Damages for death by negligence of
common carrier.
3. Penalty on certain corporations for
death by negligence, etc.
4. Action against employer for death.
5. Action for death in general.
6. Count for conscious suffering in action
for death.
Sect.
7. .-Vction by legal representative of em-
ployee for death after conscious
suffering, etc.
S. Amendment of actions brought for
death or injurj' of employee.
9. Damages in action' for death of em-
ploj'ee.
10. Xotice and limitation in action against
employer for death.
11. Interest.
Damages for
death from a
defective wav.
P. L. 1693-4",
6, §6.
17S6, 81, § 7.
R. S. 25, § 21.
G. S. 44, J 21.
ISSl, 199,
§§ 4, 5.
P. .S. 52, § 17.
R.L. 51, 5 17
1917, 344. IV,
§ 23, VIII, § 1.
138 Mass. 14.
155 Mass. 344.
1S5 Mass. 510.
18S Mass. 53.
192 Mass. 220.
194 Mass. 183.
Damages for
death by
negligence of
common
carrier.
1S40, 80.
G. S. 160, § 34.
ISSl, 199, §§ 3,
5, 6.
P. S. 73, § 6.
R. L. 70, § 6.
132 Mass. 555.
144 Mass. 425.
179 Mass. 329.
200 Mass. 8.
Section 1. If the life of a person is lost by reason of a defect or a want
of repair of or a want of a sufScient railing in or upon a way, causeway
or bridge, the county, city, town or person by law obliged to repair the
same shall, if it or he had previous reasonable notice of the defect or want
of repair or want of railing, be liable in damages not exceeding one
thousand dollars, to be assessed with reference to the degree of culpa-
bility of the defendant and recovered in an action of tort commenced
within one year after the injury causing the death by the executor or
administrator of the deceased person, to the use of the widow and children
of the deceased in equal moieties, or, if there are no children, to the use
of the widow, or, if there is no widow, to the use of the next of kin.
197 Mass. 480.
211 Mass. 561.
212 Mass. 243.
21S Mass. 582.
219 M.1SS. 310.
222 Mass. 591.
226 Mass. 479.
227 Mass. 462.
230 Mass. 370, 536.
236 Mass. 275.
Section 2. If the proprietor of a common carrier of passengers,
except a railroad corporation or street railway or electric railroad com-
pany, by reason of his or its negligence, or by reason of the unfitness or
gross negligence or carelessness of his or its servants or agents, causes the
death of a passenger, he or it shall be liable in damages in the sum of not
less than five hundred nor more than five thousand dollars, to be assessed,
recovered and distributed as provided in section one, and to the use
of the persons and in the proportions therein specified.
1
2
3
4
5
6
7
8
9
10
11
221 Mass. 12
230 Mass. 370.
Penalty on
certain cor-
porations for
death by neg-
ligence, etc.
1840, 80.
1853, 414,
§§ 1-3.
G. S. 63,
H 97-99.
1864, 229,
§§ 37, 38.
1S67, 164.
1871, 381,
§5 49, 50.
1874, 372,
§ 163.
1881, 199, 5§ 1,
5,6.
P. S. 112, § 212.
1SS3, 243.
1886, 140.
R. L. Ill,
§267.
Section 3. If a corporation operating a railroad, street railway or 1
electric railroad, by reason of its negligence or of the unfitness or negli- 2
gence of its agents or servants while engaged in its busiiiess, causes the 3
death of a passenger, or of a person in the exercise of due care who is not a 4
passenger or in the emplojTnent of such corporation, it shall be punished 5
by a fine of not less than five hundred nor more than ten thousand dollars, 6
to be recovered by an indictment prosecuted within one year after the 7
time of the injury which caused the death, which shall be paid to the 8
executor or administrator, and distributed as pro\'ided in section one; 9
but a corporation which operates a railroad shall not be so liable for the 10
death of a person while walking or being upon its railroad contrary to 11
law or to the reasonable rules and regulations of the corporation, and 12
one which operates an electric railroad shall not be so liable for the death 13
Chap. 229.] actions for death, etc. 2453
14 of a person while so walking or being on that part of its railroad not Pol'n^^&l'-s.
1.3 within the limits of a highway. Such corporation shall also be Hable 5ig,§ I's.
* o » i^ 1907 39''*
16 in damages in the sum of not less than G.ye hundred nor more than ten 428, '§ 4."
17 thousand dollars, to be assessed with reference to the degree of culpabil- n c'ush^5i2.
18 ity of the corporation or of its servants or agents, which shall be re- fo^AUenf isg.
19 covered in an action of tort, begun within one year after the injury which Joi'^i'fJ's/foi
20 caused the death, by the executor or administrator of the deceased, and iw Mass. 236.
21 distributed as provided in section one. If an employee of a railroad cor- 120 Mass! 372.
22 poration, being in the exercise of due care, is killed under such circum- 129 Mass! 50b.
23 stances as would have entitled him to maintain an action for damages {34 Mag^; In!
24 against such corporation if death had not resulted, the corporation shall \l^ ^J^^^; Igl
25 be liable in the same manner and to the same extent as it would have been ?^?-,^^2.
• 1. 1 1 1111 I n ... 141 Mass. 463.
26 if the deceased had not been an employee. But no executor or admmis- us Mass. soi.
27 trator shall, for the same cause, avail himself of more than one of the i46 Mass! 379!
28 remedies given by this section. 147 Mass. 101.
148 Mass. 478. 175 Mass. 181. 212 Mass. 392.
153 Mass. 79. 112, 300. 182 Mass. 337. 214 Mass. 1, 98.
154 Mass. 478. 185 Mass. 510. 215 Mass. 50. 467.
156 Mass. 316. 320. 187 Mass. 77. 216 Mass. 178. 598.
157 Mass. 336. 188 Mass. 371. 217 Mass. 188, 594.
159 Mass. 3. 536. 189 Mass. 270. 218 Mass. 397, 582.
160 Mass. 39. 190 Mass. 527. 221 Mass. 457.
161 Mass. 26, 298. 192 Mass. 20. 222 Mass. 583.
162 Mass. 66. 194 Mass. 181. 223 Mass. 29, 184.
163 Mass. 132, 330. 197 Mass. 32, 391. 224 Mass. 303, 452.
164 Mass. 424. 200 Mass. 8, 147. 225 Mass. 65.
165 .Mass. 572. 201 Mass. 38. 226 Mass. 262.
166 Mass. 492. 203 Mass. 453. 227 Mass. 493.
171 Mass. 33. 52, 164. 206 Mass. 557. 228 Mass. 472.
172 Mass. 211. 209 Mass. 81, 100. 229 Mass. 506.
173 Mass. 136. 210 Mass. 553. 234 Mass. 415.
1 Section 4. If, as the result of the negligence of an employer himself, ^^,"1™ er'""*'
2 or of a person for whose negligence an employer is liable under section f'? death.
3 one of chapter one hmidred and fifty-three, an employee is instantly R. l! lou! § 73.
4 killed, or dies without conscious suffering, his widow or, if he Iea\'es no 1909.' su,'
5 widow, his next of kin, who, at the time of his death, were dependent upon fl/Mais.^iil!''
6 his wages for support, shall have a right of action for damages against \ll Wm- |g
7 the emplover. Tliis section shall not apply to iniiiries caused to domestic J';* m^^^- fS^-
^ • 1 P 11 -i" 167 Mass. 590.
8 servants or larm laborers by fellow employees. les Mass. 40.
174 Mass. 455. 191 Mass. 9. 202 Mass. 254.
175 Mass. 502. 193 Mass. 76. 211 Mass. 446.
176 Mass. 266. 195 Mass. 437. 218 Mass. 582.
1S3 Mass. 13. 197 Mass. 391. 219 Mass. 351.
1,S5 Mass. 151. 199 Mass. 254. 222 Mass. 538.
188 Mass. 371. 200 Mass. 284. 227 Mass. 123.
1 Section 5. Except as pro\'ided in sections one, two and three, a Action for
2 person who by liis negligence, or by the negligence of his agents or serv- glneral"
3 ants while engaged in liis business, causes the death of a person in the isgsisGs!
4 exercise of due care, who is not in his employment or serA-ice, shall be f^,^- JIl' ^ ^■
0 liable in damages in the sum of not less than five hundred nor more J^? Mass. i76.
6 than ten thousand dollars, to be assessed with reference to the degree is7 Mass! 376.'
7 of his culpability or of that of his agents or servants, to be recovered in 192 Mass! 20, '
8 an action of tort, conmienced within two years after the injury which 200 Mass. s,
9 caused the death by the executor or administrator of the deceased, to ooiMass 276.
10 be distributed as pro^^ded in section one.
203 Mass. 572. 219 Mass. 15, 560, 566. 230 Mass. 139.
206 Mass. 308. 220 Mass. 90, 236. 231 Mass. 397, 458,
209 Mass. 529. 221 Mass. 24, 125, 195. 519, 538. 550.
211 Mass. 54, 561. 222 Mass. 560. 232 Mass. 183.
212 Mass. 243. 392. 223 Mass. 179. 233 Mass. 392.
214 Mass. 426. 225 Mass. 151, 576. 235 Mass. 66.
218 Mass. 231, 582. 226 Maas. 75, 479. 230 Mass. 387.
1 Section 6. In any civil action brought under section three or five, Count for
2 damages may be recovered under a separate count at common law for suSerlng^n
2454
ACTIONS FOR DEATH, ETC.
[Cbl^p. 229.
action for coDScious Suffering resulting from the same injury, but any sum so re- 3
1911,31:633. covered shall be held and disposed of by the executors or administrators 4
iieMassJse! as assets of the estate of the deceased. 5
219 Mass. 566. 229 Mass. 506. 232 Mass. 183.
Action by
legal repre-
sentative of
employee for
death after
conscious
suffering, etc.
1892, 260, § 1.
1893, 359.
1894, 499.
R. L. 106, § 72.
1900. 370.
1909, 514,
5§ 128, 145.
1915, 179.
185 Mass. 151,
510.
188 Mass. 371.
Section 7. If a cause of action exists against an employer under 1
section one of chapter one hundred and fifty-three, or because of the 2
negligence of the employer himself, for an injury resulting in death which 3
is not instantaneous or is preceded by conscious suffering, if there is any 4
person who would have been entitled to bring an action under section 5
four, the legal representatives of the deceased may, in the action under 6
said section one, recover damages both for the injury and for the death, 7
and. if the employer is also liable at common law, may in a separate count 8
in the same action recover damages for conscious suffering resulting from 9
the same injury. 10
198 Mass. 163.
200 Mass. 284, 432.
201 Mass. 227.
203 Mass. 273.
208 Mass. 296.
210 Mass. 86.
214 Mass. 426.
215 Mass. 199.
218 Mass. 582.
219 Mass. 164.
224 Mass. 452.
227 Mass. 168.
Amendment
of actions
brought for
death or injury
of employee.
1908, 457.
1909, 514.
§§ 1.30. 145.
200 Mass. 284.
Section 8. If an action is brought under section four, or if the 1
action is brought by the legal representati\es under the preceding sec- 2
tion or under section one of chapter one hundred and fifty-three, such 3
action shall not fail by reason of the fact that it should have been brought 4
under the other section, but at any time prior to final judgment may be 5
so amended as to provide against such failure. 6
Damages in
action for
death of
employee.
1887, 270, § 3.
1893. 260.
§§ 1. 2.
1893, 359.
1894, 499.
1900, 446.
R. L. 106,
1909, 514,
§§ 131, 145.
185 Mass. 510.
188 Mass. 371.
198 Mass. 163.
203 Mass. 273.
21S Mass. 5S2.
§ 74.
Section 9. If under section four or section seven damages are 1
awarded for death or for injury and death, they shall be assessed with 2
reference to the degree of culpability of the employer or of the person 3
for whose negligence the employer is liable. 4
The amount of damages which may be awarded in an action brought 5
under section four shall not be less than five hundred nor more than 6
five thousand dollars. 7
The amount of damages which may be awarded for injury and death in 8
an action brought under section seven shall not exceed fi^•e thousand 9
dollars for both the injury and the death, and shall be apportioned by 10
the jury between the legal representati\'es of the employee and the per- 11
sons who would have been entitled under section four to bring an action 12
for his death.
13
Notice and
limitation
in action
against em-
ployer for
death.
1887, 270, § :
Section 10. An action under section four or section seven shall be
subject to all the provisions of section six of chapter one hundred and
fifty-tliree relative to notice to the employer of the time, place and cause
of the injury, and the time ■within which the action shall be commenced.
1SS8, 155, § 1.
1892, 260, I 2.
1894, 389.
1900, 446.
R. L. 106. § 75.
1909, 514, §§ 132, 145.
1910, 160, § 2; 611.
1911, 17S.
1912, 251.
197 Mass. SSB.
198 Mass. 385.
199 Mass. 418.
200 Mass. 284.
201 Mass. 473.
202 Mass. 228.
204 Mass. 197.
209 Mass. 196.
210 Mass. 86.
216 Mass. 512, 552.
219 Mass. 164.
226 Mass. 374.
228 Mass. 361.
Interest.
1913, 290.
Section 11. In any ci\'il action in which a verdict is given for 1
pecuniary damages for the death, with or without conscious suffering, of 2
any person, whether or not such person was in the emplojTiient of the 3
defendant against whom the ^-erdict is rendered, there shall be added 4
CH-^P. 230.] ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS.
2455
5 to the amount of the damages interest thereon from the date of the writ,
6 even though sucii interest brings the amount of the verdict beyond the
7 maximum hability imposed by law.
REFERENCES.
Damages for death caused by municipal lighting plant, Chap. 164, § 64.
§ 1. As to notice of the injury resulting in death, Chap. 84, §§ 18, 19.
§ 3. Gross, etc., neghgence necessary to constitute contributory negUgence in cer-
tain grade crossing cases, Chap. 160, § 232.
§§ 4, 7. Limitation of actions under these sections, Chap. 153, § 6.
CHAPTER 230.
ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS.
Sect.
1. What actions may be brought.
2. Damages in tort.
3. Recovery by executor, etc., in right of
another.
4. Property returned on replevin by ex-
ecutor, etc.
5. Legatee, etc., may bring suit to enforce
claim where executor, etc., refuses, etc.
6. Writs against executors, etc.
Sect.
7. No attachment without permission of
probate court.
8. Costs.
9. Separate executions for damages and
for costs.
10. Scire facias against executor, etc.
11. Death of executor, etc., pending action.
12. Same, after judgment.
13. Writ of error.
1 Section 1. An action which would ha\'e survived if comrnenced may be"*'""^
2 by or against the original party in his lifetime may be commenced and ^°^^g^- = §
3 prosecuted by or against his executor or administrator.
G. S. 128, § 1. P. S. 166, § 1. R. L. 172, § 1.
1 Section 2. If an action of tort is commenced or prosecuted against Damages
in tort
2 the executor or administrator of the person originally liable, the plaintiff r. s. 93. § 9.
3 shall recover only the value of the goods taken, or the damage actually p,s.ii"o.'§2.'
4 sustained, without vindictive or exemplary damages, or damages for any ?73\ii^s^'. Iil.
5 alleged outrage to the feelings of the injured party.
1 Section 3. If the executor or administrator of a trustee, carrier. Recovery by
2 depositary or other person who claimed only a special property in goods fnHght'^of' '^"
3 which he held for the use and benefit of another recovers such goods, or '1822, no. 1 2.
4 damages for the taking or detention thereof, in replevin or tort, the goods q' |; lis.^^s!
5 or money recovered shall not be assets in his hands, but shall, after the ^ f; ^[f^ \^^
6 deduction of the costs and expenses of the action, be delivered or paid
7 to the person for whose use and benefit they were so held or claimed by
8 the deceased.
1 Section 4. If judgment for a return in an action of replevin is Property re-
2 rendered against an executor or administrator, the property returned repWrn by
3 by him shall not be assets in his hands; and if it has been included in the isl^m.Ts.
4 inventory, he shall be allowed therefor in his account if he shows that ^i- 1 i2s^§'4'
5 it has been returned in pursuance of such judgment.
P. S. 166, § 4.
R. L. 172, § 4,
2456
ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS. [ChAP. 230.
Legatee, etc.,
may bring
suit to enforce
claim where
executor, etc.,
refxises. etc.
1915, 151, § 7.
Section 5. It shall be unnecessary to remove an executor or adminis- 1
trator in order that an action or suit to enforce a claim in favor of the 2
estate may be brought by an administrator to be appointed in his place, 3
when he refuses to bring such action or suit at the request of a legatee or 4
creditor, or is unable to do so by reason of his interest or otherwise, but 5
a legatee or creditor having an interest in the enforcement of any such 6
claim may bring a suit in equity to enforce it for the benefit of the estate 7
in like circumstances and in like manner as a person beneficially interested 8
in a trust fund may bring a suit to enforce a claim in favor of such fund, 9
and in case of such a suit in respect to real estate, it shall not be an 10
obstacle to the suit that a license to sell it has not been obtained by the 11
executor or administrator. 12
Writs against
executors, etc,
1703^, 12, § 4.
1783, 32, § 9.
R. S. 110, § 1.
G. S. 128, § 5.
P. S. 166, § 5.
Section 6. Writs of attachment and executions against executors 1
or administrators for debts due from the testator or intestate shall run 2
only against the goods and estate of the deceased in their hands, and 3
not against their bodies, goods or estate. 4
R, L. 172, 5 5.
3 Mass. 523.
140 Mass. 6fi.
151 Mass. 148, 501.
190 Mass. 522.
221 Mass. 587.
No attachment
without per-
mission of
probate court.
1907, 653.
Section 7. The real and personal property of a deceased person 1
shall not be attached on mesne process in an action upon a debt due 2
from, or upon a claim against, the deceased, except upon the permission 3
of the probate court for the county where the executor or administrator 4
of the deceased person w-as appointed. This section shall not apply to 5
actions brought under section twenty-nine of chapter one hundred and 6
ninety-seven. 7
Costs.
R. S. 110, §§ 2,
3,5.
G. S. 128, §§ 6,
7,9.
P. S. 166, §§ 6,
7,9.
R. L. 172, § 6.
16 Mass. 530.
2 Pick. 68.
11 Pick. 389.
14 Pick. 8, 274.
15 Pick. 385.
220 Mass. 1.
Section 8. If a judgment for costs is rendered against an executor 1
or administrator in an action commenced by or against him, or in an action 2
commenced by or against the testator or intestate, wherein the executor 3
or administrator has appeared and taken upon himself the prosecution 4
or defence, he shall be personally liable for the costs, and execution shall 5
be awarded against his body, goods and estate, as if it were for his own 6
debt. Costs paid by him shall be allowed in his account unless the pro- 7
bate court determines that the action was prosecuted or defended without 8
reasonable cause. 9
Separate exe-
cutions for
damages and
for coats.
R. S. 110, §4.
G. S. 128, § S.
P. S. 166, § 8.
R. L. 172, § 7.
120 Mass. 516.
Section 9. If the judgment is for damages and costs, an execution
for the damages shall be awarded against the goods and estate of the
deceased in the hands of the executor or administrator, and another
execution for costs against the goods, estate and body of the executor or
administrator, as if for his own debt.
136 Mass. 249, 294. 143 Mass. 187. 216 Mass. 30. 220 Mass. 1.
Scire facias
against execu-
tor, etc.
170.3-4, 12, § 4.
1783, 32, § 9.
1819, 157.
R. S. 110. § 6.
G. S. 128,
§10.
P. S. 166, § 10.
R. L. 172, § 8.
142 Mass. 227.
144 Mass. 238.
Section 10. Upon the return unsatisfied of an execution against an
executor or administrator for a debt due from the estate of the deceased,
the court may, upon a suggestion by the creditor of waste, issue a ^^Tit
of scire facias against the executor or administrator. If the defendant
does not appear and show sufficient cause to the contrary, he shall be found
guilty of waste and shall be personally liable for the amount thereof, if it
can be ascertained, otherwise for the amount due on the original judgment,
CH.4P. 231.] PLEADING AND PRACTICE. 2457
8 with interest from the time when it was rendered, and judgment and lli Mass! ssv!
9 execution shall be awarded as for his own debt.
1 Section 11. If an executor or administrator dies or is removed from Death ot execu-
2 ofBce during the pendency of an action to which he is a party, it may be ?ng' action^*"
3 prosecuted by or against the administrator de bonis non in like manner as Jsi?! looi | is.
4 if commenced by or against him; and the pro\'isions of chapter two^^jf-g'"'
5 hundred and twenty-eight relative to the appearance or citation of an c* s^ 128.
6 administrator and relative to a nonsuit or default shall apply to such ?■ s. lee
. . 11- SS II 19
7 admmistrator de boms non.
R. L. 172, § 9. 4 Mass. 611. 7 Allen, 427,
1 Section 12. If an executor or administrator dies or is removed after same, after
2 judgment has been rendered for or against him, the court may issue a ml^fos, § 2.
3 vrrit of scire facias in favor of or against the administrator de bonis non, r/s.' i?o,' 1 9*'
4 and a new execution may be issued in like manner as may be done in p',|.il|;|i3;
5 favor of or against an original executor or administrator in case of the ^- ^- 1'^' § '°-
6 death of his testator or intestate after a judgment rendered for or against
7 him; except that a judgment against the first executor or administrator
8 for costs for which he was personally liable shall be enforced only against
9 his executor or administrator and not against the administrator de
10 bonis non.
1 Section 13. If a judgment is rendered for or against an executor writ of error.
2 or administrator, a writ of error may be brought thereon by or against Hul wo, | h.
3 an administrator de bonis non in like manner as it might have been §; §; Jig] | li'.
4 brought by or against the executor or administrator who was party to J^- ^ ^^f.; \ \^j-
5 the judgment. 4 Mass. en. 7 Mien, 427.
REFERENCES.
§ 1. ^\Tiat actions survive, Chap. 228.
Time limit for bringing suit against executor or administrator, Chap. 197, § 9
et seq.
Necessity of specific denial that executor, etc., is such, Chap. 231, § 30.
Mode of service of writs, etc., against executors, etc., Chap. 223, § 36.
Time within which real estate may be sold for payment of debts, Chap. 202,
§20.
Dissolution of attachment on death of debtor. Chap. 223, § 116 et seq.
§ 7. Liability of land to be taken on execution for costs in certain cases. Chap. 236,
§53.
§ 9. Authority of district courts to issue writ of scire facias, Chap. 218, § 20.
CHAPTER 231.
PLEADING AND PRACTICE.
(All sections of this chapter, except as otherwise provided, apply to actions at law in the supreme judicial
and superior courts. The following signs against a section number indicate that a section also
applies as follows :
* to ci\'il actions before any district court. See § 141.
t to real and mixed actions, and to the land court or proceedings begun therein. See § 142.
J to the municipal court of the city of Boston. See § 143.
§ to suits in equity and probate proceedings. See § 144.
II to petitions for damages for taking by eminent domain and for abatement of betterment assess-
ments. See § 145.
^ to suits in equity. See § 146.]
2458
PLEADING AND PRACTICE.
[CH-AP. 231.
Sect.
PLEADING.
Division of Personal .Actions.
* 1. Division of actions.
Parties.
* 2. Joinder of plaintiffs in several
actions.
* 3. Joinder of co-tenants.
* 4. Joinder of defendants severally
liable on written contracts.
* 5. Action by assignee of chose in
action.
II 6. Same subject.
*t
*t
*t
*t
*t
*t
Declarations.
7. Form of declaring at law.
S. In real actions on mortgage.
9. Writ and declaration in action
of ejectment.
10. Description of plaintiff's close
in tort, etc.
11. Declaration need not be in
writ, unless, etc.
12. Time of filing decl.iration.
13. Non-entry and late entry.
14. Bill of particulars.
Demurrers.
15. Demurrers.
16. Demurrer to the declaration.
17. Demurrer to the answer.
18. Causes for demurrer.
19. Pleading after demurrer.
Sect.
41. Interpleader
pledgee.
Answers, Replications, etc.
* t 20. Answer in abatement.
*t 21. Answering over.
* t 22. Answer or general issue.
* t 23. Joint answer.
24. Pleadings on appeal.
* 25. Answer.
* 26. Answers to separate items, etc.
* 27. General or partial denial.
* 28. Answer in avoidance.
* H 29. Signatures admitted unless gen-
uineness is denied.
30. Representative or corporate ca-
pacity admitted, unless, etc.
31. Equitable defences.
* 32. Written instruments, how
pleaded.
* 33. Conditional obligations, etc.,
how pleaded.
Replication.
Equitable avoidance of de-
fence.
Supplemental declaration, etc.
Alternative averments.
Construction of pleadings.
Action, when at issue.
PRACTICE.
Interpleader.
40. Interpleader by defendant.
*
34
t§ll
35
*
36
*
37
*
38
* t
39
by bailee
Endorsement of Process,
* t T 42. Endorsement of writs, etc., be-
fore entry.
* t If 43. Same after entry.
* t U 44. Endorser upon removal of
plaintiff.
* t IF 45. Endorser removing, etc.,
another required.
46. Endorser in probate cases, etc.
* t H 47. Dismissal for failure to procure
endorser.
* t H 48. Substitute endorser.
Abateme7it.
* t § 49. No abatement for circumstan-
tial errors.
* t 50. Judgment upon issue of fact.
Amendments.
't § II 51. Changing parties, form, etc.
'till 52. Amendment after demurrer.
* t 53. Amendment, etc., after answer
in abatement.
54. Joinder of new defendants.
55. Amendments changing actions
at law into suits in equity,
and vice versa.
* t 56. Amendment after judgment.
Defaults.
57. Defaults.
58. Notice of default or decree pro
confesso.
*t
*t
Advancing Causes for Speedy Trial.
59. Advancing actions for speedy
trial.
Claim of Trial by Jury.
t 60. Jury trial, how claimed.
Interrogatories.
61. Parties may file interrogatories,
when.
62. Answers.
63. Practice.
64. Penalty for failure to answer,
etc.
65. Answers by corporation, etc.
66. Costs.
67. Right to seal up immaterial
parts of book, etc.
Inspection of Documents.
* t § 11 68. Inspection of documents.
Admission of Material Facts and Documents.
* 69. In certain actions either party
may call for admission of fact
or of execution of paper.
Interlocutory Orders.
* 70. Statement of particulars of ac-
tion or defence.
*t§l
*t§l
*t§l
*t§l
*t§l
*t§l
*t§l
Chap. 231.]
PLE.UJING AND PRACTICE.
2459
Sect.
till
*t
*t
n. Orders,
trial.
etc., preparatory
when made.
Agreements of Parties.
72. Agreements.
73. Continuances by agreement.
Offer of Judgment.
* 1[ 74. Offer of judgment.
* U 75. Costs to defendant on i
acceptance.
Frivolous Demurrer.
t 76. Frivolous or immaterial
murrers.
de-
Hearing or Trial.
t 77. Jury waived cases and de-
murrers, how heard.
t 78. Postponement of actions on
trial list.
♦ t "9. Trials not to be delayed or
postponed, etc.
t SO. Trials to proceed after allow-
ance of exceptions,
t § II 81. Charges as to facts forbidden.
82. Place of trial,
till 83. Examination of witnesses.
84. Consolidation of actions for
libel.
Evidence.
* 85. Contributory negligence an af-
firmative defence; presump-
tion and burden of proof.
t 86. Counts not proved may be
stricken out.
*t § II 87. Pleadings not evidence.
* % 88. Unaccepted offer of judgment.
♦ t § 1 1 89. Answers to interrogatories may
be read at trial.
* t H 90. One matter in answer not e^a-
dence of another.
* 91. Justification in slander not
proof of malice.
* 92. Truth of Ubel admissible.
* 93. Retraction of libel.
* 94. EWdence in mitigation of
damages.
* 95. Evidence of payment, etc., in
action on judgment by de-
fault.
Appeals.
t I 96. Appeal to full court.
* 97. Appeal to superior court.
* 98. Appeal bond.
* 99. Deposit in lieu of bond.
* 100. No appeal bond required,
when.
* 101. Transmission of papers.
* 102. Records in lower court of cases
appealed.
t 103. Waiver of jury trial in Boston
municipal court. Removal
by plaintiff.
Sect.
t 104. Removal from Boston mu-
nicipal court.
t 105. Partial removal.
t 106. Deposit in lieu of removal bond,
t 107. Bond or deposit not required,
when.
t 108. Appellate division.
X 109. Appeal from appellate division
to supreme judicial court.
X 110. Powers of appellate division.
t
t§
t§I
t§l
Report.
111. Report.
112. Report in caseof disability, etc.,
of presiding justice.
113.
114.
t §11 115.
t 116
till 117
t§ll lis
t §11119.
till 120
t§ 11121
Exceptions.
Exceptions.
Dismissal of exceptions for fail-
ure to present for allowance.
Allowance of exceptions in case
of disability, etc., of presiding
justice.
Frivolous or immaterial ex-
ceptions.
Establishment of exceptions
disallowed.
Entry of notice of filing of peti-
tion to establish exceptions.
Reservation where exceptions
disallowed.
Verdict by leave reseri'ed.
Transcripts of evidence.
Power of Full Court on Exceptions, Appeal
or Report.
t II 122. Full court may direct judgment
for defendant after sustain-
ing his exceptions, when.
t II 123. Same as to plaintiff.
1 1 § II 124. Power of full court on appeal,
etc.
1 1 § 11 125. Same, relative to amendments,
etc.
tt § II 126. Inferences of fact upon case
stated.
New Trials.
t § II 127. New trial,
till 128. Grounds for new trial to be
stated in order, etc.
t § II 129. New trial in jury waived cases.
till 130. Terms on refusal of new trial.
t § II 131. Effect of exceptions on new
trial.
Effect of Error not Affecting Whole Case.
t J § II 132. No new trial to be granted by
full court or trial court on
errors in evidence or proce-
dure not affecting substantial
rights. Judgment as to part
of case.
2460
PLEADING AND PRACTICE.
[Ch.\p. 231.
Sect.
t § II 133. Affirmance of judgment by
court appealed from.
Waiver of Appeal or Exceptions.
* t § II 134. Waiver of appeal or exceptions.
Transmission of Papers.
t § II 135. Entry of exceptions, etc., in
law docket.
Arrest of Judgment.
* 1 136. Arrest of judgment.
GENERAL PROVISIONS.
*t S II 137. Suggestions entered on record.
* t H 138. Identification of cause of ac-
tion, amendment, notice to
parties, appeal, etc.
Sect.
* t § II 139. Affidavit when corporation is a
party.
* 140. Action not to be discontinued
after being referred to audi-
tor, except, etc.
141. Sections applicable to civil ac-
tions before district courts.
142. Sections applicable to real and
mixed actions, except, etc.
143. Sections applicable to ci^-il ac-
tions before municipal court
of Boston. •
144. Sections applicable to equity
and probate cases.
145. Sections to apply in eminent
domain and betterment cases.
146. Sections applicable in equity.
* 147. Forms.
Division
of actions.
1851, 233, § 1.
1852,312, I 1.
G. S. 129. § 1.
P. S. 167, § 1.
R. L. 173, § 1.
12 Gray, 206.
7 Allen, 466.
Joinder of
plaintiffs in
several actions.
1896, 444.
R. L. 173, 5 2.
211 Mass. 156.
PLEADING.
Division of Personal Actions.
* Section 1. There shall be three divisions of personal actions —
First, Contract, which shall include actions formerly known as assump-
sit, covenant and debt, except actions for penalties.
Second, Tort, which shall include actions formerly known as trespass,
trespass on the case, trover and actions for penalties. no Mass. 340.
140 Mass. 508.
144 Mass. 64.
177 Mass. 562.
193 Mass. 141.
Third, Replevin.
Parties.
* Section 2. In actions of contract for the recovery of money due
for manual labor, two or more persons may join in one action against the
same defendant, although the claims are not joint, if the claim of no one
of such plaintiffs exceeds twenty dollars; and each plaintiff so joining may
recover the amount found to be due to him solely. The claim of each
plaintiff shall be stated in a separate count, and the court may make such
order for trial of the issues as may be most convenient, may enter separate
judgments, issue one or more executions and make such order relative to
costs as the case requires.
Joinder of
co-tenants.
1905, 266.
* Section 3. Joint tenants or tenants in common may join in any 1
action to recover damages for injury to real or personal property, or any 2
one or more of them may sue for his or their damages. 3
Joinder of
defendants
severally
liable on
written
contracts.
1851, 233, § 3.
1852, 312, I 3.
G. S. 129, § 4.
P. S. 167. § 4.
R. L. 173, § 3.
1919, 333, I 35.
1920, 2.
4 Gray, 294.
7 Gray, 2S4.
* Section 4. All or any of the persons severally liable upon written
contracts, including bills of exchange and promissory notes, may be
joined in one action. The declaration shall describe the several contracts,
and may contain one count against all the defendants, or several counts
against the several defendants. The court shall make such order for
the separate trial of the issues as may be convenient, and shall enter
several judgments according to the several contracts and issue one or
more executions. k. Gray, 473. is Alien, 19, 217.
104 Mass. 217.
118 Mass. 380.
119 Mass. 361.
133 Mass. 409.
160 Mass. 418.
166 Mass. 37.
192 M.iss. 428.
195 Mass. 55.
211 Mass. 156.
Ch.\P. 231.] PLE.iDIXG AND PRACTICE. 2461
1 * Section 5. The assignee of a non-negotiable legal chose in action Action by
2 which has been assigned in writing maj' maintain an action thereon in his choSTfn °^
3 own name, but subject to all defences and rights of counter-claim, re- i89'7,°402.
4 coupment or set-off to which the defendant would have been entitled had V^i^i)'^' i,*,^
i-i-i I i-i fi • ^^ Mass. 319.
5 the action been brought m the name or the assignor.
191 Mass. 461. 202 Ma£s. 263. 221 Mass. 399.
194 Mass. 56. 1S7. 206 Mass. 270. 226 Mass. 246, 447.
200 Mass. 209, 437. 216 Mass. 287. 234 Mass. 13, 526.
201 Mass. 28. 219 Mass. 23. 236 Mass. 93.
1 * § 1 1 Section 6. An action or proceeding for the recovery of an out- same subject.
2 standing debt or claim sold or assigned by an executor or administrator p.s.'i33,§5.
3 under a license of the probate court to sell or assign any outstanding debts ^' ^' "^' ^ ^'
4 or claims shall be brought in the name of the purchaser or assignee. The
5 fact of the sale shall be set forth in the writ, declaration, bill or petition,
6 and the defendant may avail himself of any defence which would have
7 been open to him upon an action or proceeding brought by the executor
8 or administrator. Costs shall be recovered by or against the plaintiff
9 or petitioner, but not against the executor or administrator. Any such
10 action brought upon a promissory note signed in the presence of an attest-
11 ing witness shall not be barred by any provision of chapter two hundred
12 and sLxty, if the action could have been maintained by the executor or
13 administrator.
Declarations.
1 * Section 7. In declaring in personal actions the following require- Form of de-
2 ments shall be observed : issi, 233, § 2. '''"''« "' '''"•
1852, 312, § 2. G. S. 129, § 2. P. S. 167, | 2. R. L. 173, § 6.
3 First, The declaration shall state to which division of actions specified
4 in section one the action belongs.
5 Second, The declaration shall state concisely and with substantial cer- substantive
G tainty the substantive facts necessary to constitute the cause of action. irullTaia.'
5 Piclc. 436. 6 Allen, 410, 413. 132 Mass. 489.
10 Gush. 49. 8 .\llen, 309, 324. 133 Mass. 309.
3 Gray, 484. 10 Allen, 299, 326. 137 Mass. 119.
4 Gray. 444. 99 Mass. 198. 153 Mass. 380.
7 Gray, 184. 102 Mass. 58. 154 Mass. 257.
8 Gray, 589. 103 Mass. 21. 161 Mass. 449.
10 Gray, 361. 105 Mass. 533. 174 Mass. 38.
13 Gray, 272, 392. Ill Mass. 29. 197 Mass. 492.
15 Gray, 249, 293. 114 Mass. 1. 200 Mass. 200.
1 Allen, 262, 337, 519. 121 Mass. 346. 207 Mass. 312.
2 Allen, 20, 317. 123 Mass. 5S3. 224 Mass. 528.
3 Allen, 349.
7 Third, It need not aver a fact not required by law to be proved. S^°rment"^
5 Gray, 541. 105 Mass. 71. 117 Mass. 195.
9 Gray, 73. 112 Mass. 237.
8 Fourth, It need not contain more than one count for each cause of One™untfor
r» • 1 T p 1 1 • 1 • each cause, but
9 action; but any number of breaches may be assigned in each count and, f^y number of
10 if the nature of the case requires it, breaches may be assigned in the s Alien, ssr.
11 alternative. Two causes of action arising on different contracts shall i6o Mass! 201!
12 not be embraced in one count except in a count on an account annexed. 231 mms.Mo.
13 Fifth, It may contain any number of counts for different causes of Joinder of
14 action which belong to the same division of actions.
13 Gray, 536. 152 Mass. 133. 231 Mass. 540.
97 Mass. 30. 191 Mass. 38.
15 Sixth, Actions of contract and actions of tort shall not be joined; but Joinder ot
16 if it is doubtful to which division a cause of action belongs, a count in action.
2462
PLEADING AND PRACTICE.
[ClL\P. 231.
7 Gray, 559.
1 Allen, 26.
12 Allen, 4S2.
contract may be joined with a count in tort, with an averment that both 17
are for one and the same cause of action. 97 Mass. 29. 99 Mass. 535. 18
Common
counts.
7 Gray, 187.
15 Gray, 293.
185 Mass. 306.
Common
count for
money payable
under sealed
instrument,
when.
1915. 146, § 2.
228 Mass. 390.
233 Mass. 514.
Account
annexed.
4 Gray, 292.
7 Gray, 187,
190.
9 Allen. 355.
11 AUen, 123.
Interest.
1890, 398.
Written
instruments,
how declared
on.
I Gray. 325.
4 Gray, 455.
II Gray, 10,
179.
14 Gray, 129.
15 Gray, 87.
16 Gray, 386.
8 Allen, 355.
9 Allen, 357.
12 Allen, 396.
103 Mass. 44,
379
138 Mass. 151.
Bonds, etc.
171 Mass. 353,
433.
230"Mass. 483.
236 Mass. 93.
102 Mass. 439.
107 Mass. 3H9.
124 Mass. 50.
125 Mass. 477.
128 Mass. lOi.
134 Mass. 303.
142 Mass. 124.
145 Mass. 23.
214 Mass. 245.
225 Mass. 3.
Seventh, The common counts shall not be used unitedly, but any one 19
of them may be used if the natural import of its terms correctly describes 20
the cause of action. 214 Mass. 159. 21
Eighth, In an action for the recovery of rent or of any sum of money 22
payable by virtue of a contract under seal that might have been recovered 23
upon a common count if the contract had not been under seal, the same 24
may be recovered upon a common count in a form similar to that now 2.5
used for other common counts. The bill of particulars in such cases shall 26
refer to the document under which the claim arises, by its proper descrip- 27
tion and date. 28
Ninth, A count on an account annexed may be used in an action of 29
contract if one or more items are claimed any of which would be cor- 30
rectly described by any one of the common counts according to the 31
natural import of its terms. 99 Mass. 1. 106 Mass. 430. 32
111 Mass. 390.
115 Mass. 44.
127 Mass. 546.
133 Mass. 441.
134 Mass. 377, 567.
137 Mass. 274.
1S5 Mass. 306.
186 Mass. 498.
214 Mass. 159.
226 Mass. 499.
236 Mass. 105.
Tenth, Interest accruing as damages for the detention of money or 33
otherwise may be declared on, in addition to other forms of pleading 34
authorized by law, by including in any count followed by an account an- 35
nexed or bill of particulars the words "and interest", and by statmg in 36
the account annexed or bill of particulars the time and amount for and 37
upon which interest is claimed and the amount of interest so claimed. 38
Eleventh, Written instruments shall be declared on by setting out a 39
copy or such part as is relied on, or the legal effect thereof, with proper 40
averments to describe the cause of action. If the whole contract is not 41
set out, a copy or the original, as the court may direct, shall be filed upon 42
motion of the defendant. If it is necessary and the court so orders, the 43
copy so filed shall be part of the record as if oyer had been granted of a 44
deed declared on according to common law. No profert or excuse there- 45
for need be inserted in a declaration. If the instrument relied on is lost 46
or destroyed, or if it is not within the control of the party relying on it, 47
the substance thereof, as nearly as may be, and the reason why a copy is
not given, shall be stated.
Twelfth, The condition of a bond or other conditional obligation, con-
tract or grant declared on shall be set forth. The breaches relied on
shall be assigned, and the performance of conditions precedent to the
right of the plaintiff to maintain his action shall be averred or his reason 53
for the non-performance thereof stated. 54
48
49
50
51
52
In real actions
on mortgage.
1851, 233, I 2.
1852, 312, I 2.
Writ and
declaration
in action of
ejectment.
1915, 146, § 1.
225 Mass. 510.
t Section 8. Declarations in real actions founded on mortgage titles 1
shall allege the seisin to be "in mortgage". 2
G. S. 129, § 3. R. L. 173, I 7. 103 Mass. 475.
P. S. 167, § 3. 14 Gray,
109.
131 Mass. 179.
Section 9. In an action of ejectment or quare ejecit for the recovery
of the possession of real property for a term of years or other interest for
which such an action may be maintained, the action may be described in
the writ as an action of ejectment, and a declaration in general terms,
substantially in the form set out in the schedule at the end of this chap-
Chap. 231.] pleading akd pr-\ctice. 2463
6 ter, shall be sufficient ; and, if the defendant is wrongfully in possession, it
7 shall not be material how he obtained such possession. The plaintiff shall
S annex to such declaration a statement of the particulars of his title, which
9 shall be deemed part of the declaration, and the court may require him to
10 file a statement of such other particulars, as to damages claimed or other-
11 wise, as it deems proper. The writ need not contain the particulars of
12 title, and if the writ does not contain them, they shall be filed in the same
13 manner and the like provisions of law shall be applicable thereto as in the
14 case of a declaration in a personal action.
1 * Section 10. In actions of tort for breaking and entering the plain- Description of
2 tiff's close, the place of the alleged trespass shall be designated in the Sosfi^tort
3 declaration by name, boundaries or other sufficient description. '''°-
1S39, 151, § 3. R. L. 173, | 8. 152 Mass. 532.
G. S. 129, I 6. 13 Met. 109, 144. 157 Mass. 474.
P. S. 167, § 6. 97 Mass. 416. 214 Mass. 366.
1 * Section 11. In actions of contract or of tort, unless an arrest of ^/Jj]*™''^"
2 the person is made or except as pro\'ided in section forty-four of chap- jn writ, un- -
3 ter two hmidred and twenty-three, the ■uTit need not contain a declaration iss'i, 233, 1 7.
4 or any description of the cause of action in which it is intended to de- g.^s.' 129,' § 7."
5 clare, except the name of the division thereof; but if in such actions in §§*^f,'3.°'
6 district courts the declaration is not inserted before the service of the wTit, r. l. ^"3,^9.
7 the defendant shall, upon motion, be entitled as of right to a postpone- J^^'Jflvg
8 ment for at least seven days after the return day. 9 AUen, 257.
1 * t If Section 12. The declaration, unless inserted in the writ, may Time of filing
2 be filed in the clerk's office on or before the return day of the xsTit. In islhUs!''
3 an action or suit in which there has been an attachment of property or fijl ^^{2.
4 an injunction restraining the transfer or encumbering thereof, a copy of ||^' ®-4o § j
5 the declaration and bill of particulars, when such bill is necessary, or, in g. s. 129,
6 equity, of the bill or petition, shall be furnished to the defendant or his 186^2, 20, §2.
7 attornev within three davs after a written demand therefor upon the §§8,9.''
8 plaintiff" or his attorney, and in case of failure so to do, the cause may, 1S94,' 405.'
9 upon motion, be dismissed with costs. R. l- i"3, §§ 10, 11.
1919, 333, I 36. 7 Grav, 409. 167 Mass. 472.
1920, 2. 1 .-Ulen, 273. 228 Mass. 429.
1 *t Section 13. If the plaintiff fails to enter his 'nTit, or if he fails Non-cnto-and
2 either to insert a declaration in the T\Tit or to file it in the clerk's office 1727-8, '16, § 2.
3 on or before the retiu-n day of the writ, the action may at any time, upon lUt-l] I] 1 1
4 motion of the defendant, be dismissed with costs; but the court may r'^I'Ij.^j'!^^-
5 upon terms allow the plaintiff, at any time before the next regular return i|5i. 233, 1 13.
6 day, to enter his vmit and file his declaration. is54, 440, § 1.
G. S. 120, § 12; R. L. 173, § 11. 136 Mass. 421.
129, 5 9. 1917, 326. 153 Mass. 104.
P. S. 155, § 23; 11 Cusli. 315. 160 Mass. 24.
167. § 9. 1 Grav, 446. 167 Mass. 472.
1885, 3S4, I 6. 9 Allen, 257. 204 Mass. 55.
1893, 396, § 19. 110 Mass. 56. 217 Mass. 213.
1894, 405. 123 Mass. 318. 228 Mass. 429.
1 * Section 14. If one of the common counts is used, the plaintiff shall ™ °J„,„„.
2 file a bill of particulars with his WTit when it is entered. The items in such issi. 2.33. '| 4.
3 bill shall be numbered consecutively, and the bill shall be a part of the g.^s.' 129,' 1 16.
4 declaration and be answered as such.
p. .'i. 167. § 10. 3 Gray, 263. 1 Allen, 273. 105 Mass. 21.
R. L. 173, I 12. 12 Gray, 222. 100 Mass. 152. 225 Mass. 3.
2464
PLE^VDING .iND PRACTICE.
[Ch.\p. 231.
Demurrers.
^ib\T-2^x\ 30. * t Section 15. Either party may demur to the pleadings of the ad-
a^l.' 129.' I 2°; verse party, but no mere defects of form in the declaration or in the
subsequent pleadings shall be assigned as causes for demurrer. If the
adverse party does not amend the pleadings demurred to, he shall be
held to have joined in demurrer.
p. S. 167
R. L. 173. § 13
97 Mass. 502.
13S Mass. 441.
Demurrer
to the
declaration.
* t Section 16. The defendant may demur to the declaration or to one 1
or more counts therein, and shall assign specifically the causes of demurrer. 2
1S51, 233, § 26.
1852. 312, § 17.
G. S. 129, § 11.
P. S. 167, 6 11.
R. L. 173, 1 14.
12 Gush. 483.
7 Gray, 479.
8 Gray, 161.
11 Gray, 170.
15 Gray, 184.
1 Allen, 560.
2 Allen, 105.
6 Allen. 417.
8 Allen, 355.
9 Allen, 332.
11 AUen, 283.
12 AUen, 98.
97 Mass. 30.
111 Mass. 213.
112 Mass. 90.
119 Mass.
122 Mass.
125 Mass.
144 Mass.
151 Mass.
156 Mass.
163 Mass.
177 Mass.
223 Mass.
230 Mass.
387.
163.
360.
523.
567.
202.
402.
466.
386.
483.
the™^wcr*° * t Section 17. The plaintiff may demur to the answer or to so much 1
1I52; 312! I 20! thereof as applies to one or more coimts in the declaration, and shall 2
G.s. 129, §24. assign specificaU J' the causes of demurrer. p. s. i67, §25. 3
R. L. 173, § 15. 6 Gray, 233. 97 Mass. 502. 124 Mass. 364.
Causes for
demurrer.
1S51. 233,
§§31,40.
1852. 312,
§§ 21, 30.
G.S. 129. §12.
P. S. 167. § 12.
R. L. 173, § 16.
12 Gush. 483.
13 Gray, 64.
* t Section 18. Demurrers may be for the following as well as other
causes :
First, That a count in contract and a count in tort, or that a comit
in the plaintiff's o'wii right and a count in some representative capacity,
are improperly joined in the declaration; or that a declaration in con-
tract or in tort is inserted in a ^\Tit of reple\'in.
97 Mass. 30. 133 Mass. 29S. 209 Mass. 552.
4 Gray, 444.
8 Gray, 161.
12 Gray, 222.
13 Gray, 64.
6 Allen, 230.
9 Allen, 332.
6 Gray, 233.
6 Allen, 406.
16 Gray, 125.
1 Allen. 193.
6 Allen, 417.
8 Allen, 355.
100 Mass. 195.
109 Mass. 481.
114 Mass. 487.
118 Mass. 380.
156 Mass. 262.
Certificate.
231 Mass. 404.
Second, That the matters contained in the declaration or in some count 7
thereof are insufficient in law to enable the plaintiff to maintain his 8
action. 9
112 Mass. 237. 179 Mass. 169. 210 Mass. 214. 223 Mass. 159.
Tliird, That the matters contained in the answer are insufficient in law 10
to constitute a defence to the action or to some count in the declaration. 11
Fourth, That, in some particular or particulars specifically pointed 12
out, the declaration or some count thereof does not state a cause of ac- 13
tion, or the answer does not state a defence to the declaration or some 14
count thereof, substantially in accordance -nith the rules contained in 15
this chapter. 177 Mass. 466. 16
179 Mass. 169. 223 Mass. 159. 225 Mass. 3. 235 Mass. 503.
The attorney, if any, shall certify upon the demurrer that he is of 17
opinion that there is such probable ground in law therefor as to make it 18
a fit subject for judicial inquiry, and that it is not intended merely for 19
delaA'. ' 20
demuJrer.^ '^' * t Section 19. If a dcmurrcr has been sustained, overruled or Avith- 1
1852, 111 I 23: drawn, the court shall make an order relative to the filing of an answer 2
G. s. 129, 1 64. oj. replication or a trial of the facts. p. s. 16-, § 07. 3
R. L. 173. § 17. 2 .\llen, 130. 217 Mass. 507.
7 Gray, 425. 103 Mass. 402. 235 Mass. 304.
Ch.\.P. 231.] PLEADING AND PRACTICE. 2465
Ansicers, Replications, etc.
1 * t Section 20. A defence to a real, personal or mixed action, which Answer in
2 formerly might have been made by plea in abatement, may be made by isli?"!?, 1 37.
3 answer in abatement. i852, 312, § 27. g. s. 129, § is.
p. S. 167, 5 13. 4 Grav. 84. 105 Mass. 208.
R. L. 173. § 18. 7 Gray, 3S. 338. 121 Mass. 597.
12 Pick. 569. 10 Gray, 373. 128 Mass. 600.
12 Met. 266. 12 Grav, 347. 143 Mass. 413.
11 Gush. 89. 1 Allen, 529. 150 Mass. 650.
2 Gray, 2S8. 12 Allen, 134. 163 Mass. 262.
1 * t Section 21. If an answer in abatement is overruled on demurrer. Answering
2 or if, in consequence of such answer in abatement, the plaintiff amends, isli', 233, § 39.
3 the defendant, within such time as the court orders, shall in a personal c^i'iM'.tu.'
4 action answer, and in a real or mixed action plead, to the merits. r.l. n3,\"9.
1 * t Section 22. In personal actions, the defendant shall file an Answerer
2 answer to the declaration. In real and mixed actions, he may plead the is3"273!'h.
3 general issue, and may give in evidence thereunder all matters which he Hm! 312! | 12!
4 might formerly have pleaded in bar. c.s. 129, §15. p. s. ig7, §§ is, 90.
1886, 64. R. L. 173, § 20. 4 Gray, 53. 123 Mass. 187.
1893, 396, § 23. 19 Pick. 455. 6 Grav. 107. 132 Mass. 105.
1S94. 431. 12 Met. 154. 6 Allen, 28. 203 Mass. 576.
1 * t Section 23. Two or more defendants making the same defence joint answer.
2 may answer or plead jointly. Different consistent defences may be llll', sil § Ik
3 separately stated in the same answer or plea. g. s. 129, § le.
p. S. 167, §16. R. L. 173, §22. 11 Gray, 15. 3 Allen, 69.
1 Section 24. A case taken to the superior court upon appeal from pleadings on
2 the judgment of a district court may be there tried upon the issue joined r!''^s5, § 12.
3 below; or the superior court may order the defendant to answer or plead p- 1- 11°' 1 1|-
4 in the usual manner, and the case shall then be tried upon such issue as |*^^- ^^^- 1 ^2-
5 may be joined therein.
1917, 326. 9 Gray, 361. 126 Mass. 399. 177 Mass. 397.
1 Met. 309. 6 Alien, 25. 128 Mass. 600. 200 Mass. 194.
1 * Section 25. The answer shall deny in clear and precise terms every Answer.
2 substantive fact intended to be denied in each count of the declaration {HI'. III'. | 14!
3 separately, or it shall declare the defendant's ignorance of the fact, so pfiol'li?'
4 that he can neither admit nor deny but leaves the plaintiff to prove it. ^J^- "^^„^ 2*-
3 Grav, 261. 5 Allen, 299, 599. 119 Mass. 376. "^'
4 Gray, 444. 6 Allen, 10. 123 Mass. 572, 574.
5 Gray, 457, 541. 10 Allen, 18, 460. 124 Mass. 457.
7 Gray, 184, 267. 11 Allen, 523. 125 Mass. 562.
9 Gray, 73, 241. 13 Allen, 521. 126 Mass. 399.
10 Gray, 212. 98 Mass. 222. 129 Mass. 50, 185.
11 Gray, 12, 384. 100 Mass. 216. 132 Mass. 105.
12 Gray, 45. 101 Mass. 352. 137 Mass. 60.
15 Gray, 87. 105 Mass. 212. 145 Mass. 226.
16 Cray, 354. 100 Mass. 5.59. 199 Mass. 418.
1 .\llen, 410, 412. 112 Mass. 405. 209 Mass. 456.
4 Allen, 380. 577.
1 * Section 26. In answering the common counts and the count on an Answers to
2 account annexed, the defendant shall answer specifically every item con- uem3?Hc.
3 tained in the bill of particulars or account annexed, but he may make one Hlh' 312' I is'
4 and the same allegation or denial relative to any number of items to pil'iy'hi-
5 which such allegation or denial is apphcable, specifying the number of the k- h i"3',^§ 25.
6 items thus answered together, if less than the whole. If the defendant 16 Gray, 354.
7 denies that an item is due or payable, or tliat he owes the plaintiff as 9 AUe"; 357!
2466
PLEADING AND PRACTICE.
[Chap. 231.
alleged, lie shall state all the substantive grounds on which he intends 8
to rest such denial, and shall specify whether the whole or a part of 9
such item or demand is denied, and if a part only is denied, he shall 10
specify such part. 11
tiafden'ia^ '""^" * SECTION 27. A denial by answer, afRda^-it or otherwise of a time, 1
1852' 312' 1 16' amount, quantity or place alleged shall declare whether it is applicable 2
F'i'iif'iii' **^ every time, amount, quantity or place or not; and if not, what time, 3
R. L. 173, 1 26. amount, quantity or place it admits. 4
Answer in
avoidance.
1851, 233. I 27.
1852. 312, § IS.
G. S. 129, § 20.
P. S. 167, § 20.
R. L. 173. § 27.
2 Gray. 621.
4 Gray, 50,
447.
* Section 28. An answer shall state clearly and precisely each sub-
stantive fact intended to be relied upon in avoidance of the action, and
if it sets up the statute of limitations, the statute of frauds or any other
legal bar, the defendant shall have the benefit of such defence although
the answer does not deny the facts set forth in the declaration.
5 Gray. 457, 541.
6 Gray. 288, 494.
11 Gray, 12, 179.
12 Gray, 345.
13 Gray, 157.
2 .-Ulen, 18.
3 .Ulen, 99,
287, 319, 471.
5 Allen, 299, 317.
7 Allen, 61, 141.
10 Allen, IS, 460.
11 Allen, 523, 625.
12 Allen, 419.
99 Mass. 194.
106 Mass. 51.
109 Mass. 397.
111 Mass.
112 -Mass.
113 Mass.
116 Mass.
117 Mass.
119 Mass.
120 Mass.
121 Mass.
123 Mass.
124 Mass.
125 Mass.
127 Mass.
128 Mass.
131 Mass.
133 Mass.
134 Mass.
285.
387.
250, 531.
547, 550.
14.
187.
209.
501.
572, 574.
284.
417, 562.
316.
25.
283.
439.
377.
135 Mass
99.
139 .Mass
110.
141 Mass
587.
143 Mass
379.
145 Mass
370.
151 Mass
5, 275.
160 Mass
296.
162 Mass
34.
165 Mass
501.
166 Mass
202.
182 Mass
360.
192 Mass.
326, 391
199 Mass
418.
201 Mass
469.
236 Mass.
90.
Signatures ad-
mitted unless
genuineness
is denied.
1S77, 163.
P. S. 167, § 21.
R. L. 173, § 86.
5 Gush. 74.
14 Gray, 109.
125 Mass. 446.
129 Mass. 596.
* ^ Section 29. A signature to an instrument declared on or set 1
forth as a cause of action or as a ground of defence or set-off shall be 2
taken as admitted unless the party sought to be charged thereby files in 3
court, within the same length of time after such instrument is pleaded as 4
is allowed for an answer, a specific denial of the genuineness thereof and 5
a demand that it shall be proved at the trial. 6
133 Mass. 356.
136 Mass. 248.
138 Mass. 347.
146 Mass. 378.
196 Mass. 254.
201 Mass. 103, 543.
203 Mass. 526.
233 Mass. 154.
234 Mass. 13.
Representative
or corporate
capacity
admitted, un-
less, etc.
1881, 113.
P. S. 167, § 87.
R. L. 173, § 123.
133 Mass. 358.
160 Mass. 1.
225 Mass. 525.
* t § 1 1 Section 30. If it is alleged in any civil action or proceeding 1
that a party is an executor, administrator, guardian, trustee, assignee, 2
conservator or receiver or is a corporation, such allegation shall be taken 3
as admitted unless the party controverting it files in court, within the 4
time allowed for the answer thereto, or within ten days after the filing of 5
the paper containing such allegation, a special demand for its proof. 6
Equitable
defences.
1883, 223, 5 14.
R. L. 173, I 28.
1913, 307.
140 Mass. 63.
141 Mass. 440.
*t § II Section 31. The defendant may allege in defence any facts 1
which would entitle him in equity to be absolutely and unconditionally 2
relieved against the plaintiff's claim or cause of action or against a judg- 3
ment recovered by the plaintiff in such action. 149 Mass. 275. 4
150 Mass. 27.
154 Mass. 389.
158 Mass. 313.
170 Mass. 526.
177 Mass. 455.
179 Mass. 451.
181 Mass. 371.
183 Mass. 30, 351, 557.
186 Mass. 244.
187 Mass. 72.
192 Mass. 511.
196 Mass. 319.
149 Mass. 275.
19S Mass. 212.
218 Mass. 324.
221 Mass. 317.
228 Mass. 556.
233 Mass. 55.
234 Mass. 584.
tos't^ents, * Section 32. Instruments relied on in an answer or in a subsequent 1
issifm^l^. pleading shall be set out, or copies or the originals filed, in the manner 2
1852, 312, § 2. provided for declaring thereon in the eleA^enth clause of section seven. 3
G. S. 129, § 21.
p. S. 167, § 22.
R. L. 173, § 29.
11 Gray, 179.
171 Mass. 492.
Ch.\P. 231.] PLEADING .VND PKA.CTICE. 2467
1 * Section 33. If a conditional oblisation, contract or grant is relied Conditional
n • 1 1 1- 1 !• • 1 11 I • obligations,
2 on in an answer or subsequent pleading, the condition shall be considered *f'=- .'^'i"'
3 a part of the instrument, and similar averments shall be required in plead- issi, 2.33. § 2.
4 mg on the same as are reqmred by the twelfth clause of section se^•en. g. s." 129.' § 22.
p. S. 167, I 23. R. L. 173, § 30.
1 * Section 34. The plaintiff may, at any time before trial, file a repli- fsg^i'lag""-
2 cation to the answer, clearly and specifically stating any facts in reply to flgo^'s^i,' s jg
3 new matter therein; but, except as herein pro\aded, no further pleading g- s.' 129,' § 23.'
4 shall be required after the answer. Any new matter in avoidance of the R. l. 173, § si.
5 action which the answer contains shall be considered to be denied by 7 aE. 239.
6 the plaintiff without a replication, unless the court, upon motion of the Jos'^mTs's^Ii.'
7 defendant, requires him to reply thereto, and to state what part, if any, J33 jj^g^- Hg
8 he admits or denies. i36 Mass. sse. 177 Mass. 455.
192 Mass. 468. 20S Mass. 528. 210 Mass. 581. 224 Mass. 226.
1 * t § li Section 35. The plaintiff may, in reply to a defence alleged by Equitable
2 the defendant, allege any facts which would in ecjuity a\-oid such defence of drfmcl
3 or wliich would entitle the plaintiff' to be absolutely and unconditionally R^t n|; | If.
4 relieved in equity against such defence. i9i8, 257, 1 430.
1919, 5. 161 Mass. 91. 196 Mass. 319.
1920, 2. 186 Mass. 244. 210 Mass. 581.
1 * Section 36. An answer or replication may allege facts occurring Supplemental
2 after the commencement of the action, and the court may allow a sup- ^j';?''"'''*'™'
3 plemental declaration, answer or replication to be filed, alleging material 1I52', lil', | It".
4 facts which occurred or came to the knowledge of the party after the pfll?' |||"
5 former declaration, answer or replication was filed. R. l. 173, § 33.
U Gray, 14. 106 Mass. 51. 162 Mass. 300. 207 Mass. 312.
1
* Section 37. A party may allege a fact or title alternatively.
Alternative
1851, 233, § 35. P. S. 167, § 27. 125 Mass. 417.
1852, 312, § 25. R. L. 173, § 34. ISl Mass. 371.
G. S. 129, § 26.
a V cl iiicliLa,
1 * Section 38. The allegations and denials of each party shall be so Construction
2 construed by the court as to secure as far as possible substantial pre- i83'if233!^i'36.
3 cision and certainty and to discourage vagueness and loose generalities. g.^I." 129,' 1 1?!
4 A substantive fact alleged with substantial precision and certainty and rl\73 §35
5 not denied in clear and precise terms shall be held to be admitted. No I S'^y'S??-
^ 1 11 1 • 1 -1 ,. , , 3 Gray, 261,
0 party shall be required to state evidence, or to disclose the means by 342.
7 which he intends to pro^'e his case. 7 Gray, isi, 267. '^'^^' '
9 Gray, 73. 4 Allen. 380. 100 Mass. 216. 131 Mass. 283.
15 Gray, 87. 7 .^len, 361. 116 Mass. 515. 135 Mass. 99.
1 * t Section 39. A personal action shall be considered at issue when Action,
2 the pleadings are closed, and a real or mixed action when the plea is filed. TssiJIss.Tli.
1852, 312, § 31. P. S. 167, § 29. 122 Mass. 431.
G. S. 129, § 28. R. L. 173, § 36.
practice.
« Interpleader.
1 * Section 40. If, in an action at law, the defendant admits liability, interpleader
2 and the amount thereof is not disputed, but it appears that such amount J'ssufilL'""'
3 is claimed by the husband or wife of the plaintiff or by any person other f^Wst'. lol'
4 than the plaintiff and that the defendant has no interest in the subject J5^ Hm *lg
2468
PLE.U)ING .\ND PRACTICE.
[Ch.\p. 231.
188 Mass. 299.
211 Mass. 28.
212 Mass. S34.
213 Mass. 531.
223 Mass. 177,
237.
225 Mass. 247.
227 Mass. 41.
232 Mass. 124.
234 Mass. 224.
matter of the controversy, the court may, on petition of the defendant, 5
stating the names and residences of all known claimants and the amount 6
actually due from the defendant, and after such notice as the com-t shall 7
order to the plaintiff and to such claimants, order such claimants to be 8
made defendants, and shall thereupon hear and determine the rights of 9
the respective parties in and to said amount. The defendant may hold 10
such amount until final judgment, and shall then pay it over as the court 11
orders, or he may pay it into court to await final judgment, and there- 12
upon the action shall be discontinued as to him, his liability for said 13
amount shall cease, and Ms costs shall be in the discretion of the court, 14
and may be charged upon the fund. 15
Interpleader
by bailee or
pledgee.
1899, 352.
R. L. 173, I ;
1907. 582, I :
1909. 227.
1910, 214, §
1913,228.
1917, 326.
1918, 257,
§ 409.
1919, 5.
1920, 2.
* Section 41. Wlienever two or more persons claim any interest in
property, or the proceeds or value of, or damages for the taking, deten-
tion or conversion of, any property deposited with any public warehouse-
man, or other depositary for hire, or with any pledgee as security for a loan,
such bailee or pledgee may, either in any action against him for the re-
covcTy of such property, or for such proceeds, value or damages, or as an
original suit brought, if in the superior court, in the county, or if in a dis-
trict court, in the judicial district, where such property is situated or was 8
last held by such bailee or pledgee, file a petition stating the names and 9
residences of all kno\\Ti claimants. After such notice as the court may 10
order upon the petition to all such claimants, and within such time after 11
the return of such order of notice as the court shall allow, such claimants 12
shall file in said court WTitten statements of their se^■eral claims, and any 13
claimant failing to file such claim may be defaulted. The court shall 14
hear and determine the rights and interests of the respective parties in 15
and to such property, proceeds, value or damages, and shall enter judg- 16
ment accordingly, and upon such final judgment may order such return 17
or delivery of the property, and award such execution or executions for 18
damages or costs or both for or against the respective parties as jus- 19
tice requires. Failure to comply with any such order for the return or 20
deliverj^ of such property may be dealt with as the court directs. The 21
goods may remain in the custody of the bailee or pledgee until final judg- 22
ment, and shall then be delivered as the court orders. If the petition 23
herein pro\-ided for be filed in an action of repleAin, any order for the 24
return of the property replevied, or any part thereof, may be for its return 25
to such party to the proceedings as is adjudged entitled to possession 26
thereof; and if the order is not compUed with, the bond in such case may, 27
by leave of said court, be put in suit, in the name of the obligee therein, 28
but for the benefit of the party entitled to said property, and in such suit 29
the court may award judgment and execution in accordance with the 30
respective interests of the parties thereto. 31
Endorsement
of writs, etc.,
before entry.
C. L. 7, § 1.
1708-9, 3, § 1.
1714,3, § 1.
1728-9, 1.
1784, 28, § 11.
1S33, 50,
§§2,5.
K. S. 90,
5§ 10,11:99,
I 29; 100, § 28;
103, §73; 112,
§24:117, §36.
Endorsement of Process.
* t IT Section 42. Original wrhs, ^Tits of audita querela, writs of 1
scire facias by private persons on judgment or recognizance, WTits of 2
error in civil cases, writs of and petitions for re\'iew, petitions for certiorari 3
or mandamus and bills in equity, in wliich tihe plaintiff is not an inliab- 4
itant of the commonwealth, shall, before the entry thereof, be endorsed 5
by a responsible person who is such inliabitant ; but if one of the plain- 6
tiffs is such an inliabitant, the process need not be so endorsed. E^ery 7
endorser, in case of avoidance or inability of the plaintiff", shall be liable 8
14 Pick. 212,
12 Grav, 190.
183 Mass. 102.
3 Met. 5S.
1 .^llen. 270, 402.
198 Mass. 544.
8 Met. 140.
5 .\llen, 200.
213 Mass. 601,
8 Cush. 98.
138 Mass. 115.
230 Mass. 28.
11 Cush. 89.
142 Mass. 141,
233 Mass. 1.
CH-^P. 231.] PLE.\DING AND PR.\CTICE. 2469
9 to pay all costs awarded against the plaintiff if an action therefor is g. s. 123, § 20;
10 commenced within one year after the original judgment. § 37; 156. § 42.
p. S. 161, § 24;
178, § 6; 187.
§ 38; 191. § 14.
1895, 234, § 26.
R. L. 173, § 39.
6 Mass. 494.
1 * t H Section 4.3. If a plaintiff, not an inhabitant of the common- same after
2 wealth, fails, by accident, mistake or inadvertence, to have his writ, bill i'805!'45, § 1.
3 or petition endorsed as required by the preceding section, the court may r. L.173, §40.
4 at any stage of the case, upon terms, allow him to procure an endorser
5 with the same effect as if the writ, bill or petition had been endorsed
6 before the entry thereof.
1 * t U Section 44. If, after the commencement of a proceeding men- Endorser upon
2 tioned in section forty-two, the plaintiff removes from the commonwealth, pStiff."'
3 the court, upon motion of any other party, shall, and of its own motion jf ^|' |q' | jj,.
4 may, require the plaintiff to procure a responsible endorser. J0°4 ^ ^*' ^'"'
0. S. 129, §29. R. L.173, §41. 8 Cush. 98 99 Mass. 460.
P. S. 167, § 30. 21 Pick. 212. 1 Gray, lOS. 213 Mass. 601,
1 * t IT Section 45. If an endorser removes from the commonwealth or Endorser re-
2 ceases to be responsible, the court may require the plaintiff" to procure Tnotlfer' "^ "'
3 a responsible endorser. i7S4, 2s, i ii. required.
1833, 50, § 3. G. S. 129, § 30. R. L. 173, § 42.
R. S. 90, §12. P. S. 167, §31. 17 Mass, 222.
1 Section 46. The supreme judicial court may require an endorser or Endorser in
2 security for the paj-ment of costs in a probate or insolvency case or pro- et°. ""^ '"^^''^'
3 ceeding pending therein.
1846, 234. G. S. 129, § 31. P. S. 167. § 32. R. L. 173, § 43.
1 * t IT Section 47. If a plaintiff fails to procure an endorser according Dismissal for
2 to the order of the court, his action shall be dismissed and the defendant cure endoSe?^
3 or other party shall recover his costs. i7S4, 28, § ii. i833, 50, § a.
R. S. 90, § 13. G. S. 129, § 32. P. S. 167, § 33. R. L. 173, § 44.
1 * t If Section 48. The court may permit the name of an endorser to Substitute
2 be stricken out and a new and responsible endorser substituted. Every i784,Ts,§ u
3 endorser shall be liable for costs from the commencement of the action, i^^l.'go,'
G. S. 129, § 33. R. L. 173, § 45. 7 Mass. 25. 12.
P. S. 167, § 34. 6 Mass. 494. 13 Mass. 422.
5.
I 11.
Abatement.
1 * t § Section 49. No WTit, process, action, declaration or other pro- No abatement
2 ceeding in the courts or course of justice shall be abated, arrested, quashed tS er™."!^ ""'
3 or reversed for any circumstantial errors or mistakes if by it the person c! h. ?)''§ 2.
4 and case may be rightly understood by the court; or for defect or ^\'ant }7S4~isf'§ uV
5 of form only.
R. S. 100, § 21. R. L. 173, § 46. 5 Cush. 74. 105 Mass. 129.
G. S. 129, § 34. 2 Cush. 1, 486, 555. 7 Grav, 378. 108 Mass. 338.
P. S. 167, § 35. 4 Cush. 279. 10 Allen, 537. 219 Mass. 597.
1 * t Section 50. If an issue of fact is found against the defendant upon Judgment upon
2 a plea or answer in abatement, final judgment, subject to section fifty- isM.MstVss.
3 three, shall be rendered against him. i852, 312, § 28.
G. 8.129, §39. R. L.173, §47. 125 Mass. 472. 152 Mass. 416.
P. S. 167, § 40. 24 Pick. 49. 128 Mass. 600. 155 Mass. 26.
2470
PLEADING AND PRACTICE.
[Ch.\p. 231,
I 14.
i2.
Changing par-
ties, form, etc.
1701-2, 5, § 1.
1784, 28,
1826, 70.
1833, 194."
1834, 189.
R. S. 93, § 24;
100, §§ 1, B, 7,
22.
1836, 273, § 3.
1839, 151,
§§1.2.
Amendments.
* t § 1 1 Section 51. The court may, at any time before final judgment, 1
except as otherwise provided, allow amendments introducing a necessary 2
party, discontinuing as to a party or changing the form of the action, 3
and may allow any other amendment in matter of form or substance in 4
any process, pleading or proceeding, which may enable the phiintiff to 5
sustain the action for the cause for which it was intended to be brought, 6
or enable the defendant to make a legal defence. 1851,233, §42. 7
1852,312, § 32.
G.S. 129, §41.
P. S. 167, § 42.
R. L. 173, § 48.
3 Mass. 208.
4 Mass. 606.
16 Pick. 297, 412.
1 Met. 653.
2 Met. 505.
9 Met. 423.
10 Met. 291, S25.
13 Met. 215, 476.
2Cush. 1.
4 Cush. 281.
6 Cush. 513.
8 Cush. 271,356.
10 Cush. 2&4.
12 Cush. 448.
1 Gray, 600.
3 Gray, 66.
4 Gray, 194, 437.
5 Gray, 71.
7Gray, 41, 206, 378, 540.
8 Gray, 447.
12 Gray, 26, 139, 453.
15 Gray, 186.
lAllen, 244, 501,529.
2 Allen, 128, 317.
3 Allen, 69. 528, 532.
5 Allen, 322.
7 Allen, 202, 489.
8 Allen, 63. 150 Mass. 564.
10 Allen, 439. 151 Mass. 454.
100 Mass. 122. 152. 165 Mass. 481.
101 Mass. 378. 168 Mass. 223.
103 Mass. 410. 170 Mass. 260, 262, 560.
104 Mass. 345. 172 Mass. 401.
106 Mass. 131, 338. 174 Mass. 45, 586.
107 Mass. 64, 82. 177 Mass. 397, 404.
108 Mass. 338, 355. 181 Mass. 445.
112 Mass. 180. 186 Mass. 150. 365.
114 Mass. 481. 190 Mass. 378, 554.
115 Mass. 326. 192 Mass. 122.
121 Mass. 562. 196 Mass. 584.
122 Mass. 438. 200 Mass. 284.
124 Mass. 240. 201 Mass. 10. 248.
125 Mass. 72. 560. 204 Mass. 294.
126 Mass. 393. 208 Mass. 293.
127 Mass. 527, 599. 211 Mass. 277, 44C, 463.
128 Mass. 235, 466. 212 Mass. 292.
131 Mass. 328, 397, 560. 213 Mass. 585.
132 Mass. 193. 215 Mass. 83, 116, 199.
133 Mass. 421, 536. 216 Mass. 459.
134 Mass. 280, 308. 218 Mass. 231.
135 Mass. 189. 219 Mass. 164.
136 Mass. 335. 221 Mass. 259, 271.
139 Mass. 1 10, 280. 223 Mass. 450.
143 Mass. 45. 225 Mass. 599.
144 Mass. 383. 226 Mass. 332, 570.
146 Mass. 378. 229 Mass. 1.
147 Mass. 101, 342. 231 Mass. 422.
148 Mass. 504. 236 Mass. 336.
Amendment
after demurrer.
' t § 1 1 Section 52. The court may allow a party to whose pleadings 1
litl; sii; I la ^ demurrer has been filed to amend, upon terms, within such time as 2
G. S. 129, § 24. il orders. p. S. 167, § 25. R. L. 173, § 49. 3
.\mendment,
etc., after
answer in
abatement.
1851, 233, § 38
1852,312, I 28
G. S. 129, § 40.
P. S. 167, § 41.
R. L. 173, § 50.
* t Section 53. If the defect upon wliich a plea or answer in abate- 1
ment is founded is capable of amendment, the court may allow the plain- 2
tiff to amend, upon terms. The com't may allow the defendant to 3
amend an answer in abatement or to answer oA'er by special order of the 4
court for good cause shown, and not otherwise. 5
3 Met. 420.
108 Mass. 338.
113 Mass. 34.
124 Mass. 81.
125 Mass. 472.
155 Mass. 26.
Joinder of new
defendants.
1833, 194.
R. S. 100,
5§ 2-5.
G. S. 129,
§§ 36-38.
P. S. 167,
§§ 37-39.
* t Section 54. If a new defendant is introduced by amendment, the 1
plaintiff may take out against liim a new writ of capias and attachment 2
or of summons in such form, and retm-nable at such time, as the court 3
orders. Upon service and return of such new writ, like proceedings may 4
be had as if the person named therein had been originally made a party. 5
R. L. 173, § 51.
6 Allen, 350.
Amendments
changing
actions at law
into suits in
equity, and
vice versa.
186.5, 179,
§§ 1. 2.
P. S. 167, § 43.
188.3, 223, § 17.
R. L. 159, § 6;
173, § 52.
1911, 275.
If Section 55. The supreme judicial or the superior court may, be- 1
fore final judgment, and upon terms, allow an amendment changing an 2
action at law into a suit in ec^uity, or a suit in equity into an action at 3
law, if it is necessary to enable the plaintiff" to sustain the action or suit 4
for the cause for which it ^\as intended to be brought. The court in 5
which the amendment is allowed may retain jui-isdiction of the cause as 6
amended. 7
101 Mass. 37S.
125 Mass. 138.
133 Mass. 536.
168 Mass. 72.
206 Mass. 39.
212 Mass. 292.
216 Mass. 459.
223 Mass. 325.
224 Mass. 120.
225 Mass. 699.
233 Mass. 32.
Chap. 231.] PLE-u^rNG and practice. 2471
1 * t Section 56. The court in which a judgment has been rendered, or Amendment
2 to which it has been removed by ^\Tit of error, may, if justice so requires ment'" ^
3 and the amendment is in affirmance of the judgment, allow formal de- im^ls^'i^c
4 fects or imperfections in the record or proceedings to be corrected or §; §; J29,' | If.
5 amended. p. s. i67, § 44.
R. L. 173, § 53. S Cush. 74, 446. 104 Mass. 363.
3 Cush. 1, 58. 10 .-Ulen, 537. Ill Mass. 160.
Defaults.
1 * t Section 57. If the defendant in an action commenced in the Defaults.
2 supreme judicial, the superior or the land coiu-t, ha\ang been duly served lim-ij'sf ^2.
3 with process, fails to enter an appearance in writing ^A^thin twenty-one §§*6;7.*'
4 days after the return or entry day of the writ, his default shall be recorded, ^^ ^^^^' |.^=
5 and after the expiration of foiu- days from such default, the plaintiff may 9|^§ ^.^^
6 have judgment entered by order of the court or by the clerk as of course §§_i4,"'i7.'
7 without any further order. Upon a default at any stage of the proceed- §§ m, ii.'
8 ings in an action pending in any of said courts, the damages shall, upon i29.'§m3^5''
9 motion of either party, be assessed by a jmy. If the defendant in an isto.^Is'' ^'
10 action commenced in a district court, having been duly served with ffi7^s'f|5.!47^'
11 process, fails to appear or answer thereto, his defaidt shall be recorded Jgsj^l^'^ssy
12 and judgment shall be rendered for the plaintiff with costs. Com-ts lo. I'l- ' .
. • 1893 396 § 19
13 may, for good cause shown, extend the time for entering an appearance, is94', 431'.
14 and may, in their discretion and upon terms, take off a default at any 1917,' loi- 326.'
15 time before judgment. 145 Mass. is.
157 Mass. 417. 168 Mass. 297. 183 Mass. 7. 198 Mass. 82.
159 Mass. 210. 182 Mass. 20. 192 Mass. 226. 225 Mass. 189.
1 * t If Section 58. Upon entry of a default in an action at law or of an Notice of
2 interlocutory decree in equity taking a bill pro confesso, the clerk of the decree V°o
3 court shall forthwith gi\'e written notice thereof, in such manner as the 19177227.
4 court by rule shall direct, to the attorney of record, if any, of each party
5 against whom such default or decree is entered. If a party has no
6 attorney of record, and the officer's return does not show that personal
7 service of the writ, bill, petition, or complaint, or order therein, as the
8 case may be, has been made upon liim, the notice shall be given to the
9 party.
Advancmg Causes for Speedy Trial.
1 Section 59. In any action of contract in wliich the defendant has Advancing
2 appeared, any plaintiff", or if a corporation its treasurer, may at any time speS"y triLi.
3 before the case is on the short list, so called, file an affida-\-it verifying the '187!; |||; 1 2:
4 cause of action and stating that in his belief there is no defence thereto; ^- \ ^f^ij.^ §j^|j
5 and thereupon the clerk shall issue an order requiring the defendant to J-jos, 271.'
6 show cause in ^vTiting and on oath why judgment should not be given i9ii! sos!
7 for the plaintiff. The plaintiff shall immediately give written notice of i9i7,' 326!
8 such order, in such manner as is prescribed by rule of court, to the de- 120 Massl 97. '
9 fendant or his attorney of record, and unless the defendant, within seven 2§, Mass! 9a '
10 days after such notice, or within such further time as the court allows,
11 consents to a default and to judgment for the amount demanded, if the
12 claim is to recover a debt, or liquidated demand, or unless by affitlavit
13 setting out specifically and clearly the substantive facts upon %\hich he
14 relies he discloses such facts as the court finds entitle him to defend, the
15 court shall advance said action for speedy trial; but if, upon a hearing
16 under such order and notice, the court does not so ad\'ance the action,
17 it may award the defendant reasonable costs. The court shall require
2472 PLEADING AND PRACTICE. [ChAP. 231.
the defendant to disclose specifically and clearly the substantive facts 18
upon wliich he relies. If, in an action appealed or ^emo^■ed by the de- 19
fendant from a district court, the court is satisfied, upon an inspection of 20
the declaration, that the plaintiff seeks to recover solely for his personal 21
labor, with or without interest, the court shall upon motion ad-\-ance such 22
action for speedy trial. In any action in which a defendant has appeared 23
and answered, such defendant, or if a corporation its treasurer, may at 24
any time before the case is on the short list, so called, file an affidavit 25
stating that in his belief there is no merit in the action; and thereupon 26
the clerk shall issue an order requiring the plaintiff to show cause why he 27
should not become nonsuit. The defendant shall immediately give wTit- 28
ten notice of such order, in such manner as is prescribed by rule of court, 29
to the plaintiff or his attorney of record, and unless within se^■en days after 30
such notice, or within such further time as the court allows, the plaintiff 31
consents to a nonsuit, or unless by affida^'it setting forth specifically 32
and clearly the substantive facts upon wliich he relies he discloses such 33
facts as the court finds entitle him to maintain his action, the court shall 34
advance said action for speedy trial. In any trial any affida^•it filed by 35
any party, as herein provided, may be given in evidence against him. 36
Claim of Trial by Jury.
Jury trial, ■!■ SECTION 60. A Separate list of cases to be tried by jury shall be kept 1
how claimed. .' .,..', , . , -iii, -,
R. s. 97, § 3. m the supreme ludicial and superior coiu-ts, and no action shall be en- 2
1857 267 Si r <j i ^
G. s.' 129,' § 66; tcrcd thcrcon, except as otherwise expressly provided, unless a party, 3
1874, 248, § 1. before issue joined, or within ten days after the time allowed for filing the 4
^.s.'iir.'ieQ; answer or plea, or within ten days after the answer or plea has by consent 5
1894,^357. of the plaintiff or permission of the court been filed, or within such time 6
i3'''\iass' Ist^' ^^'^^^ the parties are at issue as the court may by general or special order 7
356 ' direct, files a notice that he desires a jury trial; but in a case in wliich 8
591. ■ ' damages are demanded, the court may of its own motion refer the assess- 9
156 Mass. 88.' mcnt thereof to a jury. leO Mass. 370. 163 Mass. 21. 170 Mass. 1. 10
185 Mass. 576. 195 Mass. 354. 214 Mass. 335.
191 Mass. 223. 198 Mass. 388. 223 Mass. 537.
Interrogatories.
m^inTerroTa- * t § II SECTION 61. Auy party, after the entry of a writ or the filing 1
i85i?'233,^§'9S; of a bill or petition, may interrogate an ad\-erse party for the discovery 2
1852 ^3l'2 ^^ facts and documents admissible in evidence at the trial of the case. 3
§§|i.90-' The word "party", in this section, in sections sixty-two to sixty-five, 4
§§46,86.' inclusive, and in section sixty-seven, shall be deemed to include parties 5
p. s.'i5i, § 8: intervening or otherwise admitted after the beginning of the suit. 6
167, §§ 49, 93. jgg3_ 203, § 2. 3 Allen, 110. 163 Mass. 481.
R. L. 159, I 15; 5 .\llcn, 109. 171 Mass. 417.
173. § 57. 104 Mass. 24. 188 Mass. 30.
1909,225. 106 Mass. 338. 205 Mass. 431.
1913. 815. §§ 1, S, 9. 107 Mass. 113. 206 Mass. 395.
11 Gush. 158. Ill Mass. 154. 212 Mass. 69.
2 Gray, 558. 127 Mass. 226. 214 Mass. 563.
7 Gray, 417. 128 Mass. 293. 217 Mass. 488.
14 Gray, 484. 136 Mass. 291, 386. 227 Mass. 7.
15 Gray, S45. 155 Mass. 433. 234 Mass. 307.
f85iy^2'33, * t § II Section 62. The answers shall be in writing, on oath, and 1
i852°1ii2'^' signed by the party interrogated, who shall, before making answer, make 2
G s^'i29' ^^^^ inquiry of his agents, servants and attorneys as will enable him 3
§§ 49, 5i! to make full and true answers to the interrogatories. 4
p. S. 167, §§ 52, 54. 8 Grav, 529. 171 Mass. 417.
R. L. 173, § 60. 13 .Allen, 320. 179 Mass. 501.
1913, 815. §§ 2, 9. 109 Mass. 209. 202 Mass. 75.
3 Gray, 215. 125 Mass. 572.
CHjVP. 231.] PLEADING AND PRACTICE. 2473
1 * t § II Section 63. Interrogatories shall be filed in the clerk's office. Practice.
2 and notice of such filing, with a copy of the interrogatories, shall be sent If^gg.^m,
3 by the party interrogating to the party interrogated, or to his attorney of 325,' l°l'
4 record. If, within ten days after such notice, or in a district court within ^f^^ ^H'oq
5 such less time as the coiu-t may by general or special order direct, the IP'^^-^n
6 party interrogated does not answer the interrogatories, the court shall, §§ 46, 48', 53,
7 upon motion, order the party interrogated to answer such of the interroga- p.'s. 167,
8 tories as it finds proper, within such time as it may fix; but no party in- ll.lfs.^'' **^'
9 terrogated shall be obliged to answer a question or produce a document f^ 57/JI; es.
10 tending to criminate him or to disclose his title to any property the title ^^gg ',gg. 3,5
11 whereof is not material to an issue in the proceeding in the coiu-se of which lanisos!
12 he is interrogated, nor to disclose the names of witnesses, except that §§3,' 9.
1017 ^'i'fi
13 the court may compel the party interrogated to disclose the names of iic'ush. 26,
14 witnesses and their addresses if justice seems to require it, upon such 2^Gray, sss.
15 terms and conditions as the court deems ex-pedient. A party shall not ?5*Gray,"545.
16 interrogate an adverse party more than once unless the court otherwise | ^{[™' }J°-
17 orders, except as to any new matters disclosed by answers to interroga- iw ^ass. 24
lb tones previously nled. 111 Mass. 154.
127 Mass. 220. 163 Mass. 481. 200 Mass. 527. 215 Mass. 591.
128 Mass. 293. 171 Mass. 417. 205 Mass. 431. 217 Mass. 4.SS.
136 Mass. 291, 386. 188 Mass. 30. 212 Mass. 69. 234 Mass. 307.
1 * t § II Section 64. If a party interrogated fails to answer interroga- Penalty for
2 tories, or to amend or expunge an answer or part of an answer as ordered, ans"rer,*etc.
3 the court may make and enter such order, judgment or decree as justice jTog.^^^'
4 requires.
1852, 312, § 72. R. h. 159, § 16; 173, § 66. 125 Mass. 572.
G. S. 129, I 56. 1913, 815, §§ 4, 9. 128 Mass. 293.
1862, 40, § 2. 7 Gray. 417. 136 Mass. 291.
P. S. 151, § 9; 167, § 59. 8 Gray, 529. 139 Mass. 98.
1883, 223, § 2. 14 Allen, 9. 171 Mass. 417.
1 * t § 1 1 Section 65. If a corporation is a party, the adverse party Answers by
2 may examine the president, treasurer, clerk or a director, manager or ™^po'^''"°n'
3 superintendent, or other officer thereof, as if he were a party. If a q ^|' fgf' 1 50'
4 municipal corporation is a party, the mayor or the chairman of the board S- ?• Wj K^l^;
,. ~ , 1 • 1 .,. 1 . R. L. 173, s 61.
5 or selectmen may be examined as it he were a party, except that no city 1912, 276.
6 or town official shall be interrogated concerning matters of public record. H s.'g.
7 If a minor or person under guardianship is a party, the adverse party 109 Mass! 212!
8 may examine as if said party were not a minor or under guardianship; ng Mass.' sol;
9 provided, that if the minor be not of such age as to appreciate an oath. In Mass] sei!
10 or the person under guardianship be mentally incompetent to answer, 214 Mass. 563.
1 1 the person appearing in the suit as the guardian, guardian ad litem or
12 next friend of such party shall make answer.
1 * t § 1 1 Section 66. Such order may be made respecting costs, in Costs.
2 the action or cause or otherwise, as the court may direct by general rule, I'los.^^^'
3 or by a special order in each case. 1852, 312, § 71.
G. S. 129, § 55. P. S. 167, § 58. R. L. 173, § 65. 1913, 815, §§ 6, 9.
1 * t § II Section 67. Sections sixty-one to sixty-six, inclusive, shall ^^^i^*^°f|^f^,
2 not affect the right of a party interrogated, under the direction of the parts of book,
3 court, to seal up or otherwise protect from examination such parts of any issi^ 233,
4 document, book, voucher or other writing as contain matters not per- i852%i2, § m.
5 tinent to the subject of the action, or aft'cct the power of the court to p.' 1; iot,' | 55.'
6 protect said right, or any right of the party interrogated, by suitable frii?j; lli\ ^ *^^'
7 order. 8 Gray, 529. §§7,9.
2474
PLE.\DING AND PR-iCTICE.
[Chap. 231.
Inspection of
documents.
1915, 146, § 4.
Inspection of Documents.
* t § II Section 68. Every party to any cause or proceeding may in- 1
spect and take copies of any document referred to in tlie pleading or par- 2
ticulars of any other party and relied on by such other party, unless the 3
court is satisfied that the same is not in his possession or control or that 4
he has some other reasonable excuse for not producing the same for such 5
inspection, and the coiu-t may make orders for production for said pur- 6
poses, enforceable in like manner as orders to answer interrogatories. 7
In certain
actions either
party may call
far admission
of fact or of
execution of
paper.
1917, 194.
Admission of Material Facts and Documents.
* Section 69. In an action to recover the amount due for goods, 1
wares and merchandise alleged to have been sold and deUvered, or for 2
work, labor and services alleged to have been performed, the plaintiff, 3
by written notice served on the defendant or Iiis attorney, may call upon 4
the other party to admit, for the purpose of the trial of the action, any 5
material fact or the execution of any paper wliich he intends to use at 6
such trial. The court may delay the trial until such notice is answered. 7
If no answer is returned within ten days after a copy of said demand is 8
filed in the clerk's office, or within such fm-ther time as may on motion 9
be granted, the truth of the fact or the execution of the paper shall, for 10
the purposes of that action, be held to be admitted. 11
Statement
of particulars
of action or
defence.
1851, 233, § 4.
1852, 312, § 4.
G. S. 129, I 5S.
Interlocutory Orders.
* Section 70. The court may in all cases order either party to file a 1
statement of all particulars necessary to give to the adverse party and 2
to the com't reasonable knowledge of the nature and grounds of the action 3
or defence. P. s. i67, § ei. r. l. na, § cs. 4
3 Gray, 263.
1 Allen, 248.
11 .'\llen, 283.
129 Mass. 364.
199 Mass. 457.
214 Mass. 159.
220 Mass. 333.
229 Mass. 339.
Orders, etc.,
preparatory
to trial, when
made.
1851,233, §45.
1852, 312, § 35.
G. S. 129, § 59.
1867, 31.
P. S. 167, § 62.
R. L. 173, § 69.
128 Mass. 296.
216 Mass. 459.
t J § II Section 71. Orders allo-sv-ing amendments before trial, or al- 1
lowing a supplemental declaration, answer or rephcation, or enlarging 2
time, or any other interlocutory order necessary to prepare the case for 3
trial, may be made by the coiut or by a justice thereof, in any county; but 4
the several courts shall make such rides relative to notice, the times and 5
places for motions at chambers, and other matters, as they shall from 6
time to time find necessarv. 7
Agreements.
1851, 233, i 46.
1852, 312,
§§ 36, 88.
G.S. 129,
l§ CO, 61.
P. S. 167,
§§ 63, 64.
R. L. 173,
8 Allen, 42.
124 Mass. 241.
148 Mass. 348.
156 Mass. 598.
§70.
Agreements of Parties.
* t Section 72. Parties may make agreements relative to amend- 1
ments and the time of filing papers, which shall be equivalent to an 2
order of the court to the same effect. Any order mentioned m the pre- 3
ceding section may be entered by consent signed by the parties or their 4
attorneys; but no agreement of attorneys relative to an action or 5
proceeding shall be valid unless in writing, except as provided in section 6
Seventv-eight. 218 Mass. 2S6. 234 Mass. 345. 7
Continuances
by agreement
* t Section 73. If the parties agree to continue a case without costs 1
G^! lid! i 61.' until the nex-t sitting, it sliall be continued accordingly; but the court 2
" '^'.^iTih'^n ^^y ^y general or special order regulate the order in which the case 3
shall stand for trial at the next sitting. 4
p. s,
R. L,
Chap. 231.] pleading and pbactice. 2475
Offer of Judgment,
1 * 1[ Section 74. If the defendant in an action at law or a suit in offer of
2 equity, wherein damages only are sought to be recovered, offers in court issI^ho.' | i.
3 and by a writing consents to be defaulted, and to have judgment rendered fgyf; gfc,' § li^'
4 against him as damages for an amount therein specified, the writing and fgy^i'lj; ^ ^®'
5 the time of its fiHng shall be entered of record; and if the plaintiff within }|93. see, § 20.
6 ten days, or such further time as the court allows, after receipt of notice R l' ijs, § 72.
7 thereof, accepts such offer, the court shall render judgment accordingly, 97 Mass.ws.
S with costs to the date of the notice. Such judgment rendered by a
9 district court shall be final.
1 * H Section 75. If the plaintiff does not elect to accept such offer, costs to de-
2 and does not recover as damages an amount, excluding interest from acceptan°e.°°°'
3 the date of the offer, larger than the amount so offered by the defendant, q^^J; Jig' | 53
4 the plaintiff shall have judgment for his costs only to the date of the ^- \ '^i^'V^
5 offer, and the defendant shall have judgment for his costs after said date. ?7' jsiass. ks
' ■' ° 148 Mass. 592.
Frivolous Demurrer.
1 t Section 76. If a demurrer is overruled because it appears to the Frivolous or
2 justice hearing it to be frivolous, immaterial or intended for delay, the ™mumre.
3 case shall proceed to judgment as if no demurrer had been filed, and l|t2', s^il'lll.
4 execution may be awarded or stayed upon terms. If execution is not pfily'llf'
5 awarded, any security taken shall stand as if no judgment had been I'q^^ '''^i ^ '^•
6 entered until an order is made for final judgment.
Hearing or Trial.
1 t Section 77. Actions in which neither party has filed notice that he jury waived
2 desires a jury trial shall, unless otherwise expressly provided, be heard demurrers,
3 and determined by the court. Demurrers may in the first instance be is^l'^Iss'i 33.
4 heard by one justice.
1S52. 312, § 23. P. S. 167, §§ 67, 69. 132 Mass. 354, 356.
G. S. 129, § 64. R. L. 173, § 74. 135 Mass. 28.
1874, 248, I 1. 10 Gray, 601. 173 Mass. 382.
1 t Section 78. If the parties to an action upon the trial list at a sitting Postponement
2 of the superior court file an agreement that such action shall be marked ?riani°t!^°"
3 for trial not before a certain day in the same or the succeeding sitting, }|go; \f^
4 the action shall, if reached in its order upon said trial list before such i^- ^- 1"^, § 77.
5 day, be postponed thereto, and placed upon the list of actions in order
6 for trial on such day next after the cases, if any, which were on the list
7 for the preceding court day; but, if it is in order for trial and is reached
8 for trial on the day upon which the agreement is filed, it shall not be
9 postponed except by order of the court. If two or more actions are so
10 postponed to the same day, they shall be placed upon the list for that
11 day in the order in which the agreements for their postponement were
12 filed. Instead of so postponing a case, the parties may, by a writing filed
13 with the clerk, or orally in his presence, agree that the action be passed,
14 and thereupon it may be temporarily stricken from the list, and may be
15 restored thereto on such day as the parties shall, by a writing filed with
16 the clerk, agree, or after three days' written notice given by either party
17 to the other.
2476
PLE.\DING AKT> PRACTICE.
[ClLiP. 231.
Trials not to
be delayed or
postponed, etc.
1851, 233,
§§ 28, 29, 102.
1852, 312,
§§ 19. 64, 88.
G. S. 129,
§§ 68, 69.
P. S. 167,
§§ "1, 72.
* t Section 79. A trial shall not be delayed for want of a reply to the 1
defendant's answer, nor because interrogatories have been filed and the 2
time for answering them has not expired, unless by special order of the 3
court; nor shall an agreement of parties relative to filing amendments 4
or papers operate to postpone the trial of an action beyond the time at 5
which, by the rules of the court, it would be tried. R. l. 173, § 7s. 6
Trials to pro-
ceed after
allowance of
exceptions.
1804, 105, § S.
1817. 185, § 5.
1820, 79, I 5.
R. S. 81, §§ 29,
33; 82, § 13.
t Section 80. The trial of questions of fact shall proceed although 1
exceptions have been filed and allowed therein, and such further pro- 2
ceedings shall be had as the court orders; but judgment shall not be 3
entered unless the exceptions are adjudged immaterial, frivolous or 4
intended for delay, or except as hereinafter provided. 5
1859, 196, § 28.
G. S. 115, I 9.
P. S. 153, § 11.
R. L. 173, § 79.
1911. 497.
110 Mass. 491.
186 Mass. 59.
210 Mass. 214.
224 Mass. 9.
Charges as to
facts forbidden.
G. S. 115, § 5.
P. S. 153, § 5.
t § il Section 81. The courts shall not charge juries with respect to 1
matters of fact, but they may state the testimony and the law. 2
R. L. 173. § SO.
16 Gray, 501.
4 Allen. 435.
7 Allen, 207.
9 Allen, 276.
14 Allen, 13.
98 Mass. 161.
99 Mass. 413.
102 Mass. 427.
103 Mass. 425.
107 Mass. 329.
110 Mass. 179.
Ill Mass. 63.
117 Mass. 190.
123 Mass. 248.
131 Mass. 467.
139 Mass. 164.
140 Mass. 473.
145 Mass. 97.
148 Mass. 109, 470.
152 Mass. 12.
153 Mass. 176.
162 Mass. 242.
165 Mass. 153.
1S8 Mass. 382.
194 Mass. 157.
196 Mass. 24.
197 Mass. 495.
198 Mass. 499.
200 Mass. 470.
201 Mass. 86.
203 Mass. 384.
204 Mass. 48.
208 Mass. 359.
213 Mass. 2.32.
231 Mass. 215.
^glj" 264"§'2 Section 82. In counties containing two or more shire towns, the su-
R. L. 173, § 82. preme judicial or the superior court, at the sitting held on or next after
the return day on which an action is entered, may designate the sliire
town where it shall be tried, and it shall not then be put on the trial list
for sittings held in any other shire town of that county except by agree-
ment of the parties.
of^ttolss'eT till Section 83. During the trial of a case in which an official
R *l' 173 I S3 stenographer takes stenographic notes of the evidence, no other person
shall interrupt the examination of witnesses for the purpose of taking 3
notes of their testimonv. 4
1
2
of°ac°tons*fOT Section 84. If two or more actions for substantially the same libel, 1
1897 525 ? 3 brought by the same plamtiff, are pending in the same court, either in 2
R. l'. 173', 1 94. the same or in different counties, any justice thereof may in his dis- 3
cretion make an order that some or all of them be tried together. A 4
separate verdict, or, if the action is tried without a jury, a separate 5
finding, shall be rendered in each action, and judgment shall be rendered 6
in each as if it had been tried separately. If the plaintiff recovers judg- 7
merit in two or more actions, the court shall make an order for the 8
apportionment of costs between the defendants. 9
Contributory
negligence an
affirmative
defence;
presumption
and burden
of proof.
Eiidcjice.
* Section 85. In all actions, civil or criminal, to recover damages 1
for injuries to the person or property or for causing the death of a 2
person, the person injured or killed shall be presumed to have been in 3
the exercise of due care, and contributory negligence on his part shall 4
Ch.\P. 231.] PLEADING AND PRACTICE. 2477
5 be an afErmative defence to be set up in the answer and proved bv the i9i4. 553.
„ , p , ^ 221 Mass. 95.
6 defendant. 223 Mass. SOS. 226 Mass. 140, 262.
228 Mass. 477. 231 Mass. 131, IfiO, 233 Mass. 229, 600.
229 Mass. 219. 186, 215, 313, 339, 234 Mass. 85, 93. 130.
230 Mass. 316, 363, 438, 447, 458, 519. 235 Mass. 150, 190.
370, 392, 397, 419. 232 Mass. 138, 165. 236 Mass. 10, 130.
1 t Section 86. If the plaintiff fails to introduce evidence at the counts not
2 trial in support of a count in the declaration, it shall, if not wholly or stricken^ul''^
3 partly admitted by the answer, be stricken out; and the court may, }|52,' 312,' § s!
4 either of its own motion or upon motion of a party, require unnecessary pgii-'i^^'
5 counts and statements to be stricken out of the pleadings, and may R- l- i73. § si.
6 impose terms. S Gray, 5S9. 3 Alien, 471.
1 * t § II Section 87. Pleadings shall not be evidence on the trial, but Pleadings not
2 the allegations therein shall bind the party making them. r.'s. 100, § 18.
1851, 233, § 112. 13 Allen, 72. 460. 140 Mass. 250.
1852, 312, § 75. 108 Mass. 100. 172 Mass. 303.
G. S. 129, § 72. 109 Mass. 63. 173 Mass. 433.
P. S. 167, § 75. 110 Mass. 61. 176 Mass. 363.
R. L. 173, § 85. 124 Mass. 364. 223 Mass. 243.
15 Gray, 211. 126 Mass. 21. 226 Mass. 570.
12 Allen, 443. 135 Mass. 105. 235 Mass. 443.
1 * 1[ Section 88. An offer or consent made under section seventy- unaccepted
2 four and not accepted shall not be evidence against the party making judgment.
3 it, either in a subsequent proceeding in the action or suit in which it is g.^I." 129,' § 7^
4 made or in another action or suit. p. s. i67, § 76. r. l. 173, § 87.
1 * t § 1 1 Section 89. The answers of a party to interrogatories filed Answers to
. nitcrroc&toncs
2 may be read by the other party as evidence at the trial. The party may beread
3 interrogated may require the whole of the answers upon any one sub- i85i!^233,
4 ject matter inquired of to be read, if a part of them is read; but if no i852!'3i2, s 73.
5 part is read, the party interrogated shall in no way avail himself of his p.'|.iot%SV.'
6 examination or of the fact that he has been examined.
R. L. 173, § 88. 176 Mass. 363. 223 Mass. 300.
109 ilass. 209. 214 Mass. 563.
1 * t If Section 90. If a defendant answers two or more matters in one matter in
2 liis defence, no averment, confession or acknowledgment contained in evfde"ce of
3 one of them shall be used or taken as e\'idence against him on the trial ^g.?^*'",)^ s 2
4 of an issue joined on any other of them.
R. S. 100, § 18. 1852, 312, § 75. P. S. 167, § 78. 13 Met. 253.
1851, 233, § 112. G. S. 129, § 75. R. L. 173, § 89. 7 Gush. 581.
1 * Section 91. If the defendant in an action for slander or for pub- justification
2 lishing a libel justifies that the words spoken or published were true, in slander ^
3 such allegation, although not maintained by the evidence, shall not of ma^iice.
4 itself be proof of the malice alleged in the declaration.
R. S. 100, § 19. P. S. 167, § 79. 226 Mass. 447.
G. S. 129, I 76. R. L. 173, § 90.
1 * Section 92. The defendant in an action for -WTiting or for pub- .p^^^ „, li^^i
2 lishing a libel may introduce in evidence the truth of the matter con- js?l''^gi^-
3 tained in the publication charged as hbellous; and the truth shall be G.s:i29i§77.
4 a justification unless actual malice is proved. R. l. 173, § 9i. ....
124 Mass. 338. 151 Mass. 127. 200 Mass. 166.
127 Mass. 316. 176 Mass. 270. 220 Mass. 171.
133 Mass. 471. 1S3 Mass. 474. 241 U. S. 257.
2478 PLEADING AND PRACTICE. [ChAP. 231.
omef "^ * Section 93. If, in an action for libel, the defendant, before the 1
1897' 525 § 1 answer is required to be filed therein, gives -wTitten notice to the plain- 2
?x=^:;,^^^' kl^- tiff or to his attorney of his intention to publish a retraction of the 3
198 Mass. 538. ,., , • i i i- i • i • i i • i
libel, accompanied by a copy ot the retraction which he uitends to 4
publish, he may prove such publication in mitigation of damages. If, 5
upon such notice, the plaintiff does not accept the offer of retraction, 6
the defendant may prove in mitigation of damages his offer to publish 7
such retraction and that the offer was not accepted, and that the al- 8
leged libel was published in good faith and without actual malice; and 9
unless the plaintiff proves actual malice or want of good faith, or a 10
failure either to retract or offer to retract as aforesaid, he shall reco\-er 11
damages only for the actual injury sustained; but in no action of libel 12
shall exemplary or punitive damages be allowed. 13
mitigation of * SECTION 94r. In an action for libel, the defendant may allege and 1
i897?^6l;'.5, § 2. prove in mitigation of damages that the plaintiff has already recovered 2
r°l' 173 § 93 damages for, or has received or has agreed to receive compensation in 3
respect of, substantially the same libel as that for which such action 4
was brought. In an action for libel or slander, he may introduce in 5
evidence, in mitigation of damages and in rebuttal of evidence of actual 6
malice, acts of the plaintiff which create a reasonable suspicion that the 7
matters charged against him by the defendant are true. 8
■2
Evidence of * SECTION 95. In an actlou upon a iudgment obtained bv default and 1
payment, etc., . ^iipii i ■!*•
in action on without the knowlcdgc of the defendant, brought within six years after
default. the rendition thereof, the com-t may, in its discretion and upon terms, 3
G. s.' 129,' § 78. allow the defendant to show in defence any payment, satisfaction or 4
R. L.''n3,V95- extinguishment of the claim, prior to the obtaining of such judgment, 5
ioomTs's^79 or a^y matter of fraud, which in either case he might have shown upon 6
a writ of review in the original suit. 7
Appeals.
fu?fcourt° t § Section 96. A party aggrieved by any order of the superior court 1
1835! lohii- sustaining or overruling a demurrer which alleges that the facts stated 2
§§ 6 10 ™ the pleadings demurred to do not in law support or answer the action, 3
1839' i6i' ^^' '^^ ^ party aggrieved by an order for judgment upon a case stated, or 4
i84o! 87, ■ by any order decisive of the case founded upon matter of law apparent 5
1851, 233, § 33. on the record in any proceeding, may appeal therefrom to the supreme 6
1855,' 449; judicial court; but, except as provided for appeals in equity by section 7
1859, WG, twenty-six of chapter two hundred and fourteen, no appeal or exception 8
G I'''u4 5 10- shall be entered in the supreme judicial court until the case is in all other 9
i29^§j64.' ' respects ripe for final disposition by the superior court. An issue of law 10
167,§ 67! ' joined in the superior court shall not be waived bv consent of parties 1 1
1898! 5fi2! § 14. after such appeal has been entered in the supreme judicial court, but 12
R.^L. 173. § 90. that court may, for good cause, allow the parties to withdraw or amend 13
i9?o!555! §4! their pleadings, and, if they result in an issue of fact, the case shall be 14
P^i|^257, remanded to the superior court for trial. An appeal from an order of 15
iPo 2' t^^^ superior court shall be claimed within twenty days after it is made, 16
22'pick. 278. ' and, except as otherwise herein provided, no judgment shall be entered 17
7Cush. 115. while an appeal is pending. If exceptions are taken upon the trial of 18
I Gray! 653. an actiou, any appeal taken in the case shall be entered at the same 19
7 Gray! 425. time with such exceptions in the supreme judicial court, and a party 20
Chap. 231.] pleading and practice. 2479
21 failing so to enter his appeal shall be deemed to have waived it. If an lo Gray. soi.
22 appeal is groundless and intended merely for delay, the court, on motion 1.3 Gray! 475.
23 and after such notice as its rules require, and upon such terms, if any, I Alien! 43?:
24 as it deems reasonable, may order judgment to be entered notwithstand- gl^^s^g'oc)
25 ing the appeal, and at the same time may award or stay execution. If ^27
26 execution is not awarded, any attached property or other security taken iig Mass. 223.
27 shall stand as if no judgment had been entered, until final disposition is 121 Mass! 402.
28 made of the case.
122 Mass. 443. 170 Mass. 569. 214 Mass. 374.
126 Mass. 258. 1S3 Mass. 42. 215 Mass. 85.
128 Mass. 296. 1S8 Mass. 292. 216 Mass. 123, 545.
129 Mass. 158. 193 Mass. 412. 528. 221 Mass. 489.
134 Mass. 338. 194 Mass. 589. 225 Mass. 123.
147 Mass. 572. 201 Mass. 5.57. 227 Mass. 41.
150 Mass. 550. 203 Mass. 233. 230 Mass. 5.
153 Mass. 6. 206 Mass. 449. 232 Mass. 500.
156 Mass. 348, 522. 211 Mass. 31. 233 Mass. 162.
157 Mass. 386. 212 Mass. 230, 352. 235 Mass. 587,
160 Mass. 415. 213 Mass. 78.
1 * Section 97. Except as otherwise provided as to the municipal ^J^fuperior
2 court of the city of Boston, a party aggrieved by the judgment of a dis- [Igy-^ , j
3 trict court in a civil action, unless a written waiver of the right of appeal i^ss] 4i>, § e.
. • • rr 1S25 89 5 2
4 has been filed bv all the parties, mav, within twentv-four hours after issi! 7o', s i.
5 entry of a judgment rendered in accordance with section three of chapter 87, '§ se';
6 two hundred and thirty-nine and in any other case within six days after o^s.S^ie, § 32;
7 the entry of the judgment, appeal therefrom to the superior court. In Jfre^igg
8 such case, no execution shall issue on the judgment appealed from. The ^ |' f^ ^g.
9 case shall be entered in the superior court for the same county at the i55,§28'.
10 return day next after the appeal has been taken and shall be there tried 1S93', 396', § 24.
11 and determined as if originally commenced there. In an action founded 431. '
12 upon a liability which is joint, if some but not all of the defendants ap- k^l. leo, §42;
13 peal, the case shall nevertheless be transferred as against all, and such }906^45"i
14 judgment shall be entered in the superior court as justice may require; jg}"' ff^
15 but a co-defendant who has not joined in the appeal shall not be liable isi''! 326
16 for costs arising after the appeal was taken. uCush. so. iGray, eoo.
2 Gray, 553. 165 Mass. 238. 200 Mass. 194.
9 Gray, 47. 171 Mass. 292, 444. 201 Mass. 451.
12 Gray, 430. 172 Mass. 37. 206 Mass. 40S.
13 Allen, 78. 192 Mass. 34. 221 Mass. 161.
125 Mass. 47. 193 Mass, 203, 235 Mass. 114.
139 Mass. 126.
1 * Section 98. No appeal, other than an appeal bv a countv, city, Appeal bond.
2 town or other municipal corporation, from a judgment of a district i877;236,' 1 1!
3 court in any civil action or proceeding, except an action of summary p.s! lil' Hi-,
4 process under chapter two hundred and thirty-nine, shall be allowed, JH^^gl^'
5 except as provided in the two following sections, unless the appellant, Jlgl' |f ^' ^ ^^■
6 within six days after the entry of judgment, or within such further time isk; 355!
7 as the justice or clerk for cause shown allows, files a bond executed by i9io,' 534,' § 2. '
8 him or by his attorney of record on his behalf, payable to the appellee iss mS sco!
9 in such reasonable sum and with such surety or sureties as may be ap- {% \\lll\ I35;
10 proved by the appellee or by the justice or clerk, conditioned to enter and 1*1 ^'''^'- ^**'
11 prosecute his appeal with effect, and to satisfy any judgment for costs }■}? ^J"''- 1§^-
12 which may be entered against him in the superior court upon said appeal no Mass. 324.
13 within thirty days after the entry thereof.
150 Mass. lis, 283. 178 Mass. 393.
1 * Section 99. The appellant or any person in his behalf, instead of Deposit in
2 filing a bond as provided in the preceding section, may deposit with the isso, 20,.
3 clerk, within the time required for filing a bond, a reasonable amount, p.sri54. §39;
4 to be fixed by the clerk or justice, as security for the prosecution of the ists^Le*^^^'
§§ 26-28.'
§1-
§4.
2480
PLEADING AND PRACTICE.
[ClL^P. 231.
1894, 431.
R. L. 173,
1100.
1917, 326.
160 Mass. 415.
appeal and the payment of costs. A certificate of such deposit shall be 5
issued to the depositor by the clerk or justice, and the deposit shall be 6
transmitted by him with the papers to the clerk of the superior court, 7
who shall thereupon deliver a receipt therefor to such clerk or Justice 8
and shall hold such deposit until the final disposition of the case, when 9
he shall pay it, or any part thereof, to the appellee for his costs, or to the 10
depositor thereof, as the court may order. The superior court may give 11
directions as to the manner of keeping such deposit. 12
No appeal
bond required,
when.
1862. 217, § 5.
1880, 20, § 4,
* Section 100. If an appeal is claimed by the plaintiff in an action 1
of replevin, or by a defendant who has given a bond according to law to 2
dissolve an attachment, no bond or deposit shall be required. 3
p. S. 155, § 33. 1893, 396, § 29. R. L. 173, § 101.
1890, 224.
1894, 431.
Transmission
of papers.
1862, 217, I 1.
1876, 60.
P. S. 1.54, 5 40.
1893, 396, § 30.
1894, 431.
R. L. 173,
§102.
* Section 101. When an appeal is taken from a judgment of a dis- 1
trict coiu-t, the clerk shall transmit to the clerk of the superior court the 2
original writ or process, all papers filed in the case, all bonds, and a 3
brief certificate of the proceedings, which shall be there entered by the 4
appellant. 12 Cush. 133. 126 Mass. 233, 399. 197 Mass. 416. 5
Records in
lower court
of cases
appealed.
1862, 217, § 2.
1876, 60.
P. S. 154, I 41.
Waiver of
jury trial
in Boston
municipal
court.
Removal by
plaintiff.
1912, 649. 5 2.
1914,35, § 2;
409.
228 Mass. 84.
235 Mass. 114.
* Section 102. Whensuchappealistaken, the names of all the parties 1
thereto, the nature of the action or proceeding, the doings of the court 2
thereon, the final disposition thereof and the amount of costs taxed shall 3
be entered on the docket; and no other record thereof shall be required. 4
1893, 396, § 31. 1894, 431. R. L. 173, § 104. 1917. 326.
J Section 103. If a party elects to bring in the municipal court of the 1
city of Boston any action or other civil proceeding which he might have 2
begun in the superior court, he shall be deemed to have waived a trial by 3
jury and his right of appeal to the superior court, unless the said action 4
or other civil proceeding is removed to the superior court as hereinafter 5
provided, in which case the plaintiff shall have the same right to claim 6
a jury trial as if the action or proceeding had been originally brought in 7
the superior court; provided, that if a declaration in set-off is filed in 8
such action, the plaintift" may of right remove the cause and claim a 9
jury trial in the manner and upon the terms set out in the following 10
section, within the time allowed him for filing an answer to such declara- 11
tion in set-off. 12
Removal from
Boston munic-
ipal court.
1912. 649. § 3.
235 Mass. 114.
J Section 104. No other party to such action shall be entitled to an 1
appeal. In lieu thereof, any such party may, within two days after the 2
time allowed for entering his appearance, file in said court a claim of 3
trial by jury, and an affidavit by his counsel of record, if any, and if 4
none, the affidavit of such party, that in his opinion there is an issue of 5
fact requiring trial in the cause, and that such trial is in good faith in- 6
tended, together with the sum of three dollars for the entry of the cause 7
in the superior court, and a bond in the penal sum of one hundred dollars, 8
with such surety or sureties as may be approved by the plaintifl^ or the 9
clerk or an assistant clerk of said municipal court, payable to the other 10
party or parties to the cause, conditioned to satisfy any judgment for 11
costs which may be entered against him in the superior court in said 12
cause within thirty days after the entry thereof. The clerk shall forthwith 13
transmit the papers and entry fee in the cause to the clerk of the superior 14
court, and the same shall proceed as though then originally entered there, 15
Chap. 2.31.] ple.-sding and practice. 2481
16 but may be marked for trial upon the lists of causes advanced for speedy
17 trial by jury.
1 t Section 105. In any action brought by or against two or more Partial
2 persons in which separate judgments are authorized by sections two and 19T27649, § 4.
3 four, the party seeking removal may specify in his claim of jury trial the
4 parties as to whom such trial is claimed, in which case the cause shall be
5 removed as to such parties only as are specified in such claim, and said
6 municipal court shall retain jurisdiction as to the remainder. In such
7 case the clerk shall transmit attested copies of the papers in the cause to
8 the clerk of the superior court, in lieu of the originals.
1 t Section 106. Any party, in lieu of filing tlie bond requu-ed in sec- Deposit in licu
2 tion one hundred and four, may deposit with the clerk the sum of one bond™"""'
3 hundred dollars. A certificate of such deposit shall be issued to the depos- ^^'^' ^^' ^ ®
4 itor by the clerk, and the deposit shall be transmitted by him, with the
5 papers, to the clerk of the superior court, who shall receipt therefor and
6 hold said deposit until the final disposition of the case, when he shall
7 apply the same to the satisfaction of any costs awarded against the
8 depositor, and pay the balance, if any, to the depositor or his legal
9 representatives.
1 J Section 107. No bond or deposit under the three preceding sections Bond or
2 shall be required of a county, city, town or other municipal corporation require*d? when.
3 or by a party who has given bond according to law to dissolve an attach- ^^^^' ^^' ^ ®-
4 ment; and the court may in any case, for cause shown, after notice to
5 adverse parties, order that no bond be given. Said municipal coiut may,
6 upon cause shown and after notice to all adverse parties, permit such
7 removal to the superior court, upon the terms above specified, at any time
8 prior to final judgment.
1 { Section 108. There shall be an appellate di^•ision of said municipal Appellate
2 coiu't for the rehearing of matters of law arising in civil causes therein, 1912, 649, § s.
3 the said division to consist of three justices thereof, to be designated 215 Mass. os.
4 from time to time by the chief justice. Any party to a cause brought lib Mass. 197.
5 in said court after August thirty-fii-st, nineteen hundred and twelve, l20Mals ue"
6 aggrieved by any ruling on a matter of law by a single justice, may, as gosMass 451'
7 of right, have the ruling reported for determination by the appellate di- 22s Mass! 63. '
8 vision when the cause is other^\ise ripe for judgment, or sooner by con-
9 sent of the justice hearing the same. The request for such a report shall
10 be filed with the clerk within two days after notice of the riding, and
1 1 when the objection is to the admission or exclusion of e\'idence, the claim
12 for a report shall also be made kno^\^l at the time of the ruling. The
13 justice whose ruling is complained of shall not sit upon the review thereof.
14 If the appellate di\-ision shall decide that there has been prejudicial error
] 5 in the ruling complained of, it may reverse, vacate or modify the same or
16 order a new trial in whole or part; otherwise it shall dismiss the report,
17 and may impose double costs in the action if it finds the objection to such
18 ruling to be fri\-olous or intended for delay. If the party claiming such
19 report shall not duly prosecute the same, by preparing the necessary
20 papers or otherwise, the appellate di\ision may order the cause to proceed
21 as though no such claim had been made, and may in like manner impose
22 costs. The court shall make rules regulating the procedure and sittings
2482
PLE.VDING AND PRACTICE.
[Chap. 231.
Appeal from
appellate
division to
supreme judi-
cial court.
1912, 649, 5 9.
1914, 35, § 4.
215 Mass. 89.
216 Mass. 197.
228 Mass. 84.
229 Mass. 68.
230 Mass. 526,
534.
of the appellate di\'ision, for the preparation and submission of reports 23
and the allowance of reports wliich a single justice shall disallow as not 24
conformable to the facts, or shall fail to allow by reason of physical or 25
mental disability, death or resignation, and for the granting of new trials. 26
J Section 109. An appeal shall he from the final decision of the ap- 1
pellate division to the supreme judicial coiu-t for the commonwealth. 2
Claim thereof shall be filed in the office of the clerk of said municipal court 3
^\•ithin five days after notice of the decision of the appellate dixision. 4
The appeal shall not remove the cause, but only the question or ques- 5
tions to be determined. The necessary papers shall, at the expense of the 6
party appealing, unless the coiirt shall order the expense to be borne 7
by some other party, be prepared by the clerk, who may require the esti- 8
mated expense thereof to be paid in advance. The appeal shall be trans- 9
mitted to and entered on the docket of the supreme judicial court within 10
ten days after notice to the appealing party that the papers are ready 11
for transmission. The expense of such copies and transmission, and the 12
entry fee in the supreme judicial court, shall be taxed in the bill of costs 13
of the prevailing party, if he has paid it. Section twenty-five of chapter 14
two hundred and sixty-one shall apply to such appealed cases. If the 15
appellant fails duly to perfect the appeal or to enter the same in the 16
supreme judicial coiu-t, the appellate division may upon application of 17
an adverse party, and after notice to all persons interested, order the 18
appeal vacated and the decision appealed from affirmed. 19
Powers of
appellate
division.
1914, 35, I 1.
Report.
1859, 196, § 32.
G.S. 115, § 6.
1869,438, 5 1.
1878,231, ^ 1.
P. S. 153, § 6.
1887, 332, § 4.
1891, 227. I 2.
1899, 131, § 2.
1900,311.
R. L. 128. I 13;
173, I 105.
1902, 458.
1904, 448. § 8.
1910. 555, § 5;
560, §§ 1, 6.
1917, 345.
1 AUen, 18,
388.
9 Allen, 539.
J Section 110. The appellate division of said court shall have all the
powers relating to civil actions tried without a jury given by sections
one hundred and twenty-four, one hundred and twenty-five, one hun-
dred and twenty-six and one hundred and tliirty-two to the supreme
judicial court.
Report.
t II Section 111. A justice of the supreme judicial, the superior or
the land court, after verdict, or after a finding of the facts by the court,
may report the case for determination by the full court. If a justice of the
supreme judicial or the superior court is of opinion that an interlocutory
finding or order made by him ought to be determined by the full court
before any further proceedings in the trial court, he may report the case
for that purpose and stay all further proceedings except such as are
necessary to preserve the rights of the parties. A justice of the supreme
judicial or the superior court may, upon request of the parties, in any case
where there is agreement as to all the material facts, report the case to
the full coiu-t for determination without making any decision thereon.
100 Mass. 31.
106 Mass. 346.
113 Mass. 290.
115 Mass. 129, 133, 310.
116 Mass. 299.
125 Mass. 47, 404.
129 Mass. 5.35.
130 Mass. 443.
141 Mass. 577.
154 Mass. 31.
156 Mass. 598.
167 Mass. 473.
171 Mass.
1S9 Mass.
195 Mass.
198 Mass.
201 Mass.
202 Mass.
204 Mass.
207 Mass.
211 Mass.
212 Mass.
213 Mass.
214 Mass.
201.
74.
55.
388.
172, 248.
209.
117,331.
285.
31, 449.
257.
191.
340, 374.
215 Mass. 75.
216 Mass. 545.
218 Mass. 397.
222 Mass. 226.
224 Mass. 424.
225 Mass. 18. 399.
228 Mass. 519.
230 Mass. 139, 526.
233 Mass. 558.
.235 Mass. 304.
236 Mass. 98.
1
2
3
4
5
1
2
3
4
5
6
7
8
9
10
11
Report in case
of disability,
etc., of pre-
siding justice.
1912,317.
215 Mass. 432.
231 Mass. 247.
t § II Section 112. If a justice presiding at a trial has reserved a case 1
for report to the supreme judicial court, and fails, by reason of physical 2
or mental disability, death or resignation, to make such report, any 3
other justice of the same court may examine and report the same. 4
ClIAP. 231.] PLE.UJING AND PRACTICE. 2483
Exceptions.
1 till Section 113. Exceptions may be alleged by any party ag- Exceptions.
2 grieved by an opinion, ruling, direction or judgment of the supreme isoi! los, s 5.
3 judicial court, of the superior court, or of the land coiu't, rendered upon is2o! 79, §5. "
4 any matter of law in any ci\il cause, according to the course of the r.^s.'suVzI;
5 common law or otherwise, tried by a jury or heard by the court, or fg^ogy
6 upon a motion for a new trial. The exceptions shall be reduced to ^^^^ |gy . ^
7 wTiting in a summary manner and filed with the clerk, and notice i859,'i96,'|27.
8 thereof shall be given to the adverse party, in civil cases tried by a 115, pj.'s;
9 jury, within twenty days after the verdict is rendered, and in cases ises. isd, § 2.
10 tried without a jury, within twenty days after the notice of the de- ilsatis.
11 cision has been received, unless further time is allowed by the court. i'5|§§l-ioT'
12 The presiding justice shall thereafter, upon their presentation to liim Jlgy^ggj 54
13 by any party to the action, examine the exceptions, and after hearing JfgJ'fH'l?-
14 the parties, determine whether they are conformable to the truth. The R. l! 173!
15 excepting party may be allowed to make such amendments to his bill 1900. 342, § 3.
16 of exceptions as will make it a more accurate statement of the excep- i^Met 2S7: ^'
17 tions originally filed by him. If the presiding justice finds that the ISmy^sBf'
18 exceptions, M^ith any amendments thereof thus allowed, are conformable | q- 243
19 to the truth, he shall allow them. 10 Gray, 240, 400.
15 Gray, 485. 125 Mass. 94, 203, 367, 587. 190 Mass. 346, 585.
1 Allen, 33, 167, 274, 529. 126 Mass. 222. 191 Mass. 92.
2 Allen, 230, 634. 127 Mass. 158, 452. 193 Mass. 435.
3 Allen, 212. 128 Mass. 349. 194 Mass. 48, 524.
6 Allen, 150. 133 Mass. 536. 195 Mass. 46.
9 Allen, 537. 134 Mass. 189. 197 Mass. 376.
10 Allen, 248, 419. 137 Mass. 92. 98. 200 Mass. 142.
1 1 Allen, 472. 140 Mass. 434. 201 Mass. 557.
12 Allen, 191. 141 Mass. 181. 204 Mass. 337.
13 Allen, 70, 408. 144 Mass. 420. 206 Mass, 197.
99 Mass. 425, 475, 542. 145 Mass. 234. 208 Mass. 60.
100 Mass. 153. 147 Mass. 159, 164. 209 Mass. 199.
101 Mass. 378, 479. 150 Mass. 6.50. 210 Mass. 214.
103 Mass. 547. 151 Mass. 158, 276, 212 Mass. 352.
104 Mass. 224. 470, 532. 213 Mass. 194.
107 Mass. 210, 453. 156 Mass. 522. 214 Mass. 379.
110 Mass. 491. 159 Mass. 210. 216 Mass. 381.
111 Mass. 160. 160 Mass. 131. 256. 216 Mass. 539.
112 Mass. 233. 161 Mass. 558. 217 Mass. 473.
113 Mass. 88. 271, 452. 162 Mass. 208, 334, 402. 220 Mass. 227, 356.
114 Mass. 67, 362. 163 Mass. 536. 221 Mass. 136, 378.
115 Mass. 1. 167 Mass. 417. 222 Mass. 179, 226.
1 16 Mass. 98. 124, 424. 168 Mass. 303. 224 Mass. 169, 310.
117 Mass. 155, 281, 466. 170 Mass. 260, 52fi. 509. 227 Mass. 29.
119 Mass. 71, 99, 172 Mass. 35, 420. 53S. 228 Mass. 368, 569.
116, 188, 375, 476. 174 Mass. 253, 580. 229 Mass. 421-
121 Mass. 165, 605. 178 Mass. 368. 231 Mass. 7, 404.
122 Mass. 601. 181 Mass. 246. 232 Mass. 500.
123 Mass. 679. 182 Mass. 293, 584. 233 Mass. 420.
124 Mass. 21, 226, 185 Mass. 576. 2.34 Mass. 148.
241, 292, 353. 187 Mass. 150, 521. 236 Mass. 330. 422.
1 t § II Section 114. If an excepting party, in any ci\'il cause in Dismissal of
2 which exceptions may be alleged, shall not within such time after the failure'tS^
3 filing of his exceptions as the court may determine to be reasonable aUowanc'r
4 thus present them to the court for allowance, the court in wliich the 2i3Va'ss' i9^'
5 exceptions were taken and filed may, after notice to all parties inter- 220 Mass. 350
6 ested, order them dismissed, and thereupon proceed to enter judgment
7 in the same manner as if no exceptions had been filed. No exceptions
8 shall thus be dismissed within three months after the date of their filing.
1 t § II Section 115. If a justice presiding at a trial at which ex- Allowance of
2 ceptions have been taken fails, by reason of physical or mental dis- case''o'f"dis-'°
3 ability, death or resignation, to sign or return them, any other justice of of"pre^3'idi'ng
4 the same court may examine and allow or disallow them. " I882, 239. justice.
1894, 412. R. L. 173, § 108. 1912, 317. 195 Mass. 443.
2484
PLE.U)ING AND PRACTICE.
[dLU-. 231.
Frivolous
or immaterial
exceptions.
ISM, 105. I 5.
R. S. 81. § 29.
G. S. lis, § 10.
P. S. 153. § 12.
1S91, 362.
R. L. 173, 5 109.
145 Mass. 97.
156 Mass. 61.
1S2 Mass. 316,
320.
218 Mass. 463.
224 Mass. 9.
Establishment
of exceptions
disallowed.
R. S. 81. § 28.
1851, 261,
I§1,2.
1859. 196, § 29.
G. S. 115, § 11.
P. S. 153. § 13.
1882, 239.
1894, 412.
R.L. 173, §110.
4 Gray, 568.
15 Gray, 202.
1 Allen, 484.
6 Allen, 557.
Entry of
notice of
filing of
petition to
establish
exceptions.
190S, 516.
t Section 116. If a justice presiding at the trial of a civil cause
finds that the exceptions taken therein are immaterial, frivolous or
intended for delay, judgment may be entered and execution awarded
or stayed, upon terms, notwithstanding the allowance of the exceptions.
If execution is not awarded, any security taken shall stand as if no
judgment had been entered until an order is made for final judgment.
In case of the disability or death of the presiding justice, any justice of
the same court may exercise the powers herein conferred.
t § II Section 117. If the presiding justice, or another justice act-
ing under section one hundred and fifteen, disallows or fails to sign and
return the exceptions or alters any statement therein, and either party
is aggrieved thereby, the truth of the exceptions presented may be
established before the full court upon petition stating the grievance,
and thereupon, the truth of the exceptions being established, they shall
be heard, and the same proceedings taken, as if the exceptions had been
duly allowed and entered. The supreme judicial court shall make rules
for settling the truth of exceptions alleged and not allowed.
98 Mass. 34.
99 Mass. 427.
103 Mass. 530.
105 Mass. 42, 49.
112 Mass. 299.
113 Mass. 153.
115 .Mass. 56.
116 Mass. 302. 424.
117 Mass. 68.
119 -Mass. 416.
121 Mass. 503.
122 Mass. 433.
124 Mass. 220.
127 Mass. 158.
130 Mass. 6.
131 Mass. 566.
132 Mass. 183.
143 Mass. 27.
144 Alass. 71-
155 Mass. 233.
161 .Mass, 558.
163 Mass. 536.
167 Mass. 254.
168 Mass. 304.
173 Mass. 286.
174 Mass. 253.
175 Mass. 56.
187 Mass. 542.
193 Mass. 21.
194 Mass. 589.
204 Mass. 331.
207 Mass. 256.
208 Mass. 60, 405.
215 Mass. 68.
219 Mass. 209.
222 Mass. 179.
223 Mass. 471.
225 .Mass. 473.
2.34 Mass. 576.
t § II Section 118. Whenever a petition under the preceding section
is filed, the clerk of the supreme judicial court for the commonwealth
shall, ^^-ithin three days after the filing of the petition, send notice
thereof to the clerk of the court in wliich the exceptions were filed, who
shall thereupon enter in the case on the docket of that court notice of
the filing of such petition in the supreme judicial court.
1
2
3
4
5
6
7
8
1
2
3
4
5
6
7
8
9
Reservation
where
exceptions
disallowed.
1908, 177.
217 Mass. 537.
231 Mass. 247.
t § II Section 119. If in any civil action tried before a jury in the su- 1
preme judicial or the superior court a bill of exceptions duly filed is not 2
allowed by the presiding justice within three months after the date of 3
the verdict therein, because the same is not found by him to be con- 4
formable to the truth, or is not found to state the facts and evidence 5
in the case correctly and fully, the presiding justice may in his discretion 6
reserve the case and send to the supreme judicial court for the common- 7
wealth the whole record of the case, including the pleadings and the 8
evidence taken by the official stenographer and -nTitten out from his 9
notes, and certified by him to ha^'e been so taken and wTitten out; or 10
so much of said record as is material to the issue. Said record shall be 11
accompanied by the certificate of the presiding justice that the same 12
is a true copy of the record and proceedings in said case, or of the part 13
thereof transmitted, and shall be entered in the supreme judicial court 14
for the commonwealth; and thereupon said record so made and certi- 15
fied shall stand in lieu of a bill of exceptions in all respects, and the 16
questions raised by the exceptions in said cause shall be heard and 17
determined by the full court on such record. In case of the disability 18
or death of the presiding justice, any justice of the same court may 19
exercise the powers herein conferred. The expense of transcribing the 20
stenographer's notes and of copj-ing exliibits shall be borne by the 21
Chap. 231.] pleading and practice. 2485
22 excepting party, and if he prevails the same shall be taxed in his costs.
23 All pro\-isions of law relating to bills of exceptions, so far as they may
24 be applicable, shall apply to proceedings under tliis section.
1 t § II Section 120. When exceptions to any ruling or direction of a Verdict by
2 judge are alleged, or any question of law reserved, in the course of a trial ^^uJi^i^Yi'.
3 by jury, and the circumstances are such that, if the ruling or direction r.l. ill, ^ ^*'
4 at the trial was wrong, the verdict or finding ought to have been entered f9\f igs
5 for a different party or for larger or smaller damages or otherwise than as ll^'-J-
6 was done at the trial, the justice may reserve leave, with the assent of iSs Masa^ sss!
7 the jury, so to enter the verdict or finding, if upon the questions of law 231 Massl es!
8 so raised the court shall decide that it ought to have been so entered. The ^^^ ^^^^' ^''
9 leave reserved, as well as the findings of the jury upon any particular
10 questions of fact submitted to them, shall be entered in the record of the
11 proceedings, and if upon the questions of law it shall be decided, either
12 by the same coiut or by the appellate court, that the verdict or finding
13 ought to have been entered in accordance with the leave reserved, it shall
14 be entered accordingly, unless the supreme judicial court, in accordance
15 with section one hundred and twenty-two, one hundred and twenty-
16 three or one hundred and twenty-four, makes a different order. When
17 so entered, the verdict shall have the same effect as if it had been entered
IS at the trial.
1 t§ II Section 121. The presiding justice may order the excepting Transcripts
2 party in civil cases to provide him with a transcript of the evidence and i895,"i53^^§ 2.
3 of the instructions to the jury, or such portion thereof as he shall desig- ^^l] j^g-
4 nate, written out by the official stenographer from his notes, within 5 m-
5 such time, not less than ten days after the date of the order, as the pre-
G siding justice designates.
Power of Full Court on Exceptions, Appeal or Report.
1 til Section 122. When the justice presiding at a trial is requested ™' '^°^^^^
2 to rule that upon all the evidence the plaintiff' cannot recover, and such judgment
3 request is refused, and exception by the defendant to such refusal is duly after sustain-
4 taken, and a finding or verdict returned for the plaintiff', then if the de- exceptions.
5 fendant's said exception is sustained in the supreme judicial court, and i9o™'236, § 1.
6 exceptions, if any, taken in said trial by the plaintiff are all overruled, ^Ss '^''""'' ^"'
7 the supreme judicial court may, by rescript, direct the entry in the trial ^os Mass. 28fi,
8 court of judgment for the defendant, and thereupon judgment shall so aiiMass. iso.
9 be entered. aiSMass. 467, SSS. 223 Mass. 471.
1 til Section 123. When the justice presiding at a trial is requested ^f"®,-^'"
2 by the plaintiff to rule that upon all the evidence a finding or verdict looo. 230, § 2.
3 should be returned for the plaintiff, and such request is refused, and an
4 exception to such refusal is duly taken, and a finding or verdict is re-
5 turned for the defendant, then if the plaintift"s said exception is sustained
6 in the supreme judicial court, and the exceptions, if any, taken in said
7 trial by the defendant are all overruled, the supreme judicial court may,
8 by rescript, direct the entry in the trial court of judgment for the plain-
9 tiff", and thereupon judgment shall so be entered.
1 1 1 § II Section 124. Whenever a question in dispute at the trial of flf^""/ j,„
2 an issue of fact in any civil action or proceeding depends upon the de- appeal, etc.
3 cision of a question of law, the full bench of the supreme judicial court, 216 Mass. 200.
2486
PLEADING .AND PRACTICE.
[Ch.^p. 231.
223 Mass. 39.
228 Mass. 191,
285, 294, 484.
upon appeal, exceptions or report or otherwise, may, if satisfied that it 4
has before it all the facts necessary for determining the question in dis- 5
pute, direct that such judgment or decree be entered or that such other 6
action be taken as shall accord with the determination of the full court; 7
or, if the full court shall be of the opinion that it has not before it suf- 8
ficient facts to determine said question, it may direct such issues or 9
questions as it shall think proper to be tried before a jury if the case be a 10
jury case, or otherwise before a judge, and may direct in the alternative 11
the action to be taken upon the verdict or finding. When any such ques- 12
tion of law shall arise in a trial, the judge shall, by leaving appropriate 13
questions to the jury, or by his own findings where the trial is without a 14
jury, ascertain so far as is practicable all the facts both as to liability 15
and damages necessary on any theory of the law to enable the court to 16
make the proper final disposition of the case, unless in the opinion of the 17
court such a course is inexpedient under the circumstances of the case. 18
When special questions are submitted to a jury, the judge may or may 19
not take a general verdict, and may report the case on the answers of the 20
jury, or make such other order thereon as he deems proper. A judge 21
reporting to the full court for its determination a question as to the cor- 22
rectness of any rulings of law made by him at a trial, or on a motion 23
for a new trial, may make in any proper case a provision in the report 24
that, if his rulings were correct, a judgment or decree shall be entered for 25
the party in whose favor the rulings were made, and that, if his rulings 26
were wrong, the judgment or decree shall be entered in accordance with 27
such rulings as he ought to have made. 28
Same,
relative to
amendments,
etc.
1859, 237,
§.§ 2. 6.
G. S. 113,
§§ 8, 21.
P. S. 151,
§§ 13, 26.
1883, 223, § 2.
R. L. 159,
§§ 19, 24.
1911. 284, § 1.
1913, 716. § 3.
216 Mass. 197,
459
217'Mass.392.
219 Mass. 594.
220 Mass. 79.
222 Mass. 382.
223 Mass. 471.
224 Mass. 2SS.
226 Mass. 404.
1 1 § II Section 125. The supreme judicial court, upon any appeal, 1
bill of exceptions, report, or other proceeding in the nature of an appeal 2
in any civil action, suit or proceeding, shall have all the powers of amend- 3
ment of the court below; and whenever exceptions have been taken to 4
the exclusion of evidence, or where the alleged error arises from the omis- 5
sion at the trial of some fact which, under the circumstances of the case, 6
may subsequently be proved without involving any question for a jury, 7
and without substantial injustice to either party, the supreme judicial 8
court shall have full discretionary authority to cause such further testi- 9
mony to be taken as it deems necessary, either by oral examination in 10
court, by reference, by affidavit or by deposition, and the court shall 11
have power to render any judgment and to make any order that ought 12
to have been made upon the whole case. 227 Mass. 589. 13
228 Mass. 390. 232 Mass. 402. 233 Mass. 162. 236 Mass. 104.
Inferences
of fact upon
case stated.
1913, 716, § 5.
217 Mass. 176.
218 Mass. 425.
221 Mass. 237.
225 Mass. 425.
226 Mass. 430.
1 1 § II Section 126. Upon a case stated by agreement of the parties
for the decision of the court in any action, suit or proceeding, any court
before which such case shall come, either in the first instance or upon
appeal, exceptions, report or other proceedings in the nature of an appeal,
shall be at liberty to draw from the facts and documents stated in the
case any inferences of fact that might have been drawn therefrom at a
trial, unless the parties expressly agree that no inferences shall be drawn.
New Trials.
is^'u *"9'''§ 7 t§ II Section 127. The court may, at any time before judgment,
KJ82^§i9. get aside the verdict in a civil action and order a new trial for any
1859', 196, §32. causc for which a new trial may by law be granted; but a verdict shall
Ch.'VP. 231.] PLE-VDING ANB PRACTICE. 2487
4 not be set aside except on written motion by a party to the cause, stating g. s. 115, 5 6.
5 the reasons reUed upon in its support, filed and heard after notice to the 1897,472.
6 adverse party according to the rules of the court. A verdict shall not be f 112/'^^'
7 set aside as excessive until the prevailing party has first been given an l|/^l^^t89.
8 opportunity to remit so much thereof as the court adjudges is excessive. }38^J^gf4|'
147MaS3. 572. 183 Mass. 125. 210 Mass. 563.
148 Mass. 53, 429. 191 Mass. 223. 402. 213 Mass. 424.
160 Mass. 256. 193 Mass. 412. 218 Mass. 310, 363, 397.
162 Mass. 397. 197 Mass. 252. 220 Mass. 227.
163 Mass. 143. 198 Mass. 3,S8. 575. 221 Mass. 8, 378, 422.
169 Mass. 459. 200 Mass. 142, 409. 224 Mass. 117.
172 Mass. 262, 207 Mass. 606. 225 Mass. 31.
178 Mass. 139. 208 Mass. 513. 227 Mass. 486.
ISO Mass. 8.
1 t § II Section 128. Whenever a verdict is set aside and a new trial ^ew^rflVto
2 granted under the preceding section, the justice granting the motion be^statedin
3 for the new trial shall file a statement setting forth fully the grounds wu.'soi,
4 upon which the motion is granted, which statement shall be a part of 218 Massl 303!
5 the record of the case. If it appears from the statement that the sole 422, '''*^' '
6 ground for granting the motion was that the damages awarded were 225 MaS! 31!^'
7 either inadequate or excessive, then the new trial shall be limited to Ig^ ^J^^^- Hf
8 the question of the* amount of damages.
1 t § II Section 129. A new trial may be granted, upon motion, for New trial in
2 a mistake of law or for newly discovered evidence in a case heard by the rases!*"'^'
3 court. When a decision has been rendered in such a case, the clerk g.^s! 129, | w.
4 shall notify the parties, and a motion for a new trial may be filed within j? a' 1*53, § 9;
5 three days after receipt of such notice or within such further time as the ^ l\73§ 113
6 court allows. 14S Mass. 522. 218 Mass. 310.
1 t § il Section 130. If a new trial is refused, the court may impose Terms on
2 terms upon the moving party, to be taxed as costs. new trial.
1876, 74. P. S. 153, § 7. R. L. 173, § 114. 178 Mass. 403.
1 t§ II Section 131. Sections one hundred and twenty-two and one Effect of
2 hundred and twenty-three shall not limit or affect the power of a trial newuiar °°
3 court to grant a new trial. i909, 236, § 3.
Effect of Error not Affecting Whole Case.
1 1 1 § II Section 132. No new trial shall be granted in any civil action No new trial
2 or proceeding on the ground of improper admission or rejection of evi- by^fuU ^"urt''
3 deuce, or for any error as to any matter of pleading or procedure, if the onlmrs°i"'
4 judge who presided at the trial when application is made by motion for ''rocldure°not
5 a new trial, or the supreme judicial court when application is made affecting sub-
6 by exceptions or otherwise, deems that the error complained of has not Judgment as to
7 injuriously affected the substantial rights of the parties; and, if it i9i3,''7i'6!li.
8 appears to such court that said error affects part only of the matter in 2i7*m?s's us.
9 controversy or some or one only of the parties, the court may direct final ojg Mal^lssg!
10 judgment as to part thereof, or some or one only of the parties, and may 1^° '^o"!"' ~°'
11 direct a new trial as to the other part only or as to the other parties. 221'Mass. 20,
222 Mass. 355, 456. 227 Mass. 146, 253. 230 Mass. 370.
223 Mass. 471. 228 Mass. 318. 584, 594. 232 Mass. 368. 560.
224 Mass. 125. 310, 531. 229 Mass. 316, 348. 234 Mass. 174.
225 Mass. 580.
1 t § II Section 133. If, at law, in equity or in probate proceedings, Affirmance of
2 an appellant or an excepting party, or, in a case reported after a verdict, iou?t appeaLd
3 finding or decision, the party at whose request it is reported, or, in a case is°2o,'79,§54,5.
2488
PLEADING AND PRACTICE.
[Chap. 231.
R. S. 82, § 10.
G. S. 112, § 16.
P. S. 150, § 16.
1888, 94.
1895, 153, § 2.
1896, 451.
1900, 372, § 1.
R. L. 173,
§ 115.
1915,111.
1918, 257,
§433.
1919, 5.
1920, 2.
3 Cush. 25.
150 Mass. 56,
57.
161 Mass. 593.
213 Mass. 194.
230 Mass. SOO.
236 Mass. 326.
reported without decision under section one hundred and eleven, the 4
phiintifT, neglects to enter the appeal, exceptions or report in the supreme 5
judicial court or to take the necessary measures by ordering proper copies 6
to be prepared or otherwise for the hearing of the case, or if an excepting 7
party neglects to provide a transcript of the evidence or of the instruc- 8
tions to the jury within the time ordered by the justice under section one 9
hundred and twenty-one, the court in which the appeal was taken or by 10
which the exceptions were allowed or the case reported may, upon the 1 1
application of the adverse party and after notice to all parties interested, 12
order the appeal dismissed, the exceptions overruled or the report dis- 13
charged, and thereupon, in the case of appeal or exceptions, the decision, 14
ruling, order or decree appealed from, or excepted to, shall be in full force 15
and effect. Whenever after the entry in the supreme judicial or the su- 16
perior court of a decree after rescript from the full bench of the supreme 17
judicial court in a suit in equity or in probate proceedings, an appeal is 18
claimed from the decree, the justice by whom or by whose order the 19
decree was entered may inquire into any reasons assigned for the ap- 20
peal, and if he deems that the decree conforms to the terms of the rescript 21
and the appeal is claimed merely for the purpose of delay, he may order 22
the appeal dismissed, and such proceedings may forthwith be had and 23
such processes may forthwith issue as are necessary to carry out the 24
provisions of the decree. And if a further appeal is claimed from an 25
order so dismissing an appeal it shall not operate to suspend or supersede 26
the carrying into effect of the terms of the decree, and the full bench of 27
the supreme judicial court may order such dismissal of appeal affirmed 28
and the imposition of reasonable terms and double costs to the appellee. 29
Waiver of
appeal or
exceptions.
1900, 372, § 2.
R. L. 173,
§ 116.
1907, 546, § 1.
Entry of
exceptions,
etc., in law
docket.
1859. 196,
§§ 26, 27, 34,
44.
G.S. 112, §33;
115, § 12.
1864, 111.
P. .S. 153, § 15.
1883, 223, § 2.
R. L. 159, § 19;
173, § 117.
1911,284, § 1.
6 Allen, 240.
Waiver of Appeal or Exceptions.
* t § II Section 134. A wTitten waiver of an appeal or of exceptions in 1
any civil proceeding may be filed and acted upon in the court in which 2
they were taken at any time before the entry thereof in the appellate 3
court; but in any case where an attachment of property has been made, 4
no appeal shall be waived except by leave of court after notice to the 5
adverse party. 6
Transmission of Papers.
till Section 135. Copies and papers relating to a question of law 1
arising in the supreme judicial, the superior or the land court, upon ap- 2
peal, exception, reservation, report or otherwise, shaU be prepared by 3
the clerk of the court, and shall thereupon be transmitted to and entered 4
on the docket of the full court for the proper county as soon as may be 5
after such question of law has been reserved and duly made a matter 6
of record in the court in which the action is pending. The entry thereof 7
shall not, except in equity, transfer the case, but only the question to be 8
determined. 9
99 Mass. 530.
103 Mass. 530.
114 Mass. 96, 514.
116 Mass. 333.
154 Mass. 107.
161 Mass. 693.
208 Mass. 528.
222 Mass. 218.
220 Mass. 143.
233 Mass. 420.
236 Mass. 600.
Arrest of Judgment.
A judgment shall not be arrested for a cause exist-
* t Section 136.
\ 32. iiig before the verdict or finding, unless such cause affects the jurisdiction
Arrest of
judgment.
1851,233, i
G*l.' 129,' 1 79.' of the court. After the defendant has appeared and answered to the
ClL\P. 231.] PLEADING AND PRACTICE. 2489
4 merits of the action, no defect in the wTit or other process by which he p. s. i67, § 82.
5 has been brought before the court, or in the service thereof, shall be f'ns.^'^'
6 considered to affect the jurisdiction of the court.
1 Gray, 172. 104 Mass. 373. 178 Mass. 397.
4 Gray, 201. 110 Mass. 317. 182 Mass. 360.
7 Gray, 543. 118 Mass. 569. 202 Mass. 480.
13 Gray, 392. 127 Mass. 316. 204 Mass. 34.
14 Gray, 521. 144 Mass. 470. 208 Mass. 55.
15 Gray, 52. 150 Mass. 292, 451. 224 Mass. 14. 169.
1 Allen, 244. 162 Mass. 339. 227 Mass. 46, 336.
GENERAL PROVISIONS.
1 * t § II Section 1.37. The coiu-t may allow suggestions as to changes Suggestions
2 occurring in an action after its commencement to be entered on the record? °°
3 record in such form as it approves. i826, 7o.
R. S.93, §24. G. S. 129, §80. P. S. 167, § S3. R. L. 173, § 119.
1 * t H Section 138. The cause of action shall be considered to be identification
2 the same for which the action was brought, if the coiu-t finds it to be <k,nT "'
3 the cause of action relied on by the plaintiff when the action was com- l^^^eZ^"*"
4 menced, however the same may be misdescribed ; and the allowance by Pj^J"^' ^pp^"'-
5 the coiu-t of an amendment shall be conclusive evidence of the identity i||i. 233, § 43.
6 of the cause of action. But no subsequent attaching creditor or piu- g.s.'i29,'§82.'
7 chaser of property attached or bail or any person other than the parties r'. l. 173,
8 to the record shall be bound by such allowance unless he has had due Icus'h. sis.
9 notice of the application for leave to amend and opportunity to be heard I Alien', lis.
Allen, 322.
Allen, 202.
10 thereon, according to an order of notice to that effect to be issued by f
11 the court upon application of the plaintiff, and such third parties shall '.^^ Fj^^^- 1?°
12 have the right of exception or appeal. 125 Mass. 72.
127 Mass. 599. 170 Mass. 260, 215 Mass. 83, 199.
133 Mass. 421. 262, 560. 218 Mass. 231.
134 Mass. 280. 174 Mass. 349. 219 Mass. 164, 285.
136 Mass. 335. 190 Mass. 554. 225 Mass. 37. 599.
139 Mass. 280. 200 Mass. 284. 226 Mass. 71.
142 Mass. 124. 201 Mass. 248. 227 Mass. 375.
147 Mass. 342. 204 Mass. 13. 229 Mass. 1.
150 Mass. 473. 211 Mass. 446. 230 Mass. 27S.
151 Mass. 454. 214 Mass. 239. 231 Mass. 422.
1 * t § II Section 139. If a corporation is a party to an action or pro- Affidavit when
2 ceeding referred to in this chapter, all precepts, answers, replications or ^a'^part.l™
3 other papers requiring the signature or oath of the party may be signed q°|' ji^' I If
4 or sworn to in behalf of the corporation by an officer or agent thereunto ps. ib|.'| sb.
5 specially authorized.
1 * Section 140. No action at law shall be discontinued, nor shall the Action not to
2 plaintiff in any such action become nonsuit after the action shall have ued'^S'te?*"''
3 been referred to an auditor and hearings before such auditor have been {'oaudUor"'''^
4 begun, except with the WTitten consent of the defendant or in the dis- fQi|P*;/-*'^i
5 cretion of the court. 2i8 Mass. 271. 235 Mass. 304.
1 Section 141. Sectionsone, two, three, four, five, six, seven, ten, eleven, Sections
2 twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, cwiiaSnl°
3 twenty, twenty-one, twenty-two, twenty-tliree, twenty-five, twenty-sLx, coSts.'^'^'"'"
4 twenty-seven, twenty-eight, twenty-nine, thhty, thhty-one, thirty-two, J|^^; i||' | ^-^
5 thirty-tliree, thirty-foiu-, tlurty-fi\'e, thirty-six, thirty-seven, thirty-eight, c^J- ff- § s^-
6 thirty-nine, forty, forty-one, forty-two, forty-three, forty-four, forty- issi! 113.
7 five, forty-seven, fortv-eight, forty-nine, fiftv, fifty-one, fifty-two, fifty- §§89,92.
8 three, fifty-four, fifty-sbc, fifty-seven, fifty-eight, sLxty-one, sLxty-two, H: III ^ '^•
9 sixty-three, sLxty-four, sLxty-five, sixty-sLx, sLxty-seven, sixty-eight, lU'^' ^^"^
2490
PLEADING AND PRACTICE.
[Chap. 231.
1913, 307.
1917, 326.
1918,257, §430.
1919, S.
1920, 2.
See sections
noted thus,*.
sixty-nine, seventy, seventy-two, seventy-three, seventy-four, seventy- 10
five, seventy-nine, eighty-five, eighty-seven, eighty-eight, eighty-nine, 11
ninety, ninety-one, ninety-two, ninety-three, ninety-four, ninety-five, 12
ninety-seven, ninety-eight, ninety-nine, one hundred, one hundred and 13
one, one hundred and two, one hundred and thirty-four, one hundred and 14
thirty-six, one hundred and thirty-seven, one hundred and thirty-eight, 15
one hundred and thirty-nine, one hundred and forty and one hundred and 16
forty-seven shall apply to civil actions before district courts, and no other 17
sections of this chapter shall so apply, except to the miuiicipal court of the 18
city of Boston under section one hundred and forty-three. 19
Sections
applicable to
real and mixed
actions, except,
etc.
1851, 233, I 65.
1852, 312, § 51.
G. S. 129, § 84.
1881, 113.
P.S.I 67, §88.
H. L. 173,
§124,
1913, 815, § S.
See sections
noted tlniB,t.
Section 142. Sections eight, twelve, thirteen, fifteen, sixteen, seven- 1
teen, eighteen, nineteen, twenty, twenty-one, twenty-two, twenty-three, 2
thirty, thirty-one, thirty-five, thirty-nine, forty-two, forty-three, forty- 3
four, forty-five, forty-seven, forty-eight, forty-nine, fifty, fifty-one, fifty- 4
two, fifty-tliree, fifty-four, fifty-six, fifty-seven, fifty-eight, sixty, sixty-one, 5
sixty-two, sixty-tliree, sixty-four, sixty-fi\-e, sixty-six, sixty-seven, sixty- 6
eight, seventy-one, seventy-two, seventy-three, seventy-six, seventy-seven, 7
seventy-eight, seventy-nme, eighty, eighty-one, eighty-three, eighty-seven, 8
eighty-nine, ninety, ninety-six, one hundred and eleven, one hundred and 9
twelve, one hundred and thirteen, one hundred and fourteen, one hun- 10
dred and fifteen, one hundred and sixteen, one hundred and seventeen, 11
one hundred and eighteen, one hundred and nineteen, one hundred and 12
twenty, one hundred and twenty-one, one hundred and twenty-two, one 13
hundred and twenty-three, one hundred and twenty-four, one hundred and 14
twenty-five, one hundred and twenty-six, one hundred and twenty-seven, 15
one hundred and twenty-eight, one hundred and twenty-nine, one hun- 16
dred and tliirty, one hundred and thirty-one, one hundred and thirty- 17
two, one hundred and thirty-tlu-ee, one hundred and tliirty-four, one 18
hundred and thirty-five, one hundred and thirty-six, one hundred and 19
thirty-seven, one hundred and thirty-eight and one hundred and thirty- 20
nine shall apply to such real and mixed actions as may be begun in the 21
superior court, and to all proceedings before the land coiu-t, or begun 22
there and pending on issues to a jury in the superior court, to which 23
they are applicable, and no other sections of this chapter shall so apply 24
except by their express language. 25
Sections
applicable to
civil actions
before
municipal
court of
Boston.
1867, 355, § 2.
P.S. 167, §91.
1893, 396, § 23.
1894, 431, § 2.
R. L. 173,
§128.
1914, 35, § 1.
Section 143. Sections seventy-one, eighty-sLx, one hundred and three, 1
one hundred and four, one hundred and five, one hundred and six, one 2
hundred and seven, one hundred and eight, one hundred and nine, one 3
hundred and ten, one hundred and twenty-four, one hundred and twenty- 4
five, one hundred and twenty-six and one hundred and thirty-two, in 5
addition to those named in section one hundred and forty-one, shall 6
apply to civil actions before the municipal court of the city of Boston, 7
and no other sections of this chapter shall so apply. 8
See sections noted thus, t.
Sections
applicable to
equity and
probate cases.
Section 144. Sections six, thirty, thirty-one, thirty-five, forty-nine,
fifty-one, fifty-two, sixty-one, sixty-two, sixty-tliree, sL\ty-four, sLxty-
1913, 815, § 8. five, sixty-six, sixty-seven, sixty-eight, seventy-one, eighty-one, eighty-
See sections three, cighty-scven, eighty-nine, ninety-six, one hundred and twelve, one
hundred and thirteen, one hundred and fourteen, one hundred and
fifteen, one hundred and se\-enteen, one hundred and eighteen, one hun-
dred and nineteen, one hundred and twenty, one hundred and twenty-
noted thus, §.
CH-VP. 231.] PLEADING AND PRACTICE. 2491
8 one, one hundred and twenty-foiu-, one hundred and twenty-five, one
9 himdred and twenty-six, one hundred and twenty-seven, one hundred
10 and twenty-eight, one hundred and twenty-nine, one hundred and thirty,
1 1 one hundred and thirty-one, one hundred and tliirty-two, one hundred
12 and tliirty-three, one hundred and tliirty-four, one hundred and thirty-
13 fi\e, one hundred and tliirty-seven and one hundred and thirty-nine
14 shall apply to suits in equity, and also to proceedings in the probate
15 courts and in the supreme judicial court upon an appeal from a probate
16 coiu-t, so far as they are applicable.
1 Section 145. Sections six, thirty, thirty-one, thirty-five, fifty-one. Sections
2 fifty-two, sixty-one, sixty-two, sixty-three, sLxty-four, sixty-five, sixty- eSim'ent
3 six, sixty-seven, sixty-eight, seventy -one, eighty-one, eighty-three, eighty- betterment'
4 seven, eighty-nine, one hundred and eleven, one hundred and twehe, ^gi'g.'sss,
5 one hundred and thirteen, one hundred and fourteen, one hundred and f^2o''2^"'
6 fifteen, one hundred and seventeen, one hmidred and eighteen, one „ ' .
7 hundred and nineteen, one hundred and twenty, one hundred and noted thus, ||.
8 twenty-one, one hundred and twenty-two, one hundred and twenty-
9 tlu-ee, one hundred and twenty-foiu", one hundred and twenty-fi^■e, one
10 hundred and twenty-six, one hundred and twenty-seven, one hundred
1 1 and twenty-eight, one hundred and twenty-nine, one hundred and thirty,
12 one hundred and tliirty-one, one hundred and tliirty-two, one hundred
13 and thirty-three, one hundred and thirty-foiu-, one hundred and thirty-
14 fi\'e, one hundred and thirty-seven and one hundred and tliirty-nine
15 shall apply to petitions for damages by taking by eminent domain and
16 for abatement of betterment assessments.
1 Section 146. Sections twelve, twenty-nine, forty-two, forty-three. Sections
2 forty-four, forty-five', forty-seven, forty-eight, fifty-five, fifty-eight, equity!
3 seventy-four, seventy-five, eighty-eight, ninety, and one hundred and see sections
4 thirty-eight, in addition to those named in section one hundred and i°'«i thus, it.
5 forty-four, shall apply to suits in equity.
FORMS.
1 * Section 147. The following forms of pleadings may be used for the Forms.
2 purposes therein indicated, and similar forms with the necessary changes is52;3i2', §84.'
3 may be used for other like purposes, subject to such changes as the su- p.'I.'iIt.'IoI."
4 preme judicial coiu-t may from time to time by general rules prescribe; f\3o^^^'
5 but any other suitable forms may also be used : 223 Mass. 568. 200 Mass. 232.
Declaeations in Actions or Contract.
1. COMMON COUNTS.
And the plaintiff says that the defendant owes him one hundred dollars for — 3 Gray, 2r,i.
(«) Money had and received. — Money received by the defendant to the LH^"-^' ^fon
plaintiS's use. 99 Mass. 194. 103 Mass. 556. "'^'
120 Mass. 465. 139 Mass. 230. 164 Mass. 54, 118. 177 Mass. 36. 280.
128 Mass. 377. 161 Mass. 516. 167 Mass. 77. 202 Mass. 75.
(6) Money lent. ■ — Money lent by the plaintiff to the defendant. 16 Gray, 273.
(c) Goods sold. — Goods sold by the plaintiff to the defendant. 7 Grt''"i87*"'"
106 Mass. 430. 112 Mass. 265. 190™^'
((/) Work. ■ — Work done by the plaintiff for the defendant. 4 Gray, 292.
112 Mass. 299. 127 Mass. 546. 177 Mass. 1. 9 Allen, 355.
(e) Work and Materials. — Work done and materials provided by the plaintiff loo Mass. 92.
for the defendant. 177 Mass. 584. ^^* ^^"^^^ "•
2492 PLEADING XST) PRACTICE. , [Ch.U'. 231.
Ill Mass. 390. ^^ Board, or Board and Lodging. — Board (and lodging) furnished by the
plaintiff for the defendant.
[g) Carriage of Goods. — The carriage of certain goods by the plaintiff for
the defendant.
(/() Warehouse Room. — Warehouse room furnished by the plaintiff for the
storage of certain goods for the defendant. '
(?') Hire of Personal Property. — The use of a certain horse and carriage hired
of the plaintiff by the defendant.
i29^Ma's's^50 0) Insimvl computassent. — The balance found due to the plaintiff by the
170 Mass.' 422. parties on accounting together.
11 Cush. 366. (^-) jjgg and Occupation. — The use and occupation of a certain tenement
103 Ma's3.^379. hired of the plaintiff by the defendant. 124 Mass. 123.
138 Mass. 363. 164 Mass. 391. 170 Mass. 278. 172 Mass. 329.
1915, 146, § 2. g-j 11(^1 ■under a Sealed Instrument. ■ — The rent of a certain
(house, or building, or land) held by the defendant of the plaintiff.
Bill of Paetictlaes.
(1) Rent of house No. street,
, for one month, due 1st July, 19 , under an indenture of lease
dated 1st Januarj', 19 , S
(2) Interest on same from , S
Instruction: Interest is declared on by adding or inserting the ■words "and
interest". An item of interest is also included in the bill of particulars.
2. ACCOI~N'T A.'SyrEXED.
And the plaintiff says that the defendant owes him dollars,
according to the account hereto annexed.
3. PROMISSORY NOTES.
10 Allen, 556. ^^■^ Payee against Maker. — And the plaintiff says that the defendant made
a promissory note payable to the plaintiff or order, a copy -n-hereof is hereto
annexed, and the defendant owes the plaintiff the amount thereof, and interest.
(b) Bearer of Note payable to Bearer against Maker. — And the plaintiff says
that the defendant made a promissory note, a copy whereof is hereto annexed
payable to G H or bearer, and the plaintiff is the bearer of the said note, and
the defendant owes him the amount thereof, and interest.
Instruction: If pajTQents are endorsed on the note, the declaration may be
varied as follows: "a copy whereof, with the endorsements thereon, is hereto
annexed, and the defendant owes the plaintiff the balance thereof, and interest".
If pa\-ments have been made which are not endorsed on the note, the allegation
should be varied accordingly.
(c) Endorsee against Endorser. — And the plaintiff says that C D made a
promissory note, a copy whereof ■n-ith the endorsements thereon is hereto an-
nexed, payable to the defendant or order, and the defendant endorsed the same
to the plaintiff, and payment of the said note was duly demanded of the said
C D, who neglected to pay the same, and due notice thereof was given to the
defendant. And the defendant owes the plaintiff the amount of the said note,
and interest.
(rf) Endorsee against Maker and Successive Endorsers. ■ — And the plaintiff says
that the defendant C D made a promissory note, a copy whereof with the en-
dorsements thereon is hereto annexed, payable to the defendant E F or order,
and the said E F endorsed the same to the defendant G H or order, and the
said G H endorsed the same to the plaintiff, and pajinent of the said note was
duly demanded of the defendant C D who neglected to pay the same, and due
notice thereof was given to the defendants E F and G H. And each of the
defendants severally owes the plaintiff the amount of the said note, and interest.
(e) Payee against Anomalo^is Endorser. — And the plaintiff says that A B
made a promissory note payable to the plaintiff or order, a copy whereof, with
the endorsements thereon, is hereto annexed, and the defendant endorsed the
said note before it was delivered to the plaintiff, and payment of the said note
was duly demanded of the said A B, who neglected to pay the same, and due
notice thereof was given to the defendant. And the defendant owes the plaintiff
the amount of the said note, and interest.
R. L. 173, § 3.
CH.iP. 231.] PLE.\DmG AND PRACTICE. 2493
(/) Endorsee against Anomaloiis Endorser. — And the plaintiff says that
A B made a promissory note payable to C D, a copy whereof, with the endorse-
ments thereon, is hereto annexed, and the defendant endorsed the same before it
was delivered to C D, and C D endorsed it to the plaintiff, and pa^Tiient of the
said note was duly demanded of the said A B, who neglected to pay the same,
and due notice thereof was given to the defendant. And the defendant owes
the plaintiff the amount of the said note, and interest.
4. GRANTEE AGAINST GRANTOB IN A DEED OF WARRANTY FOR BREACHES OF
COVENANT.
And the plaintiff says that the defendant made a deed of conveyance to him,
a copy whereof is hereto annexed. And the defendant was not seized in fee
simple of a part of the land described as follows: {insert description) but the
same was held adversely by L M., and the residue of the said land was not free
from encumbrances, but was subject to a mortgage to S T to secure the payment
of six hundred dollars. And the defendant did not warrant and defend the
premises against the rightful claims of all persons, but W S had a right of
dower therein, and compelled the plaintiff to assign the same to her.
5. ON AN AWARD.
And the plaintiff says that the parties hereto by their agreement in -nTiting,
a copy whereof is hereto annexed, referred the matters therein mentioned to
arbitrators, and the said arbitrators made an award thereon in writing, a copy
whereof is hereto annexed. {Aver performance of condition by plaintiff, when
necessary to be proved, and the non-performance by the defendant, ivhich is relied
on. If it is for the mere payment of money, aver as follows: And the defendant
owes the plaintiff the amount of the said award.)
6. PROMISE TO P.iY THE DEBT OF ANOTHER.
And the plaintiff says that E F owed him the sum of for
, and the plaintiff was about to sue the said E F to recover
the same. And in consideration that the plaintiff would forbear to sue the said
E F, the defendant made an agreement to pay the same to the plaintiff, a copy
whereof is hereto annexed, and the plaintiff did forbear to sue the said E F, and
the defendant owes liim the said sum.
7. AGREEMENT TO CON'^'EY LANT), THE PLAINTIFF TO PAT IN PART AND GrV'E A
NOTE FOR THE BALANCE SECURED BY A MORTGAGE OF THE LAND.
And the plaintiff says that the defendant made an agreement with him in
WTiting, a copy whereof is hereto annexed. And the plaintiff was ready and
willing {or offered) to perform the said agreement on his part. But the defendant
did not complete the said sale [or refused {or neglected) to convey the said land
to the plaintiff].
N'ote. • — The form in P. S., p. 977, did not state a breach. It is not right to allege
tender of monev and mortgage, and all that is required is to be ready and willing, Tiuney
V. Ashley. 15 Pick. 546; Cook v. Doggett, 2 Allen, 439; Cole v. Killam, 187 Mass. 213;
2 Chitty PI. (13th Am. ed.) 287. It would be improper for the plaintiff to execute a mort-
gage before he got a conveyance.
8. BREACH OF PROMISE OF MARRIAGE.
And the plaintiff says that she and the defendant promised to marry each
other and she was always ready and willing to marry the defendant, but the
defendant refused to perform his promise.
9. NOX-DELIVERY OF GOODS SOLD.
And the plaintiff says that he purchased of the defendant the following goods,
namely, for the sum of one hundred dollars, to be paid for on
delivery and to be delivered by the defendant on the day of
at the defendant's store. And the plaintiff was ready and
willing {or offered) to perform the said agreement on his part. But the de-
fendant refused to deliver the said goods to the plaintiff.
Nole. — See note to form 7 as to purchase of land, and 2 Chitty PI. (13th Am. ed.) 209.
2494 PLEADING AND PRACTICE. [Ch.\P. 231.
10. POLICIES OF INSURANCE.
(With or without copy of policy.)
119 Mass. 592. („) Qn a Ship for a Total Loss. — And the plaintiff says that the defendants
made a policy of insurance, (a copy of which is hereto annexed,) insuring the
plaintiff for the sum of ten thousand dollars on the ship John, in which the
plaintiff was interested, against the perils of the seas and other perils therein
mentioned, on a voyage therein described (or from Boston to Cadiz in Spain,
and at Cadiz, and thence to her port of discharge in the United States). And
the said ship, while proceeding on the said voyage, was wrecked and totally lost
by the perils of the seas, of which the defendants had notice, and the defendants
were bound to pay the said amount to the plaintiff -nithin sixty days thereafter.
And the defendants owe the plaintiff the said sum of ten thousand doUars.
(6) For a Partial Loss and Contrihution to a General Average. — {State as
in the last cmmt to the description of the voyage inclusive.) And the defendants
thereby agreed that, in case of any loss or misfortune to the said ship, it should
be lawful for the plaintiff and his agents to labor for and in the defence and
recovery of the said ship, and that the defendants would contribute to the
charges thereof in proportion as the sum assured by them should be to the whole
sum at risk. {Omit the preceding sentence if a copy of the policy is annexed.) And
the said ship, while proceeding on the said voyage, was by the perils of the seas
dismasted, and otherwise damaged in her hull, rigging, and appurtenances,
and it was necessary, for the preservation of the said ship and her cargo, to
throw over a part of her cargo, and the same was thrown over for that purpose,
and the plaintiff was obliged to expend two thousand dollars for repairing the
said ship at Cadiz, and five hundred dollars as a contribution for the loss oc-
casioned by the said throwing over of a part of the cargo, and the ship suffered
damage that was not repaired at Cadiz, of all which the defendants had notice,
and the defendants were bound to pay the same within sixty days thereafter.
And the defendants owe the plaintiff the sum of dollars.
(f) For a Total Loss of Cargo by Fire. — And the plaintiff says that the de-
fendants made a policy of insurance, (a copy of which is hereto annexed) in-
suring the plaintiff for the sum of ten thousand dollars on the cargo of the
brigantine WilUam, in which cargo the plaintiff was interested, against fire
and other perils therein mentioned, at and from Boston, and on a voyage from
thence to Hamburg, or any other port or ports in the north of Europe, and
while the said vessel was proceeding on the said voyage the said cargo was
totally destroyed by fire, of which the defendants had notice, and the de-
fendants were bound to pay the plaintiff the amount of such loss. And the
defendants owe the plaintiff the sum of ten thousand dollars.
Note.- — These forms were adapted in 1851, 233, from those in 24 Pick. 406, but they
did not mention the plaintiff's interest, as the latter did. They were not intended to have
a copy of the policy annexed, and that change was made in 1852, in view of which the
alternative methods of declaring noted in the forms may be used. It is, however, better
pleading to set out the essential facts in the declaration, and avoid encumbering the plead-
ings with copies.
(d) Fire Insurance. — And the plaintiff says that by a policy dated the
day of 19 , made by the defendant in the form of a
Massachusetts Standard Policy, {or a copy of which is hereto annexed,) in con-
sideration of $ paid to the defendant by the plaintiff {or A F) the
defendant insured the plaintiff (or A F) against loss or damage by fire to the
amount of $ on a dwelling house in the said policy described (and
$ on the furniture and goods in the said dwelling house) for a year
from the day of 19 at noon to the
day of 19 at noon (and payable in case of loss to M F and
the plaintiff as their interest might appear). And the plaintiff at the time of
the making of the said policy and thenceforth until and at the time of the loss
and damage hereinafter mentioned was interested in the several premises so
insured to the amount so insured thereon respectively {or in the dwelling
house so insured as mortgagee thereof to the amount so insured thereon in
priority to any interest of the said M F therein). And while the said policy
was in force and during the said year the several premises {or the said dwelling
house) so insured were {or was) burnt and destroyed by fire, whereby the plain-
tiff suffered loss and damage on the said premises {or dweUing house) (and on
Chap. 231.] pleading and practice. 2495
the said furniture and goods) to the several amounts so insured thereon respec-
tively (or othencise according to the facts). And thereafter forthwith and more
than sixty days before the commencement of this action a statement was duly
rendered to the defendant in accordance with the provision in that behalf con-
tained in the said poHcy, setting forth all the particulars required by the said
provision to be set forth therein (or in case of waiver of the statement the necessity
of the statement of particulars required by the pro\asion in that behalf con-
tained in the said policy was waived by the defendant), and the amount for
which the defendant was liable to the plaintiff on account of the said loss and
damage was agreed by them to be $ [or the plaintiff and the de-
fendant having failed to agree as to the amount of the said loss and damage,
the same was duly referred to three persons as provided in the said policy, and
by the award in writing thereupon made by the (or a majority of the) said
referees in respect thereof the amount of the loss and damage w^as determined
to be $ ] {or the provision in the said policy for a reference as to
the amount of the said loss or damage was waived by the defendant). And the
defendant has not paid to the plaintiff the amount for which the defendant
was so liable or replaced the said property, and owes the plaintiff the sum
of $
■Note. — This form, by alleging that the policy was in the Massachuset{s_etandard form,
makes it unnecessary to set out the pro\'isions prescribed by law (Chap. 175, § 99), or to
load the files of the court with copies containing proN'isions immaterial to the case. As to
the allegations when the loss is payable to a mortgagee, see Frisbee v. Prussian Ins. Co., 223
Mass. 159; Palmer Sa%'ings Bk. v. Ins. Co. of North America, 166 Mass. 189. Performance
of conditions precedent must be alleged as at common law. R. L. 173, § 6 (11th); Palmer
II. Sawyer, 114 Mass. 1; 2 Chitty PI. (13th Am. ed.) 224 n., or a reason for non-performance
must be stated. Lamson Co. v. Prudential Ins. Co., 171 Mass. 433; Lamson & Goodnow
Co. V. Russell, 112 Mass. 3S7.
(e) Life Insurance. — (I) Action by Executor (unihout Coptj of PoKcj/). 138 Mass. I5i.
And the plaintiff says that by a policy dated the day of
19 made by the defendant, in consideration of the payment of premiums by
the said A B as therein provided, the defendant insured the life of the said A B
in the sum of $ for the term of his life payable at the office of the
defendant at to his executors, administrators, or assigns,
immediately upon receipt of due proof of his death, and it was thereby provided
that the annual premium of $ should be payable by the insured on
deUvery of the said policy and on the day of in each
year at the office of the defendant at , or to its agents in ex-
change for receipts signed by its president or treasurer, until ten full years'
premiums should have been paid or until the death of the insured if that event
should sooner occur, and that the said policy should not take effect unless the
first premium should be paid during the lifetime of the insured. And the in-
sured duly paid the said annual premium to the defendant on delivery of the
said policy and in each of the subsequent years, and afterwards and
while the said policy remained in force the said A B died, and due proof of his
death was produced by the plaintiff to the defendant, and the said sum of
$ thereupon became payable by the defendant to the plaintiff', but
no part thereof has been paid. And the defendant owes the plaintiff the sum of
Instruction: If this form is used, any warranties or conditions precedent
contained in the policy or application must be set out, and the truth of the
warranties and performance of the conditions averred. Copies of the policy
or application, or both, may be annexed to the declaration, in which case such
of the allegations of this form as are clearly set forth in such copies may be
omitted; but it is always desirable to avoid encumbering the record with bulky
copies.
(11) Endovmient Policy. Action by Insured or Beneficiary (without Copy
of Policy). And the plaintiff says that by a policy dated the day of
19 made by the defendant, in consideration of the statements
and agreements contained in the application therefor, which was made part of
the said policy, and the annual premium of $ then paid by the
plaintiff (or by A B) to the defendant and the like annual premium so to be
paid on the day of in every year thereafter during the
continuance of the said policy, the defendant promised to pay the sum of
$ to the plaintiff (or the said A B the insured thereunder), if he
should be livuig at the end of ten years from the date thereof, or, in case of his
2496 PLE.\DING .^'D PRACTICE. [Ch.\P. 231.
pre\'ious death, upon receipt at the ofBce of the defendant at
of satisfactory proofs of his death, then to (the plaintiff) C D, his Tvife, the bene-
ficiary thereunder, if she should then be living, or otherwise to the executors,
administrators, or assigns of the insured. (And it was thereby declared that
the said policy should be incontestable after one year from its date of issue
except for non-pajonent of premium, and that, after paj-ment of the first annual
premium thereon, payment of any subsequent premium might be made within
thirty-one days after the same should have become due, the policy meanwhile
continuing in force, but in the event of the death of the insured during the said
thirty-one days, the premium, if unpaid, should be deducted from the sum
payable on account of the pohcy, and that, if the age of the insured had been
misstated, the amount payable under the policy should be such as the premium
would have purchased at the correct age, and that the pohcy and the apph-
cation therefor should constitute the entire contract between the parties, and
all statements made by the insured should in the absence of fraud be deemed
representations and not warranties, and no such statement should avoid the
pohcy or be a defence to a claim thereunder unless contained in the said apph-
cation.) And the plaintiff {or the said A B) duly paid the said annual premiums
to the defendant in every year during the continuance of the said pohcy, and
the said period of ten years elapsed, and the sum of S mentioned
in the said policy thereupon became due and payable by the defendant to the
plaintiff by virtue thereof {or while the said policy was in force and before the
end of the said ten years the said A B died, and satisfactory proof of his death
was produced to the defendant at its said office, and the sum of S
mentioned in the said pohcy thereupon became due and payable by the de-
fendant to the plaintiff by virtue thereof) and no part of the same has been paid
to the plaintiff. And the defendant owes the plaintiff the sum of $
Instruction: This form is subject to the instruction at the end of the pre-
ceding form.
Declaeations in Actions of Tort.
fi All"*' 4in' Instnidion as to all such declarations: The ad damnum is a sufficient allega-
200 Mass. 232. tiou of damage in all cases in which special damages are not claimed. The
223 Mass. 56S. latter, if claimed, should be alleged.
11. CON\'ERSION.
And the plaintiff says that the defendant converted to his own use one horse
{or the goods mentioned in the particulars hereto annexed) the property of
the plaintiff.
Note. — Both the form and the fiction of trover were abolished by ISol, 233, § 1, and
conversion, which was the substance, is the only thing left.
12. DECEIT.
1 •^jj'^"' ll^j"- {a) And the plaintiff says that the defendant, by fraudulently representing
114 m"'ss. 99. to the plaintiff that ten bags of coffee were the property of the defendant, in-
ijj-J'ass. 405. (luced the plaintiff to buy the same of him, for which the plaintiff paid to the
151 Mass! 54?! defendant the sum of one hundred dollars, whereas the said coffee was not the
jmjass. 445. property of the defendant, as the defendant then knew, but was the property
162 Mass! 26o! of A S, who has since taken the same from the plaintiff.
169 Mass. 576. (5) ^j ^hc plaintiff says that the defendant induced the plaintiff to buy a
certain horse from him and to pay him three hundred dollars therefor by fraudu-
lently representing to the plaintiff that the said horse was sound, so far as the
defendant knew, whereas the said horse was not sound, but had a certain disease
called , as the defendant then knew.
(c) And the plaintiff says that the defendant, by fraudulently representing
to the plaintiff (in writing) that S C was a man possessed of a large property
and able to pay his debts, (a copy of which ^^Titing is hereto annexed,) induced
the plaintiff to sell and deliver to the said S C on credit the goods mentioned
in the particulars hereto annexed, whereas the said S C was not a man of
property, nor able to pay his debts, but was insolvent, as the defendant then
knew, whereby the plaintiff lost the price of the said goods, and was unable to
obtain pajmient therefor.
Chap. 231.] pleading and practice. 2497
13. NEGLIGENCE IN DRIVING A MOTOR VEHICLE.
And the plaintiff says that the defendant so negligently and unskilfully
drove a motor vehicle in a public highway, called street, in Boston,
that by reason thereof the said motor vehicle struck the plaintiff who was then
properly crossing the said highway (or a carriage of the plamtiff in which he
was then properly passing along the said highway) whereby the plaintiff w-as
thrown down and had his leg broken and was otherwise much injured (or the
said carriage was broken and damaged and the plaintiff was hurt, etc.) and w-as
prevented from transacting his business, and suffered great pain both of body
and mind, and incurred expense for medicine, medical attendance and nursing,
(and in repairing the said carriage, and was deprived of the use thereof for a
long time and was thereby delayed and injured in his business).
14. NEGLIGENCE OF RAILROAD CORPORATION TOWARD PASSENGER.
And the plaintiff says that he was a passenger traveling in a car managed
by the defendant upon the defendant's railroad between A and B, and, by
reason of the negligence of the defendant in using an insufficient axle in the
said car, the said axle broke and the plaintiff w^as thereby hurt. (Add allegation
of special damages, as inform IS.)
Note. — This form may be varied to adapt it to many cases by changing the allegation
as to the cau.-e of the accident. It is not intended to restrict a party to the statement
of one cause if there were several concurrent cau.se.s, and if the plaintiff is in doubt which
of several different causes occasioned the accident he may so declare.
15. WANT OF REPAIR OF HIGHWAY.
And the plaintiff says that there was in the town of a public lO Alien, is.
highway leading from to which the defendants were ^"^"^ '^'"^^ ^''*
bound to keep in repair, and by reason of the want of repair thereof {or a defect
therein consisting of, etc.), which the defendants negligently suffered, the plain-
tiff traveling thereon (fell and) was hurt [or a vehicle in which the plaintiff
was traveling thereon was overturned (or if the accident ivas not the overturning
of the vehicle, state u'hat took place) and the plaintiff w'as hurt {insert allegation
of special damages) (and the said vehicle belonging to the plaintiff was damaged)],
{insert allegation of special damages relating to carriage, if any). And due notice
of the time, place and cause of the said damage was given to the defendants.
Note. — The words "which the defendants nesligently suffered" are necessarj-, because
the town is liable for the damage caused by the want of repair, under Chap. S4, § 15, if it
negligently suffered the want of repair. A general allegation of the notice required by
Chap. 84, § 18, seems necessary.
16. OBSTRUCTING WAY.
And the plaintiff says that he owned a piece of land (describing it), and had
a way from the same over a certain close to (here mention the other ter7niitus)
and thence back again, for himself and his servants on foot and with horses,
cattle and vehicles, and the defendant wrongfully obstructed the said way.
Note. — Cf. 2 Chitty PI. (13th Am. ed.) 807; Bullen & Leake PI. (1st ed.) 251.
17. IMMODERATE DRIVING.
And the plaintiff says that the defendant hired of him a horse and carriage
to drive from Boston to Cambridge, and thence back to Boston, and the de-
fendant drove the said horse so negligently and unreasonably that the said
horse became sick and lame and was greatly damaged.
Note. — Cf. Bullen & Leake PI. (1st ed.) 09; Mooers 71. Larry, 15 Gray, 451.
18. SLANDER I.MPUTING PERJURY.
And the plaintiff says that the defendant falsely and maliciously spoke and '- ^'^^^^ *^^-
published of the plaintiff the words following: "You swore false at the trial
of your brother John", the defendant meaning thereby that the plaintiff was
guilty of perjury in testifying as a witness at the trial of his brother J F upon
a criminal proceeding against him in the District Court of fcir an
assault and battery.
2498
PLEADING AXD PRACTICE.
[Chap. 231.
5 Gray. 22.
6 Graj-. 321,
495.
8 Gray, 161.
9 Gray. 2Si.
10 Grav, 2.50.
14 Gray, 221.
3 Allen, 69.
97 Mass. 1.
100 Mass. 194.
101 Mass. 115.
102 Mass. 139.
16 Pick. 132.
98 Mass. 224.
169 Mass. 512.
208 Mass. 600.
Instruction: In action.s of libel and slander, it is sufficient to allege that the
words or matter complained of were used in a defamatorj' sense, specif\-ing
such defamatory sense, without a further statement of facts to show that they
were used in that sense, and such allegation shall be put in issue by a denial of
the alleged libel or slander. If, however, the natural import of the words is not
intelligible without further explanation, or reference to facts understood but
not mentioned, or parts of the conversation not stated, a concise and clear state-
ment of such particulars as are necessary to make the words rehed on intel-
ligible to the court and jury in the same sense in which they were spoken may
be required upon motion of the defendant.
Note. — The foregoing instruction changes the nile followed in Brettim v. Anthony,
10.3 Mass. 37, requiring all the circumstances, necessary at common law to make the
words spoken slanderous or libellous, to be set out in the inducement or prefatory statement,
followed by a colloquium or allegation that the words were used of and concerning those
circumstances, and permits the simpler form authorized by the English Common Law
Procedure Act, 1852, § 61. See Chace v. Sherman, 119 Mass. 387. It is, however, often
desirable to draw a cleclaration containing an introduction or colloquium, and this may be
required on an application for particulars.
19. SL-iNDER INDIBECTLT CHANGING A CRIMINAL OFFENCE.
And the plaintiff says that the defendant falsely and maliciously spoke and
published of the plaintiff the words following: "Some of the folks up your way
think that Henry burned the store. I have no doubt but what he burned it",
the defendant meaning thereby that the plaintiff burned a building and goods
and chattels therein belonging to him Tvith intent to injure certain insurance
companies by whom the same were insured at the time against loss or damage
by fire.
112 Mass. 237.
116 Mass. 482.
119 Mass. 387.
124 Mass. 338.
127 Mass. 4S7.
131 Mass. 433.
137 Mass. 136.
144 Mass. 38.
151 Mass. 567.
153 Mass. 1.
164 Mass. 13.
Note. ■ — This form is based on the facts in Brettun v. .\nthony, 103 Mass. 37.
20. LIBEL.
And the jjlaintiff says that the defendant falsely and maliciously printed
and published {or WTote and published) of the plaintiff in a newspaper called
• the words following: "He is a regular prover in bankruptcies", the
defendant meaning thereby that the plaintiff had proved and was in the habit
of pro\'ing fictitious debts against the estates of bankrupts, ■\\ith the knowledge
that such debts were fictitious; [{or, if it is a picture, describe it, e.g.) falsely and
maliciously composed and pubhshed of the plaintiff and a court-martial of which
he was a member a lithograph picture and caricature of the said court-martial
in which the plaintiff is represented in an awkward, ludicrous and contemptible
hght and posture and as saying of A B the respondent then on trial upon certain
charges before the said court-martial the words following: {here set out the ^rord.s)
the defendant thereby meaning to impute to the plaintiff low, vulgar and con-
temptible language, views and motives.]; [{or, if it is a letter)
falsely and niaUciously -WTote and pubhshed of the plaintiff in a letter addressed
to W D, by whom the plaintiff was then employed as bookkeeper, the words fol-
lowing: "There is a duphcity about j-our bookkeeper in ser\'ing your interest
in this affair of ours which is sadly too transparent. I conceive there is nothing
too base for him to be giiUty of."]
Note. — The first of these forms for actions of Ubel is taken from BuUen & Leake
PI. (1st ed.) 179, 180: the second from ElUs v. Kimball, 16 Pick. 132; and the third from
Tighe T. Cooper, 7 Ellis & Bl. 639.
21. TKESP.\SS TO PERSON.
And the plaintiff says that the defendant assaulted and beat the plaintiff
(and imprisoned him and kept him in prison for a long time).
NoU. — Cf. Bullen & Leake, 240, 241.
9 Gray, 73.
103 Mass. 360.
115 Mass. 661.
125 Mass. 532.
152 Mass. 532.
157 Mass. 474.
22. TRESP.^S TO L^ND.
And the plaintiff says that the defendant broke and entered the plaintiff's
close {describing it) and ploughed up the soil thereof and took and carried away
fifty bushels of the plaintiff's corn therefrom, and converted the same to his
own use.
Chap. 231.] pleading .and practice. 2499
Nole. — See also Bullen & Leake PI. (1st ed.) 245. The form in 1851, 233 (P. S. p.
979), used the word "forcibly" as the older forms used "with force and arms" (2 Chitty
Pi. 869), but no real force is necessary, and "every entry therefore therein without the
owner's leave . . . is a trespass". 3 Bl. Com. 20S. As the statute dispenses with all aver-
ments which the law does not require to be proved (§ 7 of this chapter), the form ought
not to require an allegation of force.
23. PENALTY. TREBLE DAMAGES FOE INJXJRT TO AQUEDUCT.
And the plaintiffs say that they had an aqueduct {describing it), and the de- 2 Alien, 320.
fendant maUciously injured the same by cutting off one of the pipes thereof,
whereby the defendant became liable to pay the plaintiffs treble the amount
of the damage thereby sustained by the plaintiffs, and the amount of such
damage was ten dollars.
Note. — See Chap. 165, § 24.
Mixed Action.
24. ejectment tjndee section nine.
And the plaintiff says that the defendant is wrongfully in possession of a 1915, 146, § 1.
piece of land situate, etc., {description) to which the ^^^ ■'^'^- *^°-
plaintiff is entitled by virtue of a lease for a term not yet expired.
Particulars of Title.
The premises were leased by A B to the plaintiff (or to X Y) by an
indenture dated the day of 19 for a term of twenty
years from the day of 19 (and were afterwards assigned
by the said X Y to the plaintiff by an indenture dated the day of
19 for the unexpired residue of the said term).
Note. — This is the common law action of ejectment, not the action of summary process
in which no declaration is required.
Answtees in Abatement.
25. non-joindee.
The defendant says that, if he is indebted to the plaintiffs for the goods men-
tioned in the declaration, he is indebted to them jointly with G H, who is stOl
aUve, and not alone, and therefore he ought not to be held to answer to the
plaintiffs' writ.
Note. — There is no use in saying that "the defendant comes", for "comes" is only the
old way of entering on the record the statement of his appearance. 3 Chitty PI. (13th Am.
ed.) 892, 900; eee 2 Saund. 30, 108a. Cf. Bullen & Leake PI. (let ed.) 253.
26. MISNOMEE.
The defendant says that the plaintiff's name is John Stiles, and not James
Stiles, and therefore he ought not to be held to answer to the plaintiff's writ.
Answers in Actions of Contract.
27. money had and received, or promissory note, oe othee cause of
ACTION.
The defendant denies all the allegations in the plaintiff's declaration [and
denies the genuineness of the supposed signature of the defendant {or the said
C D) to the promissory note therein declared on] [and denies that the plaintiff
(or the defendant) ever was or is executor as alleged] (and denies that there was
, at the commencement of this action or is any such corporation as the supposed
plaintiff).
Note. — An "answer denying all the allegations in the declaration" (Mosler v. Potter,
121 Mass. 89 at p. 90) has long been in general use, and no one would use the old forms given
in P. S. at p. 980. The bill of particulars is part of the declaration (§ 14 of this chapter),
and so does not require special mention in the answer.
As to denial of genuineness of signature, see § 29. Spooner v. Gilmore, 136 Mass. 248.
As to denial of representative capacity or corporate existence, see § 30.
As to executor, etc., cf. Bullen & Leake PI. (1st ed.) 335; Story PI. (2d ed.) 192.
As to corporation, cf. Story PI. 91; Christian Society «. Macomber, 3 Met. 235; Whitou
V. Balch, 203 Mass. 576.
2500 PLEADING AND PR.4.CTICE. [Ch.U'. 231.
28. STATUTE OF LIMITATIONS.
The defendant says that the cause of action mentioned in the declaration
did not accrue within six years before the commencement of this action.
29. PAYMENT.
The defendant says that he paid the plaintiff the sum of dollars,
which was the full amount of the account stated in the plaintiff's biU of
particulars.
(// there are several items, add and he annexes hereto a bill of particulars of
the said pa3Tnent).
30. ACCOUNT ANNEXED. GOODS SOLD AND DELIVERED. WORK.
The defendant, as to the first ten items of the plaintiff's bill of particulars,
denies that the plaintiff sold and delivered any of the same to the defendant.
And as to the eleventh item, he denies that the price was to be more than ten
dollars, which sum he has paid.
31. PROMISSORY NOTE. ALTERNATIVE DEFENCES.
The defendant denies that he made the said promissory note as alleged in the
declaration and denies the genuineness of his supposed signature thereto. And,
if he made the said note, the same was paid.
Note. — See Swett v. Southworth, 125 Mass. 417; Jewett v. Locke, 6 Gray, 233.
See also § 37.
32. MINORITY.
As to the note mentioned in the plaintiff's second count, the defendant
says that at the time of making the same he was a minor under the age of
twenty-one.
33. DURESS.
As to the contract mentioned in the plaintiff's third count, the defendant
says that he was induced to make the same by the plaintiff's unlawfully keeping
him in prison imtU he made the same.
Note. — Cf. Bulleu & Leake PI. (1st ed.) 329.
34. PART PAYMENT. TENDER.
The defendant says that he paid the note mentioned in the declaration, ex-
cept the smn of fifty dollars, and, before the commencement of this action, he
tendered to the plaintiff the said sum of fifty dollars and now brings the same
into court for the plaintiff.
35. ACCORD AND SATISFACTION.
The defendant says that he delivered to the plaintiff, and the plaintiff ac-
cepted, a wagon, in fuU satisfaction of the note mentioned in the declaration.
36. RES JUDICATA.
The defendant says that in the superior court held (etc.) the plaintiff re-
covered judgment against the defendant for dollars and
cents damages, and dollars and cents costs, for the
cause of action mentioned in the ]ilaintiff's fu-st count.
37. RELEASE.
The defendant says that the plaintiff by deed (a copy whereof is hereto an-
nexed) released him from the cause of action mentioned in the second count.
Chap. 231.] pleading and practice. 2501
38. INSURANCE.
(a) The defendants deny that the said loss was actually total, and deny that
any abandonment was made.
(b) The defendants say that the said vessel was not seaworthy for the voyage
in the said policy mentioned at the inception of the said voyage.
(c) The defendants deny that the said vessel was lost while proceeding on the
voyage in the said policy described.
39. EQUITABLE DEFENCE.
Action for not Jonmrding goods by a specified steamer according to a written
agreement and sending them by another steamer, alleged to be unseaworthy, which
was lost.
The defendant says that the plaintiff delivered the goods mentioned in the
declaration to the defendant to be forwarded by the defendant to L C B at
Havre in France by the first steamer sailing from New York for Ha\Te, and
without any other directions from the plaintiff as to the steamer by which they
should be sent, and the defendant agreed with the plaintiff to forward them
accordingly. And by mistake of the defendant's agent the name of the steamer
J S was written in the bill of lading and agreement mentioned in the declaration
in the supposition that the said steamer J S was the first steamer sailing from
New York for Havre after the delivery of the goods as aforesaid, whereas in
fact that steamer was not the first steamer so sailing and was not then about to
sail and did not sail from New York for Hnvre. And the defendant in accord-
ance with the real agreement made between the plaintiff and the defendant
as aforesaid forwarded the said goods by the steamer P, which was the first
steamer so sailing and which sailed soon afterwards on the said voyage and was
seaworthy at the conmiencement thereof.
Note. — See Fowie v. Pitt & Scott, 183 Mass. 351 ; see also Steele i>. Haddock, 10 Ex.
643; BuUen & Leake PI. (1st ed.) 331.
Answers in Actions of Tort.
40. conyeesion.
(a) The defendant denies that the horse mentioned in the declaration was
the property of the plaintiff, and also denies that he converted the same to his
own use.
(6) The defendant admits that the said horse was the general property of the
plaintiff, but says that the defendant had a special property therein by reason
of his having attached the same as the plaintiff's property by virtue of a WTit
(describing il), which writ was delivered to the defendant, who then was a
deputy sheriff in the county of , for service, and the said action is
now pending. And so the defendant denies that he converted the said horse
to his own use.
41. DECEIT.
(a) The defendant denies that he made the said representation knowing
that the same was not true.
(6) The defendant denies that the said horse was unsound, as alleged in the
declaration.
(e) The defendant denies that he made the representation alleged in the
declaration. And the defendant also says that the said coffee was the de-
fendant's property, and that he had a right to sell the same.
42. OBSTRUCTING WAT.
{a) The defendant denies that the plaintiff had a right of way as set out in
the declaration.
(6) The defendant denies that he obstructed the said way as alleged in the
declaration.
2502 PLEADING AND PRACTICE. [ChAP. 231.
43. SLANDEB OR LIBEL.
6 Aii*'n'4ori '^^^® defendant denies that he accused the plaintiff of the crime of perjury as
7 Allen] 61. ' alleged in the first count.
And answering the second count, tlie defendant says that (the plaintiff feloni-
ously stole ten dollars the jiroperty of S T and so) the words alleged to have been
written {or spoken) and published of the plaintiff by the defendant were true.
Note. — The clause in parentheses at the beginning of the answer to the second count
might be omitted. McLaughlin v. Cowley, 127 Mass. 316.
44. ASSAULT AND BATTERY.
(o) The defendant says that the plaintiff first assaulted him, and he there-
upon necessarily committed the alleged assault in his own defence.
(h) The defendant says that the plaintiff was his apprentice and deserted
and ran away from his service, and the defendant la\\'fuUy retook and restrained
the plaintiff, using no more force than was necessary.
45. TRESPASS QUAEE CLAXJStJM.
The defendant says that a part of the close mentioned in the plaintiff's writ
was the soil and freehold of the defendant, the same being described as follows,
etc. And he denies that he broke or entered any part of said close, except the
part above described.
Replications.
46. limitations.
(o) The plaintiff says that within six years before the commencement of
this action the defendant in a writing signed by him (or his agent A B), a copy
whereof is hereto annexed {or by part payment on account of the moneys then
due) acknowledged that the debt mentioned in the declaration remained due
and unpaid.
(6) The plaintiff says that during the six years next before the commencement
of this action the defendant resided out of this commonwealth for three years.
Note. — The form in P. S., p. 981, is changed because the statute then in force, P. S. 197,
§ 11, was changed by R.L. 202, §9. See Chap. 260, § 9.
47. MINORITY.
The plaintiff says that the articles mentioned in his bill of particulars were
necessaries for the defendant and suitable to his estate and degree.
REFERENCES.
§ 40. See Chap. 35, § 23, relative to disposition of money paid into court under
this section in Suffolk county.
§ 59. Advancing for speedy trial in case of petition for damages for taking by emi-
nent domain. Chap. 79, § 34.
§ 00. Claim of jury trial in land court. Chap. ISii, § 15.
§§61-67. Interrogatories in probate courts, Chap. 215, § 43. Same in eminent
domain and betterment cases, Chap. 79, § 22, and Chap. 80, § 9. Same in the land
court. Chap. 185, § 25.
§ 96. Appeal in equity, Chap. 214, § 19. Appeal in land court. Chap. 185, § 15.
Appeals in certain land registration cases. Chap. 185, § 16.
§ 97. Appeals in cases of neglected and delinquent children. Chap. 119, §§ 47, 56.
§ 111. Report in land court. Chap. 185, § 15.
Report in equity, Chap. 214, §§ 30, 31.
§§ 96, 116 and 122-126. Power of full court in cases of frivolous appeal or excep-
tions, and in cases of failure to enter same, Chap. 211, §§ 10, 11.
§ 133. Payment for copies to be transmitted on appeal, etc.. Chap. 212, § 11.
§ 134. Waiver of probate appeal, Chap. 215, § 29.
Ch-\p. 232.]
SET-OFF .\ND TENDER.
2503
CHAPTER 232,
SET-OFF AND TENDER.
Sect.
SET-OFF.
1. Set-off, when allowed.
2. Set-off of bonds, etc.
3. Several plaintiffs or defendants.
4. Assignment of claim.
5. Actions by trustee.
6. Actions by or against executors or
administrators.
7. Form of judgment against executor, etc.
Sect.
8. Declaration in set-off.
9. Filing of declaration.
10. Limitations in bar.
11. Judgment.
TENDER.
12. Payment or tender.
13. Acceptance of tender.
14. Tender in lien cases.
SET-OFF.
1 Section 1. If at the commencement of an action upon a judgment fif^,':^,^"''*"
2 or upon a contract, express or implied, for property sold, for money HoSli'I^^'
3 paid, for money had and received, for services performed and for an nsJ-.'iUr'
4 amount which is liquidated or may be ascertained by calculation, the 1784.28, §'12.'
5 defendant has in his own right a claim against the plaintiff such as is R.'l.'gl; ^ *'
6 hereinbefore mentioned or such a claim which has been assigned to
' 1-5, 7
G. S. 130,
7 him with notice thereof to the plaintiff, it may be set off against the fj^l'igg-
R. L. 174, § 1. 17 Mass. 66. 5§ 1-5, 7.
8 plaintiff's claim as hereinafter provided.
5 Pick. 223, 312.
3 Met. 620.
4 Met. 430.
6 Met. 7.
9 Met. 39, 341, 367.
11 Met. 129.
12 Met. 567.
13 Met. 132.
3 Gray, 502.
3 Allen, 111.
5 Allen, 36.
9 Allen, 192.
97 Mass. 502.
103 Mass. 556.
114 Mass. 24.
119 Mass. 397.
122 Mass. 5,53.
123 Mass. 598.
124 Mass. 470.
127 Mass. 394.
129 Mass. 234.
130 Mass. 352, 424.
131 Mass. 277.
137 Mass. ISl.
151 Mass. 204.
152 Mass. 108, 260.
153 Mass. 544.
176 Mass. 46.
180 Mass. 194.
192 Mass. 511.
201 Mass. 123.
208 Mass. 593.
212 Mtiss. 459.
215 Mass. 403.
233 Mass. 32.
Op. A. G. (1920) 265.
1 Section 2. If the claim which is set off is founded on a bond or set-oSof
2 other contract having a penalty, no more shall be set off than the amount r° s. 96, § 6.
3 equitably due. G. s. 130, § 6. p. s. i68, § 6. r. l. 174, § 2. 4 Met. 430.
1 Section 3. If there are several plaintiffs or defendants, the claim several piain-
2 set off shall be due from all of the plaintiffs jointly and to all of the defendants.
3 defendants jointly, except that in an action by or against partners, one giI'iso!^*'^
4 of whom is a dormant partner, a claim due to or from the person with |>^|]''gg
5 whom the contract was made may be set off as though such dormant i' i- 174 | i
, •'. ° 11 Mass. 140.
0 partner were not a party to the action.
1 Met. SO. 5 Allen, 371. 168 Mass, 537. 172 Mass. 516.
8,9.
1 Section 4. If at the commencement of an action the defendant Assignment
2 has notice that the claim declared on has been assigned, he shall not set r. s. 9f.,' § lo.
3 off a claim against the original creditor which was acquired after such p.'s.'ies.'s lo.
4 notice. R. L. 174, § 4. 12 Mass. 193.
14 Mass. 291. 15 Gray, 541. 129 Mass. 234. 151 Mass. 338.
1 Section 5. In an action brought by one person in trust or for the Actions by
2 use or benefit of another, the defendant may set off a claim against the R"s'!*9fl, § n.
3 beneficiary.
G.S. 130, § 11.
P. S. 168, § 11.
R. L. 174, § 5.
7 Cush. 217.
125 Mass. 571,
135 Mass. £58,
192 Mass. 511.
216 Mass. 296.
2504
SET-OFF AND TENDER.
[Chap. 232.
Section 6. In an action by or against an executor, administrator
or other person in a representative capacity, the defendant may set off
a claim due to or from the testator, intestate or person represented,
respectively; but he shall not set off a claim due in his own right to or
ActionB by
or against
executors or
administrators.
R. a-96. §1 12.
14, 15.
G.S. 130,|§12,
p.'s. 16S, |§ 12, from the executor, administrator or other person who sues or defends
R*'L^i74, § 6. in a representative capacity, nor a claim which did not belong to him at
2 Met.' 255. the death of the testator or intestate. e Met. 537.
9 Met. 509. 11 Allen, 101. 153 Mass. 544.
4 Gray, 284. 146 Mass. 333. 225 Mass. 45S.
7 Gray, 170. 151 Mass. 204. Op. A. G. (1920) 265.
Form of judg-
ment against
executor, etc.
R.S.9S, § 13.
G. S. 130, § 13.
P. S. 168, § 13.
R. L. 174, 5 7.
Section 7. If, upon such set-off against an executor or adminis- 1
trator, a balance is found due to the defendant, the judgment therefor 2
shall be in the same form and have the same effect as if the action had 3
been commenced by the defendant. 4
Declaration
in set-off.
1730-1, 7, § 2.
1734-5. 4, § 2.
1742-3. 19, § 2.
1784, 29, § 12.
1793, 75, § 4
R. S.95. §§ 10.
17, 19,24.
1851, 233, § 47.
1852, 312, § 37.
G. S. 130,§§16,
17, 21.
Section 8. If the defendant relies on a claim of set-off, he shall
file a declaration in set-off which, with the subsequent pleadings relative
thereto, shall be governed by the same rules as if an action had been
brought thereon; and the plaintiff shall be entitled to every defence
thereto, which he might have had in an action against himself. After
such declaration in set-off has been filed, the plaintiff shall not discon-
tinue his action without the consent of the defendant.
p. S. 16S, §§ 16, 17
R. L. 174, § 8.
3 Met. 409.
2 Gray, 200.
7 Gray, 191.
4 Allen, 498.
5 Allen, 36.
9 Allen, 192.
112 Mass. 22.
116 Mass. 283.
228 Mass. 390.
235 Mass. 3(M.
Filing of
declaration.
1730-1, 7, I 2.
1734-5. 4, § 2.
1742-3. 19, § 2.
1784, 29, § 12.
1793, 75, I 4.
R. S. 96, §§ 16,
23
1851,233, §47.
1852, 312, § 37.
Section 9. In the supreme judicial and superior courts, a declara- 1
tion in set-off shall be filed with the answer. In the municipal court of 2
the city of Boston, it may be filed at any time during the sitting at 3
which the writ is returnable, or within such further time as the court 4
may allow. In other district courts, it shall be filed when the action 5
is entered, or within such further time as the court allows. 6
G. S. 130, |§ 16,22.
1870, 330, § 3.
1878, 170.
P. S. 168, H 16,22.
R. L. 174, § 9.
1917, 326.
126 Mass. 399.
177 Mass. 397.
Limitations
in bar.
1793. 75. I 4.
1834, 182, § 4.
R. S.96, §20;
120, § 19.
G. S. 130, § 18;
155, §§ IS, 19.
P. S. 168, § 18;
197, §§20, 21.
Section 10. The provisions of law relative to the limitation of 1
actions shall apply to declarations in set-off, and the time limited shall 2
be computed from the commencement of the action by the plaintiff. 3
This section shall apply to actions brought by the commonwealth or 4
for its benefit. 5
R. L. 174. § 10.
18 Pick. 521.
4 Gray, 385.
11 Allen. 101.
107 Mass. 2S5.
135 Mass. 558.
Judgment.
1730-1,7,5 1.
17.34-5,4, § 1.
1742-3. 19, § 1.
1784, 29, § 12.
R. S. 96, §§21-
23
G.'S. 130,§§19,
20. 22.
1878, 170.
P. S. 168, §§ 19,
20, 22.
R.L. 174, §11.
1917.326.
10 Gush. 312.
4 Gray, 511.
1 Allen, 292.
130 Mass. 447.
229 Mass. 72.
230 Mass. 160.
Section 11. Judgment in an action in which a declaration in set-off 1
has been filed shall be rendered in favor of the party to whom a balance 2
is found due for the amount of such balance, not exceeding the juris- 3
diction of the court, with costs. If the amounts found due to the re- 4
spective parties are equal, judgment shall be rendered in favor of each 5
for such amounts and an entry shall be made that the judgments are 6
satisfied by the set-off, with costs to either party, or without costs, as 7
the court orders. If, on the set-off in an action upon a claim assigned 8
to the plaintiff before action is brought, a balance is found due to the 9
defendant, or if a balance is found due from any person otiier than 10
the plaintiff, judgment shall not be rendered against the plaintiff for 11
the balance. 12
Chap. 233.]
"WTTNESSES AND EVIDENCE.
2505
TENDER.
1 Section 12. The payment or tender of payment of the whole
2 amount due on a contract for the payment of money after it is due and
3 payable and before action is commenced shall, if pleaded, have the
4 same effect as if made at the time provided in the contract. Such pay-
5 ment or tender may also be made after action has been commenced and
6 at least four days before the return day of the writ, with costs to the
7 time of payment or tender. The tender last mentioned may be made to
8 the plaintiff or to his attorney in the action, and, if not accepted, the
9 defendant may avail himself of the tender in defence in like manner as
10 if made before the commencement of the action, bringing into court
11 the amount so tendered.
Payment or
tender.
1830, S5, |§ 1.
2; 128.
R.S. 100, §§14-
16.
G.S. 130, §§23.
25.
P. S. 168, §§23-
25.
R. L. 174. § 12.
17 Pick. 366.
10 Gray, 351.
11 Allen, 527.
98 Mass. 528.
130 Mass. 277.
1<;2 Mass. 275.
165 Mass. 132.
ISl Mass. 275.
1 Op. A. G. 510.
1 Section 13. If such tender is accepted, the plaintiff or his attorney Acceptance
2 shall, at the request of the defendant, sign a certificate or notice thereof i83o°sr'§ 2.
3 to the officer who has the writ, and deliver it to the defendant; and if ^ ;|; \'^] | H
4 any further costs are incurred for a service made by the officer after ^- 1 ^5*' | ^3
5 the tender and before he receives notice thereof, the defendant shall
6 pay the same to the officer, or the tender shall be invalid.
1 Section 14. A person upon whose property a lien is claimed may Tender in
2 make in any proceeding a tender or an offer of judgment relating thei
'3 in like manner and with like effect as in matters of contract.
p. S. 168, I 27.
R. L. 174. § 14.
REFERENCES.
Set-off by deposit in savings bank, Chap. 168, § 35.
Tender under Mill Act, Chap. 253, § 28.
Tender in eminent domain cases, Chap. 79, § 39.
Offer of judgment, Chap. 231, §§ 74, 75.
CHAPTER 233
WITNESSES AND EVIDENCE.
Skct.
witnesses.
1. Witnesses, how summoned.
2. Service of summons.
3. Payment or tender of fees.
4. Liability for not attending.
5. Non-attendance a contempt.
6. Warrant to compel attendance.
7. Witnesses before executive council.
8. Witnesses before town officers, commis-
sions, etc.
9. Same, warrant to compel attendance.
10. Enforcement of attendance by courts.
11. Compelling witnesses to testify.
12. Witnesses in criminal cases in adjoining
states.
13. Penalty for not attending.
14. Oaths administered by auditors, etc.
15. Manner of administering oaths.
Sect.
16. Same subject.
17. Affirmation.
18. Same subject.
19. Persons other than Christians, how
sworn.
20. Competency of witnesses.
21. Conviction of crime may be shown to
affect credibility.
Cross-examination of adverse party.
Party not to impeach own witness.
22.
23.
DEPOSITIONS.
24. Depositions in civU cases.
25. Depositions of witnesses unable to at-
tend trial.
26. Notice.
27. Service of notice.
28. Manner of service.
2506
WITNESSES AND EVIDENCE.
[Chap. 2.33.
Sect.
29. Verbal notice. Notice not necessary
under certain circumstances.
30. Deponent, how sworn and examined.
31. Order of examination.
32. Manner of taking deposition.
33. Certificate to be annexed.
34. Deposition to be sent to court, etc.
35. Deposition excluded in certain ca.ses.
36. Objection to testimony of deponent.
37. Deposition may be used in anottier ac-
tion, 3j-hen.
38. Compelling deponent to testify.
39. Deposition of non-resident witness com-
morant here.
40. Courts may make rules for depositions.
41. Depositions of persons outside com-
monwealth.
42. Written interrogatories, etc.
43. Rules of courts for depositions outside
commonwealth.
44. Use of foreign depositions not taken as
above provided.
45. Depositions for other states.
DEPOSITIONS TO PERPETUATE TESTLMONT.
46. Depositions to perpetuate testimony.
47. Notice. Compelling testimony.
48. Procedure on objection to taking dep-
o.sition.
49. Method of taking.
60. Recording in registry of deeds.
51. Use of deposition.
52. Depositions to perpetuate testimony of
persons outside commonwealth.
63. Application for such deposition.
54. Notice.
55. Issuing commission.
56. Written interrogatories.
57. Rules of court for such depositions.
68. Use of such deposition.
59. Depositions to perpetuate testimony for
use against all persons.
Sect.
60. Application.
61. Proceedings on application.
62. Return of deposition. Record in reg-
istry of deeds.
63. Use of such deposition.
DYING DECLARATIONS AND DECLARATIONS
OF DECEASED PERSONS.
64. Dying declaration of woman in certain
cases.
65. Declaration of deceased person.
66. Declaration of testator, etc.
EVIDENCE IN EQUITY.
67. Evidence in equity.
PROOF OF ATTESTED INSTRUMENT.
68. Proof of attested instrument.
PROOF OF STATUTES, LAWS, ETC.
69. Records of court of United States or
other slate.
70. Statutes of the United States, states
and foreign countries.
71. Common law of other states.
72. Laws of foreign countries.
73. Oaths before a notary of another state
or country.
74. Acts of incorporation.
75. Acts, resolves, ordinances and by-laws.
76. Records, etc., of departments of com-
monwealth, cities or towns.
77. Books, etc., of trust companies and
banks.
78. Entries in books of account.
79. Records of hospitals.
STENOGRAPHIC TRANSCRIPTS.
80. Stenographic transcripts.
Witnesses,
how sum-
moned.
1701-2, S, § 4.
1743-4, 24, 5 1.
1753, 42.
§5; 51. §2.
1754. 2S,
§§5.6.
1791, 53. § 6.
R. S. So, § 3S:
94, § 1 ; 90. § 28.
G. S. 131. § 1.
P. S. 169, § 1.
1884, 247.
1885, 141.
1889, 197.
1896. 476.
R. L. 175, § 1.
WITNESSES.
Section 1. A clerk of a court of record, a justice of the peace or a 1
special commissioner may issue summonses for witnesses in all cases 2
pending before courts, magistrates, auditors, referees, arbitrators or 3
other persons autliorized to examine witnesses; but a justice of the peace 4
or a special commissioner shall not issue summonses for witnesses in 5
criminal cases except upon request of the attorney general, district at- 6
torney or otlier person who acts in the case in behalf of the common- 7
wealth or of the defendant. If the summons is issued at the request 8
of the defendant that fact shall be stated therein. The summons shall 9
be in the form heretofore adopted and commonly used, but may be 10
altered from time to time like other writs. 11
1
2
fiS^oiS! Section 2. Such summons may be served in any county by an
n^tit'.lt officer qualified to serve ci\il process or by a disinterested person by
G- s. la'i, 1 2. exhibiting and reading it to the witness, by giving him a copy thereof 3
1863,157,5 3. , , . , 1-1 I. 1 1 A
P. s. 169. § 2. or by leaving such copy at his place oi abode. R. l. 175, 52. 4
Chap. 233.] witnesses and evidence. 2507
1 Section 3. No person shall be required to attend as a ■witness in a Payment or
2 civil case or for the defendant in a criminal case, unless the legal fees c."i"i59,T3.
3 for one day's attendance and for tra\'el to and from the place where he Jy^lf; hfi'i.
4 is required to attend are paid or tendered to him.
17S4, 28, § 6. G. S. 131. § 3. 1885, 141. 4 Cush. 249.
R. S. 94, § 3. P. S. 169, § 3. R. L. 175, § 3. 99 Mass. 177.
1 Section 4. If a person who has been dulv summoned and required Liability for
.■' ,, ..^. .,. not attending.
2 to attend as a witness under the preceding sections or section thirty- 1701-2, 5. § 5.
3 seven of chapter two hundred and eighteen fails, without a sufficient ex- 1784, 28, §'6.
4 cuse, to attend, he shall be liable to the aggrieved party in tort for all g.' s! 131, § 4.
5 damages caused by such failure.
P. S. 169, §4. 1918, 257, § 435; 285, 1920,2.
R. L. 175, § 4. 1919, 5.
1 Section 5. Such failure to attend as a witness before a court, jus- Non-attend-
2 tice of the peace, master in chancery, master or auditor appointed by trrnp?."""
3 a court, or the county commissioners, shall also be a contempt of the 174314:24,^/1.
4 court, and may be punished by a fine of not more than twenty dollars. r.^s.'II.'I s.'
1838, 42. G. S. 131, § 5. 12 Cush. 320.
I80I;, 284, § 9. P. S. 1C9, § 5. 2 Grav, 123.
1858, 93, §§ 2, 3. R. L. 175, §5. 120 Masa. 118.
1 Section 6. The court, justice, master in chancery, master, auditor or wan-ant
2 county commissioners may in such case issue a warrant to bring such attendance.
3 witness before them to answer for the contempt, and also to testify in r.^s.'m,'!!.'
4 the case in which he was summoned.
G. S. 131, § 6. R. L. 175, 5 6. 2 Gray, 410.
P. S. 169, § 6. 12 Cush. 320. 166 Mass. 123.
1 Section 7. Witnesses may be summoned to attend and testify at a witnesses
2 hearing before the executive council, or a committee thereof, as to mat- utwrcounoii.
3 ters within its authority. They shall be summoned in the same manner, p*s '/(fg*^! 9
4 be paid the same fees and in the same manner, and be subject to the ^-^^ ^2%^ ^•
5 same penalties for default, as witnesses before the general court. ■»4i-
1 Section 8. Witnesses may be summoned to attend and testify and to witnesses
2 produce books and papers at a hearing before a city council, or either officers, com-
3 branch thereof, or before a joint or special committee of the same or of i8C3',T58,^ri.
4 either branch thereof, or before a board of selectmen, or before a board of fgs^^, 2w',Vi
5 police commissioners, or before a fire commissioner or a board of fire com- Jgoo'iw' 1 1'
6 missioners or a commissioner of public safety, or before a school board, R- l- i^s, 1 8.
7 or before a licensing board or licensing authorities for the granting of 1007! 328'.
8 licenses for certain non-intoxicating beverages, as defined in section igm] si;
9 one of chapter one hundred and thirty-eight, or before a fcoard of regis- llo^'Masa'.lil^'
10 trars of voters, or before the police commissioner or election commissioners
11 of Boston, or before the metropolitan district commission, at any hearing
12 before them, as to matters within their authority; and such M'itnesses shall
13 be summoned in the same manner, be paid the same fees and be subject
14 to the same penalties for default, as witnesses before district courts. The
15 presiding officer of such council, or of either branch thereof, or a member
16 of any such committee, board or commission, or any such commissioner,
17 may administer oatlis to witnesses who appear before such council, branch
18 thereof, committee, board, commission or commissioner, respectively.
1 Section 9. If a witness who has been so summoned and paid or Same,
2 tendered the proper fees fails to attend in pursuance thereof, the presiding oompoi
3 officer of sucli city council, or of either branch thereof, or the chairman fsis, i^H'i 2.
2508
WTTNESSKS AND E^■IDENCE.
[Ch.\p. 233.
P. s. 169. § 8. of such committee, board or commission, or any such commissioner, may 4
i9oo! 26?; § 2 issue a warrant to bring such witness before them, to testify in the case 5
R. L. 175, § 9.
120 Mass. 118.
in which he was summoned.
Enforcement
of attendance
by courts.
1879. 155.
P. S. 112. § 25.
1883, 195.
1891, 140.
1901, 286.
R. L. 175, § 10.
141 Mass. 307.
175 Mass. 179.
Section 10. A justice of the supreme judicial or the superior court,
upon application of a tribunal authorized to summon but not to compel
the attendance of witnesses and the giving of testimony before it, may,
in his discretion, compel the attendance of such witnesses and the giving
of testimony before any such tribunal, in the same manner and to the
same extent as before said courts. i Op. a. g. aas.
wkn'^^esTo SECTION 11. A justicc of the Supreme judicial or the superior court,
il%!^i55. upon the application of a magistrate or tribunal authorized to summon
189^ 374 ^ ^^' ^^'^ compel the attendance of witnesses may, in his discretion, compel
R °l' 175 5 ^'^^ g'^'ing of testimony by them before such magistrate or tribunal, in
175 Mass! 179. ' the Same manner and to the same extent as before said courts.
185 Mass. 171.
Witnesses
in criminal
cases in
adjoining
states.
1777-8. 5. § 1.
1873,319. § 1.
1874, 1.50.
P. S. 169, § 10.
R. L. 175, I 12,
Section 12. A justice of the peace, upon receipt of a certificate of 1
the clerk of a court of record in the state of Maine or in a state adjoining 2
this commonwealth that a criminal prosecution is pending in such court, 3
and that a resident of the commonwealth is supposed to be a material 4
witness therein, shall issue a summons requiring such witness to appear 5
and testify at the court in which such case is pending. 6
not attending. Section 13. If the pcrsoH on whom such summons is served is paid
Rs.'m'ln. or tendered double the fees allowed by law for tra\-el and attendance of
R, L. 175, § 13. witnesses in the supreme judicial court, and double traveling expenses
for the whole distance out and home by tlie ordinary traveled route, he
shall, if he neglects without good cause to attend as a witness at the court
named in such summons, forfeit not more than three hundred dollars.
administered SECTION 14. Arbitrators, referees, masters and auditors appointed 1
etc"^'*''""' according to law may administer oaths or affirmations to all persons 2
1852, 54. offered as witnesses before them. 3
G. S. 131, 5 7. P. S. 169, § 12. R. L. 175, § 14.
1
2
^miSiltering Section 15. The usual mode of administering oaths now practiced
1701-2 5 § 7 ^^ *^^ commonwealth, with the ceremony of holding up the hand, shall
R ^s' 94' I V' ^^ obser\"ed in all cases in M-hich an oath may be administered by law, 3
g! s! 131, § 8. except as pro\-ided in sections sixteen to nineteen, inclusive. 4
p. S. 169, § 13. R. L. 175, § 15. 11 Allen, 243.
i797!35!'f 10. Section 16. If a person to be sworn declares that a different mode 1
g! i; i3i,S*9. of taking the oath is in his opinion more solemn and obligatory than 2
1873. 212, § 1. tijg upholding of the hand, the oath may be administered in such mode. 3
p. S. 169, § 14. R. L. 175, § IG. 6 Mass, 262.
Affirmation.
1743-4, 20,
§§ 1.2.
1758-9, 18,
5§1.2.
Section 17. A Friend or Quaker when called on to take an oath may 1
solemnly and sincerely affirm under the penalties of perjury. 2
1797, 35, §§9, 10. R. S. 94. § 9.
1810, 127, § 1.
G. S. 131, § 10.
P. S. 169, § 15.
R. L. 175, § 17.
fl^^gi^fi'- Section 18. A person who declares that he has conscientious scruples 1
G i' 131 ^ku against taking an oath shall, when called upon for that purpose, be per- 2
Chap. 233.] witnesses and evidence. 2509
3 mitted to affirm in the manner prescribed for Quakers, if the court or p. s. 169. 1 16.
4 magistrate on inquiry is satisfied of the truth of such declaration. 3 Met^Mi ^^'
llCush. 410. 113 Mass. 344.
1 Section 19. A person beHe\'ing in any other than the Cliristian re- Persons
2 Hgion may be sworn according to the pecuHar ceremonies of his rehgion. christians,
3 A person not a behe\'er in any religion shall be required to testify truly n97,^33,™io.
4 under the penalties of perjury, and tlie evidence of his disbelief in the g i?3i^§"2
5 existence of God may be received to afi'ect his credibility as a witness. P- s. i<l9.'§ i/-
16 Gray, 33.
1 Section 20. Any person of sufficient understanding, although a party, Competency
2 may testify in any proceeding, ci\il or criminal, in court or before a per- "sm, SIs^'I'qt;
3 son who has authority to receive evidence, except as follows: ^^^' ^ ^'
1852, 312, § 60. 1S64, 304, § 1. R. L. 175, § 20.
1856, 188. 1865, 207, § 2. 1911, 456, § 7.
1857, 305, § 1. 1866, 148, § 5; 260. 101 Mass. 193.
1859, 230. 1870, Sg.'J, § 1. 116 Mass. 227.
G. S. 131, §§ 13, 14, 16. P. S. 169, § IS. 142 Mas3. 577.
4 First, Except in a prosecution begun under sections one to ten, in- u Gray, ise.
5 elusive, of chapter two hundred and seventy-three, neither husband nor 13 Anen,244.
6 wife shall testify as to private conversations with the other. ^^ ^^^^^- ^^^■
113 Mass. 157. 152 Mass. 491. 181 Mass. 487.
117 Mass. 90. 154 Mass. 488. 185 Mass. 96.
121 Mass. 137. 155 Mass. 534. 223 Mass. 451.
531 Mass. 31. 162 Mass. 412. 2.30 Mass. 567.
143 Mass. 567. 177 Mass. 184. 235 Mass. 364.
145 Mass. 289.
7 Second, Except as otherwise provided in section seven of chapter 162 Mass. 441.
8 two hundred and seventy-three, neither husband nor wife shall be com- 219 Mass! 197'.
9 pelled to testify in the trial of an indictment, complaint or other criminal
10 proceeding against the other.
11 Third, The defendant in the trial of an indictment, complaint or 97 Mass. 545.
12 other criminal proceeding shall, at his own request, but not otherwise, 107 Mass. 199,
13 be allowed to testify; but his neglect or refusal to testify shall not create no Mass. 411.
14 any presumption against him.
113 Mass. 211. 137 Mass. 98. 175 Mass. 152.
114 Ma.ss. 285. 140 Mass. 457. 196 Mass. 369.
119 Mass. 312. 141 Mass. 58. 207 Mass. 240.
123 Mass. 239, 273. 150 Mass. 315. 212 Mass. 209.
130 Mass. 279. 163 Mass. 411. 149 U. S. 60.
1 Section 21. The conviction of a witness of a crime may be shown COTvictionot
rt. 1 • I'l •!• r IT crime may
2 to affect his credibility, except as follows: be shown to
3 First, The record of his conviction of a misdemeanor shall not be biiuy."*^ '
4 shown for such purpose after five years from the date on which sentence ^851^3! §97.
5 on said conviction was imposed, unless he has subsequently been con- Q^i;fii;ii3;
G victed of a crime within five years of the time of his testifying. p^s^'fe!?'! ni
7 Second, The record of his conviction of a felony upon which a fine R. l. i75, § 21.
8 only was imposed, or a sentence to a reformatory prison, jail, or house 1914] 406.
9 of correction, shall not be shown for such purpose after ten years from l<j'o: 120'
10 the date on which sentence on said conviction was imposed, unless he gg^MTs's^Sib.
11 has subsequently been convicted of a crime within ten years of the time Jos Mass 244!
12 of his testifying. _ l^sMa^liisi!
13 Third, The record of his conviction of a felony upon which a state 150 Mass! los!
14 prison sentence was imposed shall not be shown for such purpose after no Mass] u.'
15 ten years from the date of expiration of the minimum term of imprison- InMaSsw!
16 ment imposed by the court, unless he has subsequently been convicted i^op'!a!g.^499.
17 of a crime within ten years of the time of his testifying.
2510
WITNESSES AND EVmENCE.
[Chap. 233.
Cross-
examination
of adverse
party.
Section 22. A party who calls the adverse party as a witness shall be 1
allowed to cross-examine him. 2
1870, 393. § 4.
P. S. 169, § 20.
R. L. 175. § 22.
185 Mass. 427.
198 Mass. .•?06.
202 Mass. 506.
20S Mass. 270.
212 Mass. 335.
Party not
to impeach
own witness.
1869, 425.
P. S. 169, § 22.
R. L. 175, § 24.
102 Mass. 626.
107 Mass. 149.
118 Mass. 624.
121 Mass. 433.
122 Mass. 5.
131 Mass. 283.
133 Mass. 407.
134 Mass. 191.
139 Mass. 1.
Section 23. The party who produces a witness shall not impeach 1
his credit by evidence of bad character, but may contradict him by other 2
evidence, and may also prove that he has made at other times statements 3
inconsistent with his present testimony; but before proof of such incon- 4
sistent statements is given, the circumstances thereof sufficient to desig- .5
nate the particular occasion shall be mentioned to the witness, and he 6
shall be asked if he has made such statements, and, if so, shall be allowed 7
to explain them. 140 Mass. 463. ISO Mass. 330. 172 Mass. 432. 8
176 Mass. 253.
185 Mass. 427.
188 Mass. 484.
207 Mass. 240.
21 S Mass. 144.
219 Masa. 393.
224 Mass. 229.
233 Mass. 440.
DEPOSITIONS.
Section 24. Depositions may be taken as provided in this chapter, 1
Depositions
in civil cases.
G s' i3i.S'i7 ^° ^^ ^^^^ before courts, magistrates or other persons authorized to 2
p. s. 169, § 23. examine witnesses, except in criminal cases.
5 Gray, 440.
103 Mass. 318.
R. L. 175, § 25.
3 Pick. 74.
131 Masa. 88.
170 Mass. 498.
3
Depositions
of witnesses
unable to
attend trial.
C. L. 158. § 2.
1095-6, 14,
§§1.2.
1785, 12, § 3.
1797, 35, § 1.
R. .S. 94, § 14.
1857, 305, § 2.
Section 25. If a witness or party whose testimony is wanted in a 1
civil cause or proceeding pending in the commonwealth lives more than 2
thirty miles from the place of trial, or is about to go out of the common- 3
wealth and not to return in time for the trial, or is so ill, aged or infirm as 4
to make it probable that he will not be able to attend at the trial, his 5
deposition may be taken. G. s. isi, §§ i8, 59. 6
p. S. 169, §§ 24, 65. R. L. 175. § 26. 14 Gray, 130. 185 Mass. 171.
c.°L°*i58. § 2. Section 26. After service of process in an action, or after a submis-
itotTs^ §'l ^' sion to arbitrators or referees, either party may apply to a justice of the
R 's' 94!'§\5 peace or a special commissioner, who shall issue a notice to the adverse
p' I' 169' I 26' P^i'ty to appear and propose interrogatories before said justice or com-
1883, 252.' ' raissioner or any other justice of the peace or special commissioner at the
13 Allen, 33. ' time Eud place appointed Tor taking the deposition.
106 Mass. 338. 131 Mass. 88. 135 Maas. 5S6. 139 Mass. 294.
Service of
notice.
1797, 35, 5 2.
R. S. 94.
§§ 16. 17.
Section 27. The notice may be served on the adverse party, his agent 1
or attorney, and if there are several plaintiffs or defendants, on any of 2
them. G. S. 131, § 20. p. S. leo, § 26. R. L. 175, § 23. 7 Pick. 137. 3
^r''v'icr°^ Section 28. The notice shall be served by delivering an attested
i797~3'5^§'2 '■ f'opy thereof to the person to be notified, or by leaving such copy at his
G i' i3iS^2i pl^ce of abode, not less than twenty-four hours before the time appointed
p.' s.' 169,' § 2j! for taking the deposition, and also allowing not less time than at the rate
7 Met. 287. " ' of oue day, Sundays excluded, for every twenty miles' travel to the place
182 Mass. 541. appointed. 220 Mass. 494.
Verbal notice.
Notice not
necessary
under certain
Section 29. The justice or commissioner who takes the -deposition
may give a verbal instead of the written notice. If the adverse party
isnTsTiT' o^ 'I's attorney in writing waives notice, or if the defendant does not enter
G l' is'i ^'22 ^^^ appearance in the action within the time required by law, no notice
p.' s.' 169,' I 28: shall be required. isss, iss, § 1. R. l. 175, § 30.
Chap. 233.] witnesses and evidence. 2511
1 Section 30. The deponent shall be sworn or affirmed to testify the Deponent,
2 truth, the whole truth and nothing but tlie truth, relative to the cause and cwmi'ned.
3 for which the deposition is taken. He shall then be examined by the ngf^si'f's* '■
4 justice or commissioner, and the parties if they think fit, and his testi- g- 1- ^j^',^ ^\^
5 mony shall be taken in writing.
p. S. 169, § 29. R. L. 175, § 31. 1 Allen, 109. 8 Allen, 146.
1 Section 31. The party producing the deponent shall be allowed ^'■^^"^"ation
2 first to examine him, either upon verbal or written interrogatories, on all g- 1- ?i',^5^Ji
3 the points which he considers material ; the adverse party may then p- s.' i69," | so!
4 examine him in like manner, after which either party may propose ■ ' •
5 further interrogatories.
1 Section 32. The deposition shall be written by the justice, com- Manner of
2 missioner, deponent or by a disinterested person in the presence and whi'ol^^^
3 under the direction of the justice or commissioner, shall be carefully lygt^ss.^i's^ ^'
4 read to or by the deponent, and then subscribed by him.
R. S. 94, § 22. P. S. 169, § 31. 5 Met. 173.
G. S. 131, § 25. U. L. 175, § 33. 12 Cush. 132.
1 Section 33. The justice or commissioner shall annex to the deposi- Certificate
r*' 'n e 1 • f ^ • • 1 1 to he annexed.
2 tion a certmcate or the time and manner of taking it, the person at whose ys^. ss. § 3
3 request and the cause in which it was taken, the reason for taking it, and g'- s. isi, § 26.
4 that the adverse party attended, or if he did not attend what notice r. l. 175. § 34.
5 was given to him.
1 Mass. 73. S Met. 173. 1 Allen, 109, 475. S Allen, 146.
20 Pick. 167. 11 Cuah. 364. 3 Allen, 358, 105 Mass. 96.
1 Section 34. The deposition shall be delivered by the justice or Deposition
2 commissioner to the court, arbitrators, referees or other persons before tocouXlto.
3 whom the cause is pending, or shall be enclosed and sealed by him and fegs^e.^is.S^i.
4 directed to it or them, and shall remain sealed until opened by it or them, ^^l' H' H^
G. S. 131. § 27. R. L. 175. § 35. 1 AUen, 475.
P. S. 169, § 33. 8 Gray, 394.
1 Section 35. The court may exclude the deposition if it finds tliat °^f^'^°°
2 the adverse party failed without fault to attend the taking thereof, and certain oases.
3 shall exclude it if it finds that the reason for taking it, or other sufficient R. s.' 94," 1 25.
4 cause for its use, no longer exists. g. s. 131, § 2s.
p. S. 169, § 34. R. L. 175, § 36. 6 Cush, 394. 131 Mass. 88.
1 Section 36. Objections to the competency or credibility of the de- objection to
2 ponent and to the admissibility of any questions asked of or answers de^jonen? °
3 made by him may be made when the deposition is produced in the §! s! isi.S^zo.
4 same manner as if he were personally examined as a witness at the trial ; ^- ^ \||' 1 1^;
5 but if a deposition is taken upon written interrogatories annexed to a gpjckiel'
6 commission, all objections to an interrogatory shall be made before the s ?'=:''• si
7 commission issues, and unless the interrogatory is withdrawn shall be 2 Met. 58. '
8 noted in the deposition, otherwise they shall not be allowed. 2 Gray, 279.
4 Gray, 574. 10 Gray. 360. 103 Mass. 318.
7 Gray, 418. 8 Allen, 677. 135 Mass. 319.
1 Section 37. If a plaintiff discontinues his action or becomes nonsuit. Deposition
2 and another action is afterward commenced for the same cause between in another
3 the same parties or their respective representatives, depositions lawfully i820,°8g! H.'
2512
WITNESSES AND EVIDENCE.
[Ch.U'. 233.
R. S. 94, § 27.
G. S. 131, § 30.
P. S. 169. § 36.
R. L. 175, § 38.
22 Pick. 309.
taken for the first action may be used in the second in the same manner 4
and subject to the same conditions and objections as if originally taken 5
for the second action, if the deposition was duly filed in the court in 6
which the first action was pending and has remained in the custody of 7
the court from the termination of the first action until the commence- 8
ment of the second. 9
depoSent"^ SECTION 38. A person may be summoned and compelled to give his 1
ngffss! § 4 deposition at a place within twenty miles of his place of abode, in like 2
g' I" 131 ^5^32 manner and under the same penalties as are provided for a witness before 3
G. S. 131, § 32.
p. s. 169, § 38. a court.
R. L 175, § 40.
^on-KsVdTnt' Section 39. A person not a resident of but found within the oom-
moranthere mouwcalth may be summoned and compelled to give his deposition
G ^s ill' 5 33 ^^ ^^y place within ten miles of the place at which the summons is served
p.' s.' 169,' |. 39.' upon him, in like manner and under the same penalties as he may be
summoned and compelled to attend as a witness before a court.
makeruTra' Section 40. The courts may make rules regulating the time and 1
t?on3^^°^' manner of opening, filing and safe keeping of depositions, and the taking 2
R. s.'94, § 28. and use thereof. g. s. i3i, § ai. 3
p. S. 169. § 37. R. L. 175, § 39. 133 Mass. 131. 135 Mass. 586.
Depositions
of persons
■ outside com-
monwealth.
1797, 35. § 6.
1829, 125, I 1.
R. S. 94, I 30
1856, 233, I 1.
G. S. 131, § 3
p. S. 169, I 41
R. L. 175, I 4:
6 Met. 270.
12 Gray, 26.
Section 41, The deposition of a person without the commonwealth 1
may be taken under a commission issued to one or more competent 2
persons in another state or country by the court in which the cause is 3
pending, or it may be taken before a commissioner appointed by the 4
governor for that purpose, and in either case the deposition may be used 5
in the same manner and subject to the same conditions and objections 6
as if it had been taken in the commonwealth. io3 Mass. 4i. 7
136 Mass. 386. 168 Mass. 415. 206 Mass. 395. 229 Mass. 435.
Section 42. Unless the court otherwise orders, a deposition taken
written inter-
rogatories, etc.
g' I' 131 S^35 before commissioners shall be taken upon wTitten interrogatories, which
i8§i 188 I2'' ^^^^^ ^^ ^^^^ i"^ ^^^ clerk's office and notice thereof given to the adverse
i899| 123', 1 1. party or his attorney, and upon cross interrogatories, if any are filed by
" him. But if the defendant does not enter his appearance in the action
within the time required by law, no notice to him shall be required. The
court may in any case order depositions to be taken before commissioners,
in the manner provided by law for taking the depositions of witnesses
within the commonwealth in actions at law, or in such manner as the
court orders, and in such cases shall determine what notice shall be 10
given to the adverse party, his agent or attorney, and the manner of serv- 11
ice thereof, may authorize the taking of depositions of witnesses not 12
specifically named in the commission, and may limit the extent of the 13
inquiry. The court may order the production before the commissioner 14
of any books, instruments or papers relative to any matter in issue. 15
Rules of courts
for depositions
outside com-
monwealth.
1797, 35, § 7.
Section 43. The courts may make rules for the issuing of commis- 1
sions, the filing of interrogatories and all other matters relative to dep- 2
ositions taken without the commonwealth. 3
R. S. 94, §32. G. S. 131, § 36. P. S. 169, 5 42. R. L. 175, § 44.
Chap. 233.] witnesses and evidence. 2513
1 Section 44. Depositions and affidavits taken without the com- Use of foreign
2 monwealth in any manner other than is provided in the tliree preceding Eot'ta'k°n"'
3 sections, if taken before a notary public or other person authorized by pro^lided.
4 the laws of any other state or country to take depositions, may be ad- l^^g'^'y"'
5 mitted or rejected in the discretion of the court; but such deposition gl^l^s^lv
6 or affidavit shall not be admitted unless the court finds that the adverse p.' s,' loo,' § 43.'
7 party had sufficient notice of the taking thereof and an opportunity to 14 pick! 313. ""'
8 cross-examine the witness, or that from the circumstances of the case it 441^"''^' ^^''
9 was impossible to give him such notice. 24 Pick. 35. 2 Met. 522.
6 Met. 270. 12 Gray, 26. 103 Mass. 41.
1 Gush. 449. 5 Allen, 320. 162 Mass. 137.
9 Gray, 370. 8 Allen, 391, 229 Mass. 435.
1 Section 45. A person may be summoned and compelled, in like Depositions
2 manner and under the same penalties as are provided for a witness before i?ates''^'^
3 a court, to give his deposition in a cause pending in a court of any other R"y'|4' | 53
4 state or government. Such deposition may be taken before a justice of pfioo^'sM*'
5 the peace or a special commissioner in the commonwealth, or before a issa. 252.
• • • • 1S89 197
6 commissioner appointed under the authority of the state or government r. l'. iVs', § 46.
7 in which the action is pending. If the deposition is taken before such ^^ ^"'^^ '
8 commissioner, the witness may be summoned and compelled to appear
9 before him by process from a justice of the peace or a special commissioner
10 in the commonwealth.
depositions to perpetuate testimony.
1 Section 46. If a person desires to perpetuate his own testimony or Depositions
2 the testimony of another person, he shall apply in writing to two justices tesfi^ny""'^
3 of the peace or special commissioners, one of whom shall be an attorney §; |; isi.^j^sg.
4 at law, requesting them to take his deposition or the deposition of the j?"s'fi?9'5 45
5 person whose testimony he desires to perpetuate, and stating briefly R- l. 175, § 47.
6 and substantially his title, claim or interest in or to the subject relative
7 to which he desires the evidence perpetuated, the names of all other per-
8 sons interested or supposed to be interested therein and the name of the
9 witness proposed to be examined.
1 Section 47. The justices or commissioners shall thereupon cause Notice.
2 notice of the time and place appointed for taking the deposition to be testimony.^
3 given to all persons named in said statement as interested in the case, in HH] ||j' 1 1;
4 the manner provided in sections twenty-six to twenty-nine, inclusive; iVfg^jlj
5 and if in the opinion of the justices or commissioners no sufficient pro- i?3o, 140, § 2.
6 vision is made by law for giving notice to parties adversely interested, §§.46,45.'
7 they shall cause such reasonable notice to be given as they consider p. s.|io9,'
8 proper. A person may be summoned and compelled to give a deposition r. l!'i75, § 48.
9 in perpetuation of his testimony in like manner and under the same
10 penalties as are provided for a witness before a court.
1 Section 48. If at the time and place so appointed a witness or a Procedure on
2 person interested appears and objects, the justices or commissioners takfnB'°'"°
3 shall not take the deposition unless upt)n hearing the parties they shall iIm^ho? 4 1.
4 find that such testimony may be material to the petitioner and, except f^.f ^^h ' *'•
5 when the witness himself is petitioner, that it is not sought for the pur- £• j- \'75 Wd
6 pose of discovery or of using it in an action then pending or thereafter
7 to be brought against said witness, and that the petitioner is in danger of
2514 WITNESSES -WD EVIDENCE. [Ch.4P. 233.
losing the same before it can be taken in any action wherein his right, 8
title, interest or claim can be tried. In all cases the petitioner, his agent 9
or attorney shall, at the request of such witness or of a person interested, 10
be examined on oath relative to his reasons for taking the deposition. 11
oftSg Section 49. The deponent shall be sworn and examined, and his 1
1797, 35. § 8 deposition shall be written, read and subscribed in the manner provided 2
R. s! 94. '§ 36. in sections thirtv to thirtv-two, inclusive; and the iustices or commis- 3
1874,297.' ■ sioners shall sign and annex thereto a certificate of the name of the 4
R. L.\*?5. § 50. person at whose request it was taken, the names of all persons who were 5
5 Met. 173. notified to attend, of all who attended the taking thereof, of the time 6
and manner of taking it, and that it was taken for the purpose of per- 7
petuating the testimony therein. 8
S"^^- Section 50. The deposition, the certificate and the application of the 1
iTO^Tsii § 8 petitioner shall, within ninety days after the taking of the deposition, be 2
G i' 131 ^M3 recorded in the registry of deeds in the county or district where the land 3
1874,297.' lies, if the deposition relates to land; otherwise, in the county or district 4
r'.'l. 175, §51. where the parties or some of them reside. 5
deposition. SECTION 51. If, at the time of taking such deposition or afterward, 1
1826' 86' 1 1' ^"^ action is pending between the petitioner and the persons named in 2
R|-9|,i38 his application or any of those who were notified as aforesaid, or any 3
1874, 297.' _ ■ persons claiming under any of said persons, relative to the title, claim or 4
R. L. 175. § 62. interest set forth in the application, the deposition or a certified copy 5
ic 74. ^£ j^ from the registry of deeds may be used in such action in the same 6
manner and subject to the same conditions and objections as if it had 7
been originally taken therefor. 8
S^peSi't>5?te Section 52. Depositions to perpetuate the testimony of persons liv- 1
testimony of \^-^„ without the commouwealth mav be taken without the common- 2
persona outside c5 ... ,
coinmonweaith. wealth upou a commlsslon issued by the supreme judicial or the superior 3
g! S'. 131, § 46. COm't. P. S. 169, § 52. R. L. 175, § S3. 3 Pick. 14. 132 Mass. 171. 4
forMch''°° Section 53. The person who desires to take such deposition shall 1
r's"94°«'4i ^^ ^'^ either of said courts the application provided for in section forty- 2
G. s. 131. § 47. six; and if the subject of the proposed deposition relates to land within 3
R. li. 175, § 54. the commonwealth, a copj'^ of the application with the statement therein 4
shall be filed in the registry of deeds for the county or district where 5
the land or any part thereof lies; otherwise, in the registry of deeds for 6
the county or district where the parties or some of them reside. 7
R°s.'^94, § 42. Section 54. The court shall order notice of such application and 1
p" i' 169' I 54' statement to be served on all the persons named therein as adversely in- 2
1882. mo! terested, and living within the commonwealth, fourteen days at least 3
132 Mass.' 171. ' bcforc the time therein appointed for hearing the parties, and shall 4
order reasonable notice to be given to such persons living without the 5
commonwealth. 6
^^tSmL' Section 55. If, upon hearing the parties who appear, the court finds 1
R- 1- 94, § 43. that there is sufficient cause for taking the deposition, it shall issue a com- 2
p.' s.' 169,' 1 55.' mission therefor in like manner as for taking a deposition to be used in a 3
' ■ '^' ■ cause pending in the same court. 4
Chap. 233.] witnesses and evidence. 2515
1 Section 56. The deposition shall be taken upon -wTitten interroga- Written inter-
2 tories filed by the applicant, and cross interrogatories, if any are filed r,^s.9"!'§44.
3 by any party adversely interested, and it shall be taken and retiu-ned p.'f.ilg.'s^ss?'
4 substantially in the same manner as if taken to be used in a cause pending ^- ^- 1'^' ^ ^^•
5 in the same court.
1 Section 57. The supreme judicial court may make rules for taking Rules of
2 depositions to perpetuate the testimony of witnesses without the com- depositbr""
3 monwealth, taken under a commission from the supreme judicial or the §! s. w'l! I m.
4 superior court, and for filing or recording them. R. l. 175, § ss. ^ ^- ^^^- ^ ^^■
1 Section 58. Depositions to perpetuate the testimony of witnesses Use of such
2 which are taken without the commonwealth under this chapter may be R^"sf94°§'47.
3 used in like manner as if taken within the commonwealth.
G. S. 131, § 53. P. S. 169, § 59. R. L. 175, § 59. 3 Pick. 14.
1 Section 59. Depositions to perpetuate the testimony of witnesses Depositions to
2 within or without the commonwealth, so that they may be evidence t'e"t'i'mony''for
3 against all persons, may, after public notice, be taken upon a commis- afi^pTreons'
4 sion issued by the supreme judicial court or the superior court. k. s. 94, § 48.
G. S. 131, § 54. P. S. 169. § 60. R. L. 175, § 60. 132 Mass. 171.
1 Section 60. The person who desires to have such deposition taken Application.
2 may apply to either of said courts in the manner provided in section q] |. ^131^ 1%^
3 fifty-three, and the proceedings thereon shall be the same as are provided r. L.'ns.Vei.
4 in sections fifty-four to fifty-six, inclusive.
1 Section 61. The court shall, in addition to the proceedings before Proceedings on
2 provided, require the applicant, upon oath or otherwise, in its discretion, it sl^i.'Tso.
3 to state the names of all persons known or supposed to be interested in p.l.'/e^g.'f^el*'
4 the subject matter of the application, and shall in the commission direct faa^M^^' hT'
5 tiie commissioner or commissioners to publish in such newspaper within
6 or without the commonwealth, or both, or in such other manner, as the
7 court orders, such notice of the time and place of taking such deposition
8 and of the subject matter thereof as the court approves. Such notice
9 shall be addressed by name to all persons who are known or supposed to
10 be interested in the subject matter of the application, and generally to
11 all others, and shall state that they may attend and propose cross in-
12 terroga tories to the witness. The court may requii-e additional personal
13 notice of the time and place of taking and of the subject matter of such
14 deposition to be given to such persons and in such manner as it orders.
1 Section 62. After such deposition has been taken, it shall be returned Return of
,, ... ii*i<i>Ti • deposition.
2 to the court by whose order the commission issued, which, if the deposi- Record in
3 tion is foiuid to have been taken according to law and the directions deeds.
4 contained in the commission, shall order it to be recorded within thirty c'. s. 131, § 57.
5 days after the date of the order in the registry of deeds, in the manner r.l.\''75,V63.
6 provided in section fifty. i3i Mass. 179.
1 Section 63. A deposition taken and recorded under the provisions of Use of ?uch
2 the four preceding sections, or a certified copy thereof from the registry R. s. 94, § 52.
3 of deeds, may be used by the person at whose request it was taken, or p.'s.'iog.'s 64.'
4 by any person who claims under him, against any person whatever, in ^' ^' ^^^' ^ ^'
2516
WITNESSES AND EVIDENCE.
[CH.4P. 233.
any action or process wherein is brought in question the title, claim or 5
interest set forth in the statement upon which the commission was 6
founded, in the same manner, and subject to the same conditions and 7
objections, as if it had been originally taken for said action or process. 8
D'nNG DECLARATIONS AND DECLARATIONS OF DECEASED PERSONS.
tion of woman" SECTION 64. In prosccutious uudcF scctiou nineteen of chapter two
iases^'*'" hundred and seventy-two in which the death of a woman is alleged to
r**l'. 17^'. § 6s. liave resulted from the means therein described, her dying declarations
153 Maas. 343. shall bc admisslblc in evidence. les Mass. us, m.
195 Mass. 100.
207 Mass. 563.
213 Mass. 563.
224 Mass. 229.
Declaration
of deceased
person.
1S9S, 635
Section 65. A declaration of a deceased person shall not be inadmis- 1
sible in evidence as hearsay if the court finds that it was made in good 2
fes'iiii^' 174^' f^ith before the commencement of the action and upon the personal 3
175 Mass. 137. knowledge of the declarant. 4
ISO Mass. 187.
183 Mass. 262.
186 Mass. 75.
188 Mass. 38, 214. 593.
190 Mass. 184, 563.
192 Mass. 8, 52.
193 Mass. 58.
194 Mass. 218, 560.
196 Mass. 316.
198 Mass. 109, 393.
201 Mass. 444.
202 Mass. 500.
203 Mass. 273, 299.
204 Mass. 383.
207 Mass. 563.
208 Mass. 193, 221.
210 Mass. 500, 581.
211 Mass. 590.
212 Mass. 352, 547.
214 Mass. 366.
215 Mass. SO, 199, 318.
216 Mass. 51.
217 Mass. 148, 558.
218 Mass. 205.
220 Mass. 539.
221 Mass. 248, 304, 461.
223 Mass. 501.
225 Mass. 68.
226 Mass. 168,416.
228 Mass. 516, 563.
229 Mass. 275, 304.
230 Mass. 347.
231 Mass. 186.
232 Mass. 183.
235 Maes. 428.
236 Mass. 165.
Declaration of
testator, etc.
1896, 445.
R. L. 175, § 67.
175 Mas3. 137,
177.
180 Mass. 483.
185 Mass. 455.
187 Mass. 109.
201 Mass. 444.
206 Mass. 534.
212 Mass. 171.
217 Mass. 658.
Section 66. If a cause of action brought against an executor or ad-
ministrator is supported by oral testimony of a promise or statement
made by the testator or intestate of the defendant, evidence of statements,
written or oral, made by the decedent, memoranda and entries written
by him, and evidence of his acts and habits of dealing tending to disprove
or to show the improbability of the making of such promise or statement,
shall be admissible. 227 Mass. 5S4.
EVIDENCE in EQUIIT.
S]^ilfty'?'^ "* Section 67. Evidence in equity proceedings shall be taken in the 1
G^s'isi'teo same manner as in actions at law, unless the court otherwise orders; 2
fi^A 13 5. ^„^- but this section shall not prevent such use of affidavits as has been here- 3
1899 123 «
R. l! 175, §69. tofore allowed.
13 Allen, 33.
137 Mass. 487.
Proof of
attested
instrument.
1897, 386.
PROOF OF ATTESTED INSTRUMENT.
Section 68. A signature to an attested instrument or writing, except
a will, may be proved in the same manner as if it ^^ ere not attested.
R. L. 175, I 70.
PROOF OF ST.4.TUTES, LAWS, ETC.
of''unit^stato Section 69. The records and judicial proceedings of a coiu-t of an-
R s''9r§'5^7 other state or of the United States shall be admissible in evidence in this
as: i3l § 61. commonwealth, if authenticated by the attestation of the clerk or other
r'. l. 175, § 71, officer who has charge of the records of such court under its seal.
119 Mass. 262. 209 Mass. 282.
5 Met. 436.
10 Allen, 485.
12 Allen, 98.
103 Maas. 283.
178 Mass. 68.
236 Mass. 446.
Chap. 233.] witnesses and evidence. 2517
1 Section 70. Printed copies of the statute laws of any other state or statutes of
2 territory or of the United States or of a foreign country, which purport stat«i°stiites
3 to be published under the authority of their respective governments, or TOuntrles^"
4 which are commonly admitted and read as evidence in their courts, shall g- 1- ^gj 5 ^^
5 be admitted in this commonwealth, in all courts of law and on all oc- §• f; ^^^g \^7^5
6 casions, as prima facie evidence of such laws. 3 Pick. 293.
8 Gray, 150. 4 Allen, 504. 10 Allen. 337. 105 Mass. 480.
1 Section 71. The unwritten or common law of any other of the common law
2 United States or of the territories thereof may be proved as facts by R.a'ol.Teo^'
3 parol evidence; and the books of reports of cases adjudged in their p.'s.'iegl's^l*'
4 courts may also be admitted as evidence of such law.
R. L. 175, § 76. 10 Allen, 485. 135 Mass. 126, 349.
7 Met. 384. 99 Mass. 253. 156 Mass. 65.
12 Gray, 244. 100 Mass. 79. 161 Mass. 111.
7 Allen, 395. 124 Mass. 85. 170 Mass. 356.
1 Section 72. The existence, tenor or effect of all foreign laws may be Laws of for-
2 proved as facts by parol evidence; but if it appears that they are con- r^s.*'94.°§T^
3 tained in a written statute or code, the court may in its discretion reject p'siU'^n'
4 any evidence of such law which is not accompanied by a copy thereof. ^ ^ ^^^55^'
193 Mass. 588.
1 Section 73. All oaths and affidavits administered or taken by a Oaths before
2 notary public, duly commissioned and qualified by authority of any an^ufti-^state
3 other state or government, within the jurisdiction for which he is com- ^sfs.Tgr'
4 missioned, and certified under his official seal, shall be as effectual in rl^iIs^^^s
5 this commonwealth as if administered or taken and certified by a justice
6 of the peace therein.
1 Section 74. Acts of incorporation shall be held to be public acts and Acts of in-
2 as such may be declared on and given in e\adence. r. s. 2, § 3.
G. S. 3, § 5. P. S. 169, § 68. R. L. 175, § 72. 194 Mass. 596.
1 Section 75. The printed copies of all statutes, acts and resolves of ^'"i^ "-cTOives,
, ,, 11. • 1.1 11. 11 1. ordmances
2 the commonwealth, public or prn-ate, which are published under its au- andby-iaws.
3 thoritv, and copies of the ordinances of a city, the by-laws of a town or of R. s.'94,'5 ss.
4 the rules and regulations of a board of aldermen, if attested by the clerk p.'s.'i(.9,'§ 69.'
5 of such city or town, shall be admitted as sufficient evidence thereof in all r^^l. 175, § 73.
6 courts of law and on all occasions. is4 Mass. 598.
1 Section 76. Copies of books, papers, documents and records in any Records, etc.,
2 department of the commonwealth or of any city or town, authenticated of commo"!-'"''
3 by the attestation of the officer who has charge of the same, shall be „ tiwis.'"^^
4 competent evidence in all cases equally with the originals thereof; pro- p^^'i^olfs 70
5 vided, that, except in the case of books, papers, documents and records J^sq, 387, § 2.^
6 of the department of pubHc utilities in matters relating to common i9'i3,'7s4,'5 7. '
7 carriers, the genuineness of the signature of such officer shall be at- i76MttS4r.b.
8 tested by the secretary of the commonwealth under its seal or by the 111 MaS; soi!
9 clerk of such city or town, as the case may be. 1 Op. a. g. 423.
1 Section 77. Copies from the records, books and accounts of a trust Books, etc, of
2 company, national bank or savings bank, doing business in the com- pmeTand
3 monwealth, shall be competent evidence in all cases, equally with the fs85,°92.
2518
WITNESSES AND EVIDENCE.
[Chap. 233.
1894, 317,
R. L. 113,
1908, 590,
§§41,69.
1918,98.
i 49. originals thereof, if there is annexed to such copies an affidavit, taken 4
' " before a clerk of a court of record or notary public, under the seal of 5
such court or notary, stating that the affiant is the officer having charge 6
of the original records, books and accounts, and that the copy is correct 7
and is full so far as it relates to the subject matter therein mentioned. 8
Entries in
books of
account.
1913, 288.
217 Mass. 613.
218 Mass. 205.
223 Mass. 162.
227 Mass. 138.
Section 78. An entry in an account kept in a book or by a card 1
system or by any other system of keeping accounts shall not be inadmis- 2
sible in any civil proceeding as evidence of the facts therein stated because 3
it is transcribed or because it is hearsay or self-serving, if the court finds 4
that the entry was made in good faith in the regular course of business 5
and before the beginning of the civil proceeding aforesaid. The court, 6
in its discretion, before admitting such entry in evidence, may, to such 7
extent as it deems practicable or desirable but to no greater extent than 8
the law required before April eleventh, nineteen hundred and thirteen, 9
require the party offering the same to produce and offer in e\'idence the 10
original entry, writing, document or account, or any other from which 11
the entry offered or the facts therein stated were transcribed or taken, 12
and to call as his witness any person who made the entry offered or the 13
original or any other entry, writing, document or account from which 14
the entry offered or the facts therein stated were transcribed or taken, 15
or who has personal knowledge of the facts stated in the entry offered. 16
Recorda of
hospitals.
1905, 330, § 2.
1908, 269.
1912, 442, § 2.
202 Mass. 359.
225 Mass. 521.
234 Mass. 480.
236 Mass. 439.
3 Op. A. G.
581.
Stenographio
transcripts.
1894, 424, § 9.
1890, 459, § 7.
R. L. 175, § 68.
207 Mass. 390.
222 Mass. 129.
Section 79. Records kept by hospitals under section seventy of
chapter one hundred and eleven shall be admissible as evidence in the
courts of the commonwealth so far as such records relate to the treat-
ment and medical history of such cases; but nothing therein contained
shall be admissible as evidence which has reference to the question of
liability.
stenographic transcripts.
Section 80. Transcripts from stenographic notes duly taken in the
superior court under the authority of law, when verified by the certificate
of the official stenographer or assistant taking them, shall be admissible
as evidence of testimony given whenever proof of such testimony is other-
wise competent.
REFERENCES.
Witnesses before courts-martial, etc., Chap. 33, §§ 168, 175, 249, 2,53.
Witnesses before boards of registration in medicine, etc., Chap. 112, § 62.
Witnesses before the general court. Chap. 3, §§ 27-29, 38.
Witnesses before supervisor, Chap. 7, § 14.
Issuing of summonses to witnesses in criminal cases before district courts and
trial justices. Chap. 218, § 37.
Witnesses as to corrupt influencing of agents not excused because testimony would
tend to incriminate. Chap. 271, § 39.
Mental conditions of witness. Judge may request commission on mental diseases
to assign a member of staff, etc., to make e.xamination. Chap. 123, § 99.
Comment on failure of defendant to take the stand or offer evidence in lower court
in criminal case, Chap. 278, § 23.
Attestation of records of registers of deeds and probate, Chap. 36, §§ 7, 17-19;
Chap. 217, § 1.5.
Attestation of records of recorder of land court. Chap. 185, § 9.
Copies of records of division of animal industry, Chap. 129, § 10.
Admissibility of copies of hospital records- before the industrial accident board.
Chap. 152, § 20.
For the purpose of proving the existence of a nuisance in maintaining a place of
prostitution, evidence of general reputation of the place is admissible, Chap. 139, § 9.
Chap. 234.]
JXIRIES.
2519
CHAPTER 234
JURIES.
Sect.
obligation to serve, and lists.
1. Qualifications and exemptions.
2. To serve, when.
3. Limit of serrice in Suffolk.
4. Preparation of lists.
5. Printing of lists, delivery to clerks,
etc.
6. Revision of lists in cities.
7. Deposit of names in box.
8. Withdrawal of names.
9. Publication.
VENIRES.
10. Writs of venire facias.
11. Service.
12. Additional venires.
13. Provisions for Dukes county.
14. Provisions for Bristol.
15. Jurors from Nantucket and Dukes
county.
16. Venires in Barnstable.
DRAWING AND SUMMONING OF JURORS.
17. Drawing of jurors.
18. Drawing of jurors in cities.
19. Same in towns.
20. Return of names to box.
21. Endorsement on ballot.
22. Names drawn in town meeting.
23. Meetings for drawing jurors.
Sect.
24. Summoning
venire.
of jurors and return of
.GENERAL PROVISIONS.
25. Impanelling.
26. Same in capital cases.
27. Talesmen.
28. Examination of jurors.
29. Peremptory challenges.
30. Interest not to disqualify, when.
31. Objections, when made.
32. Irregularities.
33. Gratuities.
34. Jury not to be sent out more than
twice, unless, etc.
35. View by jury.
PENALTIES.
36. Penalty for neglect to attend.
37. Penalty for improperly putting name
on jury list.
38. Penalty for soUciting placing name on
jury list.
39. Penalty on officers, etc., for neglect.
40. Penalty in certain other cases.
41. Penalty for fraud in drawing jurors.
SPECIAL JURIES.
42. Special juries not affected.
OBLIG.VTION TO SERVE, AND LISTS.
1 Section 1. A person qualified to vote for representatives to tlie
2 general court shall be liable to serve as a juror, except that the following
3 persons shall be exempt:
4 The governor; lieutenant governor; members of the council; state
5 secretary; members and officers of the senate and house of representa-
6 tives during a session of the general court; judges and justices of a
7 court; county and associate commissioners; clerks of courts and as-
8 sistant clerks and all regularly appointed officers of the courts of the
9 United States and of the commonwealth; registers of probate and
10 insolvency; registers of deeds; sheriffs and their deputies; constables;
11 marshals of the United States and their deputies, and all other officers
12 of the United States; attorneys at law; settled ministers of the gospel;
13 officers of colleges; preceptors and teachers of incorporated academies;
14 registered practicing physicians and surgeons; cashiers of incorporated
1.5 banks; constant ferrymen; persons over sixty-five years of age; mem-
16 bers of the volunteer militia; members of the Ancient and Honorable
17 Artillery Company; superintendents, officers and assistants employed
18 in or about a state hospital, insane hospital, jail, house of correction,
19 state industrial school or state prison; keepers of lighthouses; con-
Qualifications
and exemp-
tions.
C. L. 55, § 2;
14S. § 4; 352.
1784,7, §§2,9.
17S5, 42, § 4.
1802,92. § 1.
1807, 140, § 1.
1808, 25.
1812, 141. § 2.
R. S. IS, § 17;
95, §§ 1-3.
183S, 21.
1849, 218. § 8.
1851, 204.
1858, 93, § 2.
G. S. 132,
§§ 1,2.
1864,215.
1874, 320, § 17.
P. S. 170,
§§1.2.
1896. 427.
R. L. 176. § 1.
9 Mass. 107.
19 Pick. 368.
20 Pick. 1.
121 Mass. 69,
93
14.3 Ma-ss. 130.
163 Ma«3. 453.
2520
JURIES.
[Chap. 234.
ductors and engine drivers of railroad trains; teachers in public schools; 20
enginemen and members of the fire department of Boston, and of other 21
cities and towns in which such exemption has been made by vote of the 22
city council or the inhabitants of the town, respectively. 23
whe^"^' Section 2. A person attending and serving as a juror in any court
c! L 87] § 5. ill pursuance of a draft shall not be liable to be drawn or to so serve
1^^4-5. 24, 1 0. again within three years after the termination of such service, except
1749-60, 5,' § 2. in Nantucket and Dukes counties, in which he shall be so liable once in
1756-7, 13. § 3.
1759-60, 29, §3. every two years.
1S02, 92. § 5. 1825, 176. § 1. R. L. 176. § 2.
1807. 140, §§ 1, 4, 5. R. S. 95, §§ 12, 38. 16 Mass. 220.
1812. 141, §2. G. S. 132, §§3, 4. 8 Pick. 504.
1824, 119, §1. P. S. 170, §§ 3. 4.
Limit of
service in
SuEfolk.
1822. 13. § 3.
R. S. 86. § 7.
G. S. 132. § 10.
1873, 44.
Section 3. A person shall not serve as a traverse juror in Suffolk 1
county more than thirty days at any sitting of the court, except to 2
finish a case commenced within that time, nor in the trial of criminal 3
cases at more than one sitting thereof during the year. 4
1879. 76. R. L. 176, § 3. 1906, 257.
P. S. 170, § 5. 1904, 307. § 1. 128 Mass. 458.
Preparation
of lists.
1736-7. 10. 5 1.
1741-2, 18.
§§ 1.4.
1749-50, 5,
§§1.4.
1756-7, 13,
§§ 1,4.
1759-60,29,
§§1,4.
1784, 7, § 2.
1802,92, § 1.
1807, 140, § 1.
1812,141, § 2.
1822, 13. § 6.
1824,119, § 2.
1825, 176, § 2.
R. S. 95, §§4,
34.
G. S. 132, §§6.
21.
1876, 207,
P. S. 170, §1 6,
23, 24.
1891,131.
1897,515. § 1.
R. L. 176, I 4.
1907,348, I 1.
7 Met. 326.
207 Mass. 259.
Decision in
Boston in case
of dispute.
1907, 348, § 4.
Removal for
failure to
comply.
1907, 34S, 5 2.
Section 4. The board of registrars of voters in cities, the board of 1
election commissioners in Boston, and the board of selectmen in towns 2
shall annually, before July first, prepare a list of such inhabitants of the 3
city or town, of good moral character, of sound judgment and free from 4
all legal exceptions, not absolutely exempt from jury service, as they 5
think qualified to serve as jurors. But in cities the board shall not place 6
the name of any person on said list until after having fairly and fully 7
investigated by inquiries at his place of residence and business or efn- 8
ployment, or by other means, his reputation, character and fitness for 9
such service. The chief of police or the police commissioner, or the 10
officer having charge of the police, shall, upon request, give the board 11
all possible assistance in making such investigation. Upon request of 12
the board, or any member thereof, any person shall answer all questions 13
and give such information as he may have relating to the character or 14
fitness for jury service of any person concerning whom such request is 15
made, which information shall be confidential. To the name of each 16
juror on said list shall be appended his place of residence and of busi- 17
ness or occupation. Such list shall include not less than one juror for 18
every one hundred inhabitants, nor more than one for every sixty in- 19
habitants, according to the latest census, state or national, but in Nan- 20
tucket or Dukes county it may include one for every thirty inhabitants. 21
In Boston if any question concerning the preparation of such list 22
arises, as to which the board of election commissioners are equally 23
divided, it shall be referred to the chief justice of the municipal court of 24
the city of Boston, or, in case of his absence or disability, to the senior 25
justice thereof, and his decision on the question shall be final. 26
Failure by a registrar of voters or election commissioner to comply 27
with the requirements of this section shall be sufficient ground for his 28
removal from office. 29
urts'de1i?Ly SECTION 5. Jury Hsts prepared as above provided shall annually, 1
ira^^^^io'"' before August first, be printed with the address and occupation of each 2
§§ 1.4.' ' juror, and a copy thereof shall be delivered to the mayor or selectmen 3
1741-2, 18. 1 1. ■• ' '^•' •'
Chap. 234.] jukies. 2521
4 and to the clerk of the city or town to which such list relates, and to 1749-50,5,
5 the clerks and assistant clerks of the supreme judicial and superior 1759-60,29,
6 courts in the county where such city or town is situated, to be kept by ff^', 7, j 2.
7 said clerks and assistant clerks for the use of said courts.
ISO2, 92. § 1. 1856. 125. 1894, 514. § 2.
1807. 140, § 1. G. S. 132, §1 7, 21. 1897,615,12.
1812.141,5 2. 1876,207. R. L. 176. § 5.
R. S. 95. § 5. P. S. 170, §§ 7, 23, 24. 1907. 348. 5 5.
1855, 167. 1888, 133. 207 Mass. 259.
1 Section 6. If a list prepared as provided in this chapter includes Revision of
2 less than one juror for every one hundred inhabitants of a city, said isss!"!.?!"'^'
3 registrars of voters or board of election commissioners shall prepare n^l\ l-f,] 1 1\
4 and submit as aforesaid a further list and like proceedings shall be had ^^°^' ^''^' ^ ®-
5 as in the case of the original list, until the required number of jurors is
6 obtained.
1 Section 7. The aldermen or selectmen shall cause the names on Deposit of
2 the list as completed to be ■nTitten each on a separate ballot and shall mS^7"io°i'i.
3 roll or fold the ballots so as to resemble each other as much as possible Ifl't ^*'
4 and so that the name written thereon shall not be visible on the outside, jj^i*,"!."' ^'
5 and shall place the ballots in a box kept by the city or town clerk for 51^^"^' ^^^
6 that purpose.
1759-60,29. §1. 1802,92.5 1. G. S. 132. § 8. 1897. 515. § 5.
1784, 7. § 2. 1812. 141. § 2. 1876. 207. R. L. 176, § 7.
1793, 63, §4. R. S. 96, §6. P. S. 170, |§ 8, 25. 1907,348,17.
1 Section 8. If a person whose name has been so placed in the jury withdrawal
2 box is convicted of a scandalous crime or is guilty of gross immorality, i7s'4,'7r§ 2.
3 or is found by the justice holding court to be unqualified or unfit to iso?! i4b,S'2.
4 serve as a jm-or, he may be relieved by said justice from sitting in any §; §; ?t2,\'^9
5 case, or liis name ordered by the justice to be stricken from the jury list. J^^j y°^ |^
R. L. 176, I 8. 1907, 348. | S.
1 Section 9. The jury lists in cities shall be published as a public Publication.
2 document, with the address and occupation of each juror; and in towns, i897;si5! |4.'
3 the list with the occupation of each juror shall be published in the annual ^' ^' ^^^' ^ ^'
4 town report.
venires.
1 Section 10. The clerks of the supreme judicial and superior courts writs of
2 shall, before each sitting and at such other times as the respective courts a "i.'^'srrri'
3 may order, issue writs of venire facias for jurors, requiring their at- §'4?2^'§'4'/'
4 tendance on such day of the sitting as the court may order. The 1^1^% jg .g
5 number of jurors requhed by such writs shall be apportioned among the JJi?-S°\5' | ?•
6 cities and towns, as nearly as may be, according to their respective J^^g-eo.
7 populations.
29. § 5.
1784. 7. § 1. 1820. 79, § 8. P. S. 170. §§ 10, 11.
1807. 140. § 3. R. S. 95. §§ 13, 14. R. L. 170. § 10.
1817, 63, §3. G. S. 132, §§ 10, 11. 180 Mass. 492.
1 Section 11. The venires shall be delivered to the sheriff of the Service.
2 county to be transmitted by him to a constable in each of the cities §§i.'2. '
3 and towns to which they are respectively issued, who shall forthwith legglnoo.' iV'
4 serve them in cities on the board authorized to draw jurors and in towns 1*^1' ^ *'■
5 on the selectmen and town clerk. 1741-2, is, § 5. 1749-50. 5, § 5.
1756-7.13.5 5. 1807, 140, §4. P. S. 170. §§ 12, 2S.
1759-60. 29. § 5. 1822. 13. 1897. 515. § 7.
1784,4. §§ 1,2; 7, 111,8. R. S. 95. §§ 15, 33. R. L. 176, i 11.
1802, 92, § 2. G. S. 132, §J 12, 22. 189 Mass. 457.
2522
JURIES.
[Chap. 234.
Add itional
venires.
1713-4,5.
1737-8, 20.
1741-2, 18,
1749-50. 5,
Section 12. Either court may issue venires for additional jurors 1
wlien necessary for the convenient despatch of its business. They 2
shall be served and returned, and the jurors required to attend on'such 3
1756-7, 13, Is. days, as tlie court orders. 1759-00,29,58. 1807, uo, §7. 4
R. S. 95, § IS.
G. .S. 132, § 13.
P. S. 170, § 13.
R. L. 176, § 12.
Pro\'ision9 for
Dukes county.
1852, 75.
G. S. 132, § 14.
P, S. 170, § 14.
R. L. 176, § 13.
Provisions for
Bristol.
1878,151, §3.
P. S. 170, § 15.
R. L. 176, § 14.
Jurors from
Nantucket
and Dukes
county.
1878, 151, § 3.
P. S. 170, § 16.
1891,379, § 1.
R. L. 176, I 15.
Section 13. If a case is pending in the superior court for Dukes 1
county, in whicli the inhabitants of a towTi in said county are disquali- 2
fied from serving as jurors, a justice of the court may order the clerk 3
thereof to issue ■RTits of venire facias for a sufficient number of jurors to 4
try such case, from any town whose inhabitants are not so disqualified. 5
Section 14. At the sittings of the supreme judicial court in Bristol 1
county for which jurors are summoned to attend, one or more jurors 2
from Nantucket county and at least four from Didces county shall be 3
summoned, the venires for which shall be issued by the clerk of the 4
courts for Bristol county. The cost of their travel and attendance shall 5
be paid by the counties from which they are summoned. (>
Section 15. For the trial of an indictment found and returned in 1
Nantucket or Dukes county for a capital crime, such number of jurors 2
as a justice of the superior court may order shall be summoned from 3
said counties, respectively, and the cost of their travel and attendance 4
shall be paid by the counties from which they are summoned. 5
Venires in
Barnstable,
1889, 173.
R. L. 176, 5 16.
Section 16. No venires for the drawing and simamoning of jurors I
for the sitting of the supreme judicial comt for Barnstable county shall 2
be issued unless at the time for their issue there shall be one or more 3
cases to be tried thereat by jury. 4
Drawing of
jurors.
1807,
, 139, § 5.
R. S.
95, § S.
Drawing of
jurors in
cities
1822,
13, § 5.
R.S.
9iS, 5 35.
G.S.
132, § 22.
1876,
207.
P.S.
170. § 25.
1894,
514, § 1.
1897,
51.5, § 7.
R.L.
17G, § IS.
DRAWING .AND SUMMONING OF JURORS.
Section 17. All jurors shall be selected by drawing ballots from the 1
jury box.
1897, 515, § 7,
G. S. 132, § 15.
R. L. 176. § 17.
P, S. 170, § 17
1919, 333, § 19.
1920, 2.
Section 18. If jurors are to be drawn in a city, the mayor and
city clerk shall meet with the aldermen at its regular place of meeting.
The ballots in the jury box shall be shaken and mixed and one of the
aldermen, designated by the mayor, shall, without seeing the names
written thereon, openly draw a niunber of ballots equal to the number of
jiuors required. He shall announce clearly and distinctly the names of
the jurors so drawn, and shall then hand the ballots drawn by him to
the mayor, who shall examine and verify them. The mayor shall then
hand such ballots to the city clerk, who shall announce clearly and
distinctly the names upon the ballots and return the same to the jury 10
box, after making the endorsements thereon required by law, and the 11
names so drawn shall be recorded as part of the proceedings and shall 12
be published if and when the proceedings are published officially. In 13
the absence of the mayor, the chahman or president of the board of 14
aldermen shall perform the duties required of the mayor by this section. 15
Same in
towns.
1741^2 IS 1 2 clerk and selectmen shall meet at the clerk's office or at some other
Section 19. \'\Tien jurors are to be drawn in a town, the town 1
Chap. 234.] jxjeies. 2523
3 public place appointed for the purpose, and, if the clerk is absent, the 1749-50, 5, § 2.
4 selectmen may proceed without him. The ballots in the jury box shall 1759^60,^^' ^ ^'
5 be siiaken and mi.xed and one of the selectmen, without seeing the names ngf, 7. § 4
6 written thereon, shall openly draw therefrom a nmnber of ballots equal Jso^'isqS's
7 to the number of jurors required.
R. S. 95, § 9. G. S. 132, § 16. P. S. 170, § 18. R. L. 176, § 19.
1 Section 20. If a person drawn as provided in the two preceding Return ot
2 sections is exempt or unable by reason of illness or absence from home 1736-7, lo.Ti.
3 to attend as a juror, or has so served in any court within the time pro- nssly^ia,' 1 2.
4 vided in section two, his name shall thereupon be retm-ned to the box 29f§~2°'
5 and another drawn.
1784, 7, § 4. R. S. 95. « 9, 35. 1897, 515, § 7.
1793, 63, § 5. G. S. 132, |§ 16, 22. R. L. 176, § 20.
1807, 139, § 5. P. S. 170, §§ 18, 25. 171 Masa. 459.
1 Section 21. If a person is drawn and returned to serve as a juror Endorsement
2 in a court, the selectmen or the city clerk, respectively, shall endorse i74i-2°i'8, § 2.
3 on the ballot the date of the draft and return it to the box; and when nssly^is; 1 1;
4 there is a revision and renewal of the ballots in the box, the date of all 29°§"2°'
5 the drafts made within the time provided in section two shall be trans- \l^*- ^^§| f '■
6 ferred to the new ballots.
1807. 139, § 6. G.S. 132, §§ 17, 22. 1897, 615, § 7.
R. S. 95, §§ 11, 35. P. S. 170, §§ 19, 25. R. L. 176, § 21.
1 Section 22. If a town at a meeting votes that drafts for jurors shall ,^\o^n'^''""
2 be made in open town meeting, they shall be so made by the selectmen "//^gg 5 2
3 in the manner provided in the tliree preceding sections. When in such 1756-7, is! § 3.
4 town a \enire is served upon the selectmen, they shall cause a town i784, 7, m.'
5 meeting to be notified and warned for the purpose in the maimer ordered iso7,' 139, §§4,
6 by the town or otherwise provided by law. ^' ^^'
R. S. 95, §§ 10, 15. G.S. 132, §18. P. S. 170, § 20. R. L. 176, §22.
1 Section 23. The meeting for drawing jurors shall be not less than Meetings for
2 seven nor more than twenty-one days before the day when the jurors jiI?ms°^
3 are required to attend. 1741-2, is, § 5. 1749-50, 5, § s.
1758-7, 13. § 5. 1807, 139, §4. P. S. 170, §§ 21, 25.
1759-60, 29, § 5. R, S. 95, §§ 16, 35. 1897, 515, § 7.
1784, 7, § 5. G. S. 132, §§ 19, 22. R. L. 176, § 23.
1 Section 24. The constable shall, four days at least before the time Summoning
2 when the jurors are required to attend, summon each person who is returnS''"
3 drawn, by reading to him the venire with the endorsement thereon of 1736-7, 10, § 2.
4 his having been drawn, or by leaving at his place of abode a written irtglsb,'!,'!!;
5 notice of his having been drawn and of the tmie and place of the sitting }7t^eo'29\1i
6 of the court at which he is required to attend, and shall make a return i^s4,4,^§§ 1,
7 of the venire with his doings thereon to the clerk of the court, before 1S07', 139. § a.
8 the sitting of the court by which it was issued.
R. S. 95, § 17. P. S. no, 5 22. R. L. 176, § 24. 143 Mass. 80.
G. S. 132, § 20. 1897, 515, § 7. 13 Met. 316. 189 Mass. 457.
GENER.\L PROVISION.S.
1 Section 2.5. On the day when jurors are summoned to attend at inipaneiiing.
2 court for the trial of civil or criminal cases, except capital cases, the R. s.'gs, '
^ ^ §§20,23.
G.S. 132,
3 clerk of the court shall cause the name, place of abode and occupation
4 of each person so summoned to be WTitten on separate ballots, sub- il8^i^'3oo'.
23, 25, 26.
2524
JURIES.
[Ch-vp. 234.
p. S. 170,
§126,28-31.
1897,515. § S.
R. L. 176,
§25.
6 Met. 224.
135 Mass. 521.
203 Mass. 493.
211 Mass. 150.
stantially of uniform size, and shall cause them to be placed in a box 5
provided therefor. Wlien a case is ready for trial the clerk in open 6
court, after shaking the ballots thoroughly, shall draw them out in 7
succession until the names of twelve are drawn who appear and are 8
not excused or set aside. The twelve men so dra^Ti shall be duly sworn 9
and impanelled and shall be the jury to try the issue, and one of them 10
shall be appointed foreman by the court. The ballots containing names 11
of the jurors so sworn shall be kept apart by the clerk until the verdict 12
of such jury has been recorded or such jury has been discharged, M'hen 13
such ballots shall be returned to the box. If a case is ready for trial 14
before the verdict in the preceding case has been recorded or the jury 15
discharged, the court may order a jury for the trial of such issue to be 16
impanelled by the drawing in the manner aforesaid of ballots from 17
those remaining in the box. 18
Same in
capital cases,
IS- 3. 308.
PS. 170. §3
1897, 515, 5 )
R. L. 176, § :
Section 26. If a jury is to be impanelled for the trial of a capital 1
case, tlie clerk of the court shall cause the name of each juror sum- 2
moned therein to be ^Titten on a separate ballot and each ballot to be 3
folded uniformly in such manner that the name written thereon shall 4
not be visible, and shall cause such ballots to be placed in a box pro- 5
vided therefor. He shall then in open court draw the ballots in sue- 6
cession from said box, and the twelve persons whose names are upon 7
the ballots first drawn and who are not excused or otherwise set aside, 8
shall be sworn as the jury for the trial of the case. 9
Talesmen.
1699-1700. 1,
§4; 2, §4;
3. §5.
1784, 7. § 6.
1807, 140, § 7.
R. S. 95,
§§ 24-26.
G. S. 132,
§§ 27, 28.
P. S. 170,
H 33, 34.
R. L. 176, § 27.
6 Cush. 174.
Section 27. If, by challenge or otherwise, a sufficient number of 1
jurors duly drawn and summoned cannot be obtained for the trial of 2
a case, the court shall cause jurors to be returned from the bystanders 3
or from the county at large, to complete the panel, if there are on the 4
jury not less than se\en of the jurors who were originally drawn and 5
summoned as before provided. The jurors from the bystanders shall 6
be returned by the sheriff or his deputy or by a disinterested person 7
appointed therefor by the court, and shall be such as are qualified and 8
liable to be drawn as jurors. 9
Examination
of jurors.
B. L. 30.
C. L. 152. § 3.
1736-7, 10. § 5.
1741-2. 18. § 7.
1749-50. 5. § 7.
1756-7. 13, § 7.
1759-60,
29, § 7.
1784, 7. § 8.
1807. 139, § 9.
R. S. 95, § 27.
G. S. 132, § 29.
P. S. 170, § 35.
Section 28. Upon motion of either party, the court shall, or the 1
parties or their attorneys may under the direction of the court, examine 2
on oath a person who is called as a juror therein, to learn whether he is 3
related to either party or has any interest in the case, or has expressed 4
or formed an opinion, or is sensible of any bias or prejudice, therein; 5
and the objecting party may introduce other competent evidence in 6
support of the objection. If the court finds that the juror does not 7
stand indifferent in the case, another shall be called in his stead. 8
1887, 149.
R. L. 176. § 28.
16 Pick. 153.
13 Met. 120.
5 Cush. 295.
6 Cush. 174.
4 Gray, 18.
6 Grav, 343.
113 Aiass. 297.
118 Mass. 531.
139 Mass. 56, 315.
140 Mass. 425.
143 Mass. 130.
145 Mass. 242.
157 Mass. ISO, 510.
159 Mass. 56.
209 Mass. 396.
212 Mass. 438.
215 Mass. 143.
219 Mass. 1.
231 Mass. 10.
Peremptory
challenges.
1776-7, 32,
§ 13.
1795, 45, § 3.
R. S. 137,
§§ 3-5.
Section 29. Upon the trial of an indictment for a crime punishable 1
by death or imprisonment for life, each defendant shall be entitled to 2
twenty-two peremptory challenges of the jurors called to try the case, 3
and in other criminal cases each defendant shall be entitled to two 4
CfL-vp. 234.] JURIES. 2525
5 such challenges. In every criminal case the commonwealth shall be g. s. 172.
6 entitled to as many such challenges as equal the whole number to which 1862,84. § 1
7 all the defendants in the case are entitled. In a civil case each party isog^isi;
8 shall be entitled to two such challenges. Peremptory challenges shall }|75;f67;
9 be made before the commencement of the trial and may be made after h fg^™'. 214
10 the determination that a person called to serve as a jiu-or stands in- §§ 5, 6.
11 different in the case. is95, 120.
R. L. 176, § 29. Ill Mass. 439. 203 Mass. 493.
11 Allen, 668. 124 Mass. 32. 207 Mass. 259.
103 Mass. 412. 152 Mass. 397. 208 Mass. 202.
107 Mass. 216. 202 Mass. 535. 219 Mass. 1.
1 Section 30. In indictments and penal actions for the recovery of a interest not
2 forfeiture, it shall not be a cause of challenge to a juror that he is liable when.""" ' ^'
3 to pay taxes in a county, city or town which may be benefited by such §; 1; ^li.^^lb.
4 recovery. P- s. i70. § 38.
R. L. 176, § 30. 9 Met. 572. 2 Allen, 402.
5 Mass. 90. 1 Gray, 472. 147 Mass. 585.
1 Section 31. If a party knows of an objection to a juror in time to objections,
2 propose it before the trial and omits so to do, he shall not afterward r.s°95!'§''29.
3 make the same objection, unless by leave of the court.
G.S. 132, §31. 1 Pick. 38. 2 Gray, 281.
P. S. 170. §39. .21 Pick, 456. 114 Mass, 103.
R. L. 176, § 31. 2 Met. 558.
1 Section 32. No irregularity in a writ of venire facias or in the draw- irregularities.
2 ing, summoning, returning or impanelling of jurors shall be sufficient a. s. 132, § 32.
3 to set aside a verdict, unless the objecting party has been injured thereby r. l.V7'6,V32.
4 or unless the objection was made before the verdict. 2 Pick. 550. ^ ^"=''- ^*' ^^'^•
9 Met. 572. 121 Mass. 93. 139 Mass. 381. 203 Mass. 493.
1 Section 33. If either party to a case at the sitting at which a ver- Gratuities.
2 diet is returned, either before or after the trial, gives to any of the jurors r. s.'os, § 31. '
3 who try the case anything by way of treat or gratuity, the court may, p.'s.i7o,'§4i.'
4 upon motion of the adverse party, set aside the verdict and award a new 2 AUenlssl.^^'
5 trial.
1 Section 34. If a jury, after due and thorough deliberation, return Jury not to
2 to court without ha^•ing agreed on a verdict, the court may state anew more than
3 the evidence or any part thereof, explain to them anew the law applicable etc.'"'' "" ''^^'
4 to the case and send them out for further deliberation; but if they R.f.'9.5,^§y^'
5 return a second time without having agreed on a verdict, they shall pfiyo'lll'
6 not be sent out again without their own consent, unless they ask from ?j4i/"3*37^ ^*'
7 the court some further explanation of the law. 13 Alien, 4ii.
no Mass. 70. 116 Mass. 37. 367. 123 Mass. 254.
115 Mass. 567. 122 Mass. 477. 164 Mass. 440.
1 Section 35. The court may, upon motion, allow the jury in a civil J^^y^'^
2 case to view the premises or place in question or any property, matter J^gf^y Ig
3 or thing relative to the case if the party making the motion advances iso7,'i39,§8.
4 an amount sufficient to defray the expenses of the jury and the officers i37^'§ 16.
5 who attend them in taking the view, which shall be taxed as costs, if i72'!'§ o. '
6 the party who advanced them prevails. The court may order a view by 214^ § ii'. ^ *^"
7 a jury impanelled to try a criminal case. R. l. i76, § 35.
5 Cush. 295. 157 Mass. 579. 186 Mass. 582.
134 Mass. 499. 174 Mass. 245. 194 Mass. 250.
2526
JURIES.
[Chap. 234.
Penalty for
neglect to
attend.
C. L. 55. § 2.
1694-5, 24,
§§2-4.
1698. 13.
1741-2. IS, §
1749-50, 5, §
PENALTIES.
Section 36. A person duly drawn and summoned as a juror in a 1
court who neglects to attend without sufficient cause shall be punished 2
by a fine of not more than forty dollars, to be imposed by the court 3
to which the juror was summoned, to the use of the county where the 4
offence is committed. 5
175R-7, 13, § 6.
1759-00.29, §6.
17S4,4, §§ 1,2; 7, §7.
1S02, 92, § 3.
1S07, 139. § 17.
R. S. 95, § 19.
G. S. 132, § 36.
P. S. 170, § 44.
R. L. 176, § 36.
Penalty for
improperly
putting name
on jury list.
1907, 34S, § 2.
Section 37. '\Mioever, being a registrar of voters or an election 1
commissioner, shall put or cause to be put upon the jury list the name 2
of any person for any reason other than his judgment in good faith of 3
the qualifications and fitness of such person for such jury service shall 4
be punished by a fine of not more than five hundred dollars or imprison- 5
ment in the jail or house of correction for not more than one year. 6
Sidting'"^ Section 38. Wioever solicits or requests an election commissioner 1
oif fi?v fist"^ '^^ registrar of voters to put his or any other name upon a jury list shall 2
1907, 348, § 3. be punished by a fine of not more than five hundred dollars or imprison- 3
ment in the jail or house of correction for not more than one year. 4
Penalty on
officers, etc.,
for neglect.
1694-5, 24,
§§ 1,4.
1699-1700, 1,
§4; 2, §4;
3,5 5.
1784, 4, §§ 1,
2: 7, §§3, 7.
1807, 139, § 17.
Section 39. If, by reason of the neglect of a person upon whom 1
any duty is imposed by tliis chapter, jurors are not duly drawn and 2
summoned to attend a court, he shall be punished by a fine of not more 3
than twenty dollars, to be imposed by the court to which they should 4
have been summoned, to the use of the county where the offence is 5
committed. 6
R. S. 95, § 39.
G. S. 132, § 37.
P. S. 170. § 45.
R. L. 170, § 37
Penalty in
certain other
cases.
R. S. 95, § 40.
G. S. 132, § 38.
P. S. 170, § 46.
R. L. 176, 1 3S.
Section 40. If such neglect occurs with regard to jurors required to 1
serve on any occasion other than in the supreme judicial or superior 2
court, the officer before whom the jurors were required to appear shall 3
report the fact to the superior court for the same county, which, after 4
an examination and a hearing, may impose the fine provided by the 5
preceding section. 6
Penalty for
fraud in draw-
ing jurors.
1793, 63, § 5.
1807, 139. § 17.
R. S. 95. §41.
G. S. 132, § 39.
P. S. 170, § 47.
1894, 514, § 4.
R. L. 176, § 39.
Section 41. Whoever is guilty of fraud in the drawing of jurors, 1
either by tampering with the jury box previous to a draft or in draw- 2
ing a juror, or in returning to the box the name of a juror lawfully 3
drawn out and drawing or substituting another in his stead, or in strik- 4
ing a name from the jury list, or in any other way, shall be punished by 5
a fine of not more than five hundred dollars. 6
SPECL\L JURIES.
Special juries
not affected.
G I' 132^*40 ^^y officer or magistrate to summon and impanel jurors when other- 2
p. s. 170, § 48. -j^rise authorized
Section 42. This chapter shall not affect the power and duty of 1
R. L. 176, § 40. 3
REFERENCE.
Juror not to be disqualified because he is an inhabitant of Boston, Chap. 220, § 10.
Chap. 235.]
JUDGMENT AND EXECUTION.
2527
CHAPTER 235
JUDGMENT AND EXECUTION.
Sect.
1. Entry of judgment.
2. Same in inferior courts.
3. Same in summary process.
4. Judgment nunc pro tunc.
5. Assessment of damages by clerk.
6. Judgment on default.
7. Separate executions against different
defendants.
8. Interest on judgments, etc.
9. Judgment on forfeiture of a penalty.
10. Amount of execution upon judgment
for penal sum.
11. Scire facias to recover further damages.
12. Proceedings in actions for further dam-
ages.
13. Action for damages instead of penalty.
14. Executions in actions on judgments.
15. Execution if action in erroneous venue.
16. Execution not to issue within twenty-
four hours.
17. Execution to issue within one year.
18. Execution of district court valid
where directed.
19. Remedy after time for taking execution.
20. Proceedings after ineffectual le\T-
21. Proceedings after ineffectual le'VT on
member of corporation.
22. Form of execution.
23. Return of execution.
SPECIAL JUDGMENTS AGAINST BANKRUPTS
OB INSOLVENTS.
24. Special judgments against bankrupts or
insolvents.
25. Special judgment if insolvent, etc., has
given bond to dissolve an attach-
ment.
26. Special judgment upon bankruptcy,
etc., of petitioner for review.
SET-OFF OF EXECUTIONS.
27. Set-off of executions.
LEVY OF EXECUTION AND PERSONAL PROP-
ERTY EXEMPT THEREFROM.
28. Creditor may direct mode of service.
29. Levy on land and personal property.
Sect.
30. Le\'y on property of a corporation.
31. Property liable to execution.
32. Current coin.
33. Bank notes.
34. Property exempt from execution.
35. Indemnification of officer.
SALE OF PERSONAL PROPERTY TAKEN ON
EXECUTION.
36. Sale of personal property on execution.
37. Notice of sale.
38. Same, if value exceeds three hundred
dollars.
39. Adjournment of sale.
40. Adjournment upon injunction.
41. Re-sale.
42. Return of execution. Liability for
fraud.
43. Disposition of proceeds of sale.
44. Disposition among two or more cred-
itors.
45. Disposition upon successive attach-
ments.
I^VT ON THBMS FOR YEARS.
46. Levy on terms for years.
SUSPENSION OF LEVY.
47. Suspension of levy.
48. Same subject.
DEATH, ETC., OP OFFICER OR PARTY AFTER
COMMENCEMENT OF LEVY OR SERVICE.
49. Death, etc., of officer after beginning of
levy or service.
50. Removal of officer, etc., after beginning
of levy.
51. Death of party after beginning of levy.
PENALTY ON OFFICER FOR DETAINING
MONEY COLLECTED.
52. Penalty for detaining money collected.
1 Section 1. Judgments in civil actions and proceedings in the su- Entry of
2 preme judicial court shall be entered on motion unless the court by r.'^s.'Tt!*! i.
3 general or special order othemise orders. Judgments in ci\il actions cfl.'i33,'§S"'
4 and proceedings ripe for judgment in the superior court shall, unless R-'L.\V7,Vi-
5 the court by general or special order otherwise orders, be entered by {i^J^^^^'ss
6 the clerk at ten o'clock in the forenoon on the first Monday of each los Mass! 297.
2528
JUDGMENT AND EXECUTION,
[Chap. 235.
month, or on the following day if said Monday is a legal holiday, unless 7
212 Masa. 108. 8
176 Mass. 48.
204 Mass! 33i! the party entitled thereto otherwise requests in writing
218 Mass. 463.
219 Mass. 597.
227 Mass. 46.
231 Mass. 138.
Same in
inferior courts.
1S'I7. 431.
1898, 488.
R. L. 177, § 2.
221 Mass. 161.
Section 2. Judgment in civil actions and proceedings ripe for 1
judgment in district courts shall be entered at ten o'clock in the forenoon 2
on Friday of each week, but if a legal holiday occurs on Friday, at ten 3
o'clock in the forenoon of the Thursday preceding; or it may be entered 4
at any time in a case ripe for judgment upon notice and motion. 5
ma™p°oc"e^". Section 3. DistHct courts may by rule establish the time for the 1
r^^l! 177; § 3. entry of judgment in actions of summary process under chapter two 2
hundred and thirty-nine which are ripe for judgment. 3
Judgment nunc
pro tunc.
1S42, 89, I 2.
G. S. 115, § 14;
133, § 7.
P. S. 1.53, § 20;
171, § 7.
Section 4. Every judgment, order or decree of the supreme judicial 1
or superior court shall bear date of the year, month and day when en- 2
tered; but the court may order it to be entered as of an earlier day 3
than that of entry. 4
1885. 3S4, § 13.
R. L. 177. § 4.
7 Mass. 393.
12 Gush. 319.
106 Mass. 339.
116 Mass. 275.
122 Mass. 176.
128 Mass. 296.
137 Mass. 221.
155 Mass. 86.
225 Mass. 392.
Assessment of
damages by
clerk,
R. S. 97, 5 4.
G. S. 133, § 4.
P. S. 171, §4.
R. L. 177, § 5.
Section 5. In an action upon a promissory note or other contract 1
where the amount due appears to be undisputetl, the debt or damages 2
may be ascertained and assessed by the clerk under a general order of 3
the court or by special reference to him. The judgment in either case 4
shall be entered in the same form as if awarded on an assessment or .5
computation made by the court. 6
Judgment on
default.
R. S. 100, § 6.
1851, 255, § 1.
G. S. 133, § 5.
P. S. 171, §5.
R. L. 177, § 6.
12 Gush. 486.
13 Allen, 217.
Section 6. In an action against two or more defendants upon a 1
contract express or implied, the plaintiff shall be entitled to judgment 2
against such defendants as are defaulted and against those who upon 3
trial are found liable, although it is found that all the defendants are 4
not jointly liable. 121 Mass. 347. 5
131 Mass. 397.
164 Mass. 504.
201 Mass. 451.
205 Mass. 80.
212 Mass. 392.
214 Mass. 374.
221 Masa. 259.
231 Mass. 472.
235 Masa. 301, 471.
Separate exe-
cutions
against dif-
ferent defend-
ants.
1851, 255, § 2.
G. S. 133, § 6.
P. S. 171, § 6.
R. L. 177. § 7.
Section 7. If in such action any defendants are defaulted, and upon 1
trial any of the others are found liable, the court shall render judgment 2
both against those defaulted and those found liable for the debt or 3
damages, with costs to the time of the default, and against those who 4
defend, for all costs which accrue after the default; and shall issue sep- 5
arate executions on such judgment. 6
Interest on
judgments, etc.
1847, 153.
1849, 124.
G.S. 133, § 8.
P. S. 171, § 8.
R. L. 177, § 8.
2 Allen, 502.
6 Allen, 243.
116 Mass. 196.
136 Mass. 344.
139 Mass. 360.
159 Mass. 383.
185 Mass. 4.
191 Mass. 570.
193 Mass. 257.
207 Mass. 424.
209 Mass. 388.
Section 8. When judgment is made up upon an award of county 1
commissioners, a committee or referees, or upon the report of an auditor 2
or master in chancery, or upon the verdict of a jury, interest shall be 3
computed upon the amount of the award, report or verdict, from the 4
time when made to the time of making up the judgment. Every judg- 5
ment for the payment of money shall bear interest from the day of its 6
rendition. The warrant or execution issued on a judgment for the pay- 7
ment of money shall specify the day upon which judgment is rendered, 8
and shall require the collection or satisfaction thereof with interest from 9
the dav of its rendition. 228 Mass. i. 10
ClL^P. 235.] JUDGMENT AND EXECUTION. 2529
1 Section 9. If in an action for a breach of the condition of a bond, Judgment on
lorieiture oi
2 or to recover a penalty for the non-performance oi a covenant, contract j„Ss°2*"^'s
3 or agreement, it is found that the condition has been broken or the us^e^i.
4 penalty forfeited, judgment shall be entered for the penal sum, but exe- iras, 7?, § e.
5 cation shall issue only as provided in the follo'wing sections. ' • ^"^^ * ^•
G. S. 133, §9. llGrav. 212. 98 Mass. 515. 185 Mass. 349, 582.
P. S. 171, § 9. 12 Allen, 243. lUO TSIass. 191. 211 Mas.s. 22.
R. L. 177, § 9. 97 Mass. IS. 136 Mass. 226. 22S Mass. 581.
1 Section 10. The court shall award an execution for so much of the Amount ot
2 penal sum as is then due and payable in equity and good conscience for Judgment for°"
3 the breach of the condition or other non-performance of the contract. i69s,'22r§i.
4 The amount shall be determined by the court, unless a jury trial was }J||; ^^^ | J;
5 claimed under section sixty of chapter two hundred and thirty-one or g- 1- ^^o. § 9^
6 is ordered by the court. p. s. i71, § lo.
R. L. 177. § 10. 100 Mass. 191. 148 Mass. 562. 206 Mass. 270.
I Mass. 10. 105 Mass. 44. 152 Mass. 568. 211 Mass. 22.
7 Met. 116. 135 Mass. 591. 155 Mass. 203. 213 Mass. 437.
13 Gray, 157. 136 Mass. 174, 226. 185 Mass. 349, 582. 215 Mass. 243.
1 Section 11. If a further amount after^vard becomes due on such scire facias
rt 1 1 1 1 1 • • rv 1 • 1 • ■ *" recover fur-
2 bond or other contract, the plaintiii, his executor or administrator may ther damages.
3 ha\'e a writ of scire facias on the judgment from the court where it iras, 77, § 6.
4 was rendered against the original defendant, his executor, administrator, g^s! ns. § 11!
5 heirs, devisees or assigns, stating a further breach of the contract and R.L.nV.Vu.
6 summoning the adverse party to show cause why execution should not
7 be awarded upon the judgment for the damages caused by such further
8 breach.
1 Section 12. The amount due in such action shall be determined fc't^oM^fof /„"-
2 and execution awarded in the same manner as in the original action; j^lg "^j"? I*"^-
3 and such proceedings may be repeated upon further breaches until the R. s.'ioo, § ii.
4 penalty is exhausted. G. s. 133, § 12. p. s. ni. § 12. r. l. 177, § 12.
1 Section 13. The four preceding sections shall not prevent a person Action for dam-
2 from bringing an action for the breach of a co\-enant or other contract, pfn3lt>^'"' °
3 instead of suing for the penalty by which the performance of the cove- r.°|.' io6,Vi2.
4 nant or contract was secured.
G. S. 133, 5 13. P. S. 171, § 13. R. L. 177, J 13.
1 Section 14. If a judgment is rendered for the plaintiff by a court in Executions in
2 an action founded on a judgment rendered by a different court, execu- fudEmcnt".
3 tion shall not issue until the plaintiff files with the court rendering the R^i^'jyy 1 54
4 judgment in the later action a transcript of the record of the judgment i9i7.326.
5 in the earlier action under the seal of the court rendering it, attested by
6 the clerk of such court.
1 Section 15. If judgment is rendered in a local action brought in an Eiecutionif
2 erroneous venue, the court shall cause its writ of possession or other neo'us'venue!°"
3 writ of execution to be directed to the sheriff of the proper county. I^^'e.^^^'
1852, 312, § 79. P. S. 171, § 14. 102 Mass. 370.
G. S. 133, § 14. R. L. 177, § 15. 130 Mass. 335.
1 Section 16. No execution shall issue within twenty-four hours after Execution not
2 the entry of judgment. c. l. 3, § 9. f°™t>-four'''''
1701-2. 5. § 10. R. S. G7, § 5. R. L. 177, § 16. liours.
1783, 57, f 1. G. S. l.-iS, § 15. 8 Met. 496.
1784, 28. I 15. P. S. 171, § 15. 190 Mass. 497.
2530 JUDGMENT .\ND EXECUTION. [ChAP. 235.
Sue"within° Section 17. An original execution shall not issue after the expira- 1
i692-3!24, §3. t^o^ o^ •'"^ y^^^ ^^^^'^ *^^^ party is first entitled to take it out; and an 2
}I|J"|-22-j alias or other successive execution shall not issue after the expiration 3
R. s.'97.'§6.' of five years from the return day of that which preceded it. AHas or 4
G. s.'i33, § 18. successive executions shall be of full force and effect for five years from 5
R.L. 177, § 18. the date thereof unless satisfied in whole or discharged by law, and 6
iss^Mat'a.Sk ^vithin ten days after satisfaction or discharge as aforesaid they shall be 7
returned to the court issuing them. S
dlstrSt °ou°rt Section 18. Executions issued by a district court may be served and 1
valid where shall be obcved in everv countv to which they are directed. 2
directed. . v v ^
1S76, 227. § 2. 1894, 398, § 2; 431. R. L. 177, § 17.
P. S. 1.54, § 32. 1895, 3S0. 1917, 326.
1893, 396, § 17.
ttm'e^fi^ taking Section 19. If a judgment remains unsatisfied after the expiration 1
iB92-3°24 § 3 ^f the time for taking out execution thereon, the creditor may have a 2
1772-1' 3^' ^^'"'^ °^ scire facias to obtain a new execution, or he may at any time 3
1773-4', ii( § 1. after the judgment, subject to section twenty of chapter two hundred 4
1795,' 61, 1 i. and sixty, have an action of contract thereon. 5
R. S. 97, §8. P. ,S. 171, § 17. 114 Mass. 76.
G. S. 133, § 17. R. L. 177, § 19. 174 Mass. 550.
rrterTnefffctuai Section 20. If an execution is returned satisfied in wliole or in 1
isi's 145 P^^* '-"y *^® ^^^^ ^^ propertj^ not liable to such execution, and if damages 2
R s.'97. §43. are recovered against the judgment creditor or the officer who served 3
p.'s.'i7_i,'§ 18.' the execution on account of the seizure and sale of such property, the 4
8 Alien,' 4'29. ' Creditor may have a writ of scire facias on his judgment, and shall there- 5
upon be entitled to a new execution for the amount then remaining 6
due him. 7
Tf't'erTneffectu.ai Section 21. If au exccution against a corporation is satisfied in 1
ofTonwa'tkin^'^ whole or in part by service or levy on the person or property of a 2
G*s'i33'5i9 member thereof, and the property levied on or damages for the service 3
p.'s.i7i.'§ 19.' or levy are subsequently recovered by such member from the officer or 4
R. L 177 5 ''I T. »/ *'
judgment creditor, the creditor may have a writ of scire facias on his 5
judgment, and shall thereupon be entitled to a new execution for the 6
amount then remaining due him. 7
mtwn°^''^^ Section 22. The forms of execution shall be the same as have 1
?78VII°'§\"' heretofore been established by law and the usage and practice of the 2
1784! 28! courts. Executions issued upon judgments in civil actions in favor of 3
97, §'§ 10, 11.' the commonwealth shall be in form like those in invor of natural persons. 4
G. s.'i33,'§§20, Executions issued by a district court for an amount as damages ex- 5
r's. 171, §§20, ceeding twenty dollars shall be so framed as to direct a levy upon the 6
r.'l. 177, § 22. lands and tenements of the debtor. Alterations in the forms may be 7
10 Me?32o made by the courts, subject to the final control of the supreme judicial 8
3 Cush. 460. court, which may by general rules regulate such changes in all courts of 9
X^^ IVXflSS. loo. Ill 1 r\
161 Mass. 135. the commonwealth. lOS Mass. 373. 229 Mass. 308. 10
fxeo'Ji't'ion^ Section 23. Original executions shall be made returnable within sixty 1
ulid' P' ^ '• ^^>'S a^ter their date. nss, 57, § 1. r. s. 97, § 9. 2
■ ■ 1850, 209. p. S. 171, § 22. 2 Met. 587.
1852, 312, § S3. R. L. 177, § 23. 163 Mass. 79.
G. S. 133, § 22. 1914, 54, § 2. 217 Mass. 71.
Chap. 235.] judgment .\nd execution. 2531
SPECIAL JUDGMENTS AGAINST BANKRUPTS OR INSOLVENTS.
1 Section 24. If a plaintiff would be entitled to a judgment or a decree, Special judg-
2 except for the bankruptcy or insolvency of the debtor or his discharge banlrupts'or
3 therein, and if, more than four months prior to the commencement of isss'sg'^'
4 proceedings in bankruptcy, or, in voluntary proceedings in insolvency, jf ^l' 177' § 24
5 more than four months prior to the time of the first publication of the J^9 ^m- |°g
6 notice of the issuing of the warrant, or, in in\'oluntary proceedings, iss Mass. 58.
7 more than four months prior to the first publication of the notice of the "
8 filing of the petition, or, in proceedings in composition in insolvency in
9 which no assignment has been made, more than four months prior to
10 the notice by the register to the creditors of the debtor's proposal of
11 composition, any property, estate, interest or money of a debtor has
12 been attached, or brought within the control of a court of equity by
13 proceedings under clause seven of section three of chapter two hundred
14 and fourteen, by other proceedings in equity, or by payment into court,
15 the court may at any time upon motion enter a special judgment or
16 decree for the plaintiff, for the amount of his debt or damages and costs,
17 or for such other relief as he may be entitled to, to be enforced in the
18 first instance only against the property, estate, interest or money, so
19 attached or brought within the control of a court of equity. If such
20 property, estate, interest or money shall be insufficient to satisfy the
21 judgment or decree in full, the court may thereafter, if the debtor's
22 discharge is refused, or if he shall unreasonably delay to prosecute
23 said proceedings to a discharge, order an alias or other successive execu-
24 tion or other process to be issued upon such judgment or decree for such
25 portion thereof as remains unsatisfied. The creditor may also in case of
26 such refusal or delay have a writ of scire facias or action as provided in
27 section nineteen. This section shall not impair the powers which courts
28 of equity may othera-ise exercise.
1 Section 25. If a plaintiff would be entitled to a judgment or decree Special judg-
2 except for the bankruptcy or insolvency of a defendant, or his discharge "ent, etcThag
3 therein, who has gi\en a bond to dissolve an attachment or to release dis™ive°an *°
4 money or property brought within the control of a court of equity in ists.'bs!'!*!.
5 any manner specified in the preceding section, which attachment was ^^s'ln'iii
6 made or money or property brought within control more than four i^'Ss. 405, 1 1
7 months prior to the commencement of proceedings in bankruptcy, or, in luo Mass'. 4r76.'
8 voluntary proceedings in insolvency, more than four months prior to 113 Mass! 332!
9 the first publication of the notice of the issuing of the warrant, or, in [It Mass! 67*'
10 involuntary proceedings in insolvency, more than four months prior to }ilMas9!228!
11 the first publication of the notice of the filing of the petition, or, in pro- J™ ^\^^^- H?^-
... ..... . , ■? , ' . 11 175 Mass. 559.
12 ceedings m composition in insolvency in which no assigimient has been |'? ?}''*''■ 2^?'
13 made, more than four months prior to the notice by the register to the 226 Mass! u. '
14 creditors of the debtor's proposal of composition, the court may at any sos.
15 time, upon motion, enter a special judgment or decree for the plaintiff,
16 which siiall be a sufficient judgment or decree, within the meaning of
17 the condition of the bond, if like that set forth in sections one hundred
18 and twenty and one hundred and twenty-five of chapter two hundred
19 and twenty-three, to enable him to maintain an action against the
20 sureties thereon.
1 Section 26. The court may enter a special judgment, with like specLai judg-
2 effect, if a defendant who petitions for a review is adjudged a bankrupt, brnkniptcy.
2532
JUDGMENT AND EXECUTION.
[CH.A.P. 235.
etc., of peti-
tioner for
review.
1875, 68. § 3.
1880, 246, § S.
P. S. 171, § 24.
1888, 405, § 3.
K. L. 177. § 26
or a warrant in insolvency is issued against his estate, or he is discharged 3
upon proceedings in composition if no assignment has been made, before 4
or after having given the security required upon such petition, and if 5
the attachment in the original action was not made within the time named G
in the preceding section. 7
Set-off of
executions.
1732-3. 12, §
1810, 84.
1830, 124.
R. S. 97,
§§ 74-76.
G. S. 133.
§§ 23-25.
P. .S. 171,
§§ 25-27.
R. L. 177, § :
7 Mass. 140.
105 Mass. 32
9 Met. 509.
13 Met. 482.
13 Mass. 525.
22 Pick. 210.
176 Mass. 161.
SET-OFF OF EXECUTION.S.
Section 27. Executions between the same parties may, if required 1
by either party, be set off one against the other. In such case, the 2
debtor in an execution which has been dehvered to an officer to be 3
served shall deliver his execution to the same officer, whether directed to 4
him or to another, and the officer shall apply the smaller execution, so 5
far as it will extend, to the satisfaction of the larger execution, and the 6
balance due on the larger execution may be collected and paid by him as 7
if there had been no set-off; but such set-off shall not be allowed — 8
176 Mass. 46. 215 Mass. 403. 219 Mass. 299.
First, If the creditor in one of the executions is not, in the same 9
capacity and trust, the debtor in the other. 10
Second, If the amount due on the first execution was lawfully and 11
in good faith assigned to another person before the creditor in the second 12
execution became entitled to the amount due thereon. 13
Third, If there are several creditors in one execution, from a part of 14
whom only the amount due on the other is due. 15
Fourth, If there are several debtors in one execution, to a part of 16
whom only the amount due on the other is due. 17
Fifth, As to the portion of either execution upon which the attorney 18
has a lien under section fifty of chapter two hundred and twenty-one. 19
LEVI" of execution AND PERSONAL PROPERTY EXEMPT THEREFROM.
dircct*modeof Section 28. If au cxccution is in the alternative, so that it may 1
R.'^.'^97. § 12. be lawfully served in any of two or more ways, the creditor or his at- 2
p' I'm' lis' torney may require the officer to serve it in any of said ways; and the 3
R. L. 177. § 28. officer shall conform to such directions if it is in his power. 4
11 Mass. 317.
3 Cush. 460.
2 Grav, 210.
3 Gray, 496.
236 Mass. 93.
Levy on land
and personal
property.
R. S. 97, §§ 16,
17.
G. S. 133, § 27.
p. S. 171, § 29.
Section 29. If the creditor directs an officer to levy his execution 1
on land, the officer shall serve it as provided in the following chapter. 2
If he directs the officer to levy it on the personal property of the debtor, 3
the officer shall serve it as provided in the following sections. 4
R. L. 177, § 29. 7 Mass. 123.
er^ty^of a^™''' Section 30. Au cxccution against a corporation, if levied upon its
r"s°97','§'42. property, shall be levied in the same manner as other executions, except
p lili.'flo' ^s provided in sections thirty-eight to forty-three, inclusive, of chapter
R. L. 177, § 30. Qne hundred and seventy-five and in chapter one hundred and fifteen
of the Ilevised Laws.
Section 31. All property which by common law is liable to be taken
on execution, may be taken and sold thereon, except as otherwise ex-
Property
liable to
execution.
R. S. 97. § 19.
G. s. 133, 1 29. pressly provided
^•^■^''•^^^- R.L.177,§31,
7 Mass. 438.
9 Mass. 537.
12 Mass. 505.
15 Mass. 534.
17 Mass. 405.
3 Pklv. 368.
8 Pick. 298.
7 Grav, 491.
13 Allen, 449.
116 M.ass. 410.
143 Mass. 123.
CiLVP. 235.] JUDGMENT AND EXECUTION. 2533
1 Section 32. Current gold or silver coin may be taken on execution, Current coin.
2 and may be paid to the creditor as money collected. . . , - .
G. S. 133, § 30. P. S. 171, § 32. R. L. 177, § 32. 16 Pick. 567.
1 Section 33. Bank notes and all other bills or evidences of debt, ^*g''g"°'?''.ii
2 issued by a moneyed corporation and circulated as money, may be g. s. 133, § 31.
3 taken on execution and paid to the creditor at their par value as money r'. l. 177, §33.
4 collected, if he will accept them ; otherwise, they shall be sold like other 1 piok.^lVi. "
5 chattels. 147 Mass. 81.
1 Section 34. The following property of the debtor shall be exempt Property ex-
„,. b f f J f eniptfrom
2 from seizure on execution: execution.
C. L. 104, § 8. 17.59-60, 12, | 4. G. S. 133, | 32. 135 Mass. 401.
169S. 11, § 5. 1762-3, 18, § 4. P. S. 171, § 34. 198 Mass. 315.
1732-3, 7. § 6. R. S. 97. § 22. R. L. 177. § 34. 207 Mass. 159.
1736-7, 13, § 7. 1SS7, 235. 6 Allen, 292. 96 U. S. 595.
1737-8, 17, § 7.
3 First, The necessary wearing apparel of himself and of his wife and JIJ^' 5°°' ^ ^•
4 children; one bedstead, bed and the necessary bedding for every two !p|;^*j7o
5 persons of the family; one iron stove used for warming the dwelling i9 Pick. '470.'
6 house, and fuel not exceeding the value of twenty dollars procured and
7 intended for the use of the family.
8 Second, Other household furniture necessary for him and his family, iso.5, 100, § 1.
9 not exceeding three hundred dollars in value. 4 Cush. 359.
11 Allen, 582. 113 Mass. 333. 167 Mass. 371. 207 Mass. 407.
10 Met. 506.
1874, 38.
10 Third, The bibles, school books and library, used by him or his family, 1805, 100, § 1.
11 not exceeding fifty dollars in value.
12 Fourth, One cow, six sheep, one swine and two tons of hay. I805, 100, § 1.
ISI'^17'2
15 Mass. 205. 2 Allen, 219. 134 Mass. 401. ioio, ii^.
11 Gray, 211. 8 Allen, 583.
13 Fifth, Tools, implements and fixtures necessary for carrying on his 1805, loo, §i.
14 trade or business, not exceeding one hundred dollars in value.
5 Mass. 313. 7 Gray, 67, 69. 6 Allen, 292. 108 Mass. 52.
13 Mass. 82. 12 Gray, 351. 9 Allen, 156. 123 Mass. 194.
2 Pick. 80. 2 Allen, 395. 14 Allen, 236. 134 Mass. 401.
10 Pick. 423. 3 Allen, 570. 101 Mass. 105. 173 Mass. 90.
6 Gray, 298. 5 Allen, 43, 148. 103 Mass. 181.
15 Sixth, Materials and stock designed and procured by him and neces- 1855,264.
16 sary for carrying on his trade or business, and intended to be used or 7Gmy!69. '
17 wrought therein, not exceeding one hundred dollars in value. 9 Gray, 62.
10 Gray, 242. 5 Allen, 148. 6 AUen, 292. 9 Allen, 156.
18 Seventh, Provisions necessary and procured and intended for the use 1839,75.
19 of the family, not exceeding fifty dollars in value. '^^' "
4 Allen, 157. 5 Allen, 158.
20 Eighth, One pew occupied by him or his family in a house of public i85i, 262.
21 worship; but this provision shall not prevent the sale of a pew for the
22 non-payment of a tax legally laid thereon.
23 Ninth, Boats, fishing tackle and nets of fishermen actually used by 1859, 142.
24 them in the prosecution of their business, not exceeding one hundred
25 dollars in value.
26 Tenth, The uniform of an officer or soldier in the militia and the iso9, 10s, § it.
27 arms and accoutrements required by law to be kept by him. 1878,205, § 70.
p. S. 14, § 72. R. L. 16, § 85. 1908, 604, §§ 106, 209.
1887, 411, § 71. 1905, 465, f§ 90, 194, 1912,67.
1890, 425, §8. 1906,504,5 7. 1917, 327, §§ 131, 230, 268.
1893, 367, § 71.
2534
JUDGMENT AND EXECUTION.
[ClL'\.P. 235.
1822, 93, § S.
1860, 65.
1 Allen, 283.
3 Allen, 570.
1870, 224, § 53.
1851,340, § 1.
1855, 23S. I 1.
1857, 298, I 1.
G. S. 104, § 1.
Eleventh, Rights of burial and tombs while in use as repositories 28
for the dead. 29
Twelfth, One sewing machine, in actual use by each debtor or by his 30
family, not exceeding one hundred dollars in value. 31
6 Allen, 292. 190 Mass. 265.
Thirteenth, Shares in co-operative associations subject to chapter one 32
hundred and fifty-seven, not exceeding twenty dollars in value in the 33
aggregate. 34
Fourteenth, Estates of homestead as defined in chapter one hundred 35
and eighty-eight. p. s. 123, §i. r. l. i3i,§i. 36
tion^Toffice'r SECTION 35. If thcrc is reasonable doubt as to the ownership of the 1
S^i?Ii^t'?i property, or as to its Habilitv to be taken on the execution, the officer 2
tj. B. 13J, S 66. ^ ^ "■ , rf ' ' ft T '1 'C ^ • p n
P. s. m, § 3,5. may require suifacient security oi the creditor to indemniiy hun tor 6
150 Mass. 531. 4
R. L. 177, § 35. ^ , .
7 Mass. 123. taking it.
Sale of personal
property on
execution.
1772-3, 12.
1783, 57, § 5.
R. S. 97, § 23.
G. S. 133, § 34.
P. S. 171, § 36.
R. L. 177, § 36.
SALE OF PERSONAL PROPERTY TAKEN ON EXECUTION.
Section 36. Personal property seized on execution shall be safely 1
kept by the officer, at the expense of the debtor, for four days at least; 2
and shall be sold by public auction within fourteen days next after the 3
seizure, except as provided in the following sections, unless the debtor 4
before such sale redeems it by otherwise satisfying the execution. 5
7 Gray, 416.
Notice of sale.
1772-3. 12.
1783, 67, § 5.
R. S. 97, § 24.
G. S. 133, % 35.
P. S. 171, § 37.
R. L. 177, § 37.
1915. 131.
Section 37. The officer shall give notice of the time and place of 1
.sale by causing notices thereof to be posted forty-eight hours at least 2
before the time of sale in a public place in the town where the sale is to be 3
made, or by causing an advertisement of the time and place of sale to be 4
published in a newspaper, if any, published in the town where the debtor 5
had his last and usual place of residence. 6
Same, if value
exceeds three
hundred
dollars.
R. S. 97. § 25.
G. S. 133, § 36.
P. S. 171, § 38.
R. L. 177, § 38.
Section 3S. If the value of such property to be sold exceeds three 1
hundred dollars, the officer shall, at the request of either party, give 2
notice of the sale by advertisement in a newspaper as provided in the 3
preceding section ; and the sale may be made at any time after the expira- 4
tion of four days, and within thirty days after seizure on execution. 5
Adjournment
of sale.
R. S. 97, § 26.
G. S. 133, § 37.
■p. S. 171, § 39.
R. L. 177, J 39.
9 Mass. 265.
Section 39. If, at the time appointed for the sale, the officer con- 1
siders it for the interest of all persons concerned to postpone it, he may 2
adjourn it for not more than se\'en days, and so from time to time until 3
the sale is completed; giving notice of every such adjournment by a 4
public declaration thereof at the time and place previously appointed for 5
the sale. 6
Adjournment
upon injunc-
tion.
1884, 175.
R. L. 177, § 40.
Section 40. If a sale of such property on execution is enjoined, it may 1
be adjourned by the court granting the injunction to await further order 2
of the court, and upon dissolution of the injunction the court may order 3
the sale to proceed, and may order additional notice of the adjourned 4
sale. 5
Re-sale,
R. S. 97, § 27.
Section 41. If the highest bidder for an article at such sale refuses 1
p.' I.' 171,' 1 40.' to take and pay for it, the officer shall sell it again by auction, at the 2
CH-^P. 235.] JUDGMENT Al^T) EXECUTION. 2535
.3 same time or within ten days thereafter, giving notice of the second sale; R. l. 177, § 41.
4 and he shall account for what he receives on the second sale, and for any Li'mess^'mi.
5 damages recovered of the first bidder for a loss on the re-sale, as for so
6 much received on the execution.
1 Section 42. The officer making such sale shall in his retiu-n of the Return of exe-
2 execution particularly describe the property sold and the amount for b"iity°forVraud.
3 which each article was sold; and if he is guilty of fraud in the sale or r^^|.'|J.'||s.
4 return, he shall be liable in tort to the party injured for five times the pfiyMff'
5 amount of the actual damage sustained by reason of such fraud. ^J^; "^' ^ '^^■
° •' 102 Mass. 414.
1 Section 43. The officer shall apply the money arising from the sale Disposition
2 to paying the charges and satisfying the execution, and shall return the ot ^aTe'!'''"^^
3 residue, if any, to the debtor on demand, or shall apply and pay over the miylv^l's.
4 same as provided in the following sections.
R. S. 97, § 29. G. S. 133, § 40. P. S. 171, § 42. R. L. 177. § 43.
1 Section 44. If the property sold on execution has been attached by Dispo.sition
2 another creditor, or seized on another execution, either by the same or prmo?e'cred-
3 another officer, or if before pa^^nent of such residue to the debtor another '/gol; 53, § e
4 writ of attachment or execution against him is deli\ered to the officer who ]f I'l^- s 30
5 made the sale, the proceeds of the sale shall be applied to the discharge of g- s. 133, § 41.
6 the several judgments in the order in which the respective writs of attach- R. il 177, § 44.
7 ment or execution were served, and any residue returned to the debtor. ^^ ^"^^^ ^°'
1 Section 45. If an attachment or seizure on execution is made of any Disposition
2 property which may be attached without taking and keeping the exclusi\'e attachmente!'^^
3 possession thereof, and if the same property is subsequently attached or }s?g; I7; ^ ^■
4 taken on execution by another officer, he shall give notice thereof to the g- g i33^s^|b
5 officer who made the first attachment or seizure; and if the latter, before ?■ s- in^' § «^
6 he receives such notice, pays to the debtor the balance of the proceeds of i9io,'s4i.' § 1. '
7 a sale, he shall not be liable therefor to the person claiming under such
8 subsequent attaclmient or seizure.
LE\'Y on terms for YEARS.
1 Section 46. Terms for vears, if the original lease was for one hundred f <'^'y "^ t«'''^
* lor vcsrs.
2 years or more, and fifty years or more thereof remain unexpired, shall be is34. 102, § 1.
3 regarded as real estate, for the levy of an execution thereon. Other terms is'47', 207. § 4'.
4 for years shall be seized and sold on execution in like manner as personal p.s.'i7i,'|5i.'
5 property, except that the officer before selling the same shall give fourteen fiiuals. loef'
6 days' notice of the time and place of sale, by leaving a written notice
7 thereof with the debtor personally or at his last and usual place of abode,
8 and by posting a notice on the leased premises.
suspension of levy.
1 Section 47. If personal property has been seized on execution, and ''j'p^sion
2 the further service of the execution is suspended by reason of a prior ^- s ||i5 ^|.
3 attachment or seizure of the same property, such property shall remain p'.'s.'i7i,'§ 52.'
4 bound by such later seizure until sold, in whole or in part, under the prior 3 Met. 251.
5 attacliment or seizure, or until that attachment or seizure is dissolved. 97\Mass.°339.
100 Mass. 126. 128 Mass. 427.
2536
JUDGMENT AND EXECUTION.
[Chap. 235.
Same subject.
R. S. 97, § 35.
G. S. 133, I 51.
P. S. 171. i 53.
R. L. 177, §54.
Ill Mass. S'l.
Section 48. If such property is sold in part under the prior attach- 1
ment or seizure, or if that attachment or seizure is dissolved, the property 2
or any part thereof remaining undisposed of shall continue bound for 3
thirty days thereafter by the seizure on the execution; and service of the 4
execution may be completed as if the estate had been first seized thereon 5
within said thirty days, although the return day of the execution has 6
passed. 7
Death, etc.. of
officer after
beginning of
levy or service.
R. S. 97. § 13.
G. S. 133. § 52.
P. S. 171. §54.
18S5, 125.
R. L. 177. §5.5.
2 Pick. 276.
148 Mass. 501.
DEATH, ETC., OF OFFICER OR PARTY AFTER COMMENCEMENT OF LEVY
OR SERVICE.
Section 49. If an officer, who has begun to serve an execution or 1
other writ or process, dies or becomes incapable of completing the serv- 2
ice and return thereof, the service may be completed by any officer 3
qualified to serve it; or in case. of illness or absence, the judgment 4
creditor or the officer who began to serve the writ or process may dele- 5
gate any officer qualified to serve it temporarily to act for him during 6
said illness or absence. If the first officer has not made a certificate 7
of his doings, the second officer shall certify whatever he finds to have 8
been done by the first oflScer, and shall add thereto a certificate of his 9
own doings. 10
Removal of
officer, etc.,
after beginning
of levv.
R. S. 97. § 14.
G. S. 133, § 53.
P. S. 171, § 55.
Section 50. If an officer has begun to serve an execution, he may
complete the service and return thereof, although he is removed from
office or although the ser^^ce cannot be completed until after the return
day.
R. L. 177, § 56. 166 Mass. 33.
after begiSninl Section51. If either party dics after any property, real or personal, 1
R. 1^7, § 15. has been seized on execution, the service thereof may be completed in 2
P.' I.' m,' 1 56.' 'ike manner and with like eft'ect as if both parties were living and the 3
R. L. 177, §57. officer may appoint an appraiser for the deceased party. 4
9 Mass. 209.
3 Met. 251.
222 Mass. 131.
PENALTY ON OFFICER FOR DETAINING MONEY COLLECTED.
Section 52. An officer who, upon demand by the creditor, unreason- 1
ably neglects to pay money collected by him on execution shall forfeit 2
to the creditor five times the lawful interest of the money from the time 3
G. s. i33,''§ 56. of the demand until it is paid. 4
p. S. 171, § 57. R. L. 177, § 58. 7 Mass. 464. 4 Met. 149.
Penalty for de-
taining money
collected.
1736-7. 19. § 2.
1784, 44, § 3.
R. S. 97, § 73,
REFERENCES.
§ 34. Exemptions from seizure upon legal process.
State aid, Chap. 115, § 14.
Minor's United States pay or bounty, Chap. 115, § 23.
Retirements and pen.sions. Chap. 32, § 92.
Workmen's compensation. Chap. 152, § 47.
Railroad and street railway benefit funds, Chap. 159, § S8.
Special trust funds in savings banks, Chap. 168, § 37.
Fraternal benefits, Chap. 176, § 30.
Assessment insurance benefits. Chap. 177, § 17.
Money in hands of public officer. Chap. 246, § 32, cl. 3d.
Wages of wife or children. Chap. 246, § 32, cl. 6th.
Wages or lay of .seamen. Chap. 246, § 32, cl. 7th.
Exemptions from trustee process in general, Chap. 246, § 32.
Chap. 236.
le\t: of executions on l.vnd.
2537
CHAPTER 236.
LEVY OF EXECUTIONS ON LAND.
Sect.
land subject to levy.
1. Land and rights liable to be taken.
2. Estates tail.
PROCEEDINGS UPON LEVY.
3. Notice and appraisal.
4. Deposit of notice of land taken on exe-
cution.
5. Entries by register,
LEVY BY SET-OFF.
6. Appointment of appraisers.
7. Duties of appraisers.
8. Estate to be valued as a fee simple,
unless.
9. Appraisal of land subject to mortgage.
10. Appraisal when several parcels are
le\'ied on.
11. Description of land in certificate.
12. Le\'y on land held jointly or in common.
13. hevy on land incapable of division.
14. Levy on life estate.
15. Levy on rents and profits.
16. Levy on leased land.
17. Same subject.
IS. Levy of execution upon property in
which homestead exists.
19. Officer to deliver seisin to creditor.
20. Momentary seisin, when.
21. Return and record of execution.
22. Effect of record.
23. Officer's return.
24. Levy void, when.
25. Levy valid against the creditor.
LEVY BY SALE.
26. Levy by sale.
27. Sale, how made.
28. Notice of sale.
29. Adjournment.
30. -Adjournment by court.
Sect.
suspension of levy.
31. Suspension of levy.
32. Proceedings after dissolution of prior
attachment.
right of redemption.
33. Right of redemption.
34. Ascertainment of amount due.
35. Redemption of mortgage paid by
creditor or purchaser.
Redemption of right to redeem from
tax sale.
Redemption of life estate if le\-y is on
rents and profits.
38. Remedy if creditor does not release.
39. Suit to redeem.
40. Proceedings.
41. Costs.
42. Rights of debtor, creditor or purchaser
may be exercised by his heirs, etc.
36
37
GENERAL PROVISIONS.
43. When levy made.
44. Notice, how served.
45. Fees and charges added to debt.
46. Levy upon lands in different counties.
47. Action for possession to be brought,
when.
48. hevy on land subject to lien not al-
lowed for.
49. Levy on right of redeeming land taken
on execution.
50. Waiver of levy.
51. Scire facias on invalid le^'y.
52. Procedure.
53. Levy on land of deceased.
54. Redemption and exemption.
55. Curtesy and dower in land taken on
execution.
LAND SUBJECT TO LEVY.
1 Section 1. All tlie land of a debtor in possession, remainder or rever- i,and and
2 sion, all his rights of entry into land and of redeeming mortgaged land, jifbeVa'keu'!
.3 and all such land and rights fraudulently conveyed by him M'ith intent Js^f'j"'
4 to defeat, delay or defraud his creditors, or purchased or directly or ijiti-ij, 3, 5 1.
.5 indirectly paid for by him but the record title of M'hich has been retained 1783,57,§§2,4.
G in the vendor or conveyed to a third person with intent to defeat, delay §§ 1,' 31!
7 or defraud the creditors of the debtor, or on a trust for him, express or \lll[ 453; ^ '•
8 implied, whereby he is entitled to a present conveyance, may, except as pf' n|'| J
2538
LEVT OF EXECUTIONS ON LAND.
[Chap. 236.
R. L. 178. § 1.
13 Mas3. 207.
14 Mass. 378.
provided in chapter one hundred and eighty-eight, be taken on execution 9
for his debts as provided in this chapter. le Mass. 345. 1 Pick. 351. 10
2 Pick. 508.
3 Pick. 484.
4 Pick. 131.
17 Pick. 137.
1 Met. 628.
7Cush. 431.
2 Gray, 638.
11 Gray, 217.
1 Allen. 235.
2 AUen, 77.
13 Allen, 257.
97 Mass. 310.
99 Mass. 478.
101 Mass. 424.
102 Mass. 50.
114 Mass. 520.
116 Mass. 410.
120 Mass. 481.
121 Mass. 476.
125 Mass. 11.
126 Mass. 278.
150 Mass. 289.
151 Mass. 71.
175 Mass. 373.
189 Mass. 390, 424.
225 Mass. 217.
228 Mass. 385.
230 Mass. 197.
231 Mass. 563.
233 Mass. 158.
Estates tail.
1791, 60. I 2.
R. S. 73. § 2.
G. S. 103, § 2.
P. S. 172, § 2.
Section 2. Estates tail may be taken on execution in like manner 1
as estates in fee simple; and whoever lawfully holds such land under the 2
execution shall have an estate in fee simple therein. 3
R. L. 178, § 2. 3 Gray, 162.
Notice and
appraisal.
R. S. 73, § 22.
G. S. 103, § 24.
P. S. 172, § 3.
R. L. 178, § 3.
Ill Mass. 84.
PROCEEDINGS UPON LEVY.
Section 3. An officer taking land on execution shall give notice 1
thereof to the debtor, if found within his precinct, cause the land to be 2
appraised as provided in this chapter, if an appraisal is required, and 3
complete the levy without unnecessary delay. 4
124 Mass. 172.
130 Mass. 25.
Deposit of
notice of land
taken on
execution.
1862, 190,
§§ 1. 4.
1871, 123.
1873, 297, § 1.
P. S. 172, § 4.
R. L. 178, § 4.
1920. 344.
143 Mass. 195.
209 Mass. 368.
Section 4. If land, which was not attached on mesne process in the 1
action in which the execution issued, is taken on execution, the officer 2
shall forthwith deposit in the registry of deeds for the county or district 3
where the land lies a copy of the execution with a memorandum thereon 4
that the execution is in his hands for the purpose of taking the land of 5
the defendant, and no such taking shall be valid against a purchaser in 6
good faith, for value and without notice, before such copy is deposited. 7
If land was attached on mesne process, a copy of the execution with a 8
memorandum as aforesaid shall be deposited by the officer in the registry 9
of deeds for the county or district where the land lies, within forty days 10
after the judgment in the action, and the attachment shall become void 11
forty days after said judgment unless the copy is so deposited; provided, 12
that if land was attached on mesne process in Nantucket county and judg- 13
ment was rendered in another county, or if judgment was rendered in 14
Nantucket county and land was attached in another county, said copy 15
shall be deposited within seventy days after judgment in the action, 16
and the attachment shall become void seventy days after said judgment 17
unless the copy is so deposited. 18
Entries by
register.
1862, 190, § 2.
P. a. 172, § 5.
R. L. 178, § 5.
Section 5. The register shall note on every such copy the day, 1
hour and minute when received and shall file it in his office. He shall 2
enter in the book, kept by him for the entry of attachments of land, the 3
names of the plaintiff and defendant as stated in the copy and the time 4
when the copy was deposited. 5
LEVY BY set-off.
Appointment
of appraisers.
Section 6. The officer shall cause the land to be appraised by three
1719-20' 9 1 1' disinterested persons, to be appointed, one by the creditor, one bj^ the
i78|. 57,|'2 debtor whose land is taken or, if the debtor is absent from or does not
22. ' ' ' reside in the commonwealth, by his agent or attorney if he has any
1852] 25o; known to the officer, and one by the officer. If the debtor is absent from
Chap. 236.] levy of executions on land. 2539
6 or does not reside in the commonwealth and has no agent or attorney g s. los,
7 known to the officer or if he neglects within a reasonable time to appoint p. s.' 172, 5 7.
8 an appraiser, the officer shall appoint one for him. R- L- i7s, § 7.
8 Mass. 113. 8 Met. 599. 2 Allen, 338. 114 Mass. 429.
11 Mass. 468. 2Cush. 32. 110 Mass. 529. 122 Mass. 267.
2 Pick. 382, 443. 15 Gray, 28. 113 Mass. 347. 126 Mass. 93.
1 Section 7. The appraisers shall be sworn, before a justice of the Duties of
2 peace or the officer, faithfully and impartially to appraise the land lyfivf?"!', § i.
3 shown to them as taken on the execution, shall, with the officer, view 178375?', "§'2
4 the same and shall make such examination of it as may be necessary R.s. 73, §§3,
5 to form a just estimate of its value. A certificate of their appraisal }|^8. 3i7.
6 signed by them shall be endorsed on the execution; but if one of the g. s! 103, §§ 3,
7 appraisers who was sworn and acted with the others refuses to sign the p.s.i72,§§s,9.
8 certificate, the certificate of the others shall be sufficient. . ■ ' . ^ .
7 Mass. 71. 8 Mass. 284. 14 Mass. 143. 2 Pick. 331. 382. 564.
1 Section 8. The value of the estate of the debtor shall be appraised ^|,'^*^ *° ^^
2 as an estate in fee simple in possession, unless it is expressly stated in the ^™||^"'p'^'
3 description endorsed on the execution to be a less estate. All the free- r. s. 73 §s
4 hold estate and interest which the debtor has in the land shall be taken p.s.' 172.' § 16.
5 and shall pass by the levy, unless it is a larger estate than is mentioned u Mais. 464.'
6 in said description. 1 Met. 345. 4 Met. 404. 125 Mass. 7.
1 Section 9. If a right of redeeming mortgaged land is taken and set j^P5^^^^[f'j,°'
2 off on execution, the appraisers shall deduct the value of the encumbrance to mortgage.
3 or the amount of the mortgage debt, when known, from the appraised g'. s. 103, § 33.
4 value of the land, and the amount so deducted shall be stated in the r. l. i7s, § 10.
5 return of the execution. 11 Mass. 222. le Mass. 400.
4 Met. 404. 10 Gush. 526. 97 Mass. 339. 125 Mass. 66.
1 Section 10. If the execution is levied at the same time upon several ^ev?rai''pirceir
2 parcels of land, each parcel may be separately appraised, or all may be fj"g'^7^'''5°g"-
3 appraised together. If several parcels are taken successively on the c'. s. los, § e.
4 same execution, all the parcels may be appraised by the appraisers first r'. l. iVs, § ii.
5 appointed, or appraisers may be appointed for each parcel.
11 Mass. 515. 2 Pick. 382. 10 Allen, 494.
1 Section 11. Land levied upon, whether an entire parcel or an un- Description
2 divided part, and whether the debtor's estate therein is a fee simple or a ?ertXat°e.
3 less estate, and whether it is in possession, reversion or remainder, shall §: i: io3,S^s.
4 be described, by metes and bounds or otherwise, with as much precision r l.\78.| 12.
5 as is necessary in a deed of land, and in such manner that the land may ^^l^^- s?-
•^ , . . . .... 11 Mass. 515.
6 be known and identmed. Such description may be contained in the 4 Met. 404.
7 certfficate of the appraisers or in the return of the officer, and the de- e Gray ,'552.
8 scription in either may be referred to and adopted in the other. i25">fast^7.
1 Section 12. If land is held by a debtor in joint tenancy or as a Levy on land
2 tenant in common, the share thereof belonging to the debtor may be or|in 'common.
3 taken on execution, and shall thereafter be held in common with the R*i|'73,'§9.'
4 co-tenant. If the whole share of the debtor is more than sufficient to p|j7?'|f4
5 satisfy the execution, the levy shall be made upon such undivided por- R. l. 178. § is.
6 tion of such share as will, in the opinion of the appraisers, satisfy the 474.
7 execution, and such undivided portion shall be held in common with 21 pia^Ws.
8 the debtor and the other co-tenant. -^^ ^''""- "^-
2540
'LEVY OF EXECUTIONS ON LAND.
[Chat. 236.
Levy on land
incapable of
division.
1S18, 115, § 1.
R. S. 73, § 10.
G. S. 103, § 10.
P. S. 172, § 15.
R. L. 178, § 14.
101 Mass. 418.
Section 13. If the land levied upon cannot be divided without
damage to the whole and is more than sufficient to satisfy the execution,
the levy shall be made upon such undivided portion of the whole as
will, in the opinion of the appraisers, satisfy the execution, and such
undivided portion shall be held in common with the debtor.
Ill Moss. 83.
Mtlte°°''^'^ Section 14. A life estate may be taken and set off to the creditor
S I' Tni^s'Ji like other land at the appraised value or, at the election of the creditor,
O. S. 103. § 11. . 1 • 1 1 I r? r,
P. s. 172, § 16. the execution may be levied on the rents and pronts. 3
R. L. 178, § 15. 10 Mass. 260. 15 Mass. 439.
1
2
Levy on rents
and profits.
R. S. 73, § 12.
G. S. 103, § 12.
P. S. 172. § 17.
R. L. 178, § 16.
Section 15. If execution is levied on rents and profits, the annual 1
value thereof shall be determined by the appraisers, and the land shall 2
be set off to the creditor for such time as will satisfy the execution at 3
the rate of rents and profits as determined by the appraisers, if the life 4
estate endures so long, computing interest on the amount due on the 5
execution and deducting the rents and profits as they accrue as so much 6
paid from time to time. If the life estate expires before the end of the 7
term so fixed, the creditor may have a new action on the judgment to 8
recover the amount then due thereon. 9
Levy on
leased land.
R. S. 73. § 13.
G. S. 103, § 13.
P. S. 172, § IS.
R. L. 178, I 17.
Section 16. If the land levied upon is under lease to a third person, 1
and the reversion of the whole is taken on the execution, the lessee shall 2
pay to the creditor the rent accruing after the levy, except such part 3
as he has paid before notice of the levy. 4
R"s^73,''ri4. Section 17. If the land is under lease as aforesaid and the reversion 1
p.' I.' 172,' 1 19.' of ^ P^rt only 's taken, the appraisers shall determine the portion of the 2
ri MMs^'ilg *' ^'hole annual rent to be paid to the creditor, and the lessee shall pay it 3
to him. 4
Levy of execu-
tion upon prop-
erty in which
homestead
exists.
1851, 340, § 7.
1855, 238, § 6.
1857, 898, § 15.
1858, 62.
G. S. 104, I 11.
p. S. 123, § 13.
R. L. 131, § 13.
11 Gray, 217.
6 Alien, 401.
99 Mass. 7.
Section 18. If a judgment creditor requires an execution to be 1
levied on property which is claimed by the debtor to be as a homestead 2
exempt from such levy, and if the officer holding such execution is of 3
opinion that the premises are of greater value than eight hundred dol- 4
lars, appraisers shall be appointed to appraise the property in the manner 5
provided by section six. If, in the judgment of the appraisers, the prem- 6
ises are of greater value than eight hundred dollars, they shall set off 7
to the judgment debtor so much of the premises, including the dwelling 8
house, in whole or in part, as shall appear to them to be of the value of 9
eight hundred dollars; and the residue of the property shall be levied 10
upon and disposed of in like manner as land not exempt from levy on 11
execution; and if the property levied on is subject to a mortgage, it may 12
be set off or sold subject to the mortgage and to the estate of home- 13
stead, in like manner as land subject to a mortgage only. 14
OfEcer to de-
liver seisin to
creditor.
17115-17, 3, § 1.
1719-20, 9, § 1.
1783. 57, § 4.
R. S. 73. § 15.
G. S. 103, § 15.
P. S. 172, § 20.
R. L. 178, § 19.
Section 19. An officer serving an execution shall deliver to the 1
creditor or to his attorney seisin and possession of the land taken thereon, 2
so far as the nature of the estate and the title of the debtor will admit; 3
but if the estate taken is a remainder, reversion or right of redemption, 4
the officer shall not oust the person lawfully in possession of the land, 5
but shall assign to the creditor the right which the debtor had therein, 6
and make his return accordingly. 7
CH-^P. 236.] LEVY OF EXECUTIONS ON LAND. 2541
1 Section 20. If an execution is levied on land of which a person other Momentary
2 than the debtor is actually seized, the officer shall deliver to the creditor k's^Vs. lie.
3 or to his attorney such momentary seisin and possession thereof as will p |; nl.' 1 21.'
4 enable the creditor to maintain an action therefor upon his own seisin; gMai^lal.^'
5 but the officer shall not oust the tenant then in possession. 128 Mass. 427.
1 Section 21. The officer shall return the execution, with a certificate Return and
2 of his doings endorsed thereon, to the court to which it is returnable, cSn." '""^
3 and such execution and certificate shall be forthwith recorded. The }nlt J?; I.'j 1.
4 officer shall also, within three months after the levy has been completed, \llt:l%%\^-
5 cause the execution and return to be recorded in the registry of deeds ^'^I'll'lf^
6 for the county or district where the land lies. •
G. S. 103, § 17. R. L. 178, § 21. 3 Pick. 331.
P S 172. § 22. 1917, 326. 135 Mass. 65.
1895, 437. 15 Mass. 137. 148 Mass. 501.
1 Section 22. Such record in the registry of deeds of an execution Effect of
2 issued by a district court, and of the levy thereon, shall be prima facie ism, 269, § 2.
3 evidence of the regularity of the judgment and prior proceedings in the p; |; l°i; 1 23.'
4 case. R- L- 178, § 22. 1917, 326.
1 Section 23. The return of the officer on the execution shall, in officer's
2 addition to the other requirements of law, set forth substantially — r. ^"73, § 23.
1852, 256. R. L. 178. § 23. 103 Mass. 151.
G. S. 103, § 25. 10 Met. 62. 118 Maes. 517.
P. S. 172, § 24. 97 Mass. 310. 125 Mass. 7.
3 First, The time when the land was taken on execution; 9 Met. 413, 476.
4 Second, Either that the appraisers were appointed by the oflScer, the 2 Mass. 154.
5 creditor and the debtor, or that the debtor was absent from, or not resi- u ^IIs3. 26.
6 dent in, the commonwealth and had no agent or attorney known to the 417"^ ' '
7 officer, or neglected to appoint an appraiser, and the officer appointed g'c^^l'ii*!^'
8 one for him;
15 Gray, 28. 4 Allen, 406. 124 Mass. 172.
16 Gray, 334. 12 Allen, 543. 126 Mass. 93.
9 Third, That the appraisers were duly sworn, unless a certificate of ^ ^'^'- *''^-
10 the oath is endorsed on the execution and signed by the person adminis-
11 tering it;
12 Fourth, That they appraised and set off the land at the value stated; ?oYMats.^4i8.
13 Fifth, That the officer either delivered seisin thereof to the creditor or n Mass. sis.
14 his attorney, or assigned it to him as provided in the case of a remainder 2 Pick. 382.
15 or incorporeal estate;
16 Sixth, The description of the land unless it is sufficiently described
17 in the certificate of the appraisers and the return refers to and adopts that
18 description; and
19 Seventh, If the appraisal is signed by only two of the appraisers, that f^'^'jillg^f^g,
20 all three of them were present and acted in the appraisal. 2 Pick. 331. "
1 Section 24. If the execution and return are not recorded in the x.e^T void,
2 registry of deeds within three months as aforesaid, the le\-y shall be void r. s.'73, § is.
3 as against a creditor who has attached the same land or taken it on p.f.i^l.'lis.'
4 execution without notice of such levy, and also as against a purchaser ^- ^- ^''*' ^ ^■
5 in good faith for value and without such notice; but if such execution
6 and return are recorded after the expiration of the three months, the
7 levy shall be valid and efi'ectual as against a conveyance, attachment
8 or levy made after such recording.
\
2542
LEVY OF EXECXJTIONS ON LUSTD.
[Chap. 236.
Levy valid
against the
creditor.
R. S. 73. § 19.
G. S. 103, § 20.
P. S. 172. § 26.
R. L. 178, § 25.
Section 25. If tlie execution and return have not been returned or
recorded as aforesaid, the le\y shall be so far valid against the creditor
that he shall not waive the \e\'y and have a new execution, except as
pro\'ided in section fifty.
Levy by sale.
17S3, 58. § 3.
1798, 77, I 3.
1804, 83, § 6.
R. S. 73, §§37,
S5; 97, § 32.
G. S. 103,
§§ 39, 58.
1874, 188,
§§ 1, 2.
ISSl, 39.
P. S. 172. § 27.
R. L. 178, § 26.
99 Mass. 446.
LE\T.- BY S.VLE.
Section 26. Land and rights mentioned in section one and rights 1
of redeeming land sold for the pajonent of taxes and other assessments 2
may, if the creditor so elects, be sold on execution as provided in the four 3
following sections, and, after satisfying the execution with the costs and 4
charges, the surplus proceeds of the sale shall be applied and disposed 5
of as provided upon a sale of personal property on execution under the 6
preceding chapter. Land or rights taken on an execution in favor of the 7
commonwealth shall in all cases be so sold. 8
128 Mass. 369.
129 Mass. 210.
133 Mass. 374.
140 Mass. 373.
Sale, how
made.
179S, 77,
§§ 3, 5.
R. S. 73, § 38.
G. S. 103, § 40.
P. S. 172, § 28.
R. L. 178, § 27.
13 Pick. 477.
10 Met. 138.
13 Met. 200.
4 Gray, 468,
486.
3 Allen, 357.
101 Mass. 409.
Section 27. The officer authorized to serve the execution shall make 1
the sale by public auction to the highest bidder, and convey by deed to 2
the purchaser all the debtor's title to the land or rights so sold. Such 3
deed shall, if the execution with the return thereon has been returned, 4
be valid as against the debtor or any person claiming under him who 5
has actual notice thereof and, if recorded mthin tliree months after 6
such sale in the registry of deeds for the county or district where the 7
land lies, shall be valid as against any other person. no Mass. 273. 8
128 Mass. 427.
129 Mass. 210.
135 Mass. 65.
143 Mass. 195.
148 Mass. 501.
150 Mass. 239.
Notice of sale.
1798, 77, I 4.
R. S. 73. § 39.
G. S. 103, § 41.
P. S. 172. § 29.
R. L. 178, § 28.
1912, 3G0.
1915, 127.
12 Mass. 513.
1 Pick. 351.
8 Cush. 35.
128 Mass. 427.
132 Mass. 457.
136 Mass. 414.
155 Mass. 451.
Section 28. The officer, thirty days at least before the sale, shall 1
deliver to the debtor, if found within his precinct, a written notice of 2
the time and place of sale and shall post such a notice in a public place 3
in the town where the land lies and also in two adjoining towns, if there 4
are so many in the county. The officer shall also publish such a notice 5
once in each of three successive weeks, the first publication to be not less 6
than twenty-one days before the day of sale, in a newspaper published 7
in the town where the land lies. 159 Mass. 432. 8
163 Mass. 147. 164 Mass. 209. 210 Mass. 588. 228 Mass. 385, 417.
Adjournment.
1798, 77, § 4.
R. S. 73, § 40
G. S. 103, § 42.
P. S. 172, § 30.
R. L, 178, § 29.
4 Pick. 354.
101 Mass. 409.
179 Mass. 456.
Section 29. If, at the time appointed for the sale, the officer con-
siders it for the interest of all persons concerned to postpone it, he may
adjourn it for not more than seven days, and so from time to time until
the sale is completed, giving notice of every such adjournment by a public
declaration thereof at the time and place previously appointed for the
sale.
Adjournment
by court.
1SS4, 175.
R. L. 178, I 30.
Section 30. Section forty of chapter two hundred and thirty-five
relative to adjournment by order of court shall apply to such sales.
SUSPENSION OF LE^"Y.
Suspension
of levy.
R. S. 97, § 34.
G. S. 133, § 50.
P. S. 171, § 52.
1887,407, § 1.
R. L. 178, § 31.
Section 3L If land has been seized on execution and further service
thereof is suspended by reason of a prior attachment or seizure of the
same land, the officer making the later seizure shall cause a record thereof
to be made in the same manner as an attacliment of land on mesne
Chap. 2.36.] levy of execxjtions on j^akd. 2543
5 process is recorded. Such record shall be sufBcient notice of said seizure, 3 Met. 245,
6 and the Ie\'y on such land shall be considered as having been made at 9? Mass. 339.
7 the time of such seizure if such record is made within three days there- ^^^ ^^''^^^ ^^°'
8 after; otherwise, at the time when said record is made. The land shall
9 remain bound by such seizure until set off or sold in whole or in part
10 under the prior attachment or seizure or until that attachment or seizure
11 is dissolved.
1 Section 32. If land is set off or sold in part under a prior attachment Proceedings
.«, , . 'TiiiTi after dissolu-
2 or seizure, or if that attachment or seizure is dissolved, the land or such tion of prior
3 part thereof as remains undisposed of shall continue bound for thirty r. s. 97. § 35.
4 days thereafter by the seizure on execution, and service of the execution p.' s.' 171,' § sa.'
5 may be completed as if the land had been first seized thereon within ^^l' \%[ 1 12.
6 said thirty days, although the return day thereof has passed. 1^^ ^^^^- ^■
RIGHT OF REDEMPTION.
1 Section 33. If land or rights have been taken and set off on execu- Right of
2 tion, the debtor may within one year after the levy or, if such land or inl-fs.'s"'? i.
3 rights have been sold on execution, within one year after such sale or i7S3757?'§V'
4 within the time and upon the terms provided in section forty-seven, ifg| 77^ 5 5
5 redeem the same by paying or tendering to the creditor or purchaser, R'|'7|^i|24
6 as the case may be, the amount for which they were so set off or sold, 33. 42. s'e.
7 with interest thereon from the time of the levy, all amounts paid for §§26, 35,' 44.
8 lawful taxes and assessments, reasonable expenses incurred for repairs 1874, iss, § 3.
9 and improvements and, in case of levy by set-off, all amounts lawfully ^^i'lyi;
10 paid on account of any mortgage or other lien recoverable under section |j5 ^'^^g 5 33
11 forty-eight, and deducting from such amount in each case the rents and jh'^'' Jf^-
12 profits received or which might have been received by the creditor or 2Cu9h. i4i.
13 purchaser and with which he is lawfully chargeable. The creditor or lee mTs's. 407.
14 purchaser shall thereupon deliver to the debtor a deed of release, pre- 222 1\IZ'. III'.
15 pared by the debtor or at his ex-pense, of the land or rights so taken and
16 set off or sold.
1 Section 34. The debtor may in all cases cause the amount due for Ascertainment
2 redemption to be ascertained at his own expense by three justices of the ?7l3™57"§ 3"^'
3 peace in the manner following: one of the justices shall be chosen by §: s! 103,^^27.
4 the debtor, one by the creditor, and one by the two first chosen; or if E ?• V,i'|^^,-
1 7 !•■ 1 1 111 R. L. 178, s 34.
5 the creditor neglects to choose one, the justice chosen by the debtor
6 shall appoint the other two. After a hearing before the three justices,
7 they or two of them shall make and sign a certificate of the amount
8 which they adjudge to be due for the redemption of the land, which
9 certificate shall be final and conclusive between the parties. A tender
10 by the debtor of the amount so adjudged to be due shall be a sufficient
11 tender notwithstanding any previous tender.
1 Section 35. If the creditor or, in case of a sale, the purchaser pays Redemption
2 the debt due on a mortgage to which the land levied on is subject, the pLS b"^"^"
3 judgment debtor may redeem the mortgage from the creditor or pur- pu^hase"
4 chaser at the time when, and upon the terms upon which, he might have Jf ^|'7|^' ^ '•
5 redeemed it from the mortgagee if no execution had been levied. If the §§ 34-36, 43.
6 debtor does not so redeem the mortgage, the creditor or purchaser shall §'§ 36-3s,'45.
7 hold the land as an assignee of the mortgage and free from any right §§ 34-36!
2544
LE\T OF EXECUTIOXS ON L.VND.
[CiLiP. 236.
E. L. 178, § 35.
22 Pick. 390.
of redemption, notwithstanding the debtor has redeemed or offered to S
redeem the right taken on the execution. If the debtor does not within 9
one year after the levy redeem the right taken on the execution, the 10
creditor or purchaser shall hold the land against the debtor, notwith- 11
standing the debtor has redeemed or offered to redeem the mortgage. 12
S^i|ht'to°° Section 36. Rights of redeeming land sold for the payment of taxes 1
tax^saTe'"^"™ ^^ Other asscssmcuts may, if sold on execution, be redeemed in the same 2
1881,39. manner as rights of redeeming mortgaged land so sold. 3
p. S. 172, § 37. R. L. 178. § 36.
Redemption of
life estate if
levy is on
rents and
profits.
1783, 57, § 3.
R. S. 73, § 30
G. S. 103, § 32.
P. S. 172. § 38.
R. L. 178, § 37.
Section 37. If an execution is levied on rents and profits of a life
estate, the debtor may, at any time before the debt with interest thereon
is fully satisfied, redeem the same by paying or tendering to the creditor
the amount then due to him; and the proceedings relative to such re-
demption shall be the same as are provided for the redemption of other
land.
Remedy if
creditor does
not release.
1783, 57, § 3.
R. S. 73,
§§ 26, 44.
G. S. 103,
§§ 28, 46.
P. S. 172, § 39.
R. L. 178, § 38.
19 Pick. 467.
Section 38. If the debtor tenders the amount justly due for redemp-
tion, and the creditor or, in case of a sale, the purchaser does not within
seven days after the tender release the land as before provided, the
debtor may recover it, with costs, in a vrvit of entry on his own seisin
against the creditor or purchaser as a disseisor; but before judgment
therein is entered for him, he shall bring into court for the use of the
creditor or purchaser the amount so tendered.
1
2
i
4
5
6
7
Suit to
redeem.
R. S. 73,
§§ 27, 44.
G. S. 103.
5§ 29, 46.
P. S. 172, S 40.
R. L. 178, § 39.
2 Cush. 141.
Section 39. The debtor may, within the year before limited for 1
redemption and irrespective of any tender, bring in the supreme judicial 2
or the superior court in the county where the land lies, instead of a 3
writ of entry, a suit in equity for redemption, under the two follow- 4
ing sections. 152 Mass. 17. 5
Proceedings.
R. S. 73,
§§ 28, 44.
G. S. 103,
5§ 30, 46.
P. S. 172, § 41.
R. L. 178, § 40.
Section 40. The debtor shall in his bill offer to pay the amount 1
found due for redemption and may set forth any tender he has made. 2
The court shall determine the amount due, unless it has been already 3
ascertained under section thirty-four, and shall require the debtor, 4
within such time as it may order, to deposit with the clerk for the use 5
of the creditor or purchaser the amount due for redemption. Upon the 6
debtor's complying with the order, he shall be entitled to judgment and 7
execution for seisin of the land as at common law. 8
Costs.
R. S. 73,
§§ 29, 44.
G. S. 103,
§§31,46.
P. S. 172,
§42.
R. L. 178,
§41.
130 Mass
201.
218 Mass
120.
222 Mass
303.
Section 41. The court may award costs to either party, but the 1
creditor or purchaser shall not be required to pay costs, unless it appears 2
that he has unreasonably neglected to render, when requested, a just 3
and true account of the amount due on the judgment, of the money 4
expended in repairing and improving the land and of the rents and 5
profits thereof; or unless it appears that a sufficient amount was ten- 6
dered to him for the redemption of the land, and that he neglected for 7
seven <lays thereafter to execute and deliver a release thereof as before 8
required. If the creditor or purchaser has, before the commencement 9
of the suit, tendered such a deed of release and alleges such tender and 10
brings the deed into court to be delivered to the debtor, he shall recover 1 1
costs. ' 12
Ch.'V.P. 236.] LEVY OF EXECUTIONS ON LAND. 2545
1 Section 42. Everything required in this chapter to be done by or Rights of
2 to a debtor or by or to a creditor or purchaser relative to the redemp- or purchaser °'
3 tion of an estate taken and set off or sold on execution may be done by "S by'^hfr
4 or to his heirs, assigns, executor, administrator or by or to any person ^"'g'T^g"-
5 lawfully claiming under him or them, in like manner and with like effect §§ i^;j,l-
6 as if done by or to him; except that it an executor or admmistrator re- §§6o. si.
7 covers the land, the recovery shall operate only as a discharge of the lien « 43, 44'
8 or encumbrance on the land, and the heir or other person entitled thereto
9 shall be seized thereof under his title.
R. L. 178, § 42.
GENERAL PROVISIONS.
1 Section 43. A levy by set-off or sale shall be considered as made at ^|° ^^'■'y
2 the time wlien the land is taken, and the subsequent proceedings and R s. 73,
3 the officer's return thereof shall be valid, although made after the return g.s.ios',
4 day or after the removal or other disability of the officer. *'* '
p. S. 172, § 45. 3 Met. 245. 13 Allen, 262.
1896, 464. 9 Met. 23. 132 Mass. 332.
R. L. 178, § 43. 2 Allen, 562. 155 Mass. 451.
11 Mass. 153. 9 Allen, 147.
1 Section 44. Notice to the debtor under this chapter may be served ^"'i,™' ^°"^
2 upon him personally or left at his last and usual place of abode. If the p^g''ii°2^-5 4r,
3 debtor does not reside within the precinct of the officer serving the ex- r. l. i78. §44.
4 ecution, and is not found by him therein, such officer shall, in addition 143 mS 195
5 to any other service recjuired by law, send by mail, postpaid and ad- 23iMass!25*'
6 dressed to the debtor at his residence as described in the execution, a
7 copy of any notice service of which upon him would be required if he
8 were found within such precinct.
1 Section 45. The fees and charges of le\ying an execution shall be Fees and
2 added to and considered as part of the amount due on the execution, in to'debt."'^'^'"'
3 the setting off or sale of land on execution, in the redemption thereof §■ f 103^/49
4 and in everything relative to the proceedings under the execution. ^- s- 172, § 47.
R. L. 178, § 45. 2 Allen, 562. 9 Allen, 147.
1 Section 46. A levy upon lands in different counties or upon rights Levy upon
2 of redemption in such lands, under the same execution, may be made by ent coimties^^'
3 an officer of any of such counties. g. s. loa, § 47.
p. S. 172, § 48. R. L. 178, § 46. 1914, 318.
1 Section 47. If an execution is levied on land or rights the record Action for pos-
,, I'lpiii I'l p 1 1 session to be
2 title to which fraudulently stands in the name or a person other than brought, when.
3 the debtor and such other person is in possession claiming title thereto, i855,'453'
4 the levy shall be void unless the judgment creditor to whom the land fsVl, isl, ^ ^^'
5 is set off or the purchaser at the sale or a person lawfully claiming under iItr', 235.
6 either of them commences his action to recover possession thereof within J'^l'^ ^^^' ^ ^^^■
7 one year after the return day of the execution; and such land or rights R. l' i78, § 47.
.3 Allen 508
8 so set off or sold may be redeemed by the defendant in said action or 6 Aiien! 401!
9 by any person lawfully claiming under him, M'ithin three months from 12 Alien! 591!
10 the date of the judgment recovered in said action for possession, in the iio^Ma"'s^273.
11 manner and according to the terms and conditions provided in section {39 Mass' 157
12 thirty-three upon payment of the costs of such action for possession. ^^^ Mass.4S9.
149 Mass. 152. 215 Mass. 76. 230 Mass. 197.
189 Mass. 390. 225 Mass. 217. 231 Mass. 563.
201 Mass. 236. 228 Mass. 385. 234 Mass. 25.
2546
LEVY OF EXECUTIONS ON hAND.
[Cblvp. 236.
Levy on land
subject to lien
P. S. 172. § 50.
R. L. 178, § 48.
Section 48. If, after an execution has been levied by setting off
e'V^s^'I's'"'^ land, there proves to be a mortgage or other lien on the land or an estate
G. s. 103, 1 34. of homestead therein, not known or allowed for, or not fully allowed for,
by the appraisers, the creditor shall nevertheless be entitled to hold the
land by force of the execution, except the estate of homestead, as against
the debtor, and may recover, in a new action against the debtor, the
amount of the homestead estate or the amount which he may lawfully
pay on account of such mortgage or other lien, or so much thereof as has
not been deducted and allowed for in the estimate of the appraisers.
Levy on right
of redeenaing
land taken on
execution.
R. S. 73. § 48.
G. S. 103, § 52.
1877, 176.
P. S. 172, § 51.
R. L. 178, § 49.
124 Mass. 330.
234 Mas3. 25.
Section 49. The right of redeeming land taken on execution may 1
be taken and sold on another execution, in like manner as the right of 2
redeeming mortgaged land may be taken and sold; and the debtor and 3
those claiming under him may redeem the right sold under such second 4
execution in like manner as if the right so sold had been a right of re- 5
deeming mortgaged land. All proceedings in levying such second execu- 6
tion, the redemption of the right sold under it and all the rights and 7
obligations of the several parties relative to such levy and redemption 8
shall be substantially the same as if the right taken and sold on such 9
second execution had been a right of redeeming mortgaged land. 10
Waiver of le\-y.
R. S. 73. § 20.
G. S. 103, § 21.
P. S. 172. § 52.
R. L. 178, § 50.
Section 50. If, before an execution which has been levied on land 1
is returned and recorded, it appears that there is a defect or error in the 2
proceedings which would defeat the levy, or that the land levied upon 3
cannot be held thereby, the creditor may waive the levy, which shall 4
thereupon be void, and resort to any other remedy for the satisfaction 5
of his judgment. 6
Scire facias on
invalid iev>'.
1785, 6.
R. S. 73. § 21.
G. S. 103. I 22.
1863, 125, § 1.
P. S. 172, § 53.
R. L. 178, 5 51.
19 Pick. 433.
11 Met. 233.
12 Met. 449.
2 Grav, 326.
10 Gray, 29.
143 Mass. 365.
150 Mass. 239.
155 Mass. 320.
206 Mass. 408.
222 Mass. 480.
Section 51. If, after the return of such execution, it appears to the 1
creditor that the land levied on, or any part thereof, cannot be held 2
thereby, he may take out from the court from which the execution issued 3
a writ of scire facias requiring the debtor to appear and show cause why 4
another execution should not be issued on the same judgment, and the 5
\\Tit may issue although there is a subsequent judgment for a part 6
thereof not satisfied by the le\'y. If the debtor, after being duly sum- 7
moned, does not show sufficient cause to the contrary, the levy of the 8
former execution may be set aside and another execution issued for the 9
amount then due on the original judgment and not included in a subse- 10
quent judgment, but without interest or further costs. 11
Procedure.
G. S. 103, § 23.
P. S. 172. § 54.
R. L. 178, § 52.
Section 52. If at the hearing the court finds that a part only of the 1
land levied on is held thereby, a warrant may be issued, if the creditor 2
so requires, to an officer qualified to serve the execution, requiring him 3
to cause the part held thereby to be appraised at its value when taken. 4
The officer shall thereupon cause such appraisal to be made in the manner 5
required upon the original levy, and, upon return of said warrant, the 6
levy may be set aside so far as it relates to the part not held thereby, 7
and, if duly recorded, shall be valid as to the remaining part. A new 8
execution may thereupon be issued for the difference between the amount 9
of the original appraisal of the land levied on and the amount of the 10
appraisal of the part held by the levy, without interest or costs. If the 11
court finds that the creditor in proceedings under this or the preceding 12
section had no just cause for such action, the debtor shall recover costs. 13
Chap. 236.] le\t: of executions on land. 2547
1 Section 53. Land of a deceased person which has not been sold and ^P2' °" '^.""^
2 conveyed, bv deed duly recorded, by the executor or administrator of 1758-9. 37, § i.
. 1783 32 § 7
3 such deceased person under a Hcense from the probate court or under r. s.' 73.' § 49.
4 a power of sale contained in the will of the deceased, may be taken on p.' s.' 172.' § ss.'
5 execution on a judgment against his executor or administrator for the ^14; Hf, ^ ^^'
6 debt of the deceased, for the costs of the action against him if the execu- i3H'Mlsg^249
7 tor or administrator has not appeared therein, and for the fees and jgj flags' ?|?'
8 charges of the le\y, and such land shall be appraised and set off or sold,
9 in like manner as if execution had been levied against the deceased in
10 his lifetime.
1 Section 54. Land taken as provided in the preceding section may Redemption
2 be redeemed by the executor, administrator, heir or devisee of the itss"? sTI 7°°'
3 deceased, or by any person lawfully claiming under him or them, in like §§s6. si.
4 manner as if the land had been taken on an execution against the de- f^ 54'55.'
5 ceased in his lifetime, and thereafter shall not be again taken on execu- Fsfg^jf'
6 tion for any other debt of the deceased, nor be in any way liable therefor, k- l- i78, § 54.
191 Mass. 187.
1 Section 55. A surviving husband shall be entitled to curtesy and do"werTn^iand
2 a widow to dower in land taken on execution from his wife or her hus- t^^en on
nil "1 ■ • 1 • 1 1 • execution.
3 band, respectively, or on execution upon a judgment against her or his c. l. 42. § 1
4 executor or administrator, respectivelv, in like manner as if the land had 1783,57', §'4."'
T> 0 "TQ K CO
5 been conveyed by the wife or husband in her or his lifetime without release g! s! 103. § 57.
6 of curtesy by him or dower by her. p. s. 172, § 59. r. l. i78, § 55.
REFERENCES.
§ 28. Relative to notices in newspapers, Chap. 4, § 6, cl. 8.
§ 53. Limitation of time within which levy can be made against land of a de-
ceased person, Chap. 202, § 20.
2548
WEITS OF ENTRY.
[Chap. 237.
TITLE III.
REMEDIES RELATING TO REAL PROPERTY.
Chapter 237. Writs of Entry.
Chapter 238. Writs of Dower.
Chapter 239. Summary Process for Possession of Land.
Chapter 240. Proceedings for Settlement of Title to Land.
Chapter 24L Partition of Land.
Chapter 242. Waste and Trespass.
Chapter 243. Action.? for Private Nuisances.
Chapter 244. Foreclosure and Redemption of Mortgages.
Chapter 245. Informations by the Commonwealth.
CHAPTER 237.
WRITS OF ENTRY.
.Segt.
requisites.
1. Estates recover.able.
2. Writ of entry against commonwealth.
3. Form of declaration.
4. Proof of actual entry not required.
5. Manner of prosecuting action.
6. Who may be deemed a disseisor.
7. Effect of actual ouster.
S. Joinder or separation of actions.
PLEADINGS and EVIDENCE.
9. Pleadings and evidence.
10. Manner of making certain defences.
1 1 . Part recoverable.
D.VMAGES FOR DEMANDANT.
12. Damages recoverable by demandant.
13. Measure of damages.
14. Use of improvements not element of
damages.
15. Limitation of tenant's liability.
ALLOWANCE TO TENANT.
16. Allowance to tenant for improvements.
17. Effect of possession under supposedly
good title.
18. Manner of claiming allowance.
19. Time of recording suggestion.
20. Limitation of allowance.
Sect.
assessment of damages and allowance.
21. Assessment by court. Postponement.
22. Assessment by jury. Postponement.
23. Resumption of procedure for assess-
ment by jury.
24. Waiver of claim for trial by jury.
25. Assessment by assessors.
SET-OFF.
26. Set-off of improvements against dam-
ages.
27. Effect of excess of improvement over
rents and profits.
28. Payment of balance due tenant.
29. Writ of seisin before assessment.
30. Collection of balance due tenant.
ELECTION BY DEMANDANT.
31. Determination of value of estate with-
out improvements.
32. Election to relinquish estate.
33. Tenant to hold estate if he pays such
value.
34. Effect of non-pajTncnt.
35. Remedy on failure of title.
DEATH OP PARTY AFTER JUDGMENT.
36. Effect of death of parties on manner of
payment.
37. .Against whom writ of seisin sliall run.
Chap. 237.]
WRITS OF ENTRY.
2549
Sect.
life tenant or remainderman.
38. Recovery by life tenant from remain-
derman.
39. Manner of determining and recovering
amount.
40. Limitation of amount recoverable.
41. Limitation of time for bringing action.
Sect.
execution to be recorded.
42. Execution for possession to be recorded.
APPLICATION OF CHAPTER.
43. Demandant's remedy against tres-
passers not affected.
44. Certain provisions not to apply to
actions by mortgagees.
Section 1.
REQUISITES.
All estates of freehold in fee simple, fee tail or for life Estates
2 may be recovered by a writ of entry upon disseisin, unless a different ks^icu, §'i-
3 action is provided.
R. L. 179, i
G. S. 134, § 1.
13 Allen, 286.
P. S. 173, § 1.
220 Mass. 197.
1 Section 2. A writ of entry may be prosecuted against the common- writ of entry
2 wealth under this chapter. 1913, 624. 236 Mass. 121. monwealtT'
1 Section 3. The demandant shall declare on his own seisin within Form of
2 twenty years then last past, without specifying any particular day, and lyst^is!""'
3 shall allege a disseisin by the tenant, but need not aver a taking of the §f°/,'2.^"
4 profits. He shall set forth the estate which he claims in the land, whether ^-^' l^J- ^ -■
5 in fee simple, fee tail or for life, and if the latter, whether for his own life §§ 1 3- ^
6 or for the life of another, but he need not set forth the original gift, devise p.s.i73,'§ 2.'
7 or other conveyance or title by which he claims the estate. 3 Mass. 352. "
22 Pick. 283. 9 Allen, 370. 116 Mass, 117. 131 Mass. 179.
6 Cush. 265. 97 Mass. 34. 124 Mass. 468. 141 Mass. 93.
8 Allen, 61. 101 Mass. 188. 128 Mass. 458. 214 Mass. 546.
1 Section 4. The demandant need not prove an actual entry under his Proof of actual
2 title, but proof that he is entitled to such an estate as he claims in the reqvured.
3 land and that he has a right of entry therein shall be sufficient to prove §: s! isli I a.
4 his seisin. No writ of entry shall be maintained unless the demandant has r. f; V79.1 3.
5 at the time of commencing his action a right of entry into the land |'^^j'g''Q|j7-
6 demanded.
13 Allen, 346.
102 Mass. 512.
113 Mass. 318.
130 Mass. 384.
133 Mass. 201.
137 Mass. 584.
161 Mass. 91.
217 Mass. 583.
Section 5. A writ of entry shall be prosecuted in the same manner as Manner oi
if the demandant, at the time of commencing the action, had made an action."""^
actual entry on the land demanded and had been immediately ousted §; |; Jg'; | f_
by the tenant. In a trial upon the general issue, if the demandant proves ^ ^ ^^f^ i*^
that he is entitled to the estate set forth in the declaration and that he i^iviasa. 472.
9 Cusli, 427.
6 had a right of entry on the day when the action was commenced, he shall 102 Mass~3'74,
7 recover the land unless the tenant proves a better title in himself. 139 Mass. 244.
155 Mass. 461. 220 Mass. 197.
1 Section 6. A person in possession of land demanded in a writ of ^"^^I'l ^^
2 entry, claiming an estate of freehold therein, may be considered as a i'^y ''',o''i 5 g
3 disseisor for the purpose of trying the right, irrespective of the manner g. s. 134] § 5.
4 of his original entry therein.
p. S. 173, §5. R. L. 179, § 5. 99 Mass. 7, 110 Mass. 419.
1 Section 7. If the person in possession has actually ousted the de- Effect of
2 mandant or withheld from him the possession of the land, h^ may, at r. sI'ioiTs".
2550
WRITS OF ENTRY.
[Chap. 237.
p' I' 173' 1 1' ^^^ election of the demandant, be considered as a disseisor for the
R- L- 179. § 6. purpose of trying the right, although he claims an estate less than
20 Pick. 458. a freehold. 12 Met. 154. 12 Cush. ISS. 1 Gray, 416. 5
2 Gray. 13.5.
4 Allen, 150.
99 Mass. 209.
110 Mass. 419.
124 Mass. 307.
126 Mass. 327.
154 Mass. 535.
161 Mass. 91.
3
4
Joinder or
separation
of actions.
1783, 52, § 3.
1785, 62, § 3.
Section 8. Joint tenants or tenants in common may join in a writ 1
of entry for the recovery of land, or any one of them may sue alone for 2
his share. is28, 137, § 3. r. s. 101, § 10. 3
G. S. 134, § 9.
p. S. 173. § 7.
R. L. 179, § 7.
6 Gray, 428.
97 Mass. 508.
135 Mass. 231.
141 Mass. 93.
155 Mass. 461.
Pleadings and
evidence.
R. S. 101, § 9.
G. S. 134, § 8.
p. S. 173, § 8.
R. L. 179, § 8.
13 Mass. 439.
PLEADINGS AND EVIDENCE.
Section 9. The law and practice relative to pleadings and evidence 1
in a writ of entry upon disseisin, as heretofore recognized and established, 2
shall continue in force, except as altered by this chapter and chapters 3
one hundred and eighty-five and two hundred and thirty-one. 4
2 Met. 293.
4 Ciray, 53.
6 Allen, 28.
99 Mass. 7.
104 Mass. 1.
112 Mass. S35.
116 Mass. 577.
123 Mass. 187.
128 Mass. 458.
139 Mass. 244.
143 Mass. 195.
208 Mass. 391,
Manner of SECTION 10. Nou-tcnure, disclaimer, several tenancy and sole 1
making certain i i , . i • • • , ^
defences tcuaucy may be pleaded in abatement or given in evidence under the 2
R s.'ioi,'§ 13. general issue, but the party shall be allowed such costs only as accrue 3
G. s.'i34,'§ 12. after the filing of the plea. p. s. 173, § 9. 4
R. L. 179, § 9. 4 Gray, 53. 13 Allen, 2.Sfi. 123 Mass. 187.
2 Met. 293. 6 Gray, 107. 98 Mass. 500. 124 Mass. 307.
12 Met. 154. 6 Allen, 28. 108 Mass. 232. 139 Mass. 244.
Part recover-
able.
Section 11. The demandant may recover any specific part or un- 1
G I' i3i' 1 10 di^'ided portion of the land to which he proves a sufficient title, although 2
p. s. 173, § 10. less than demanded in the writ.
R. L. 179, § 10. 2 Pick. 387.
99 Mass. 7.
Ill Mass. 386.
Damages re-
coverable by
demandant.
R. S. 101, § 14.
G. S. 134, § 13.
P. S. 173. § 12.
R. L. 179. § 12.
2 Met. 293.
6 Cush. 265.
D.\MAGES FOR DEMAND.\NT.
Section 12. If the demandant recovers judgment, he shall recover 1
in the same action, subject to the limitations provided in this chapter, 2
damages for rents and profits of the land from the time when his title 3
accrued and for any destruction or waste of the buildings or other prop- 4
ertv for which the tenant is liable. 5
4 Gray, 53.
105 iiass. 328.
Ill Mass. 386.
114 Mass. 140.
124 Mass. 307.
128 Mass. 45S.
150 Mass. 535.
212 Mass. 135.
214 Mass. 329.
Measure of
damages.
R. S. 101, § 16.
G. S. 134, § 15.
P. S. 173, § 14.
R. L. 179, § 14.
103 Mass. 146.
104 Mass. 1.
114 Mass. 140.
Section 13. Rents and profits for which the tenant is liable shall
be the clear annual value of the land while he was in possession thereof,
after deducting all lawful taxes and assessments on the land paid by
him and all necessary and ordinary expenses of cultivating the land or
collecting rents, profits or income thereof.
179 Mass. 163. 198 Mass. 137.
mentlJiot"™™' Section 14. lu determining rents and profits, the \-alue of the use 1
damfges"^ by the tenant of any improvements made by him or by those under 2
R. s. 101, § 17. ^vhom he claims shall be excluded. g. s. 134, § le. 3
p. S. 173, § 15. R. L. 179, § 15. 198 Mass. 137.
Chap. 237.] wkits of entry. 2551
1 Section 15. The tenant shall not be liable for rents and profits Limitation
2 for any time more than six years prior to the date of the vrrit or for uabfii'ty'! ^
3 waste or damage committed before said six years, unless rents and §; | \°l] | {f
4 profits are allowed by way of set-off to his claim for improvements R.L.Yyg^lVe.
5 under section twenty-seven. 9 Cush. 427. 104 Mass. 1.
ALLOWANCE TO TENANT.
1 Section 16. If the land demanded has been actually held and 4n°ntforiS-
2 possessed by the tenant and by those under whom he claims for six 5'sg7™5°8^3
3 years next before the date of the writ, he shall, if judgment is against g- s- loi, § 19.
4 him, be entitled to compensation as hereinafter provided for the value p.'s.i73,'§ i7.'
5 of any buildings or improvements made or erected on the land by him e Mass! 303.
6 or by any person under whom he claims.
12 Mass. 329. 5 Pick. 140. 12 Cush. 458. 117 Mass. 360.
13 Mass. 241. 15 Pick. 141. 15 Gray, 36. 190 Mass. 449.
15 Mass. 291. 16 Pick. 260. 100 Mass. 177. 215 Mass. 324.
17 Mass. 350. 7 Met. 310. Ill Mass. 386.
1 Section 17. The tenant shall also be entitled to like compensation Effect of pos-
2 although the land has not been so held for six years, if he holds it under supposedly '''^
3 a title which he had reason to believe good. ^°°'^ *'"^-
R. S. 101. §20. 12 Cush. 458. 117 Mass. 360, 393.
G. S. 134. I 19. 10 Gray, 40. 128 Mass. 167.
P. S. 173, § 18. 5 Allen, 319. 134 Mass. 82.
R. L. 179, § 18. 8 Allen, 363. 179 Mass. 163.
7 Met. 310. 100 Mass. 177, 270. 190 Mass. 449.
10 Cush. 451. 109 Mass. 206.
1 Section 18. If the tenant claims allowance for improvements, he Manner of
2 shall enter on the record a suggestion of his claim, with a request that, allowance.
3 if judgment is rendered for the demandant, the value of the improve- R^°J.'ioi,V2i.
4 ments may be ascertained and allowed to him. G. s. 134, § 20.
P. S. 173, § 19. R. L. 179, § 19. 7 Met. 310. 11 Gray, 217.
1 Section 19. The suggestion shall be entered at the same sitting Time of
2 with the plea, unless the land court allows it to be entered afterward; su^est"on.
3 but if judgment is rendered for the demandant without a plea, the court a, 1. Isl', 1 21]
4 may allow it to be entered at any time.
p. S. 173, §20. R. L. 179, §20. 1904, 448, |1.
1 Section 20. The amount allowed for improvements shall not exceed aiCwanre" °^
2 the amount actually expended by the tenant and those under whom he g- 1- Jo'' 1 1^-
3 claims, nor shall it exceed the amount to which the value of the land „ f'^llt"
4 is actually increased thereby at the time of the assessment.
assessment of damages and allowance.
1 Section 21. Except as provided in sections twenty-two to twenty- Assessment
2 four, inclusive, and section twenty-sLx, if there is a trial in the land Postponement.
3 court it shall at the same time assess the amounts due the demandant rL*s.'i'oi',
4 for rents and profits-or other damages, if any, and shall determine the 32,3^3.^^'^*'
5 amount to be allowed to the tenant for improvements, if any, and also, ssf4^|2'23
6 if duly required, the value of the demandant's estate, unless, on its ??'cf U,
7 own motion or that of either party, made before its finding or de- §§"13, 21', 22,
8 cision on the title is recorded, it postpones such assessments or deter- r.'l. i79.
9 mination till after its trial of the title and its finding or decision thereon. i904?'448', ^^'
1910, 560, § 6. 8 Gray, 435. 212 Mass. 135. 214 Mass. 329. ^^ '■ *•
2552
WRITS OF ENTRY.
[Chap. 237.
Assessment
by jury.
Postponement.
1807, 75, § 3.
R. S. 101,
§§ 15, 23, 24,
32, 33.
G. S. 134,
§§ 14, 22, 23,
30, 31.
P. S. 173,
« 13,21,22,
30, 31.
R. L. 179,
§§ 13, 21, 2S.
1904, 44S.
§5 1,8.
1910, 560, § 6.
Section 22. If trial by jury shall be claimed under section fifteen 1
of chapter one hundred and eighty-five, and if issues therefor are to be 2
framed to obtain an assessment of the amounts due to the demandant 3
for rents and profits or other damages, or a determination of the amount 4
to be allowed to the tenant for improvements, or of the value of the 5
demandant's estate, the land court, on its own motion, or on that of 6
either party, made at any time before tlie papers required by said section 7
fifteen have been entered in the superior court, may postpone such 8
issues till after its trial of the title and its finding or decision thereon. 9
In such case said court shall order that the proccflure provided by said 10
section fifteen be suspended pending its further order under the follow- 1 1
ing section. 12
Resumption of
procedure for
assessment
by jury.
R S. 101, § 25.
G. S. 134, § 23.
P. S. 173, § 22.
R. L. 179, §21.
1904, 448,
§§ 1,8.
1910, 560, § 6.
Section 23. If issues are postponed under the preceding section, 1
and if, on its trial of the title, the land court shall make a finding or 2
decision in favor of the demandant, that court shall, on motion of either 3
party, made before its finding or decision on the title is recorded, order 4
that the procedure provided by section fifteen of chapter one hundred 5
and eighty-five be resumed, except that the papers required by said sec- 6
tion fifteen shall be entered in the superior court for the county where 7
the land lies within thirty days after such order. 8
Waiver of
claim for trial
by jury.
R. S. 101,5 25
G. S. 134,
P. S. 173,
R. L. 179
• 1904, 448,
§§ 1.8.
1910, 560. § 6,
23.
22
, § sT.
Section 24. If issues have been postponed under section twenty-
two, and if, after a finding or decision in favor of the demandant on the
title, no motion under section twenty-three is seasonably made, that
the procedure provided by section fifteen of chapter one hundred and
eighty-five be resumed, jury trial on such postponed issues shall be
deemed to be waived, and such assessment or determinations shall be
made as provided in section twenty-one or twenty-fi\e.
Assessment
bv assessors.
1807, 75, § 3.
R. S. 101,
§§ 26, 32. 33
G. S. 134,
§§24,30,31.
P. S. 173,
23, 30, 31.
L. 179,
21, 28.
R,
Section 25. In cases where an assessment of the amounts due to
the demandant for rents and profits and other damages, or a determina-
tion of the amount to be allowed to the tenant for improvements, or of
the value of the demandant's estate is to be made by the land court, such
assessment or determinations may, if the parties consent, be made by
assessors appointed by that court. i904. 44s, § 1.
set-off.
pro'vemeLtr SECTION 26. If an allowance is made to the tenant for improvements,
damages ^^ ^'^^'' ^^ ^^^ ^^ agaiust the amount found due from him for rents and
G i 134' I ^fi P''°fits ^^^ other damages; and the demandant shall have judgment and
p'.' s' 173,' § 25.' execution for the balance, if any, due from the tenant as well as for seisin
R L 179 § ''.3
190 Mass! 449'. ■ of the land. 204 Mass. 448. 215 .\tas3. 324.
on^proVl^"^"^ Section 27. If the amount found due to the tenant for improve-
rentsand"^ ments excceds the amount due from him for rents and profits accruing
R°s'Toi 5 30 ■^^'thin six years, he shall be chargeable with rents and profits accruing
G. s. 134! § 28: before that time, so far as necessary to balance his claim for iinprove-
R. L. 179, § 24. ments; but in such case he shall not be liable to repay rents and profits
in excess of the ^■alue of the improvements.
Section 28. The demandant shall, except as provided in the follow- 1
Payment of
balance due • • p i i i n
r"s°ioi § 29 ^"S section, before taking out execution for seisin of the land, pay to the 2
Ca.\p. 237.] WRITS of entry. 2553
3 tenant, or for his use to the recorder of the land court, the balance, if ^^^s. m. § 27.
4 any, due the tenant for improvements after deducting the amount due §§ V2^'
5 from the tenant for rents and profits and other damages; but the tenant R.'il 179, § 25.
6 or person claiming under him shall not be liable for rents and profits io5Vats'.328.
7 accruing between the date of the judgment and payment by the demand-
8 ant of said balance.
1 Section 29. The demandant may take out a WTit of seisin before writ of seisin
2 the amounts due for rents and profits or other damages or for improve- ment^ "^^^^
3 ments have been assessed; but if the tenant has entered on the record §§^i*;|°^'
4 the suggestion of a claim for improvements, the demandant, before ^- 1; Y^^ M|g
5 taking out his writ of seisin, shall furnish such security or pay into court
6 such amount of money as the land court may order, to secure to the
7 tenant the payment of any balance found due him for such improvements.
1 Section 30. If a balance is found due the tenant for such improve- collection of
2 ments, he may have judgment and execution therefor, or he may collect ullnt "^""^
3 the same, with all reasonable costs and expenses of such collection, out ^^i'l^s'^og
4 of the security furnished, or may receive it out of the money paid into ^- ^- 1'^' 5 27.
5 court, and the residue thereof shall be returned to the demandant.
ELECTION BY DEMAND.\NT.
1 Section 31. If the tenant claims an allowance for improvements Determination
2 as before provided, the demandant may, by an entry on the record, eftate^without
3 require the value of his estate in the land demanded, without the im- '{sor^rb^iT"'
4 provements, to be determined as provided for the assessment of rents F^l^^ag'
5 and profits and improvements. Such value shall be the value which, ^.s i34,
6 at the time of assessment, the land would have had if the improvements p. s. 173,'
7 had not been made by the tenant or a person under whom he claims. r. l.'i79, § 2s.
11 Pick. 193,219.
1 Section 32. After said determination of value the demandant may. Election to
2 at the sitting at which judgment is entered for him, enter upon the estate"^''
3 record his election to relinquish his estate in the land to the tenant at r^'s.'i^oI,^ ^'
4 said value; and upon his motion for further time in which to make such l,^ i^"?^-
I'll! 1 r»'i lo4,
5 election the land court may postpone the entry 01 judgment without §§ 32, 33.
6 further, costs for him.
p. S. 173. §§ 32, 33. R. L. 179, § 29. 1904, 44S, § 1.
1 Section 33. If the demandant elects to relinquish the land as Tenant to hold
2 before provided, the tenant shall thenceforth hold all the estate which such' value. '"'^^
3 the demandant had therein at the date of the writ, if he pays said value \lol'. sJ ^ ^'
4 thereof in three equal instalments on or before the expiration of one, ssf7'3g'
5 two and three years, respectively, from the time when said election was g. S- 'i34.
6 entered on the record, with interest therefrom on the amount unpaid. ?■ s. 173,' § 34.
R. L. 179, § 30.
1 Section 34. Said payments shall be made to the demandant or for Effect ot
2 his use to the recorder of the land court; and if the tenant fails to make i807!'75!T3.'
3 any such payment within the time limited therefor, the demandant may, R°|.'foi,
4 witliin three months after default of payment, take out his writ of seisin ^ f'll^'
5 on the judgment recovered by him, and shall take and hold the land y|^'3l'
6 without allowance for any improvements made thereon. §§ 35, 36".
R. L. 179, § 31. 1904, 448, § 1.
2554
WEITS OF EXTRY.
[CIH.P. 237.
Remedy on
failure of
title.
1807, 75. § 3.
R. S. 101.
§§41-43.
G. S. 134,
§§ 38, 39, 50.
P. S. 173,
§5 37-39.
R. L. 179,
§§ 32-34.
1918, 257,
§437.
1919,5.
1920, 2.
Section 35. If the tenant or his heirs or assigns, after the land is so 1
relinquished to him, are evicted therefrom by force of a better title than 2
that of the original demandant, the person so evicted may reco^■er from 3
such demandant, or from his executors, administrators, heirs or devisees 4
under chapter one hundred and ninety-seven, the amount so paid for 5
the land in an action for money had and received by the demandant in 6
his lifetime for the use of the plaintiff, with lawful interest thereon; but 7
in order to be so entitled to recover, the tenant or those holding under 8
him shall give notice to the person so liable to refund the purchase money 9
of the pendency of the action for the recovery of the land, so that he may 10
offer evidence tending to pro^'e that the original demandant had the 11
better title. " 12
Effect of
death of
parties on
manner of
pa\Tnent.
1809, 84.
R. S. 101, § 44.
G. S. 134, § 41.
P. S. 173, § 40.
R. L. 179, § 35.
DEATH OF P.iRTY .\FTER JUDGMENT.
Section 36. If, after judgment for the demandant, either party 1
dies before the writ of seisin is executed, or before the case is otherwise 2
settled under this chapter, any money payable by the demandant or 3
tenant, respecti\'ely, may be paid by him or his executor or adminis- 4
trator, or by a person entitled to the estate under him, to the tenant or 5
demandant, respectively, or his executor or administrator. 6
Against whom
writ of seisin
shall run.
R. S. 101. § 4.5.
G. S. 134, § 42.
P. S. 173. § 41.
R. L. 179, § 36.
Section 37. The writ of seisin issued in such case shall be in the
name of the original demandant against the original tenant, although
either or both of them are dead, and when executed it shall enure to the
benefit of the demandant or of the person entitled to the land under
him, as if it had been executed on the day when the judgment was
rendered.
Recovery by
life tenant
from re-
mainderman.
R. S. 101, §46.
G. S. 134, § 43.
P. S. 173, § 42.
R. L. 179, § 37.
LIFE tenant or RE^L\INDERiL^N.
Section 38. If a demandant claiming an estate for life only in the
land pays an amount allowed to the tenant for improvements, he or his
executor or administrator shall, at the determination of his estate, be
paid by the remainderman or reversioner the value of the improvements
as they then e.xist, shall have a lien on the land for said value as if it had
been mortgaged for the paj-ment of such value, and may keep possession
of the land until such payment is made.
1
2
3
4
5
6
7
Manner of
determining
and recovering
amount.
R. S. 101, § 47.
G. S. 134, § 44.
P. S. 173, § 43.
Section 39. If the amount due from the remainderman or reversioner 1
is not agreed on by the parties, it may be determined in a suit in equity 2
brought by the remainderman or reversioner; and the proceedings shall be 3
the same as in a suit for the redemption of a mortgage. R. l. 179, § 38. 4
Limitation of
amount re-
coverable.
R. S. 101, § 48.
G. S. 134, § 45.
P. S. 173, § 44.
R. L. 179, § 39.
Section 40. The remainderman or reversioner, or those claiming
under him, shall not recover from the adverse party the excess, if any,
of rents and profits accruing after the determination of the estate for life,
over the amount due for the improvements.
1
2
3
4
Limitation of
time for bring-
ing action.
R. S. 101,
§§ 48, 49.
G. S. 134,
§§ 45, 46.
P. S. 173, § 45.
R. L. 179, § 40.
Section 41. The remainderman or reversioner, or those claiming
under him, shall be deemed disseized at the determination of the life
estate, and the suit in equity and all other remedies by action or by entry
for the recovery of the land shall be barred as in other cases of disseisin,
and the limitation of three years provided for the redemption of a mort-
gage shall not apply.
Chap. 237.] wrus of entry. ' 2555
EXECXTTION TO BE RECORDED.
1 Section 42. An officer serving an execution issued upon a judgment Execution for
2 for possession shall, within tlu-ee months after the service, and before the be recorded.
3 return of the execution into the recorder's office, cause such execution with g. s.' 133,' § 55.
4 his return thereon to be recorded in the registry of deeds for the county r. LVyg,!!*!'.
5 or district where the land affected thereby lies, and the expense thereof y^otkyflbl/'
6 shall be added to his charge for service.
APPLICATION OF CHAPTER.
1 Section 43. This chapter shall not prevent the demandant from Demandant's
2 maintaining an action of trespass for mesne profits, or for damage done trespa^serT'"^
3 to the land, against any person, except the tenant in the writ of entry. r°s^'io'i',''^'3i.
G. S. 134, § 29. P. S. 173, § 47. R. L. 179, § 42. G Gush. 205.
1 Section 44. The provisions of this chapter relative to rents and vilions°n^'t°to
2 profits to, be recovered in a writ of entry, the allowance for improvements ^PjPJ,^*'^,
3 made on the land demanded and the value of the land without the mortgagees
4 improvements shall not apply to an action brought by a mortgagee, his r. s.'ioi. § s.
5 heirs or assigns, against a mortgagor, his heirs or assigns, for the recovery p.s. 173.' § 48.'
6 of the land mortgaged. r. l. 179, § 43.
REFERENCES.
Information by commonwealth in the nature of writ of entry to recover land. Chap.
245, § 1.
Writ of entry by creditor or pm-chaser at execution sale in certain cases, Chap. 223,
§ 127; 236, §47.
Writ of entry by debtor, where, after tender of debt, and costs to redeem land taken
on execution, creditor or purchaser refuses to release. Chap. 236, § 38.
Writ of entry by devisee of disseized testator having right of entry, Chap. 191, § 24.
Writ of entry by executor or administrator licensed to sell land fraudulently con-
veyed by decedent, Chap. 202, § 18.
Writ of entry to foreclosure mortgage. Chap. 244, §§ 1, 8.
Sale by executor or administrator of right of decedent to bring writ of entry, Chap.
202, §§ 2, 18.
Jurisdiction of land court of writs of entry, Chap. 185, § 1.
Costs in writ of entry, Chap. 244, § 8; 245, § 12; 261, § 6.
Fee for serving execution of seisin or possession in writ of entry. Chap. 262, § 8.
Survival of actions, Chap. 228, §§ 8-11.
§ 2. Writ of entry against commonwealth or its grantee by demandant not concluded
by information to recover land, Chap. 245, §§ 9~V2.
§ 3. Time within which to bring writ of entry, Chap. 189, § 14; 202, §§ 2, 18;
204, § 22; 223, § 127; 260, §§ 21-31.
§ 4. Evidence of seisin of attaching creditor in writ of entry where special attach-
ment is dissolved by giving bond. Chap. 223, § 127.
§ 9. Proceedings in writ of entry by debtor, where, after tender of debt and costs
to redeem land from levy or execution sale, creditor or purchaser refuses to release.
Chap. 236, § 40.
§ 10. New action after abatement of writ of entry, or arrest or reversal of judgment
for demandant. Chap. 260, § 32.
§ 12. Right of demandant to damages for rents and profits, etc., in writ of entry
against commonwealth or its grantee, Chap. 245, § 11.
Action of tort for three times damages assessed for waste committed during pend-
ency of wTit of entry. Chap. 242, § 6.
Equitable power of court to restrain waste during pendency of writ of entrv, Chap.
242, § 9.
Liability of demandant for improvements in writ of entry against commonwealth
or its grantee. Chap. 245, § 11.
§ 27. When demandant may not have writ of possession, Chap. 223, § 127.
§ 36. Effect of descent or discontinuance on writ of entry. Chap. 184, § 20.
§ 42. Necessity of recording memoranda in registry of deeds to bind persons with-
out actual notice of writ of entry. Chap. 184, §§ 15, 17.
Necessity of recording memoranda in land court to bind persons other than parties
in writ of entry relating to registered land, Chap. 185, §§ 8fr-89.
Registration of judgment in WTit of entry relating to registered land. Chap. 185, § 8S.
2556
WEITS OF DOWER.
[Ch.u>, 238.
CHAPTER 238.
WRITS OF DOWER.
Sect.
1. When writ maintainable.
2. Demand for dower.
3. Form and manner of making demand.
4. Damages for detention.
5. Commissioners to set out dower.
6. Procedure of cominissioners. Oath.
Notice.
Sect.
7. Report of commissioners.
8. .Appeal.
9. Execution.
10. Tenant's liability.
11. Assignment out of rents and profits
12. -Application of certain provisions.
When writ
maintainable.
C. L. 42, § 1.
1700-1, 22, § 1.
1~S3, 40, 5 1.
R. S. 60, § 5;
102, § 1.
Section 1. A woman entitled to dower, if it is not set out to her by 1
the heir or other tenant of the freehold to her satisfaction according to 2
law nor assigned to her by the probate court, may recover the same by 3
a writ of dower as provided in this chapter. 4
G. S. IS.'), f 1. R.L.ISO. §1 116 Mass. 69.
P. S. 174, § 1.
1 Pick. 189, 314.
Demand for
dower.
1700-1, 22, § 1.
1783, 40, § 1.
1828, 137, § 5.
R. S. 102, § 2.
G. S. 135, § 2.
1878, 67.
P. S. 174, § 2.
R. L. 180. § 2.
12 Met. 537.
Section 2. She shall demand her dower of the person then seized 1
of the freehold, unless such person is unknown to her or absent from 2
the commonwealth. She shall not commence an action before the ex- 3
piration of one month, nor after the expiration of one year, from such 4
demand; but she may make a new demand and commence an action 5
thereon. 6
Form and
manner of
making de-
mand.
1855, 438.
G. S. 133, § 3.
P. S. 174. § 3.
Section 3. A demand of dower shall be sufficient if it is in writing,
signed bj^ the widow or by her agent or attorney, containing a general
description of the land in which dower is claimed and is given to the
tenant of the freehold or left at his last and usual place of abode.
R. L. ISO, § 3. 6 Gush. 196.
Damages for
detention.
1700-1, 22, § 2.
1783, 40, § 2.
R. S. 102, § 3.
G. S. 135, § 4.
1869,418, § 1.
P. S. 174, § 4.
R. L. 180, § 4.
Section 4. If the demandant recovers judgment for her dower, she
shall in the same action recover damages for its detention, which shall
be assessed by a jury under the direction of the court, unless the parties
file in court a %\Titten agreement that the damages shall be assessed by
commissioners as pro%-ided in the three foUon-ing sections.
116 Mass. 69. 129 Mass. 417,
Commissioners
to set out
dower.
C. L. 42, § 1.
1700-1, 22, § 3.
1783, 40, § 2.
R. S. 102, § 6.
G. S. 135, § 7.
1869, 418,
§12,3.
P. S. 174, § 5.
Section 5. If the court finds that the demandant is entitled to
dower, it shall award an interlocutory judgment therefor and issue its
warrant to three disinterested commissioners to set out said dower
equally and impartially and as conveniently as may be and, if an agree-
ment has been filed under the preceding section, to award damages for
its detention. R. l. iso, § s. 9 Ai\en. 254.
Procedure of
commissioners.
Oath. Notice.
1700-1, 22, § 3.
1783, 40, § 2.
R. S. 102, § 6.
G. S. 135, 5 7.
1869,418,
5§4, 6.
P. S. 174, § 6.
R. L. 180, I 6.
Section 6. The commissioners, before entering upon their duties, 1
shall be sworn faithfully and impartially to execute the M-arrant, and 2
a certificate of the oath shall be made thereon by the person administer- 3
ing it. They shall give notice to the parties of the time and place ap- 4
pointed for setting out the dower. AH the commissioners shall meet 5
for the performance of any duties, but a majority may act. 6
Chap. 239.]
SUXIM.\RY PROCESS FOR POSSESSION OF L.tND.
2557
1 Section 7. The commissioners shall make and sign a report of their Report of
2 doings, with any damages assessed by them, and return it with the iseg, /is?}?.'
3 warrant to the court issuing it. If the report is confirmed, judgment r.l.Vso.I?.
4 shall be rendered that the assignment of dower shall be firm and effectual ^^® ^^"^^^ ^^■
5 during the life of the demandant, and for the damages as assessed by
6 the commissioners.
1 Section 8. A party aggrieved by a judgment rendered under section Appeal.
2 five, or upon a report of the commissioners under the preceding section, p. s.'i74,'§ s.'
3 may appeal therefrom in any matter of law apparent upon the record to ^' ^' ^*°' ^ *■
4 the supreme judicial court; but an appeal from the judgment rendered
5 under the preceding section shall not draw in question the interlocutory
6 judgment.
1 Section 9. When final judgment has been recovered by the de- Execution.
2 mandant, execution shall issue thereon for possession and for costs and, i874i3lo; '
3 if the judgment is for damages also, for damages.
p. S. 174, § 9. R. L. 180, § 9.
1 Section 10. The action shall be brought against the person who is Tenant's
2 tenant of the freehold at the time when it is commenced. If the demand r's'.'im,
3 was not made on him, he shall be liable for damages only for the time q s. I'ss,
4 during which he held the land; but if the demandant recovers her dower p^l'ijj
5 and damages in the writ of dower, she may thereafter recover in tort |§ J^-jll ^ .„
6 against the prior tenant of the freehold, on whom her demand was made, 12 Mass. 485.
7 rents and profits for the time during which he held the land after the
8 demand.
1 Section 11. If the land cannot be divided without damage to the Assignment out
2 whole, dower may be assigned out of rents or profits, which shall be re- profite" ""
3 ceived by the demandant as tenant in common with the other owners. §; |; J"?; | §;
p. S. 174, §12. R. L. 180, §11.
1 Section 12. The provisions of chapter one hundred and eighty-nine Application
2 relative to the land out of which dower may be claimed and the manner provisions.
3 in which it may be barred, and those of section one of chapter two hun- g! s! 135! 1 10.
4 dred and forty-two relative to the liability of the tenant for waste, shall r. i'.Vso.^ 12.
5 apply to proceedings under this chapter.
REFERENCE.
§ 7. Provision as to registration of certificate of judgment in writ of dower,
Chap. 185, § 90.
CHAPTER 239.
SUMMARY PROCESS FOR POSSESSION OF LAND.
Sect.
1. Persons entitled to summary process.
2. Jurisdiction, venue and form of writ.
3. Judgment and execution.
4. Storage of property removed. Lien and
enforcement,
o. Appeal. Bond. Action thereon.
Sect.
6. Condition of bond in action for posses-
sion after foreclosure.
7. Effect of judgment.
S. Effect of quiet possession for three
years.
2558
SUMMARY PROCESS FOR POSSESSION OF hXSB. [ChAP. 239.
Persons en-
titled to sum-
mary process.
C. L. 11, § 3.
1700-1, 14, § 1.
1784,8. § 1.
1825, 89. § 1.
1835, 114.
R. S. 104, 5 2.
1847, 267, § 2.
1851, 2.33, § 77.
G. S. 137,
§§2,3.
1879, 237.
P. S. 175.
1899, 120.
R. L. 181, § 1.
1914, 146.
10 Mass. 403.
3 Pick. 31.
13 Pick. 36.
2 Met. 29.
3 Met. 350,
548.
5 Met. 343.
7 Met. 147.
10 Met. 29S.
1.
Section 1. If a forcible entry into land or tenements has been made, 1
if a peaceable entry has been made and the possession is unlawfully held 2
by force, if the lessee of land or tenements or a person holding under him 3
holds possession without right after the determination of a lease by its 4
own limitation or by notice to quit or otherwise, or if a mortgage of 5
land has been foreclosed by a sale under a power therein contained or 6
otherwise, the person entitled to the land or tenements may recover 7
possession thereof under this chapter. A person in whose favor the land 8
court has entered a decree for confirmation and registration of his title 9
to land may in like manner recover possession thereof, except where 10
the person in possession or any person under whom he claims has erected 1 1
buildings or improvements on the land, and the land has been actually 12
held and possessed by him or those under whom he claims for six years 13
next before the date of said decree or was held at the date of said decree 14
under a title which he had reason to believe good.
15
11 Met. 99.
I Gush. 487.
4 Gush. 141.
5 Gush. 214, 563.
8 Gush. 29. 33. 409.
II Gush. 227.
4 Gray, 432.
7 Gray, 462.
9 Gray, 438.
10 Gray, 290.
11 Gray, 480.
15 Gray, 319.
1 Allen, 215, 406.
6 Allen, 74, 76.
9 Allen, 526.
10 Allen, 519.
13 Allen, 281.
14 Allen, 43.
99 Mass. 383.
104 Mass. 595.
106 Mass. 532.
113 Mass. 36.
121 Mass. 85, 309.
126 Mass. 226, 292.
130 Mass. 540.
132 Mass. 122, 196.
133 Mass. 426.
134 Mass. 259.
136 Mass. HI.
139 Mass. 54.
140 Mass. 490.
151 Mass. 543.
152 Mass. 440.
161 Mass. 335.
163 Mass. 477.
165 Mass. 481.
168 Mass. 442.
170 Mass. 29.
172 Mass. 412.
175 Mass. 213.
191 Mass. 192.
197 Mass. 540.
206 Mass. 82. 434.
213 Mass. 405.
214 Mass. 238.
219 Mass. 151.
224 Mass. 209.
225 Mass. 510.
Jurisdiction,
venue and
form of writ.
1700-1, 14. § :
1784,8, § 1.
1825, 89, § 1.
R. S. 104,
§§4,13.
1841,55. § 2.
1851. 2.33,
§§ 79-81.
G. S. 137, § 5.
1866, 47.
1869, 17, § 3.
1874, 271, § 8.
Section 2. Such person may take from the superior court or from 1
a district court a wTit in the form of an original summons, which shall 2
summon the defendant to answer to the complaint of the plaintiff that 3
the defendant is in possession of the land or tenements in question, 4
describing them, which he holds unlawfully and against the right of the 5
plaintiff; and no other declaration shall be required. The action shall 6
be brought in the county and, if brought in a district court, in the judicial 7
district, where the land or tenements lie. 8
p. S. 154. § 46;
175, §§2,3.
1893. 396, § 13.
1894,398. § 1;431.
R. L. 167, § 2; 181, § 2.
1913, 644.
1917, 326.
1918, 257, § 409.
1919,5.
1920,2.
Judgment and
execution.
1700-1, 14. § 2.
1784,8, §§ 1,3.
1825,89, § 1.
R. S. 104,
§§6.7.
1851, 233, § 88.
G. S. 137,
§§ 7, 8.
Section 3. If the court finds the plaintiff entitled to possession of
the land or tenements, he shall have judgment and execution for posses-
sion and for costs. If the plaintiff becomes nonsuit, or fails to prove his
the defendant shall have judgment and execution
p. S. 175, § 5. R. L. 181, § 3.
right to possession,
for costs.
8 Gush. 124.
13 Gray, 272.
15 Gray, 316.
98 Mass. 309.
121 Mass. 257.
215 Mass. 125.
property"^ Section 4. If an officer, serving an execution issued on a judgment
removed. Lien for the plaintiff for possession of land or tenements, removes personal
and enforce- i , • i i i i • -^ e i i j
ment. property, belonging to a person other than the plaintin, from the land or
§§ i,'2. ' tenements and places it upon the sidewalk, street or way on which the
f§"4,'5.*'' land or tenements abut, he may forthwith, and before the expiration
of the time limited in any ordinance or by-law for the removal of obstruc-
tions in the street, remove such property and cause it to be stored for
the benefit of the owners thereof. Whoever accepts the same on storage
from such officer shall have a lien thereon for reasonable storage fees and
Chap. 239.] summary process for possession of land. 2559
10 for reasonable expenses of removing it to the place of storage, but such
11 lien shall not be enforced by sale of the property until it has been kept
12 on storage for at least six months. If the owner of such property is present
13 and claims it when it is so removed from the land or tenements, the
14 officer shall not remove and store it, and his act of placing it upon the
15 sidewalk or street shall be deemed the act of the owner, who alone shall
16 be held to answer therefor.
1 Section 5. If the defendant appeals from a judgment of a district Appeal. Bond.
2 court rendered for the plaintiff for the possession of the land or tenements i7S3, 42, §2.° '
3 demanded, he shall, except as provided in the following section, before r.'s.' iw, § io.
4 such appeal is allowed, give bond in such sum as the court orders, payable c^i'.Ui'.lt
5 to the plaintiff, with sufficient surety or sureties approved by the plaintiff Jgy^'lyi' f f
6 or court, conditioned to enter the action in the superior court for that ?of/'JcM \®5
7 county at the return day next after the appeal is taken, and to pay to the isss! 325] § 1.
8 plaintiff, if final judgment is in his favor, all rent accrued at the date of 1917', 32b'.
9 the bond, all intervening rent, and all damage and loss which he may Ja Met! isi.
10 sustain by the withholding of possession of the land or tenements | ^Uen, 423.
11 demanded and by any injury done thereto during such withholding, }|? Mass' si"'
12 with all costs, until the delivery of possession thereof to him. Upon isiMass.sei.
13 final judgment for the plaintiff, all money then due to him may be re- i46 Mass! 324!
14 covered in an action on the bond.
176 Mass. 236. 1S2 Mass. 104. 213 Mass. 405.
1 Section 6. If the action is for the possession of land after foreclosure Condition of
2 of a mortgage thereon, the condition of the bond shall be for the entry of for"posse^sion°
3 the action and payment to the plaintiff, if final judgment is in his favor, tlotme^^
4 of all costs and of a reasonable amount as rent of the land from the day ^^i'^f^'^ 7
5 when the mortgage was foreclosed until possession of the land is obtained i^ss. 325, § 2.
6 by the plaintiff.
1 Section 7. The judgment in an action under this chapter shall not Effect of
„, 1 ■! PI 11*1 judgment.
z be a bar to any action thereaiter brought by either party to recover R. s. 104. § 12.
3 the land or tenements in question, or to recover damages for any tres- g. s.'i37,'§ 11.'
4 pass thereon; but the amount recovered for rent under section five shall R.L.Vs^sg.
5 be deducted in any assessment of damages in such subsequent action ^'^ ^"^^^ ^^^•
6 by the original plaintiff.
1 Section 8. There shall be no recovery under this chapter of any Effect of quiet
2 land or tenements of which the defendant, his ancestors or those under rhreryears.""^
3 whom he holds the land or tenements have been in quiet possession for nst^l', 1%^ *'
4 three years next before the commencement of the action unless the fssl, 4?t' 14^
5 defendant's estate therein is ended.
1851, 233, § 78. P. S. 175, § 10. 12 Gray, 206.
G. S. 137, § 4. R. L. 181, § 10. 175 Mass. 213.
REFERENCE.
For temporary provisions modifying subject matter of thi.'S chapter, 1919, 257;
1920, 538, 554, 555, 577 and 578.
2560
PROCEEDINGS FOR SETTLEMENT OF TITLE TO LAND. [Ch,\.P. 240.
CHAPTER 240.
PROCEEDINGS FOR SETTLEMENT OF TITLE TO LAND.
Sect.
petition to require action to thy title.
1. Petition to compel supposed claimant
to try title.
2. Proceedings upon petition.
3. Proceedings upon appearance.
4. Remedy of party whose right is barred
without actual notice.
6. Application of preceding sections.
SUITS IN EQUITY TO QUIET TITLE.
6. Suits in equity in supreme judicial and
superior courts to quiet title.
7. Notice.
S. Guardian ad litem.
9. Compensation and expenses of guardian
ad litem.
10. Effect of decree.
DETERMINATION OP VALIDITY OF CERTAIN
ENCtJMB RANGES.
11. Petition in land court to determine en-
cumbrances.
12. Description of respondents.
13. Notice and appointment of agent.
14. Decree.
DISCHARGE OF MORTGAGES.
15. Petition in land court to discharge
mortgage.
Sect.
registration of l.tnd free from restric-
TIONS.
16. Land court may determine whether re-
strictions are enforceable.
17. Land to be registered free from certain
restrictions, etc. Procedure.
IS. Appeal.
DETERMINATION OP BOUNDARIES OF FLATS.
19. Petition to land court to determine
boundaries of flats, etc.
20. Proceedings.
21. Effect of report and plan.
22. Costs.
23. Court may determine boundaries in-
stead of appointing commissioners.
24. Subsequent purchasers, etc., may be
made parties.
25. Boundaries may be determined concur-
rently with registration.
26. Rights of commonwealth.
DETERMINATION OF QUESTIONS RELATING
TO POWER TO CONVEY OR MORTGAGE
REAL ESTATE UNDER WRITTEN INSTRU-
MENTS.
27. Fiduciary, etc., may petition land court
to establish power or authority.
28. Court may determine question, etc.
PROCEDURE.
29. Procedure under this chapter.
Petition to
compel sup-
posed claimant
to try title.
1851, 233, § 66.
1852, 312, § 52.
G. S. 134, § 49.
1873, 178.
P. S. 176.
§§1,2.
1893, 340,
§§ 1, 3.
R. L. 182. § 1.
1904,448. § 1.
12 Cush. 185.
1 Gray, 416.
4 Gray, 82.
4 Allen. ISO.
99 Mass. 209.
101 Mass. 447.
102 Mass. 374.
114 Mass. 340.
116 Mass. 5.58.
117 Mass. 504,
506.
118 Mass. 595.
124 Mass. 342.
129 Mass. 377.
136 Mass. 32.
PETITION TO REQUIRE ACTION TO TRY TITLE.
Section 1. If the record title of land is clouded by an adverse claim, 1
or by the possibOity thereof, a person in possession of such land claiming 2
an estate of freehold therein or an unexpired term of not less than ten 3
years, and a person who by force of the covenants in a deed or otherwise 4
may be liable in damages, if such claim should be sustained, may file a 5
petition in the land court stating his interest, describing the land, the 6
claims and the possible adverse claimants so far as known to him, and 7
praying that such claimants may be summoned to show cause why they 8
should not bring an action to try such claim. If no better description 9
can be given, they may be described generally, as the heirs of A B or the 10
like. Two or more persons having separate and distinct parcels of land 11
in the same county and holding under the same source of title, or persons 12
having separate and distinct interests in the same parcel or parcels, may 13
join in a petition against the same supposed claimants. If the supposed 14
claimants are residents of the commonwealth, the petition may be inserted 15
like a declaration in a writ, and served by a copy, like a ^^•rit of original 16
Chap. 240.] proceedings for settlement of title to l.\nd. 2561
17 summons. Whoever is in the enjoyment of an easement shall be held to 137 Mass. 147,
18 be in possession of land within the meaning of this section. 139'Mass. 175.
140 Mass. 678. 153 Mass. 42. 171 Mass. 46, 367. 209 Mass. 9.
145 Mass. 112. 162 Mass. 438. 177 Mass. 501. 212 Mass. 547.
148 Mass. 552. 168 Mass. 201. 191 Mass. 196. 213 Mass. 483.
ISO Mass. 73. 170 Mass. 328. 208 Mass. 391. 221 Mass. 372.
1 Section 2. If the petition is not so served, the court shall order Proceedings
2 notice thereof by publication to the supposed claimants, whether resi- issT, 233,"§°66.
3 dents or non-residents of the commonwealth. Such notice shall bind all Q^i; 13I' | |y;
4 the world, but the coiut may also require personal or other notice, and ^^^^ ^^^ ^ ^■
5 if, upon return of the order of notice duly executed, the parties notified |§ ?• Ig,
6 do not appear within the time limited or, having appeared, disobey the §§2-4 J
7 lawful order of the court to try their claim, the court shall enter a decree § 43s." ''
8 that they be forever barred from having or enforcing any such claim wlo'.t
9 adversely to the petitioner, his heu-s or assigns, in the land described, ^°^ ^^"^^^ "■*•
10 and may require them to execute, within such time as the court orders,
11 a conveyance, release or acquittance duly relinquishing the same. A
12 judgment or decree under this section may require the giving of a bond
13 to respond to any action brought under section four within five years
14 after the entry of such judgment or decree.
1 Section 3. If the persons notified or summoned appear and disclaim Proceedings
2 all right and title adverse to the petitioner, they shall recover costs. If pear"ance.
3 they claim title, they shall by answer show why they should not be §§^66,^67'
4 required to bring an action to try such title, and the court shall enter ]^.^~^ ^^^'
5 an appropriate decree relative to bringing and prosecuting such action. G. s. 134'.
6 If the party or parties against whom a judgment or decree for a con- p. s. 176,' § 2.
7 veyance, release or acquittance may be rendered by any court in the u^t. 182'. § 3.
8 commonwealth do not comply therewith, within the time therein limited, J37 Mass'. 376.
9 such judgment or decree shall, subject to the following section, have ^j)^ Hm- f^-
10 the same effect as if the conveyance, release or acquittance had been
11 executed conformably thereto.
1 Section 4. A party against whom, without other notice than publi- Remedy of
2 cation in a newspaper, a judgment or decree has been rendered under right^irbarred
3 section two and whose right is barred thereby, may recover from the ni^^e"""^'""'
4 person in whose favor such judgment or decree was entered, or from his Jf ^^ 182' f t'
5 executors, administrators, heirs or devisees, in accordance with chapter P^g^j^^'''
6 one hundred and ninety-seven, the value at the time action is brought lain.s.
7 of any interest or right, except of improvements made by the defendants,
S of which he may have been deprived by such judgment or decree, unless
9 at that time an action which, but for such judgment or decree, he might
10 have maintained for the recovery of such interest or the enforcement of
1 1 such right would have been barred by the statute of limitations.
1 Section 5. The four preceding sections shall not apply to any Application of
2 property, right, title or interest of the commonwealth. seTtkin"^
1893, 340, § 7. R. L. 182, § 5.
SUITS IN EQUITY TO QUIET TITLE.
1 Section 6. If, in a suit in equity in the supreme judicial or the Suits in equity
2 superior court to quiet or establish the title to land situated in the com- judi^LTami
3 monwealth or to remove a cloud from the title thereto, it is sought to to q''iie[ t "tie '^
2562
PROCEEDINGS FOR SETTLEMENT OF TITLE TO LAND. [Ch.\P. 240.
1897, 522. 5 1.
1898, 457.
1899, 444.
R. L. 182, 5 6.
170 Mass. 328.
191 Mass. 196.
193 Mass. 2S8.
212 Mass. 547.
221 Mass. 372.
Notice.
1897, 522. § 2.
R. L. 182, § 7.
determine the claims or rights of persons unascertained, not in being, 4
unknown or out of the commonwealth, or who cannot be actually served 5
with process and made personally amenable to the decree of the court, 6
such persons may be made defendants and, if they are unascertained, 7
not in being or unknown, may be described generally, as the heirs or 8
legal representatives of A B, or such persons as shall become heirs, 9
devisees or appointees of C D, a living person, or persons claiming under 10
A B. It shall be unnecessary for the maintenance of such suit that 11
the defendants shall have a claim or the possibility of a claim resting 12
upon an instrument the cancellation or surrender of which would afford 13
the relief desired ; but it shall be sufficient that they claim or may claim 14
by purchase, descent or otherwise, some right, title, interest or estate 15
in the land which is the subject of the suit and that their claim depends 16
upon the construction of a wTitten instrument or cannot be met by the 17
plaintiffs without the production of evidence. Two or more persons claim- 18
ing to own separate and distinct parcels of land in the same county by 19
titles derived from a common source, or two or more persons ha\-ing 20
separate and distinct interests in the same parcel, may join as plaintiffs 21
in any suit brought under this section.
99
Section 7. If in such suit the court finds that actual service cannot
be, or has not been, made upon a defendant, it may at the request of
the plaintiff order notice of the suit to be posted in a conspicuous place
on the land or to be published in a newspaper Mithin or without the
commonwealth, or both, or to be given in such other manner as it con-
siders most effectual, and may also require personal notice to be given.
Notice given under this section shall be constructive service on all the
defendants.
Guardian
ad litem.
1897, 522, 5 3.
R. h. 182, § 8.
Section 8. If, after notice has been given or served as provided in 1
the preceding section and the time limited in such notice for the 2
appearance of the defendants has expired, the court finds that there 3
are or may be defendants not actually served with process within the 4
commonwealth who have not appeared in the suit, it may of its own 5
motion, or on the representation of any party, appoint a guardian ad G
litem or next friend of any such defendant, and if any such defendants 7
have or may have conflicting interests, it may appoint different guardians 8
ad litem or next friends to represent them. " 9
Compensation
and expenses
of guardian
ad litem.
1897, 522, § 4.
R. L. 182, § 9.
Section 9. The cost of appearance of anj- such guardian ad litem 1
or next friend, including compensation of his counsel, shall be deter- 2
mined by the court and paid by the plaintiff', against whom execution 3
may issue therefor in favor of the guardian ad litem or next friend. 4
Effect of
decree.
1897, 522, I 5.
R. L. 182, § 10.
191 Mass. 196.
Section 10. After all the defendants have been served with proc-
ess or notified as pro\'ided in section seven and after the appoint-
ment of a guardian ad litem or next friend, if such appointment has
been made, the court may proceed as though all defendants had been
actually served with process. Such suit shall be a proceeding in rem
against the land, and a decree establishing or declaring the validity,
nature or extent of the plaintiff's title may be entered, and shall oper-
ate directly on the land and have the force of a release made by or on
behalf of all defendants of all claims inconsistent with the title estab-
lished or declared thereby. This and the four preceding sections shall
9
10
Ch.\P. 240.] PROCEEDINGS FOR SETTLEMENT OF TITLE TO LAND. 2563
11 not prevent the court from also exercising jurisdiction in personam
12 against defendants actually served with process who are personally
13 amenable to its decrees.
DETERMINATION OF VALIDITY OF CERTAIN ENCUMBRANCES.
1 Section 11. If the title to land appears of record to be affected by Petition in land
2 a possible condition, restriction, reser\ation, stipulation or agreement termineencum-
3 made or imposed more than thirty years prior to the commencement i8S9!^442,
4 of the proceedings hereinafter pro\-ided for, a person ha\ing a freehold ||g}j' ^-j^ ^ ^
5 estate, vested or contingent, in possession, reversion or remainder, in R- l. i82, | li.
6 said land, or in any undi\-ided or any aliquot part thereof, or any inter- i"3 Mass', es.'
7 est tlierein which may become a freehold estate, and any person who isi Mass! lie!
8 has conveyed such estate or any such interest therein with covenants Us Mass' sso'.
9 of title or warranty, may file a petition on oath in the land court to aoiMass^irf'
10 determine the validity, or define the nature and extent, of such pos- J^-i ,, ^.^
I 1 M 1 1- • r 1 • I • 1 212 Mass. 547.
11 sible condition or other encumbrance, against any person who might sis Mass. 1 89.
12 be entitled in any event to enforce it or a\-ail himself thereof. Two
13 or more persons owning in se^•eralty different portions of such estate or
14 different interests therein may join in such petition, or two or more
15 such defects of the same general character in the title to the same parcel
16 of land or to different portions of the same parcel of land may be set
17 forth in the same petition, and if the petition is contested the court shall
18 make an appropriate order for separate issues.
1 Section 12. If it is averred in the petition that there are necessary Description of
2 or proper respondents whose names are unknown to the petitioner, they iss9°'442"T2.
3 may be described generally, as heirs or devisees of a person deceased, as '^' ^' ''*^' ^ ^"'
4 persons claiming under certain persons named, as the owners of cer-
5 tain land, or otherwise, and if it is so averred that the true n^me of
6 a respondent cannot be ascertained, he shall be described as accurately
7 as practicable. If it is so averred that there are classes of necessary or
S proper respondents whom it is impracticable and unnecessary to name
9 and to serve with process indi\'idually, they may be described gener-
10 ally. The court may, if in its opinion the petitioner can and should do
II so, require him by amendment to name or describe respondents more •
12 particularly.
1 Section 13. The coiu-t shall prescribe the notice to be given to Notice and
2 non-resident respondents, to respondents whose residences are unknown, oFagent.'"""
3 to unknown or unnamed respondents, and to any other respondents J^* l! iti', | is.
4 upon whom for any reason service cannot be made. If the court finds
5 that there are respondents to be affected by the decree, who have not
6 had actual notice of the petition, it shall appoint a disinterested person
7 to act for them.
1 Section 14. Upon service of such notice, the court shall have juris- Decree.
2 diction of all persons made respondents to the petition in the manner h -i.'s. "'
3 above provided, and shall, upon a hearing, make a decree determining ^' ^^~' ^ '"*"
4 the ^■alidity, nature or extent of any such possible condition or otiier
5 encumbrance, which shall be effectual to exclude all the respondents
6 from any claim thereunder contrary to such determination, and shall
7 have the same effect as a release by such respondents of such claims.
8 The court may award costs in its discretion.
2564
PROCEEDINGS FOR SETTLEMENT OF TITLE TO L.\XD. [Ch.VP. 240.
Petition in land
court to dis-
charge mort-
gage.
1882, 237.
1885, 2S3.
1890.427. § 1.
R. L. 182. § 15.
1904.448. I 1.
1913. 533.
155 Mass. 57.
160 Mass. 407.
168 Mass. 384.
192 Mass. 244.
205 Mass. 99,
497.
212 Mass. 547.
DISCH.A.RGE OF MORTG,\.GES.
Section 15. If the record title of land or of easements or rights in 1
land held and possessed in fee simple is encumbered by an undischarged 2
mortgage, and the mortgagor and those ha^"ing his estate therein have 3
been in uninterrupted possession of the land or exercising the rights in 4
easements or other rights in land, either for any period of twenty years 5
after the expiration of the time limited in the mortgage for the full 6
performance of the condition thereof, or for any period of twenty years 7
after the date of a mortgage not given to secure the pajanent of money 8
or a debt but to secure the mortgagee against a contingent liability 9
which has so ceased to exist that no person will be prejudiced by the 10
discharge thereof, the mortgagor, or those having his estate in the land, 11
or exercising the rights in easements, or any person named in section 12
eleven, may file a petition in the land court; and if, after such notice 13
by publication or otherwise as the court orders, no evidence is offered 14
of a payment on account of the debt secured by said mortgage within 15
such period of twenty years after the expiration of the time limited for 16
the performance of the condition thereof, or of any other act within 17
said time in recognition of its existence as a valid mortgage, or if the IS
court finds that such contingent liability has ceased to exist and that 19
the mortgage ought to be discharged, it may enter a decree, reciting the 20
facts and findings, which shall, within thirty days after its entry, be 21
recorded in the registry of deeds for the county or district where the 22
land lies, and no action to enforce a title under said mortgage shall 23
thereafter be maintained. Two or more persons owning in severalty 24
different portions or different interests, such as are described in section 25
eleven, in the land subject to the mortgage may join in one petition, and 26
two or more defects arising under different mortgages affecting one 27
parcel of land may be set forth in the same petition. If the petition is 28
contested, the court shall make an appropriate order for separate issues. 29
Land court
may determine
whether re-
strictions are
enforcealile.
1915, 112. § 1.
221 Mass. 372.
22S Mass. 242.
REGISTRATION OF L.VND FREE FROil RESTRICTIONS.
Section 16. The land court shall have jurisdiction upon a petition
to register land, or if land has been previously registered, upon a supple-
mental petition by the o^^■ner thereof, to hear and determine the question
whether or not equitable restrictions arising under contracts, deeds or
other instruments limiting or restraining the use or the manner of using
land are enforceable in whole or in part.
Land to be reg-
istered free
from certain
restrictions, etc.
Procedure.
1915, 112, § 2.
228 Mass. 242.
Section 17. If the land court shall find and determine, after hear-
ing, that the enforcement of any of such restrictions or limitations
would be injurious to the public interests, it shall register title to the land
free from said restrictions as and to the extent required by the public
interests, or, in case of registered land, shall enter an appropriate order
therefor; provided, that if the land court shall find and determine that
any of such restrictions or limitations, though they ought not to be
enforced, are nevertheless valid and ha\-e not become inoperative, it 8
shall, before registering said land free from said restrictions or limita- 9
tions or any of them, ascertain and determine whether any person or 10
property entitled to the benefits of any of such restrictions or limitations 11
may be damaged by the non-enforcement thereof. If so, the case shall 12
ClL\P. 240.] PROCEEDINGS FOR SETTLEMENT OF TITLE TO L.\ND. 2565
13 be referred to the superior court for the assessment of such damages.
14 Chapter seventy-nine, so far as applicable, shall govern such assessment.
15 The amoimt of any damages so assessed, with interest thereon from the
16 date of such assessment to the date of pa^Tuent at the rate allowed by law
17 upon judgments, may be paid by the owner of the land into the superior
18 court at any time after such assessment for the benefit of the persons or
19 property entitled thereto; and, if so paid, the clerk of the superior court
20 shall so certify to the land court, ami shall pay the simi so received by
21 him to the parties to whom it has been awarded. If no damages shall
22 be awarded the clerk of the superior court shall certify that fact to the
23 land court, l^pon such certification from the clerk of the superior court
24 of the final determination of such proceedings for assessment and of the
25 payment of any damages therein assessed, the title may be registered
26 free from any restrictions, or in case of registered land may be freed
27 therefrom by the entry of such order as may be appropriate therefor.
1 Section IS. Any party aggrieved by a finding or decision of the Appeal.
2 land court that the enforcement of any such restrictions or limitations ^^''^' ^'"' * ^'
3 would be injurious to the public interests may appeal therefrom to the
4 supreme judicial court, which may draw from the facts and instruments
5 stated in the record, finflings or decision any inferences of fact that
6 might have been drawn therefrom at a trial, and reverse or order such
7 modification of said findings or decision as justice may require. The
8 appeal shall be taken within twenty days after receipt of notice of
9 the filing of such finding or decision, and further proceedings under the
10 preceding section shall be suspended until after the determination of
11 said appeal. If an appeal is not duly prosecuted, the finding or decision
12 shall stand as if no appeal had been taken.
DETERMINATION OF BOUNDARIES OF FLATS.
1 Section 19. One or more persons holding land or flats adjacent to Petition to
2 or covered by high water may apply by petition to the land court for the dJtermme '°
3 settlement and determination of the lines and boundaries of their owner- flatsj'etc.^' "^
4 ship therein.
1864, 306, §§ 1, 2. 1871, 338, §§ 1, 2. R. L. 183, § 1.
1807, 205. P. S. 177, § 1. 1906, 50, § 1.
1 Section 20. Upon such petition the court may by a warrant appoint flgflou^l's
2 one or more commissioners who shall, before entering upon their duties, i87i,'33S,'
3 be sworn to faithfully and impartially execute the warrant, and a certifi- p. s. 177,
4 cate of such oath shall be made on the warrant by the person administer- r j^iss. § 2.
5 ing it. The commissioners shall notify all persons interested, by personal
6 service or by publication as the court orders, to appear at a time and
7 place named and be heard relative to a proposed survey of such flats,
8 and thereafter shall survey the flats of the petitioners and all adjacent
9 flats owned by other parties whose rights may be afl'ected by a deter-
10 mination of the lines of the flats of the petitioners, shall determine the
11 boundary lines thereof and report to the court the boundaries established
12 for each owner, with a plan of the several portions of flats showing the
13 lines established for each owner, which, after its approval, shall by order
14 of the court be recorded in the registry of deeds for the county or dis-
15 trict where said flats lie. The proceedings upon such petition shall be
2566
PROCEEDINGS FOR SETTLEMENT OF TITLE TO 'LAND. [ChAP. 240.
according to sections two, four, six, seven and eight of chapter two 16
hundred and forty-one, so far as appHcable thereto. 17
Effect of
report and
plan.
1871, 338, § 3.
P. S. 177, § 3.
R. L. 183, § 3.
Section 21. When the report and plan of said commissioners has 1
been accepted by the court and recorded as aforesaid, it shall forever fix 2
and determine the rights of all persons and parties, except where definite 3
boundary lines have been established by parties legally authorized to 4
establish them. 5
Costs.
1871, 338, § 5.
P. S. 177, § 5.
R. L. 183, § 4.
129 Mass. 413.
Section 22. The ex-penses and charges of the commissioners shall 1
be allowed by the court; the other costs shall be taxed in the usual 2
manner, and the whole shall be apportioned by the court among all 3
parties interested in the determination of the boundary lines in such 4
flats, and shall be paid in proportion to the value of the interests which 5
they respectively hold therein. 6
Court may
determine
boundaries
instead of
appointing
commissioners.
Subsequent
purchasers,
etc., may be
made parties.
1878, 103.
P. S. 177, § 6.
R. L. 183, § 5.
Section 23. Instead of appointing the commissioners authorized by 1
section twenty, the court may exercise the powers and duties of such 2
commissioners. 1906, so, § 2. 3
Section 24. Whoever, during the pendency of proceedings for the 1
division of flats, acquires by purchase, devise or descent, or by the en- 2
forcement of a mortgage or lien, an interest or title in or to any flats which 3
are the subject matter of such proceedings, may by order of the court 4
be made a party to such proceedings, and shall be chargeable with such 5
share of the expenses as the court orders. 6
Boundaries
may be deter-
mined concur-
rently with
registration.
1906, SO, § 3.
Section 25. A petitioner for registration may In his petition request
the court to proceed under sections nineteen to twenty-four, inclusive,
concurrently with the registration proceedings, and the court may com-
ply with the request, if such compliance seems conducive to justice and
the rights of all parties.
TOm^onieaith. Section 26. Proceedings under sections nineteen to twenty-five, 1
1871' 338' 1 6 inclusive, shall not affect any right or title of the commonwealth to any 2
P- s-'i77,'§ 7. land or flats, unless it consents to become a party thereto. 3
R. L. 1S3, § o.
Fiduciary, etc.,
may petition
land court
to estabUsh
power or
authority.
1906, 344, § 1.
determination of questions relating to power to convey or
mortgage real est.ate under written instruments.
Section 27. Any person having, in a representative or fiduciary 1
capacity or otherwise, a power or authority created by any written 2
instrument to sell, convey, mortgage or otherwise transfer any interest 3
in real estate may file a petition in the land court setting forth the act 4
or acts which he proposes to do by virtue of such power or authority, 5
and praying that his power or authority under such wTitten instrument 6
to do such act or acts may be established. 7
Court may
determine
question, etc.
1906, 344, § 2.
Section 28. Upon such petition, after such notice as the com-t may 1
direct, it may determine the existence and extent of the power or au- 2
thority of the petitioner to do such act or acts, including the existence of 3
the necessity for its exercise and also any other fact or circumstance re- 4
quired for the exercise of such power or authority. 5
Ch.\p. 241.]
PARTITION OF LAND.
2567
PROCEDURE.
ure
this
1 Section 29. Except as otherwise provided, procedure in the land ^1"^^^^
2 court under this chapter shall be that provided by sections fifteen to ^ggj'^.g
3 twenty-five, inclusive, of chapter one hundred and eighty-five. §§ i-s.
1906, 344, § 3. 1910, SCO, §§ 6, 7.
CHAPTER 241
PARTITION OF L.IND.
Sect.
1. Who may have partition.
2. Probate courts to have exclusive juris-
diction.
3. Case in two or more counties to remain
within jurisdiction of court where
proceedings were begun.
4. Partition may be made of all or part of
land.
5. Division into shares.
6. Form of petition.
7. Notice to be filed in theregistry of deeds.
8. Notice to be given by citation, etc.
9. Absent, incompetent and undeter-
mined parties.
10. Interlocutory decree.
11. Dispute as to ownership of share.
12. Commissioners, duties, etc.
13. If land Ues in different counties.
14. Partition of land indivisible.
15. Payment or security if money awarded.
16. Return may be set aside, amended, etc.
17. Court may order examination of title,
etc.
IS. Effect of partition.
19. Remedy of stranger claiming a share
assigned.
Sect.
20. Remedy of stranger claiming as co-
tenant.
21. Remedy of stranger holding title para-
mount, etc.
22. Costs, how paid.
23. Compensation for improvements.
24. Improvements made before new parti-
tion.
25. Equity jurisdiction.
26. Death of part owner during proceed-
ings.
27. Party evicted.
28. Mortgagee, etc., of co-tenant.
29. Improvements made by person evicted.
30. Ti-usteeship, etc., not to prevent parti-
tion.
31. Partition by sale.
32. Commissioners not liable.
33. Penalty for not disclosing attachment
or lien.
34. Disposal of proceeds unclaimed.
35. Appointment of trustee.
36. Division of water rights and other in-
corporeal hereditaments.
37. Partition of water of a natural stream,
etc.
1 Section 1. Any person, except a tenant by the entirety, ownina; a
2 present undivided legal estate in land, not subject to redemption, shall
3 be entitled to have partition in the manner hereinafter provided. If
4 such estate is in fee, he shall be entitled to partition in fee; if a life estate
5 or a term for years, he shall be entitled to partition thereof to continue so
G long as his estate endures. A life tenant or a tenant for years of whose
7 term at least twenty years remain unexpired may, in the discretion of
S the court, have partition of the fee. The existence of a lease of the whole
9 or a part of the land to be divided shall not prevent partition, but such
10 partition shall not disturb possession of a lessee under a lease covering
1 1 the interests of all the co-tenants.
1S57, 298, § 14.
Who may have
partition.
1B93, 8, § 1.
1742-3, 24, § 1;
29. § 1.
1748-9, 12, § 1.
1752-3, 13,
§§1,2.
1760-1, 13. § 1.
17S3, 36. § 13;
41, § 1;52, 5 2.
1785. 62, § 2.
1817, 190,
§§ 24, 25.
1820, 54. § 1.
R. S. 103. §§ 1.
3-5, 50, (U.
1853, 410, § 1.
G. S. 104, § 9:
136, §§ 1,3-5.48,01,67.
P. S. 123, § 11;
178. §§1,3, 4, 48,60, 68.
R. L. 131, § 11:
184, §§ 1-3,34, 44,50.
1912, 135.
1917,279, §11,40.
4 Mass. 122.
10 Mass. 5.
13 Pick. 237, 251.
5 Met. 1.
10 Met. 408.
6 Cush. 472.
12 Cush. 170.
3 Gray, 111.
15 Gray, 499.
7 Alien, 192, 196.
8 Allen, 186.
10 Allen, 144.
109 Mass. 181, 513.
112 Mass, 42.
120 Mass. 174.
135 Mass. 317.
140 Mass. 82, 430.
163 Mass. 325.
170 Mass. 68.
179 Mass. 200.
216 Mass. 61.
229 Mass. 566.
2568
PARTITION OF LAND.
[Ch.\p. 241.
tohav*ee™-"'^ Section 2. Ppobate courts shall have exclusive jurisdiction of all 1
diction.'"'^ petitions for partition. Any such petition may be filed in the probate 2
29*f§^i ^2 ' ^ ^' court for any comity where any part of the land included in the peti- 3
i74s-9.'i2, §1. tion lies, and may include any or all of the common land within the 4
§§r,3.' ' commonwealth. nss.ae, §§12,13; 4i,§i. 5
1817, 190, §§ 24. 28.
R. S. 103, §§ 2, 50, 61.
1842, 14, § 1.
G. S. 136, §§ 2, 48, 60.
1869, 121, § 1.
1874, 266, §§ 1, 2.
P. S. 178, §§ 2, 45,
46, 48, 69.
1888, 346, 5 1.
1892, 169, I 1.
R. L. 184, §§ 2, 31,
32, 34, 43.
1912, 135.
1917, 279, §§2, 40.
213 Mass. 167.
mme TOunties' SECTION 3. If a casc is withiu the jurisdiction of the probate court in 1
wiSTuris- two or more counties, the court in which proceedings are first begun 2
where'proceed-' ^'^'^ll retain jurisdiction thereof, which shall exclude the jurisdiction of 3
ingswere probatc courts of othcr couiitics; but this shall not prevent the probate 4
R. s. 103, 1 72. court in any other county where a part of the common land lies, not 5
p.'s.'i78,'§6'4.' included in the original petition, from making partition thereof. 6
R. L. 184, §46. 1917, 279, §§3, 40. 11 Allen, 187.
Partition may
be made of all
or part of land.
1742-.3, 24, § 1;
29, § 1.
1752-3, 13, 5 1.
1783, 36, § 12.
R. S. 103, §§ 2,
60, 55.
G. S. 136, §§ 2,
48, 64.
Section 4. The court may make partition of all or any portion of the
land included in the petition of which the parties thereto are co-tenants;
but if all of the common land is not included in the petition, the court
may, upon request of any party thereto, seasonably filed, cause any other
part of the common land to be included, unless a petition for partition
thereof is pending in another county.
p. S. 178, i
1888, 346,
i 2, 48, 54.
R. L. 184, 5§2,34, 39.
1012, 135.
1917,279, §5 4,40.
159 Mass. 409.
Division into
shares.
R. S. 103,
§§21, 66.
G. S. 136.
§§ 25, 55.
P. S. 178,
§§ 25, 55.
1885, 293.
Section 5. The court may set off to the petitioner his share, leaving
the residue of the land for the persons entitled thereto, subject to a
future partition; or it may set oft" to the persons entitled to the residue
their respective shares therein. If two or more co-tenants consent to
hold their shares undiNaded, such shares may be so set off.
R. L. 184, §§ 2, 15, 40. 1917, 279. §§ 5, 40.
Form of
petition,
1786, 53. § 1.
R. S. 103,
§§ 6, 14.
G. S. 136,
§§ 6, 16.
P. S. 178,
§§ 5, 14.
R. L. 184,
§§4,S.
1917, 279,
§§6,40.
9 Pick. 66.
9 Allen. 260.
185 Mass. 107.
187 Mass. 279.
Section 6. The petition shall set forth on oath the nature and 1
extent of the share of each co-tenant, so far as known to the petitioner, 2
stating whether he has an estate of inheritance, for life or for years, 3
whether in possession, remainder or reversion, and whether vested or 4
contingent. It shall contain a description of each parcel of land suffi- 5
ciently specific for identification. If the common title is derived by 6
will or inheritance from a common ancestor, the name of the testator 7
or common ancestor shall be given; if under a deed, reference shall be 8
made thereto. The petition shall be in the alternative, praying for 9
division of the land or for the sale, either public or private, of all or 10
any part thereof which the court may find cannot be advantageously 11
divided. If a private sale is desired, the minimum sum for which the 12
sale may be made shall be stated. Only persons having legal title to 13
an estate for years, for life or in fee, whether in possession, reversion or 14
remainder, shall be necessary or proper parties. Mortgagees, lienors, 15
attaching creditors and other persons having or claiming encumbrances 16
on the land shall not be parties, but shall be named in the petition and 1 7
given such notice as the court may order, and shall be permitted to IS
intervene so far as may be necessary to protect their interests in the 19
land or to establish their rights in the proceeds of a sale. 20
Ch.\P. 241.] PARTITION OF LUSTD. 2569
1 Section 7. Upon the filing of a petition for partition, the petitioner Notice to be
2 shall forthwith cause to be filed, in the registry of deeds for each registry istry'ofVee^R'
3 district where any of the land included in the petition lies, a notice of the i'^^'' ^ra. § 7.
4 same, containing a brief description of the land in such district included
5 therein, and the names of all persons appearing in the petition as parties.
6 If the probate proceedings are at any time amended, either by the in-
7 elusion of more land or by adding new parties, a further notice thereof
8 shall be filed forthwith in the registry district where said land lies. No
9 interlocutory decree for partition or sale shall be made by the court
10 until it appears by affidavit that sucli notices have been filed. If any
11 part of the land is registered land, the petitioner shall, in filing said
12 notices, comply with section eighty-six of chapter one hundred and
13 eighty-five.
1 Section 8. Notice shall be given by a citation containing a brief gjven by°cHa-
2 description of the land, and the minimum price in case it is desired to j'°"^_^3'^24 s 3
3 sell the land or anv part thereof at private sale. The citation shall be i"48-9! 12! s 2!
4 addressed to all known respondents by name, and, in addition, in ex- 1733. 41. §'3.
5 press terms to all other persons interested. Said notice shall be given g-'u, 53. '
6 to each respondent, whether within or without the commonwealth, i(>4'2?m'. ^^ ^'
7 whose address is known, by serving the same, either personally or by 9 fiiVf'^^^'
8 registered mail, fourteen davs at least before the return dav; and if }882, 55
9 any party is not so served, by publishing the notice once m each or e. 35.
10 three successive weeks in such newspaper as the court shall order, the §§ 8,'4o. '
11 last publication to be one day at least before the return day, and by
12 mailing a copy thereof to the last known address of such party fourteen
13 days at least before the return day. Proof of service and notice shall
14 be made by affidavit, setting forth the particulars of the service on each
15 respondent, and any other notice given, and if actual notice has been
16 given by registered mail the affidavit shall so state. The court may in
17 its discretion cause further notice to be given.
1 Section 9. If any party named in the petition has not been served ■*'^rat'amf°'"'
2 personally with the citation and has not appeared, or is a minor or undetermined
3 under other disability and has no guardian or other legal representative 1742-3', 29. 5 3.
4 within the commonwealth, or if any person whose name is unknown, or 1700-1! is! § 2!
5 who is unascertained or not in being, appears by the record in the case isi?! lob, §'2(5.
6 to have an estate, vested or contingent, as a co-tenant of the land of lssI. im'. 1 1^'
7 which partition is sought, the court shall appoint a suitable person to JUg'Hy'
8 act for him in the proceedings. isss, 137.
G. S. 130. §§ 52, S3, 69. P. S. 178, §§ 52. 53. 62, 70. 1917, 279, §§ 9, 40.
1877, loS, § 2. R. L. 184, §§ 36, 52. 109 Mass. 513.
1 Section 10. If it is found that the petitioner is entitled to have interlocutory
2 partition for the share claimed or for any less share, the court shall ifso^^ss. 5 1.
3 make the interlocutory decree that partition be made, and therein §; |; \°l\ | go!
4 determine the persons to whom and the proportions in which the shares ^^^^ ^fSi Vi*'
5 shall be set oft". The petition shall not be defeated by the pa\-ment by a R l! is4! s 12.
6 party of a mortgage, lien, tax or other encumbrance upon the land, if §"§ 16, 46.'
7 the other parties are entitled to redeem from such payment; but the iic'ush. les.
8 interlocutory decree shall contain such terms and conditions relative to ^*° ^^^''^' ^^'
9 redemption by a contribution on account of any such payment as the
10 court may deem equitable.
2570
PARTITION OF L.USTD.
[Ch.\p. 241.
Dispute fts to
ownership of
share.
R. S. 103.
§§41,42.
G. S. 136,
§§ 3S, 39.
P. S. 178,
§§ 16, 17.
R. L. 184, § 10.
1917,279,511.
Commissioners,
duties, etc.
1742-3. 24.
§§1,2;29. § 1.
174.8-9, 12, § 1.
1752-3, 13, § 1.
1759-60.
31, § 1.
1783, 36, § 12;
41. §§ 1,3.
R. S. 103,
§§ 20, 22-24,
29, SI.
G. S. 136.
§§ 21-24,
29, 49.
P. S. 178,
§§ 20-21. 49.
Section 11. If the ownership of any share appears to be in dispute 1
or uncertain, the court may, in its discretion, without determination 2
of such question, order the partition to proceed by setting off the re- 3
maining shares, or by sale. The land not set off, or the proceeds of tlie 4
share in dispute or uncertain, may be left for the parties entitled thereto 5
in a further partition or distribution in such manner and upon such pro- 6
ceedings as the court may order. Tlie interlocutory decree shall not 7
preclude the parties sharing in the partition from any share to which 8
they may be entitled in a subsequent partition or distribution. 9
Section 12. If the court determines the petitioner entitled to parti- 1
tion, it shall thereupon appoint one or more disinterested commissioners 2
and issue a Avarrant to them to make partition. The commissioners, 3
before entering upon their duties, shall be sworn to execute the warrant 4
faithfully and impartially, and a certificate of the oath shall be made 5
on the warrant by the person administering it. They shall give at least 6
seven days' notice of the time and place appointed for making the 7
partition, either personally or by registered mail, to all known persons 8
interested therein, and shall make and sign a report of their doings and 9
return it with their warrant. R. l. is4, §§ 13, 37. i9i7, 279, §§ 12, 40. 10
If land lies in
different
counties.
R. S. 103, I 52.
G. S. 130, § 50.
P. S. 178, § 50.
R. L- 184, § 38.
1917. 279,
§§ 13, 40.
Section 13. If the land lies in different counties, the court may in
its discretion issue separate warrants and appoint different commis-
sioners for each county, or for two or more counties together, in which
case the partition shall be made of the land in each county, or group
of counties, as if there were no other land to be di\'ided.
Partition of
land indivisible.
1692-3, 14, § 1.
1759-60,
30. § 2.
1783.36, §§ 6,
15; 41. § 2.
1817, 190,
§§ 24, 29.
R. S. 103,
|§ 25, 26, 57.
1838, 28.
Payment or
security if
money
awarded.
1850, 239.
G. S. 136, § 71.
P. S. 178, § 71.
R. L. 184. § 53,
1917. 279,
§§ 15, 40.
Return may
be set aside,
amended, etc.
1742-3.24, § 1;
29, § 1.
1748-9, 12, § 1.
1752-3, 13, § 1.
1783,41, § 1.
1817, 190, § 20.
1820, 54, § 2.
R. S. 103,
§§ 29, 30,59.
1847, 170.
C;. S. 136.
§§ 29, 74, 75.
P. S. 178,
§§24,74,75.
1SS8, 340, § 3.
R. L. 184,
§§ 13, 56, 57.
Section 14. If a part of the land cannot be divided without great
inconvenience to the owners, or is of greater value than the share of
any partj', or if all the land cannot be divided without such incon-
venience, the whole or any part thereof may be set off' to any one or
more of the parties, with his or their consent, upon payment by him
or them to any one or more of the others of such amounts of money as
the commissioners award to make the partition just and equal.
G. S. 130, §§ 20, 56, 58.
P. S. 178. §§ 26. 56.
R. L. 184, §§ 10,41.
1917.279, §§ 14,40.
15 Pick. 364.
11 Gray, 490.
181 Mass. 490.
Section 15. If money is awarded to make the partition just and
equal, the court shall be satisfied, before the partition is confirmed,
that the money has been paid or secured to the parties entitled thereto.
]\Ioney awarded on account of shares in dispute or uncertain may be
ordered to be deposited in the manner pro^'ided in section thirty-four.
16 Mass. 122. 7 Pick. 209. 8 Met. 365. 3 Gray, 536.
Section 16. The court may after hearing accept and confirm the
return of the commissioners, or set it aside and commit the case anew
to the same or to other commissioners having the same powers as those
originally appointed; or it may, after a hearing, amend the return, and
accept and confirm it as amended. After the return of the commis-
sioners has been accepted and confirmed, the court shall thereupon
enter a decree that the partition be firm and effectual forever. If the
partition is by division, the commissioners shall record a copy of the
decree, certified by the register of probate, in the registry of deeds for
each district where any of the land lies, together M'ith so much of the
return, as finally confirmed, as relates thereto; or, if any part of the
1
2
3
4
5
6
7
8
9
10
11
Ch.\P. 241.] PARTITION OF L\ND. 2571
12 land is registered land, they shall in recording the same comply with 1917,279,
13 section ninety-two of chapter one hundred and eighty-five.
11 AUen, 187. 152 Mass. 136.
1 Section 17. The court may at any time direct an examination of the Court may
2 title, or the making of a plan, of any land included in the petition, or such tTon oUi"™ e?c.
3 investigation relating to the description or title of any of it as seems useful ^°^'''' ^''''' ^ '''''
4 or desirable for its better division or sale. If it appears from the report
5 of a title examiner or from any other source that there are necessary
6 parties, as defined in section six, who were not made parties to the petition,
7 and have not appeared, the court shall, before proceeding further, cause
8 the petitioner to amend his petition by making such persons parties,
9 antl to give notice to them in the manner provided in section eight. The
10 court may also cause notice to be gi\-en to any encumbrancer whose
11 interest may be disclosed by the examination or otherwise. If it appears
12 at any stage of the proceedings that the land is improperly described, the
13 court may, before proceeding further, reciuire the petitioner to amend
14 his petition by inserting a correct description.
1 Section 18. The partition by division, when confirmed and estab- Effect of
2 lished by a final decree under section sixteen, or the sale if partition is isi7, i90, §20.
3 made by'sale, shall be conclusive upon all persons named in the petition §§ ss.^sl.'
4 or interested in the land therein described who appeared in the case or ^j- fo.^e".'
5 who waived notice or assented in writing to the same, or to whom due i^^^l'lfg-
6 notice was given in accordance with section six or eight, or who were ft^^i^'g^^s,
7 represented as provided in section nine, and upon all persons claiming issSUes, §2.
8 through or under them or any of them, and, if the common title is derived § j 22, 45.'
9 through the settlement of the estate of a deceased person in any probate §f '/s,^4o.'
10 court within the commonwealth, upon all the heirs and devisees of such lAifen.^us.
11 deceased person to whom the notice aforesaid was given or who were so jo^Hen'iob
12 represented, and upon all persons claiming through or under them. i7« Mas.s. 453.
1 Section 19. A person who was not made a party and has not ap- Remedy of
2 peared, who claims the whole or any part of the share assigned to or left ing'a'share'""'
3 for any of the supposed co-tenants in the decree for partition, shall be r.^'|"i'o3,
4 concluded by the decree, so far as it relates to the partition and the assign- |,^ f\^'
5 ment of the shares, as if he had been a party to the proceedings; but he Pl^'ifl-
6 may bring his action for the share claimed by him against the person to §§'39.40!
7 whom it was assigned or for whom it was left. Such action shall be i9i7i 279!
8 brought against the tenant in possession, as if the demandant had origi- ^®' *°"
9 nally claimed the specific parcel demanded instead of an undivided part
10 of the land; and it may be brought within the time in Avhicii it might
11 have been brought if no such decree for partition had been rendered.
12 If partition is made by sale, the claimant may recover the share of the
13 proceeds to which he is entitled by action against the persons to whom
14 the proceeds were paid, or, before such payment, by a petition in equity
15 in the probate court in which the partition was made, to which the
16 commissioner or commissioners and all known claimants of such share
17 shall be made parties defendant.
1 Section 20. A person who was not made a party and has not ap- Remedy of
2 peared and who claims part of the land as a co-tenant with any of those cKims as
3 who were parties to the action, shall, if the share so claimed was unknown i°."fe\"io3,'
4 or not allowed and left for him in the process of partition, be concluded by ^^ f'lst] § 40.
2572
PARTITION OF L.\ND.
[Chap. 241.
p. S. 17;
R. L.
19:7, 279,
H 20, 40.
22 Pick. 316.
Vr4 ^2^7 ^^^ decree so far as it relates to the partition, but may, subject to section
eighteen, brino; an action for the share claimed by him against each of
the persons holding any part of the land under the decree for partition ;
and, if he prevails, shall recover against each the same proportion of the
part so held that he was entitled to claim out of all the land before the
partition. If the partition was made by sale, he may in like manner 10
recover his portion of the proceeds, as provided in the preceding, section. 11
Remedy of
stranper hold-
ing title para-
mount, etc.
R. S. 103.
§§ 38, 69.
G. S. 136,
§§ 35, 6,5.
P. S. 178,
§§ 38. 63.
1882, 6, § 2.
Section 21. A person who has not appeared and who claims to hold 1
by title paramount to that under which the petitioner claims as a co- 2
tenant shall not be concluded by the partition, but may maintain his 3
action for the land against any or all of the parties, or persons holding 4
under them, within the time in which he might have brought such action 5
if the petition for partition had not been filed. 6
R. L. 184, §§ 25, 43. 1917. 279, §§ 21, 40.
Costs, how
paid.
1752-3, 13, § 2.
1783, 36, § 14.
178G, 53, § 1.
1817, 190, § 30.
R. S. 103,
§§ 17, 49, 60,
1S57, 149.
G. S. 136, §§19,
44, 45, 59.
1877. 106.
P. S. 178, §§ 18,
29. 30. 58.
R. L. 184,
§§11,14,42,52.
1917, 279,
§§ 23, 40.
4 Pick. 246.
19 Pick. 539.
5 Allen, 96.
11 Allen, 104,
187.
133 Mass. 413.
Section 22. The reasonable expenses and charges of partition pro- 1
ceedings, including examination of title and preparation of plan ordered 2
by the court under section seventeen, and the fees of counsel, of the com- .3
missioners, and of all agents, guardians and other persons appointed to 4
represent interests in accordance with section nine, shall be determined .5
by the court, and in case of sale paid by the commissioners out of the 6
proceeds; and in case of partition by division shall be paid by the peti- 7
tioner, who shall be entitled to contribution from the parties to whom 8
shares of the land are set off who take a vested, and not contingent, in- 9
terest. Such contribution shall be in proportion to the interests of the 10
parties unless the court finds a difl'erent proportion more equitable. 11
Costs may also be awarded under section forty-five of chapter two 12
hundred and fifteen. Execution may issue for said contribution and 13
costs. 14
Compensation
for improve-
ments.
1850. 278,
§§1,2.
G. S. 136,
§§46,47.
P. .S. 178.
§§ 31, 32.
R. L. 184,
§§ 19, 20.
1917, 279,
§§ 24, 40.
13 Met. 462.
105 Mass. 412.
131 Mass. 480.
135 Mass. 317.
190 Mass. 449.
Section 23. If the court in which partition proceedings are pending 1
finds that one of the co-tenants has erected any buildings or made other 2
permanent improvements on the common land, it may, if justice and 3
equity so require, award such compensation as it deems proper for the 4
value of such buildings or other improvements, not exceeding, however, 5
the actual amount by which the market value of the common land has 6
been increased thereby; and in awarding such compensation the court 7
may deduct any benefit which the party claiming compensation has 8
received from the common land. The court may make orders and 9
decrees for the enforcement or protection of any such claim, and in case 10
of partition by division may order the improved part set oft' to the party 11
who made the improvement, and the land divided as if the improvement 12
had not been made. 13
Improvoments
made before
new partition.
1742-3. 24, § 4.
1748-9, 12, § 5.
1783,41, § 3.
R. S. 103,
§§ 37, 70.
G. S. 136, § 72.
Section 24. If after a first partition improvements have been made
on a part of the land which, by a new partition, is taken from the share
of the party who made the improvements, he shall be entitled to com-
pensation therefor, to be awarded and enforced as provided in the pre-
ceding section. p. s. i78, § 72. n. l. i84, § 54. 1917, 279, §§ 25, 40.
Equity juris-
diction.
R. S. 69, § 12.
G. S. 100, § 22
1880, 163.
Section 25. The probate court in which a petition has been brought 1
under this chapter shall jiave jurisdiction in equity over all matters rclat- 2
ing to the partition, and, in case of sale, over the distribution of the 3
Chap. 241.] partition of land. 2573
4 proceeds thereof; also to hear and determine all matters of accounting p. s. i4i, §27.
5 between the parties to the petition in reference to the common land, and 1892] no!
6 to appoint one or more receivers to take possession of the common land 1910; :oo.' ^'
7 or any part thereof, and collect the rents and profits therefrom. Such Jirifals'. \Si.'
S jurisdiction may be exercised upon petition according to the usual course
9 of proceedings in the probate court. Such receiver shall give bond in such
10 amount and with such sureties as the court shall order, and shall dis-
11 tribute the rents among the co-tenants, or otherwise hold or dispose of
12 the same in such manner as the court shall determine by its decree.
1 Section 26. If a party named in the petition has died prior to the Death of part
2 filing thereof, or dies during its pendency, and such fact did not appear nro'Jeeding"^
3 during the proceedings, his heir or devisee shall be entitled to the share §; |; jgg; | ll[
4 of land set off to him or his share of the proceeds of a sale. If his death is ^^g'ffg' ^ ^'
5 made known to the court during the proceedings, the share or portion IH-',''/;
6 formerly belonging to him may be assigned or set off in his name to be «28, 33.'
7 held and disposed of as if the partition had been made prior to his decease, iqit! 279!
8 and his heir or devisee may recover the portion assigned to him, or his ^^' *°'
9 share of the proceeds, by appropriate action. The com-t may, however,
10 in any case arising hereunder, if there has been a sale, order his share of
11 the proceeds to be paid to his personal representatives pending settle-
12 ment of his estate, or deposited under section thirty-four to await their
13 appointment.
1 Section 27. If a person to or for whom a part of the land has been set R^g^io3'''s'^4i;
2 off is evicted by one who, at the time of the partition, had a paramount «■ |- 13«! § 42.
3 title to that parcel, but not to the whole land, the person so evicted may R. l. 184, § 29.
4 have a new partition of the remaining land not subject to the paramount §§ 29, 40.'
5 title, as if partition had not been made.
1 Section 28. A person having a mortgage, attachment or other lien Mortgagee,
2 on the share of a co-tenant shall be concluded by the decree, so far as it tenant/^"
3 relates to the partition and the assignment of the shares; but his lien aiiisnilts!
4 shall remain in full force upon the part assigned to or left for such co- r.l.\8^4'.V3o.
5 tenant, or, in the event of a sale, upon the share of such part owner in the II^^q^Jq'
6 proceeds, and may be enforced in the manner provided in section nineteen, is* Mass. isi.
198 Mass. 37.
1 Section 29. A person holding land under a partition made under improvements
2 this chapter shall, in case of an eviction, be entitled to compensation for evicted.
3 improvements made thereon, as provided in chapter two hundred and g.' s! ym, § 73.
4 thirty-seven. p. s. i78, 5 73. r. l. is4, § 55. 1917, 279, §§ 31, 40.
1 Section 30. The fact that a co-tenant is, alone or jointly with others. Trusteeship,
2 as trustee or in any other representative capacity, the holder of the legal vent partition^
3 title to a share in which he has no beneficial interest shall not prevent a^|.' is'o,' | cs.
4 partition.
p. S. 178, § 69. R. L. 184, § 51. 1917, 279, §§ 32, 40. 9 Cush. 405.
1 Section 31. In partition proceedings the court may order the com- Partition
2 missioners to sell and convey the whole or any part of the land which i87o!257.
3 cannot be divided advantageously, upon such terms and conditions and 1I77; i5s[ | {'.
4 with such securities for the proceeds of the sale as the court may orfler, fjls.'cc.
5 and to distribute the proceeds so as to make the partition just and ecjual. j*^*' j:°;J- . ^^
2574
PARTITION OF L.AND.
[Chap. 241.
1907, 361.
1917, 279,
§§ 33, 40.
140 Mass. 82.
162 Mass. 385.
180 Mass. 521.
187 Mass. 279.
218 Mass. 360.
The sale shall be made by public auction, after like notice as is required 6
for the sale of land by an administrator, and the evidence thereof may 7
be perpetuated in like manner by returns filed with the register of the 8
court in which the proceedings are had; or the sale may be a private 9
sale, upon such terms as the court orders, if it finds after notice, as pro- 10
vided in section eight, and a hearing, or after receiving the written assent 1 1
of all parties in interest, that the interests of all parties will be promoted 12
thereby. If the sale is by auction, section nineteen of chapter two him- 13
dred and four shall apply thereto. 14
Commissioners
not liable.
1917, 279, § 34.
Section 32. If the commissioners, after making a sale in accordance 1
with the preceding section, distribute the proceeds in accordance with 2
the order or decree of the court before learning of any conveyance, 3
mortgage, lien or other encumbrance of or upon the share of any of the 4
joint owners, they shall not be liable to such claimant. If they are in 5
doubt as to the existence or the validity of any such claim against the 6
share of any co-tenant in the proceeds they may ask for instructions by 7
the court. 8
Penalty for
not disclosing
attachment or
lien.
1017, 279, § 35.
Section 33. Whoever receives any proceeds of a sale of land under 1
this chapter after having sold or mortgaged his interest therein, or with 2
knowledge that it has been attached or liened, without disclosing such 3
fact to the commissioners or the court, shall be punished by a fine of not 4
more than one thousand dollars or by imprisonment for not more than 5
one year. 6
Disposal of
proceeds un-
claimed.
1871, 111, §2.
P. S. 178. § 67.
R. L. 184, § 48.
1917. 279,
§§ 36, 40.
Section 34. If the proceeds of a sale, or any share thereof, cannot
be paid to the persons entitled thereto, the commissioners shall deposit
the same in the name of the judge of probate for the coimty where the
proceedings are had, in such savings bank or other like institution as the
court orders, to accumulate for the persons entitled thereto. The deposit
shall be subject to sections twenty-five to twenty-eight, inclusive, of chap-
ter two hundred and six, so far as applicable.
Appointment
of trustee.
1887, 286.
R. L. 184, § 49.
1917, 279,
§§ 37, 40.
Section 35. If in any share there are estates in succession, the court 1
making partition vaay, upon petition of any party interested, appoint a 2
trustee to receive, hold, manage and invest the proceeds of the sale of such 3
share. The annual income of such share shall be paid to the owner of 4
each successive estate for years or for life until it terminates, and the 5
principal, after termination of prior estates, shall be paid to the parties 6
entitled to the fee. The trustee shall, before entering upon the duties 7
of his trust, give to the judge of probate and his successors a bond, with 8
sufficient surety and in such penal sum as the court orders, conditioned 9
for the faithful performance of his duties, and, upon breach of the con- 10
dition, an action may, by order of the probate court, be brought for the 11
use of the persons interested in the trust property, as upon a bond of an 12
administrator. 13
Division of
water rights
and other in-
corporeal
hereditaments.
1854. 74.
G. S. 136, § 77.
P. S. 178. § 76.
R. L. 184, § 58.
Section 36. Joint tenants or tenants in common of a mill privilege,
water right, or other incorporeal hereditament may be compelled to di\-ide
the same in the manner hereinbefore pro\'ided for the division of land.
The commissioners appointed to make partition shall set forth in their
return the best method of setting off to the several parties their respective
CiLip. 242.]
WASTE .-i^rD TRESPASS.
2575
6 shares, and thereupon the court may make such orders and decrees as i9i7, 279,
7 might be made in equity. If anj^ one of the joint owners so requests, the 4 CraVl 4S6.
8 court shall order a sale, provided that a sale is feasible.
10 Gray, 14.
1 Section 37. Under the preceding section, partition may be made of ^^[*^}'""°'
2 the water of a natural stream, not navigable, the banks of which are natural stream,
3 owned by different riparian proprietors. iss-j, 12s.
G. S. 136, § -S. P. S. 178, § 77. R. L, 184, § 59. 1917, 279, § 39.
REFERENCES.
Appeals in partition proceedings, Chap. 215, § 9 ei seg.
Jury issues, Chap. 215, § 16.
Waste, etc., committed by joint tenant or tenant in common. Chap. 242, § 4.
§ 3. See also Chap. 215, § 7.
§ 9. Guardian ad litem and next friend generally, Chap. 201, §§ 34-36.
§ 25. The effect of an appeal in equity. Chap. 215, § 23.
§ 30. Authority of a guardian to make partition. Chap. 201, § 39.
CHAPTER 242.
WASTE AND TRESPASS.
Sect.
1. Who may maintain waste. Trial by
jury.
2. Who may maintain action of tort in
nature of waste.
3. When action maintainable against rep-
resentative.
4. Liability of co-tenant for triple damages
for waste.
Sect.
5. Fonn of and parties to action for triple
damages.
6. Triple damages for waste during pend-
ency of action.
7. LiabiUty for wilfully cutting trees, etc.
S. Involuntary' trespass and effect of tender.
9. Jurisdiction to stay waste during pend-
ency of action.
1 Section 1. If a tenant in dower, by the curtesy, for life or for years whomaymain-
2 commits or suffers waste on the land so held, the person having the next Tr,"rbyfury.
3 immediate estate of inheritance may have an action of waste against nssyloff's^. ^'
4 such tenant to recover the place wasted and the amount of the damage, JIJ'-,^'^; K^^-
5 and such action shall be subject to the provisions of law relative to trial g. s.'qo. § 14:
6 by jury. An heir may bring such action for waste done in the lifetime of p. s. 124, §'ig;
7 his ancestor. - - ^- « ' i79,§§i,2.
R. L. 185, § 1.
5 Pick. 192.
7 Pick. 152.
8 Pick. 309.
138 Mass. 466.
1.52 Mas.s. 561.
205 Mass. 350.
1 Section 2. A person having the next immediate estate of inheritance, whomaymaiii
2 or a remainder or reversion in fee simple or fee tail after an intervening tSr? fn nature
3 life estate, or having a remainder or reversion for life or for years, may r.sI'im,
4 have an action of tort in the nature of waste to recover the amoiuit of the f^ !• f,c-
• I 1*1 1* * loo,
5 damage agamst the tenants named in the preceding section. §§ *. s.
p. S. 179, §§ 3, 4. R. L. 185, § 2. 3 Pick. 203. 10 Allen, 460.
1 Section 3. If such action in tort was commenced in the lifetime of ^ntamabi"
2 the tenant, it may be prosecuted asrainst his executor or administrator '^s^.i^st repre-
' ^ , . , , . . sentative.
3 or it may be commenced against such executor or administrator for waste ^- s- 105, § 6.
4 committed or suffered in the tenant's lifetime.
G. S. 138, § 6. P. S. 179, § 5. R. L. 185, § 3.
2576
WASTE ,\KD TRESPASS.
[CiLiP. 2-i2.
Liability of co-
tenant for
triple damages
for waste.
1727, IS. § 1.
1737-S. 8, § 2.
1783,52. § 1.
1785, 62, I 1.
R. S. 105, § 7.
G. S. 138, § 7.
P. S. 179, § 6.
R. L. 1S5, 5 4.
1 Met. 266.
140 Mas.s. 31.
145 Mass. 494.
182 Mass. 415.
Section 4. A joint tenant or tenant in common of undivided land 1
wlio cuts down, destroys or carries away trees, timber, wood or underwood 2
standing or Ijang on such land, or digs up or carries away stone, ore or 3
other valuable thing found there, or commits any other waste, \\-ithout 4
first giving thirty days' notice in writing under his hand to all other 5
persons interested therein or to their respective agents or attorneys of 6
his intention to enter upon and improve the land, or who does any of 7
said acts during the pendency of a petition or other proceeding for the 8
partition of the land shall forfeit three times the amount of the damages 9
assessed therefor. 10
Fonn of and
parties to
action for
triple damages.
1727, IS, § 1.
1737-S, 8, § 2.
1783,52. § ].
17S5, 62. § 1.
R. S. 105. § 8.
G. S. 138. § 8.
P. S. 179. § 7.
R. L. 185. 5 5.
22 Pick. 495.
Section 5. Such damages may be recovered in tort by one or more
of the other co-tenants, wathout naming any one except the plaintiff, one
half to the use of the co-tenants who associate themselves M'ith the
plaintiff in bringing the action, and the other half to their use and that
of all the other co-tenants except the defendant, to be divided among
them in each class in proportion to the value of their respecti^'e interests
in the land. 6 Ora.v, Sas. 1S2 Mass. 415.
Triple damages
for waste
during pend-
ency of .action.
1727, 18, § 2.
1795, 75, I 3.
R. S. 105, § 9.
Section 6. If, during the pendency of an action for the recovery
of land, the tenant or person in possession, with knowledge thereof,
commits waste, the demandant, if he recovers judgment, may afterward
recover in tort three times the amount of the damages assessed therefor.
G. S. 138, § 9.
P. S. 179, § 8.
R. L. 185. § 6.
8 Pick. 514.
2 Gush. 400.
1
2
3
4
Liability for
wilfully cutting
trees, etc.
1698, 7, § 2.
1723^, 10, § 1.
1726-7. 3, § 1.
1727, 8, I 1.
1S17. 173.
R. S. 105,
§§ 10, 11.
G. S. 138, § 10.
P. S. 179. § 9.
R. L. 185, § 7.
Section 7. A person who without license wilfully cuts down, carries
away, girdles or otherwise destroys trees, timber, wood or underwood
on the land of another shall be liable to the owner in tort for three times
the amount of the damages assessed therefor; but if it is found that the
defendant had good reason to believe that the land on which the trespass
was committed was his own or that he was otherwise lawfully authorized
to do the acts complained of, he shall be liable for single damages only.
no Mass. 280. 114 Mass. 443. 211 Mass. 556.
Involuntary
trespass and
effect of tender.
1786, 52. § 2.
R. S. 105,
§§ 12, 13.
G. S. 138,
§§ 11, 12.
P. S. 179,
§§ 10,11.
R. L. 185, § 8.
6 Met. 261.
16 Gray, 2S5.
192 Mass. 600.
Section 8. A trespasser, if the trespass was casual and involimtary, 1
may, before an action is commenced, tender the damages and, upon 2
action brought, disclaim title and allege the tender and that the trespass 3
was casual and involuntary; and if it is found that the allegations are 4
true and if he has deposited with the court the amount of his tender at 5
the time of filing his answer and the damages assessed are not more 6
than the amount tendered, he shall recover costs. Such tender may, 7
subject to the same provisions, be made after the action has been com- 8
menced with like effect, if it covers the costs to the time of tender. 9
Jtlrisdiction to
stay waste
during pend-
ency of action.
1740-1,14.
1829, 121.
R. S. 105,
§§ 17, 18.
1851,233, 5 71.
1852, 312, § 54.
1856, 278.
G. S. 138,
§§ 15-17.
Section 9. If a person whose land is attached commits waste thereon 1
or threatens or prepares so to do or if a real action is brought to fore- 2
close a mortgage or for possession thereunder or for the recovery of 3
land and any waste, or act in the natm-e of waste, on the land has been 4
committed or threatened by the tenant or any one who claims under 5
him or acts by his permission, the court in which the action is pending 6
shall, upon motion of the plaintiff or demandant, have jurisdiction in 7
ClL\P. 243.] ACTIONS FOR PRI\'ATE NUISANCES. 2577
8 equity to enjoin such waste or act. In such case the court may require p. s. 1-9,
9 the plaintiff or demandant to give bond in such sum as it orders to the r. It im. § 9.
10 adverse party, witli sufficient sureties, conditioned, if the injunction is
1 1 dissolved, to pay all damages arising from the issuing thereof.
CHAPTER 243.
ACTIONS FOR PRIVATE NUISANCES.
Sect.
1. Judgment for abatement of nuisance.
2. Stay of warrant.
3. Judgment for abatement in second
action.
Sect.
4. Manner of collecting expense of
abatement.
5. Injunction to restrain nuisance.
1 Section 1. If tlie plaintiff prevails in tort for a nuisance, the court Judgment for
2 may, in addition to the judgment for damages and costs, enter judg- nuisance^
3 ment that the nuisance be abated and removed and may issue execution r.'s.' loe','
4 for the damages and costs and a separate warrant to the proper officer, g. s. I39, § 1.
5 requiring him to abate and remove the nuisance at the expense of the r.l.'iIg.Vi.
6 defendant as public and common nuisances are abated and removed. 7 AUen'43i'
150 Mass. 482.
1 Section 2. The court may, upon motion of the defendant, order a stay of
2 stay of such warrant for not more than six months, to give him op- R^s.^Tor,, § 3.
3 portunity to remove the nuisance, upon his undertaking so to do within p; |; ifo,' 1 2.
4 the time ordered. R. l. ise, § 2.
1 Section 3. If the plaintiff recovers judgment in a second action Judgment for
2 for the continuance or repetition of the same nuisance, he shall be en- terandaction.
3 titled as of right to a judgment for abatement and remo\al and to a q; |; ^39; 1 1;
4 warrant as provided in section one, if judgment in the former action p- 1; '^^^^ I 3-
5 ^^•as in his favor and whether it included an order for abatement or 203 Mass! 448.
6 removal or not.
1 Section 4. The expense of abatement and removal shall be col- M.inner of coi-
0 1 J 1 1 /r- 1 . lectmg expense
2 lected by the oincer as damages and costs are collected upon execiltion, ?70fi^o^'"|"r''
3 except that the materials of buildings, fences or other things so removed R- s.' loe, § 5.
4 may be sold by the officer as goods are sold on execution for the pay- p.s.'iso.'5 4."
5 ment of debts. The officer shall apply the proceeds to the expense of ^' ^' ^*'^' ^ ■*"
6 the removal and shall upon demand pay over the remainder to the
7 defendant. If the proceeds are insufficient to defray the expenses, the
8 officer shall collect the deficit from the defendant.
1 Section 5. The superior court may in an action of tort pending injunction
2 therein for a nuisance enjoin such nuisance as in equity. nubanee'."
R. S. :06, 5 C. G. S. 139, § 6. P. S. 180, § 6. R. L. 18G, § 5.
REFERENCE.
Fence more than G feet high as nuisance. Chap. 49, § 21.
2578
FORECLOSUKE AND REDEMPTION OF MORTGAGES. [Ch.\P. 244.
CHAPTER 244
FORECLOSURE AND REDEMPTION OF MORTGAGES.
Sect.
foreclosure by entrt or action.
1. Foreclosure by entry or action.
2. Certificate of entry to be recorded.
3. Form of declaration.
4. Procedure.
5. Form of conditional judgment generally.
6. Form in special cases.
7. Discharge or release on satisfaction of
execution.
8. Form of action. Parties.
9. Right to enter before breach.
10. Foreclosure and redemption where en-
try is made before breach.
FORECLOSURE BY S.\LE.
IX. Order of court for sale under power.
12. Procedure after sale.
13. Necessary parties.
14. Procedure in foreclosure under power
of sale. Form and publication of
notice.
15. Record of aiEda\-it of sale as e\-idence.
16. When dower and curtesy barred by
sale.
17. Effect of conveyance by mortgagor.
REDEMPTION.
18. Who may redeem.
19. Tender of payment or performance.
20. Accounting.
Sect.
21. Time of making tender and necessity
of suit for redemption.
22. Suit without previous tender.
23. Order for payment of amount not in
dispute.
24. Costs.
25. Suit not barred by defective tender.
26. Venue and practice.
27. Decree for possession.
28. Interest.
29. Execution for possession.
30. Judgment and execution for balance.
31. Distribution of money tendered and
paid into court.
32. New parties. Process.
33. Survival of right to redeem.
34. Tender to guardian or conseri'ator.
GENERAL PROVISIONS.
35. Right to redeem where foreclosure
opened.
36. Action for excess received by mort-
gagee.
MORTGAGES TO THE COMMONVVE.^LTH.
Discharge of mortgage held by com-
monwealth.
38. Foreclosure.
39. Redemption generally.
40. Suit for redemption.
37
Foreclosure
by entry or
action.
17S5, 22, § 2.
R. S. 107, § 1.
G. S. 140, § 1.
P. S. 181. § 1.
R. L. 1S7, § 1.
13 Mass. 429.
.5 Pick. 418.
11 Met. 467.
Certificate of
entry to be
recorded.
R. S. 107, I 2.
G. S. 140, I 2.
P. S. 181, § 2.
R. L. 187, § 2.
10 Met. 344.
4 Gush. 172.
10 Gush. 163.
3 Grav, 517.
5 Gray, 318.
7 Gray, 202.
FORECLOStTRE BY ENTRY OR ACTION.
Section 1. A mortgagee may, after breach of condition of a mortgage
of land, recover possession of the land mortgaged by an open and peace-
able entry thereon, if not opposed by the mortgagor or other person
claiming it, or by action under this chapter; and possession so obtained,
if continued peaceably for three years, shall forever foreclose the right of
redemption.
6 Gush. 91.
7 Gush. 605.
8 Gush. 3.57.
10 Gush. 99, 163.
4 Gray. 299.
5 Gray, 318, 545.
6 Gray, 126, 12S, 439.
9 Grav, 63. 98.
16 Gray, 149.
3 Allen, 324.
8 Allen, 161, 466.
99 Mass. 4.
102 Mass. 298.
103 Mass. 475.
110 Mass. 311.
113 Mass. 36.
118 Mass. 163.
117 Mass. 365,439.
121 Mass. 139.
122 Mass. 129.
131 Mass. 464.
132 Mass. 502.
134 Mass. 364.
139 Mass. 506.
157 Mass. 272.
165 Mass. 123.
170 Mass. 120.
185 Mass. 398.
234 Mass. 559.
236 Mass. 332.
Section 2. If an entry for breach of condition is made without a
judgment, a memorandum of the entry shall be made on the mortgage
deed and signed by the mortgagor or person claiming under him, or a
certificate, under oath, of two competent witnesses to prove the entry
shall be made. Such memorandum or certificate shall within thirty days
after the entry, except as provided in section seventy of chapter one
hundred and eighty-five, be recorded in the registry of deeds for the
Chap. 244.] foreclositre and redemption of mortgages. 2579
8 county or district where the land lies, with a note of reference, if the 8 Gray, 452.
9 mortgage is recorded in the same registry, from each record to the other. ii*Gr.ayf478,
10 Unless such record is made, the entry shall not be effectual for the pm-- lecray, 5gi.
11 poses mentioned in the preceding section.
S Allen, 161. 101 Mass. 184. 145 Mass. 224. '
0 Allen. 530. 109 Mass. 230. lf>5 Mass. 359.
100 Mass. lOS, 131 Mass. 345. 23lj Mass. 332.
1 Section 3. The mortgagee in an action for possession may declare Form of
2 onhisownseisin, stating that it is in mortgage; and if the coiu-t finds upon Hm'SlTi.
3 verdict or otherwise that the plaintiff is entitled to possession of the land ^^g io7,V3.
4 for breach of condition, it shall upon motion of either party, except as JPio^^^'^^'
5 provided in the following section, award a conditional judgment. g- s- 140, § 3.
p. S. 181. § 3. 10 Met. 172. 8 Gray, 1.54, 447.
R. L. 187, § 3. 12 Met. 154. 11 Allen, 39.
7 Mass. 355. 2 Cush. 374. 122 Mass. 135.
7 Pick. 31. 3 Gray, 517. 131 Mass. 179, 464.
22 Pick. 556. 6 Gray, 428.
1 Section 4. Unless the defendant is the mortgagor or his assignee, or Procedure.
2 entitled to hold or claim the land under the mortgagor or his assignee, cl si i?o', § t'.
3 he shall not redeem the land nor have a conditional judgment, except r. l. \s7', \ 4.
4 with the consent of the plaintiff, but the action shall be conducted like
5 a writ of entry, and in all cases the judgment for the plaintiff may be
6 entered for possession as at common law, unless one or the other of the
parties moves for the conditional judgment.
1 Section 5. If the conditional judgment is to be entered, the court ^'orm of
r» I 11 1 "1 1 1 1 • -fi* 1 1 ^^oriditional
2 shall determine the amount due to the plaintiit on the mortgage, and judgment
3 shall enter judgment that if the defendant within two months after the leg.s, 22,§i.
4 judgment pays to the plaintiff such amount with interest and the costs, r. s.' loi, § 5.
5 the mortgage shall be void, and the defendant shall hold the land dis- p.' |; il?,' 1 1.'
6 charged thereof; otherwise, that the plaintiff shall have execution for pos- fgpick^ssl^"
7 session and for costs. 24 pick. 141. 7 Met. 576.
11 Met. 384. 1 Allen. 145. 112 Mass. 271.
5 Gray, 423. 4 Allen, 440. 114 Mass. 360.
7 Gray, 202. 8 Allen, 78. 118 Mass. 497.
11 Gray, 271. 9 Allen, 69. 123 Mass. 100, 441.
12 Gray, 60. 10 Allen, 76. 140 Mivss. 49.
14 Gray, 522. 102 Mass. 475. 142 Mass. 433.
1 Section 6. If the condition of the mortgage is not for the payment of f°e™i"ases
2 money, or if a part only of the money, the payment of which is secured g |- jo^- 1 1
3 by the mortgage, is due, the court shall vary the terms of the judgment p. s.'isi.'jo.'
4 as the case may require, but shall award execution as before provided iiMet. ssi. '
5 unless the defendant within two months after the judgment performs the ^'^' '
6 conditions thereof.
1 Section 7. If, after an execution on a judgment for possession has Discharge or
2 been levied, the amount due on the mortgage and costs are paid in full, satisfaction of
3 the mortgagee, his executor, administrator or assigns shall, at the ex- isls? m' § 2.
4 pense of the mortgagor, enter on the margin of the record of the execution p- 1- J^f' | ^^■
5 an acknowledgment of satisfaction or make to the mortgagor a deed of k. l. 187, § 7.
6 release, which shall be recorded with notes of reference to the execution
7 discharged thereby.
1 Section 8. The entry may be made or the action brought by an Form of action.
2 assignee of the mortgagee. The action for possession may be brought ifss'.'si. § 1.
3 like a writ of entry against the tenant of the freehold, and shall be con- fsf.'s"^'
2580
FORECLOSURE AXD REDEMPTION OF MORTGAGES. [ChaP. 2-14.
G. 9. 140,
55 7. 8.
P. S. 181,
l§ 8. 9.
R. L. 187, § 8.
11 Mass. 210.
17 Pick. lis.
ducted as if brought by the original mortgagee. The mortgagor may be 4
joined therein as a defendant h-respective of his estate in the land; but 5
if he has no estate in the land and makes no defence to the action, he shall 6
not be liable for costs. 12 Met. 154. 7
7 Grav, 202.
13 Gray, 198, 506.
15 Grav, 461.
16 Gray, 485
131 Mas.'i. 464.
140 Mass. 49.
befOTeteeac" SECTION 9. This chapter shall not prevent a mortgagee or person
G i' i4o! 1 9' claiming under him from entering on the land or from recovering pos-
P- ^- ij|i,'|io- session thereof before breach of condition of the mortgage, if there is
3 Aiass. 138. no agreement to the contrary; but if the debt is afterward paid or the
11 Met. 458. mortgage redeemed, the amount of the clear rents and profits from the
"^" ■ time of the entry shall be accounted for and deducted from the amount
due on the mortgage.
Foreclosure and
redemption
where entry is
made before
breach.
R. S. 107,
|§ 10-12.
G. .S. 140.
I§ 10-12.
P. S. 181,
§§ 11-13.
R. L. 187. § 10.
13 Mass. 309.
6 Gush. 91.
Section 10. A mortgagee, or a person claiming under him in posses- 1
sion under the preceding section, may, after breach of condition, make 2
a new formal entry for breach of condition, or bring an action, under 3
section one, with the same effect as if he were not in possession; or he 4
may foreclose the right of redemption by giving' after breach of condition, 5
to the mortgagor, or person claiming under him, a written notice that 6
he will thenceforward hold the land for the purpose of foreclosure and 7
causing a certificate in proof thereof to be recorded within thirty days 8
after such notice as in case of an original entry. If such notice is given 9
and recorded, the three years limited for redemption shall run from the 10
date of giving the notice. 11
FORECLOSURE BY SALE.
Order of court
for sale under
power.
1854, 377, § 1.
G. S. 140, § 38.
P. S. 181. § 14,
Section 11. If a conditional judgment has been entered upon a
mortgage containing a power of sale, the court shall, instead of issuing
a writ of possession, at the request of the plaintiff order the property
R.L.'i87.''§"i. to be sold pursuant to such power. The plaintiff shall thereupon exe-
cute the power and do all tilings required by it or by the court.
Procedure
after s.tle.
1854. 377, § 2.
G. S. 140, I 40.
P. S. 181, I 13.
R. L. 187, § 12.
Necessary
parties.
1854, 377, I 3.
G. S. 140, § 41.
P. S. 181. § 16.
R. L. 187, § 13.
Section 12. The person selling shall, within ten days after the sale,
file in the clerk's office a report on oath of the sale and of his doings,
and the court may confirm the sale or set it aside and order a re-sale.
Any person interested may appear or be summoned, and the order of the
court confirming the sale shall be conclusive e\ndence against all persons
that the power of sale was duly executed.
Section 13. Unless the defendant is seized in fee simple in pos-
session of the whole equity of redemption of the land demanded, an
order for ,a sale shall not be made until all parties interested in the
equity of redemption and whose estate or interest therein would be
affected by such sale, including a person having a right or possibility
of curtesy or dower, have been summoned to appear.
Procedure in
foreclosure
under power
of sale. Form
and publication
of notice.
1857, 229, § 1.
G. S. 140, § 42.
1877, 215.
P. S. 181, I 17.
1882, 75.
Section 14. The mortgagee or person having his estate in the land
mortgaged, or a person authorized by the power of sale, or the attorney
duly authorized by a WTiting under seal, or the legal guardian or con-
ser\"ator of such mortgagee or person acting in the name of such mort-
gagee or person, may, upon breach of condition and without action, do
all the acts authorized or required by the power; but no sale under
Chap. 244.] foreclosure and redemption of mortgages. 2581
7 such power shall be effectual to foreclose a mortgage, unless, previous R. l. isz, § 14.
8 to such sale, notice thereof has been published once in each of three i9i2,'36o.'|i;
9 successive weeks, the first publication to be not less than twenty-one 1^439.^^^'
10 days before the day of sale, in a newspaper, if any, published in the j92o'2'
1 1 town where the land lies. If no newspaper is published in such town, }f J ^^33. 291.
, _ 11*11* »1* 1 1*1 1 loo AlBSS. i>/0.
12 notice may be published in a newspaper published in the county where i^i Masa. 195.
13 the land lies, and this provision shall be implied in every power of sale 228 Mass! 417.
14 mortgage in which it is not expressly set forth. A newspaper which by " * i^ss. 5o9.
15 its title page purports to be printed or published in such town, city or
16 county, and having a circulation therein, shall be sufficient for the purpose.
17 The following form of foreclosure notice may be used and may be
18 altered as circumstances require; but nothing herein shall be construed
19 to prevent the use of other forms.
(Form.)
Mortgagee's Sale of Real Estate.
By virtue and in execution of the Power of Sale contained in a certain mortgage
given by to
dated and recorded with
Deeds, Book , page , of which mortgage the
undersigned is the present holder,
(If by assignment, or in any fiduciary capacity, give reference.)
for breach of the conditions of said mortgage and for the purpose of foreclosing
the same will be sold at Public Auction at o'clock, M .
on the day
of A. D. 19 ,. ; . .
(place) all and singular the premises described in said
mortgage,
(In case of partial releases, state exceptions.)
To wit: ■• (Description exactly as in the mortgage, including all references to
title, restrictions, encumbrances, etc., as made in the mortgage.) "
Terms of sale: (State here the amount, if any, to be paid in cash by the pur-
chaser at the time and place of the sale, and the time or times for payment of the
balance or the whole as the case may be.)
Other terms to be announced at the sale.
(Signed).
Present holder of said mortgage.
..19
20 A notice of sale in the above form, published in accordance with the
21 power in the mortgage and with this chapter, together with such other
22 or further notice, if any, as is required by the mortgage, shall be a suffi-
23 cient notice of the sale; and the premises shall be deemed to have
24 been sold, and the deed thereunder shall convey the premises, subject to
2.5 and with the benefit of all restrictions, easements, improvements, out-
26 standing tax titles, municipal or other public taxes, assessments, liens
27 or claims in the nature of liens, and existing encumbrances of record
28 created prior to the mortgage, whether or not reference to such restric-
29 tions, easements, improvements, liens or encumbrances is made in the
30 deed; but no purchaser at the sale shall be bound to complete the pur-
31 chase if there are encumbrances, other than those named in the mort-
32 gage and included in the notice of sale, which are not stated at the sale
33 and included in the auctioneer's contract with the purchaser.
2582
FORECLOSURE .\ND REDEMPTION OF MORTGAGES. [ChAP. 244.
Record of
affidavit of sale
as evidence.
1S57, 229, § 1.
G. S. 140,
5§ 42, 43.
P. S. 181, §18.
R. L. 187, § 15.
190R, 219, § 2.
1915, 23.
5 Allen, 319.
106 Mass. 310.
115 Mass. 89.
117 Mass. 365.
195 Mass. 124.
201 Mass. 236.
20.S Mass. 3f;s.
236 Mass. 332.
Section 15. The person selling, or the attorney duly authorized by 1
a writing under seal, or the legal guardian or conservator of such person, 2
shall, within thirty days after the sale, cause a copy of the notice and 3
his affidavit, fully and particularly stating his acts, or the acts of his 4
principal or ward, to be recorded in the registry of deeds for the county 5
or district where the land lies, with a note of reference thereto on the 6
margin of the record of the mortgage deed, if it is recorded in the same 7
registry. If the affida\'it shows that the requirements of the power of 8
sale and of the statute have in all respects been complied with, the affi- 9
da\-it or a certified copy of the record thereof, shall be admitted as 10
evidence that the power of sale was duly executed. 11
When dower
and curtesy
barred by sale.
1854, 377, § 1.
1S57, 229, § 2.
G. S. 140, I 44.
P. S. 181, § 19.
R. L. 187, § 16.
Section 16. If the mortgagor had at the time of the execution of 1
the mortgage no husband or wife or if, being married, the husband or 2
wife joined in the deed in token of his or her release of curtesy or dower, 3
the sale in either of the modes aforesaid shall bar all right and possibility 4
of curtesy or dower in the land. 5
vey"nceby° SECTION 17. A salc Or transfer by the mortgagor shall not impair OF 1
G.°s*f40,'^§ 39. annul any right or power of attorney given in the mortgage to the mort- 2
R.L.\87,| n. gagee to sell or transfer the land as attorney or agent of the mortgagor. 3
Who may
redeem.
1B98, 22,
§§ 4, 5.
1712-13,8,
1785, 22, §
1798, 77, §
R. S. 107, I
G. S. 140, {
P. S. ISl, S
R. L. 187. •
2.
1.
jl3.
il3.
21.
S 18.
REDEMPTION.
Section 18. The mortgagor or person claiming or holding under him 1
may, after breach of condition, redeem the land mortgaged, unless the 2
mortgagee, or person claiming or holding under him, has obtained pos- 3
session of the land for breach of condition and has continued that posses- 4
sion for three years, or unless the land has been sold pursuant to a power 5
of sale contained in the mortgage deed. 22 Pick. 401. e Gray, 128. 6
7 Gray, 278.
13 Allen, 60.
105 Mass. 564.
112 Ma.ss. 352.
137 Mass. 397.
143 Mass. 49.
148 Mass. 540.
159 Mass. 356.
171 Mass. 195.
Tender of pay-
ment or per-
formance.
1C98, 22, § 4.
17S5, 22. § 2.
1798, 77. § 1.
R. S. 107, § 14.
G. S. 140, § 14.
P. S. 181, § 22.
R. L. 187, § 19.
5 Pick. 259.
Section 19. The person entitled to redeem shall pay or tender to
the mortgagee, or person claiming or holding under him, the whole
amount then due and payable on the mortgage, and shall perform or
tender performance of every other condition contained therein; and if
there has been an action to recover the land he sliall pay or tender the
costs of such action if unpaid.
5 Met. 95. 7 Gush. 220. 7 Gray, 148. 139 Mass. 407.
Accounting.
1698, 22. § 4.
1785, 22, § 2.
1798,77. I 1.
R. S. 107, § 15.
G. S. 140, S 15.
P. S. 181, § 23.
R. L. 187, § 20.
5Pick. 146,259.
10 Pick. 398.
16 Pick. 46.
4 Met. 246, 49S.
7 Met. 157.
2 Gush. 400.
7 Gush. 220.
Section 20. If the mortgagee or person claiming or holding under 1
him has had possession of the land, he shall account for rents and profits, 2
and be allowed for all amounts expended in reasonable repairs and iin- 3
provements, for all lawful taxes and assessments paid and for all other 4
necessary expenses in the care and management of the land. A balance 5
of such account, if due from him, shall be deducted from the debt due on 6
the mortgage; if due to him, shall be added to the debt, and paid or ten- 7
dered as such. 5 Gray, 423. 6 Gray, 556. 7 Gray, 148. 8
14 Gray, 132.
4 Allen, 538.
5 AUen, 78.
12 Allen. 120.
100 Mass. 270.
104 Mass. 400.
114 Mass. 497.
124 Mass. 242.
126 Mass. 146.
139 Mass. 77, 407.
148 Mass. 300.
199 Mass. 164.
Time of making
tender and
necessity of
suit for re-
demption.
Section 21. The tender may be made before the expiration of the 1
three years limited for redemption, and before or after entry for breach 2
of condition, and before a sale piu-suant to a power contained in the 3
Chap. 244.] foreclosure and redemption of mortgages. 2583
4 mortgage ; but if the mortgagee or person claiming or holding under him i698. 22. § 4.
5 does not accept the tender and discharge the mortgage, the tender shall 1321; 80! § 1!
6 not prevent the foreclosure unless, within one year after the tender, the §j fo.^iy!
7 mortgagor or person claiming or holding under him commences suit for ^^^y, ^los, § 2.
8 redemption and when he commences suit pays to the clerk of the court |>M*^^s.'
9 the amount tendered Tor the use of the party entitled thereto. §§ 24-26.'
R. L. 187, § 21. 97 Mass. 439. 143 Ma.ss. 49. 230 Mass. 359.
1 Section 22. The person entitled to redeem may, before the expira- suit without
2 tion of the three years limited for redemption, and before or after an isl^ss.Ti'"'
3 entry for breach of condition, and before a sale pursuant to a power R^l'foy'j^js
4 contained in the mortgage, commence suit for redemption without pre- S fjiP'lay"
5 vious tender, and mav in such suit offer to pay such amount as shall be isss, 4.S.3.
6 found due from him, or to perform such other condition as the case may 7 Met. 157.
7. require; but a mortgagee who has published a notice of sale prior to the io^'M^as3^254.
8 commencement of such suit may proceed with said sale unless the amount \ll ^J^; |q5
9 due is paid into court or the sale enjoined. ^"'°-
ISl Mass. 49. 197 Mass. 19. 230 Mass. 359. 235 Mass. 476.
1 Section 2-3. The court may determine, by a reference to a master or Order for
2 otherwise, whether any and what amount due on the mortgage is not amount nCt in
3 in dispute, and may by an interlocutory decree order it paid to the is57!'i65, § i.
4" mortgagee, or for his use to the clerk of the court.
G. S. 140, § 20. • R. L. 187, § 23. 148 Mass. 300.
P. S. 181, § 23. 143 Mass. 144. 15S Mass. 371.
1 Section 24. The court may award costs in the suit for redemption costs.
2 to either party; but if suit is brought without previous tender and it is issJ: 201,^^2.
3 found that the condition of the mortgage has not been performed, the g'I'ho'IIi'
4 plaintiff shall pay costs of suit, unless the court finds that the defendant ^ ^ 'j|l; i-|.
5 has unreasonably refused or neglected, when requested, to render a just 2 Pick. 540,
6 and true account of the money due upon the mortgage and of rents and 5 pick. 259.
7 profits and amounts paid for taxes, repairs, improvements and other u Gray, 132.
8 necessary expenses, or that he otherwise by his default prevented the 112 Mas's*352.
9 plaintiff from performing or tendering performance of the condition ^^'^ ^^^^^- ^'^'^■
10 before commencement of suit.
1 Section 25. If suit was commenced before the expiration of the three suit not barred
2 years limited for redemption, and before or after entry for breach of tender '^'"^
3 condition, the plaintiff shall, although the tender alleged is found to Gii^Hoiil^!
4 be insufficient, be entitled to a decree for redemption as if no previous ^- 1; ^^^^1; \^°j
5 tender had been alleged.
1 Section 26. Except as provided in section forty, a suit for redemp- venue and
2 tion shall be brought in the county where the land or any part thereof iSa! 22, § 2.
3 lies. If the bill is inserted in a writ, and the writ or a copy thereof, r.^|; ^o7,V2i.
4 attested by the officer, with or without the bill but with a description of g's'i4ok§23
5 the land sought to be redeemed, is deposited, within three days after the p-
. 6 dav on which the service is made, in the office of the clerk of the court to 5§ 31. 32!
7 which the writ is returnable, the service shall be the commencement of 7 Met. 157.
8 the suit; otherwise, the deposit of such copy or writ shall be the com- ^ ''^y-^°^-
9 mencement of the suit.
1 Section 27. If the court finds the plaintiff entitled to redeem, it Decree for
2 shall determine the amount due on the mortgage or what condition the i«).s,22, |4.
3 plaintiff is bound to perform for the redemption of the land, and shall 11. s.' 107. § 23.
2584
FORECLOSUEE AND REDEMPTION OF IMORTGAGES. [ClL\P. 244.
G. S. 140. § 25.
P. S. LSI. § 3.3.
n. L. 1S7. § 27.
5 Pick. 259.
21 Pick. 355.
7 Cush. 220.
1 AUen. 115.
enter a decree that, upon pajTuent of such amount or performance of 4
such condition within such time as it shall order, the plaintiff shall have 5
execution for possession of the land and shall hold it discharged of the 6
mortgage. 5 Alien, 62. 10 AUen, 74. 7
110 Mass. 57.
120 M.1SS. 153.
122 Mass. 76.
129 Mass. 39S.
130 Mass. 55.
140 Mass. 49. •
142 Mass. 545.
203 Maes. 591.
Interest.
1850, 21.
G.S. 140, § 26.
P. S. 181, §34.
R. L. 187, 5 28.
Section 28. If the court finds that the mortgagee has not unreason- 1
ably neglected or refused to render a true account of rents and profits 2
of the land mortgaged, it may award him the balance found due on the 3
mortgage, with interest thereon at a rate of not more than twelve per 4
cent a year from the expiration of three years after the entry to the date 5
of the decree. 6
Execution for
po.ssession.
1698, 22, 5 4.
1798, 77, § 2.
R. S. 107. § 24.
G. S. 140, I 27,
P. S. LSI, §35.
R. L. 187, § 29.
Section 29. The court may at the same time decree that, if the
defendant neglects or refuses to accept the money or other act required
by the decree to be paid or performed, the money shall be left for his use
with the clerk of the court, or such other act done as the case requires;
and the plaintiff, having performed all acts required by the decree, may
have execution for possession of the land.
Judgment and
execution for
balance.
1818,98, § 2.
R. S. 107, § 25.
G. S. 140, § 2S.
P. S. 181, § 36.
R. L. 187. § 30.
6 Mass. 264.
143 Mass. 410.
Section 30. If the court finds that the defendant has received from 1
rents and profits of the land or otherwise more than is due on the mort- 2
gage, it shall award judgment and execution against him for the amount 3
due to the plaintiff; and if there are several defendants, such judgment 4
and execution may be awarded against them, either jointly or severally, 5
for the amounts received by them or any of them, respectively. 6
of'money'ten- SECTION 31. The court may order the amount found due the plain-
fnTo TO^iS-l'""'' tiff for rents and profits or costs, if any, to be deducted from the amount
r'^I' 107^26 ^ound due the defendant, to whom the balance only shall be paid from
p' I' 18?' If-' ^^y money tendered or brought into court, and the residue, if any, shall
R. L. 187, § 31. be paid to the plaintiff.
PTocSt^'^''' Section 32. If a person, other than the parties to a suit for redemp- 1
r'I.' ?07,V28. tion, is interested therein, the court may, upon terms, cause him to be 2
G. s. 140, §31. made a party and may order a subpoena to be issued and served on him 3
to appear and answer. 4
Section 33. If the person entitled to redeem a mortgaged estate dies, 1
his heirs, devisees, executor or administrator may make a tender or com- 2
mence or prosecute a suit for redemption which the deceased might have 3
made, commenced or prosecuted. 4
p. S. 181,
§38.
R.L. 187,
§ 32.
Survival of
right to
redeem.
R. S. 107,
§§30,31.
G. S. 140,
§§ 32, 33.
P. S. 181, §5 39, 40.
R. L. 187, § 33.
104 Mass. 277.
117 Mass. 403.
170 Mass. 120.
186 Mass. 430.
guS-d'ian'or Section 34. A tender may be made to a guardian or conservator, who 1
R.°s^To7,°§ 32. luayj upon satisfaction, execute a release of the mortgage. 2
G. S. 140, § 34. R. L. 187, § 34. 12 Mass. 16.
P. S. 181, § 41. 1913, 23.
Right to
redeem where
foreclosure
opened.
R. S. 107, § 33.
G. S. 140, § 36.
GENERAL PROVISIONS.
Section 35. If, after the foreclosure of a mortgage not containing a
power of sale, the person entitled to the debt reco\'ers judgment for any
part thereof on the ground that the value of the land mortgaged at the
Chap. 244.] foreclosure and redemption of mortgages. 2585
' 4 time of the foreclosure was less than the amount due, such recovery shall ^^^^ ^^^^ 5 42.
5 open the foreclosure, and the person entitled may redeem the land Pif'',^*^;! ^^•
6 although the three years limited therefor have expired, if suit for redemp- 562. '
7 tion is brought within one year after the recovery of such judgment. 10 Picic. ssb.
8 Met. 153. 105 Mass. 106. 117 Mass. 439. 136 Mass. 459.
10 Met. 344. 110 Ma.=.3. 4SS. 119 Mass. 550. 139 Mass. 500.
101 Mass. 184. 113 Mass. 139. 124 Mass. 249. 170 Mass. 120, 303.
103 Mass. 475.
1 Section 36. If a mortgagee or person claiming or holding under Aetion for
2 him receives from rents and profits of the land, or upon a tender made ceivcdW
3 to him, or in any other manner, more than is due on the mortgage, and isTsfosfl 3.
4 no suit for redemption is brought against him, the mortgagor or other §; 1: i4oi | lo.
5 person entitled to such excess may recover it in an action of contract. ^- ^- ^^^' ^ *^-
R. L. 1S7, § 36. 9 Pick. 171. 130 Mass. 88.
MORTGAGES TO THE COMMONWEALTH.
1 Section 37. If a mortgage is held by the commonwealth, the state Discharge of
2 treasurer may demand and receive the money due, and upon payment by cmnmon*-
3 shall make and acknowledge a discharge. 1804, 103, § 1. wealth.
R. S. 107, §35. G. S. 140, §45. P. S. 181, §45. R. L. 187, § 37.
1 Section 38. If the condition of such mortgage is not duly performed, R''s'''i°fj'"''|'36
2 the state treasurer may cause an entry for breach of condition to be made p|- 140, §46.
3 in the name and behalf of the commonwealth by himself or a person whom R. l. is7, § 3s.
4 he appoints, or he may bring an action in the name of the commonwealth
5 to recover possession of the land mortgaged; and possession obtained by
6 entry or by action shall have the same effect in foreclosing the right of
7 redemption as a similar possession by any other mortgagee.
1 Section 39. The mortgagor or his assigns may redeem the land in like Redemption
2 manner and upon like terms as if held by any other mortgagee, and the fso"%V, § 2.
3 payment or performance of the condition shall be made or tendered to §! i: uo, § 4?:
4 the state treasurer. p. s. isi, § 47. r. l. i87, § 39.
1 Section 40. If the state treasurer and the person appljang to redeem Suit for
2 the mortgage do not agree upon the amount due, the person so applying i804™i'o3?"§ 2.
3 may bring in the supreme judicial or the superior court, for the county f^ ts^al'.
4 of Suffolk, a suit in equity against the commonwealth for the redemption, p- 1- J^}*' | ^|-
5 The process shall be served on the state treasurer, who shall appear and Pot^ji ''I' ii"'
6 answer in behalf of the commonwealth; and like proceedings shall be had
7 and like judgment rendered as in case of other mortgagees, except that the
8 state treasurer shall accept any payment due the commonwealth, and upon
9 receipt thereof, or upon performance of such other condition as the court
10 orders, shall discharge the mortgage in like manner as when the debt is
11 paid without suit.
REFERENCES.
Foreclosure of mortgage of registered land. Chap. 185, § 70.
Right of person entitled to land by foreclosure of mortgage to recover possession
by ejectment. Chap. 239, § 1.
Rights and duties of purchaser at foreclosure sale under mortgage of railroad,
Chap. 160, § .55.
Sale of lands where title vested in commonwealth by foreclosure of mortgage,
Chap. 29, § 37.
Effect of soldiers' and sailors' relief act (40 U. S. Sts. at L. 444), Hoffman v.
Charlestown, etc., Bank, 231 Mass. 324; Morse v. Stober, 233 Mass. 223; John
Hancock Mutual Life Ins. Co. v. Lester, 234 Mass. 559.
Right of executor or administrator of deceased holder of mortgage to foreclose,
Chap. 206, § 9.
2586
INFORMATIONS BY THE COMMONT\'EALTH.
[CH-A-P. 245.
§ 1. When mortgagee in possession after entry to foreclose deemed owner for
taxation, Chap. 59, § 14.
§ 7. Release of mortgage by executor or administrator of deceased holder on
redemption, Chap. 206, § 10.
§ 18. Right of assignee in insolvency to redeem from mortgage given by debtor,
Chap. 216, § 54.
Right of dower tenant where heir redeems from mortgage given by de-
ceased husband, Chap. 189, § 4.
Right of judgment debtor to redeem from mortgage where creditor has
paid mortgage debt. Chap. 236, § 35.
Right of tenant for long term of years to redeem from mortgage of demised
estate. Chap. 186, § 1.
§ 20. Equitable power of court in which is pending real action to foreclose
mortgage to restrain waste by tenant, Chap. 242, § 9.
CHAPTER 245
INFORMATIONS BY THE COMMONWEALTH.
Sect.
1. Information for unlawful entry.
2. When order of governor and council
necessary.
3. Practice.
4. Notice by publication.
5. Who may defend action. Costs.
6. Liability for rents and profits and im-
provements.
Sect.
7. Commonwealth seized without execu-
tion.
S. Conclusiveness of judgment.
9. Writ of entry by person not concluded.
10. Against whom writ shall be brought.
11. Liability for rents and profits and im-
provements.
12. Costs.
Information
for unlawful
entry.
1791, 13. § 2.
179S, 43. § 1.
R. S. 108,
§§1.2.
G. S. 141, § 1.
P. S. 182, § 1.
R. L. 188, § 1.
9 Gray, 451.
Section 1. If a person unlawfully enters upon or holds land belong-
ing to the commonwealth, it may be recovered upon an information
filed by the attorney general or by a district attorney in the superior
court in any county, describing the land and setting forth the title
and claim of the commonwealth thereto. A summons returnable in the
county where the land lies shall thereupon issue to the defendants.
When order of
governor and
council
necessary,
1791. 13, § 1.
179R, 4.
1798,43, § 1.
R. S. 108,
§§6,7.
G. S. 141,
§§3,4.
P. S. 182,
§§ 2, 3.
R. L. 188, § 2.
1919, 305.
Section 2. If the title of the commonwealth is founded on a for-
feiture for breach of a condition in a grant or conveyance by the com-
monwealth or by the province or colony of INIassachusetts bay, no action
for the recovery thereof shall be commenced unless by direction of the
governor, with the advice and consent of the council; but in all other
cases the attorney general or district attorney may prosecute an ac-
tion therefor if he believes that the claim of the commonwealth can be
established.
Practice.
1791, 13. § 1.
R. S. 108, § 3.
G. S. 141, § 2.
Section 3. Service of the summons and all other proceedings shall, 1
except as otherwise provided, be substantially the same as in real actions. 2
p. S. 182, § 4. R. L. 188, § 3.
Notice by
publication.
1791, 13. § 2.
R. S. 108, § 8.
G. S. 141, § 5.
P. S. 182, § 5.
R. L. ISS, I 4.
Section 4. If, in case of a supposed escheat, no person appears as
the heir of the person last seized, or if in any case there is reason to sup-
pose that there is a person claiming an estate or interest in the land, whose
name is unknown, who is absent from the commonwealth or who cannot
be found therein to be served with process, the court shall, in addition
to any other service, order the substance of the information with the
order of the court thereon to be published once in each of three successive
Chap. 245.] informations by the commonwealth. 2587
8 weeks in a newspaper designated by it, the first publication to be at least
9 ninety days before the time appointed for the appearance of the parties.
1 Section 5. A person claiming an estate or interest in the land, al- ^^^ "tioif*^
2 though not named in the information nor served with process, may appear S°'i^ ,„„
3 and answer thereto; but a defendant not named shall not recover costs §§9,'io. '
4 against the commonwealth, unless it appears that he has an estate or §§6.' 7.
5 interest in the land, although the commonwealth fails to establish its §'§o'. 7^^' .
6 claim thereto. If there are several defendants, the court may award ^' ^' ^^^' ^ *•
Y costs for or against any one, as if he were the sole defendant.
1 Section 6. If the commonwealth prevails, the defendant shall be Liability for
2 chargeable for rents and profits and be entitled to an allowance for im- profita and
3 provements as provided in chapter two hundred and thirty-seven. R!'s.°io8,''rii.
G. S. 141, § S. p. S. 182, § 8. R. L. IBS. § 6.
1 Section 7. The commonwealth shall be actually seized and pos- common-
2 sessed of the land as soon as judgment is rendered in its favor, without wuhout'exe-
3 a writ of possession. 1791, 13, § 3. '^""°°-
R. S. 108, § 5. G. S. 141. § 9. P. S. 182, § 9. R. L. 188. § 7.
1 Section S. The judgment shall be conclusive between the common- Conciusive-
2 wealth and the defendants who appear and answer, and against every j'udgment.
3 person named as a defendant upon whom the summons has been duly r™s! lo'sf ^12.
4 served within the commonwealth and against all persons claiming under p's'ii^'iio'
5 such defendants. R. l, iss, §8.
1 Section 9. A person not concluded by a judgment for the com- writ of entry
2 monwealth under the preceding section may, until his claim is barred by concluded.""'
3 law for the limitation of real actions or otherwise, bring a writ of entry q- |; j^f; | If
4 to recover the land from the commonwealth or from any person then ^ ^ ^f^^ \^^-
5 holding under it. He may deny and disprove any facts alleged and
6 proved in the first action and allege and p^o^'e other facts in support of
7 his claim and shall, if it appears that he is entitled to the land, have
8 judgment and execution therefor.
1 Section 10. If the commonwealth continues seized of the land when Against whom
2 such new action is commenced, such action shall be brought against the bebrought.
3 tenant or occupant thereof, and, in addition to the service on him, a copy §• |- J^^' | }|-
4 of the original writ or summons shall be left with the attorney general or p- |- i||' | 12.
5 district attorney at least fourteen days before the return day. If the
6 commonwealth has granted away the land, the action shall be brought
7 against the tenant of the freehold. In either case it shall be conducted and
8 disposed of as if no such information had been filed.
1 Section 11. If the demandant recovers judgment, he shall be entitled J'juf'j^and'"
2 to rents and profits and chargeable for improvements as provided in profitaand
3 chapter two hundred and thirty-seven, although the land has not been i798, 43, § 2. '
4 held and possessed for six years under the adverse title. g! s! hi, § 13!
p. S. 182, § 13. R. L. 188, § 11.
1 Section 12. Costs shall be awarded and taxed for the prevailing c_osts.
2 party. If judgment is for the commonwealth, an execution for costs r."'s.' los, § 4,
3 shall issue; if it is for the defendant, the costs shall be paid by the p. il lii' i u.'
4 commonwealth. R. l. 188, § 12.
2588
TRUSTEE PROCESS.
[Chap. 246.
TITLE lY.
CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES.
Chapter 246. Trustee Process.
Chapter 247. Replevin.
Chapter 248. Habeas Corpus and Personal Liberty.
Chapter 249. Audita Querela, Certiorari, Mandamus and Quo Warranto.
Chapter 250. Writs of Error, Vacating Judgment, Writs of Review.
Chapter 251. Arbitration.
Chapter 252. Improvement of Low Land and Swamps.
Chapter 253. Mills, Dams and Reservoirs.
Chapter 254. Liens on Buildings and Land.
Chapter 255. Mortgages, Conditional Sales and Pledges of Personal Property, and
Liens thereon.
Chapter 256. Recognizances for Debts.
Chapter 257. Seizure and Libelling of Forfeited Property.
Chapter 258. Claims against the Commonwealth.
CHAPTER 246
TRUSTEE PROCESS.
Sect.
commencement and service of process.
1. Actions which may be commenced by
trustee process. Who may be trus-
tees.
2. Venue of action.
3. Change of venue.
4. Venue in district courts.
6. Service of trustee writs. Attachment
of other property.
6. Service upon paymaster of foreign cor-
poration.
7. District court trustee -n-rits. Return
day. Service on partnership.
5. New tinistees. Successive sen^ices.
9. Proceedings if trustees are discharged.
APPEARANCE AND ANSWER OF TRUSTEE.
10. Answer of trustee, filing, contents.
11. Answer to be under oath, except.
12. Interrogatories.
13. Discharge of trustee.
14. Admission of funds by trustees.
15. Answer by corporation.
16. Answer of trustee to be taken as true,
etc.
17. Trial of questions of fact arising on
answer.
Sect.
18. Default of trustee.
19. Penalty for false answer by trustee.
PEOPERTT LIABLE TO ATTACHMENT BY
trustee process.
20. Effect of attachment by trustee proc-
ess.
21. Liability of executors, etc., as trustees.
22. Liability as trustee of assignee in in-
solvency.
23. Liability of receivers.
24. Attachment of money, etc., due but not
payable.
Trustee chargeable if conveyance to him
fraudulent.
Mutual demands between defendant
and trustee.
27. Trustee not chargeable for pajTnent
before knowledge of service.
Wages exempt from attachment, when.
Tender and offer of judgment.
Penalty for attaching wages exempt
from attachment.
Bond by plaintiff to indemnify savings
bank.
32. Claims not attachable by trustee proc-
ess.
25
26
Chap. 246/
TRUSTEE PROCESS.
2589
Sect.
adverse claimants.
33. Proceedings if goods are claimed by
third person.
34. Proceedings upon assignment by de-
fendant as security for debt.
PROCEEDINGS IF ACTION PENDING AGAINST
TRUSTEE.
35. Proceedings if action pending by de-
fendant against trustee.
36. Judgment debtor not chargeable as
trustee, when.
37. Proceedings if defendant in pending ac-
tion is adjudged trustee of plaintiff.
38. Proceedings if defendant claims set-off
in pending action by trustee.
JUDGMENT AND EXECUTION.
39. Form of judgment charging trustee.
40. Further attachment of goods, when.
41. Liability of trustee after thirty days,
when.
42. Demand on absent trustee.
43. Effect of judgment against trustee.
44. Discharge of trustee no bar to action by
defendant.
SCIRE FACIAS AGAINST TRUSTEE.
45. Scire facias against trustee.
46. Proceedings upon default of trustee on
scire facias.
47. Same subject.
48. Proceedings upon appearance of trustee.
49. Limitation of action on scire facias.
DEATH OP PARTIES.
50. Death of trustee before judgment.
51. Proceedings.
52. Same subject.
53. Death of trustee after judgment.
54. Same subject.
PROCEEDINGS IF AN EXECUTOR IS CHARGED
AS TRUSTEE.
55. Service of execution when executor or
administrator is adjudged trustee.
56. Reraedj' against executor failing to pay
amount for which ho is cliargcd.
Sect.
proceedings if trustee has specific
property.
57. Proceedings if trustee is charged for
specific property.
58. Same subject.
59. Delivery by trustee of specific property
according to contract.
60. Tender by plaintiff of amount for which
trustee holds property as security.
61. Disposal if held for other purpose than
as security.
62. Disposal of property by officer.
63. Sale by trustee of property held as
security, etc.
64. Liability of trustee for neglect to deliver
property for which he is charged.
65. Liability of carrier if prevented by
trustee process from making delivery.
DISSOLUTION OF ATTACHMENT BY TRUSTEE
PROCESS.
66. Person other than defendant may file
bond. etc.
67. Delivery of property by trustee. Lim-
itation of action on bond.
68. Costs of trustee.
69. Costs payable out of effects, when.
70. Costs payable by plaintiff, when.
71. Costs of person absent from common-
wealth.
72. Costs of person summoned out of
county.
73. Liability of trustee neglecting to appear.
74. Recovery of costs.
75. Liability of several trustees for plain-
tiff's costs.
76. Costs in action against trustee.
77. Liability of trustee for costs on scire
facias, when.
78. Same subject.
79. Same subject.
80. Execution for costs against trustee.
81. Costs against several trustees.
82. Costs in case of adverse claimant.
83. Costs if damages do not exceed ten
dollars.
COMMENCEMENT AND SERVICE OF PROCESS.
Section 1. All personal actions, except tort for malicious prosecu-
tion, for slander or libel or for assault and battery, and except replevin,
may be commenced by trustee process, and any person may be sum-
moned as trustee of the defendant therein; but an individual who is not
an inhabitant of the commonwealth, or a foreign corporation or asso-
ciation, shall not be so summoned unless he or it has a usual place of busi-
ness in the commonwealth.
Actions which
may be com-
menced by
trustee process.
Who may be
trustees.
1708-9. 7.
172S-9. 3,
1738-9, 1.5,
1753-4, 2S.
17SS-9, 10.
1.
1.
§1.
1.
1794, 65, §
1832, ie4, §
1833, 171.
R.S. 109, §§1,4, 6,
71, 76, 77.
1835, 141, § 1.
1839, 158.
G.S. 142, §§ 1,75.
1870, 194.
P. .S. 183, § 1.
R. L. 1S9, § 1.
13 Mass. 80.
16 Mass. 299.
3 Pick. 302.
15 Pick. 445.
4 Met. 486.
13 Met. 471.
9 Allen, 570.
10 Allen, 463.
11 Allen. 357.
121 Mass. 380.
129 iMass. 444.
150 Mass. 560.
151 Mass. 501.
152 Mass. 64.
161 Mass. 287.
176 Mass. 48. 113.
204 Mass. 327.
215 Mass. 83.
216 Mass. 118.
218 Mass. 333.
230 Mass. 117.
2590
TRUSTEE PROCESS.
[Chap. 246.
Venue of
action.
1794,65, § 1.
E. S. 109, § 7.
1852, 287.
G. S. 142, §4.
P. S. 183, § 3.
R. L. 189, § 2.
14 Mass. 132.
22 Pick. 250.
4 Cush. 5S8.
Section 2. If, in an action, suit or proceeding commenced in the
supreme judicial or superior court by trustee process, all the persons
named in the WTit as trustees dwell or have usual places of business in
one county, the vrrit shall be returnable in such county; otherwise, it
may be returnable in any county where any one of them dwells or has
a usual place of business.
6 Cush. 560. 7 Gray, 282. 11 Allen, 357. 193 Mass. 84.
12 Cush. 284.
1 Allen, 2S6.
150 Mass. 560.
218 Mass. 333.
Change of
venue.
1893, 285.
R. L. 1S9, § 3.
Section* 3. If, in an action, suit or proceeding commenced in the 1
supreme judicial or superior court by trustee process, the court finds 2
that tlie trustee was made a party in order to give the court jurisdic- 3
tion of the cause in the county where the trustee dwells or has a usual 4
place of business, and that neither the plaintiff nor the principal de- 5
fendant dwells or has a usual place of business therein, it may, upon 6
motion of the defendant at any time before trial, order the cause and all 7
papers relating thereto transferred to a county where some one of the 8
principal parties dwells or has a usual place of business, upon terms. 9
The cause shall thereupon be entered and prosecuted in the same court 10
for that county as if originally returnable therein, and all prior pro- 11
ceedings otherwise regularly taken shall thereafter be valid. 12
Venue in
district courts.
R. S. 109, § 72.
G.S. 142, § 78.
1874, 271, § 9.
P. S. 183, I 4.
1893, 396, § 13.
1894,398, § 1;
431.
R. L. 189, § 4.
1917, 326.
Section 4. No person shall be held to answer as a trustee in an 1
action in a district court, except as provided in section fifty-four of 2
chapter two hundred and eighteen, in any county other than that where 3
he dwells or has a usual place of business; and if a person summoned as 4
trustee in such court is out of the county at the time of the service of 5
the original writ upon him, and does not return before final judgment 6
in the action, he shall not be chargeable as trustee. 7
Service of
trustee writs.
Attachment of
other property.
1708-9, 7. § 2.
1728-9. 3, § 2.
1738-9. 15. 5 2.
1758-9, 10, I 2.
1794. 65, § 1.
R. S. 109, § 8.
1852, 287.
G. S. 142, § 5.
P. S. 183, § 6.
Section 5. Trustee writs shall be served by copy on each trustee and 1
on the defendant. In other respects service upon trustees and defend- 2
ants shall be in the manner pro^•ided by chapter two hundred and 3
twenty-three. Goods and estate of the defendant in his own hands and 4
possession may be attached upon a trustee vrv'it in the manner provided 5
in said chapter, and the writ shall be further served upon each of the 6
trustees and upon the defendant. 7
R. L. 1S9. § 5.
6 Mass. 60.
16 Mass. 473.
13 Met. 471.
8 Cush. 518.
119 Mass. 142.
129 Mass. 444.
169 Mass. 562.
Service upon
pa\Tnaster of
foreign cor-
poration.
1911,70.
1919. 350.
I§ 52, 53.
Section 6. When a foreign corporation having a usual place of 1
business in the commonwealth is smnmoned as trustee in an action 2
against one of its employees, service of the writ may be made as pro- 3
vided in section thirty-eight of chapter two hundred and twenty-three, 4
or upon any paymaster or other officer or agent of the corporation 5
whose duty it is to pay such employee, and such service shall be as 6
binding upon the corporation as if it had been made upon the com- 7
missioner of corporations and taxation. 8
District court
trustee writs.
Return day.
Ser\'ice on
partnership.
1878, 2R0. § 1.
P. S. 183. § 7.
1887, 33.
1892, 14S.
Section 7. A trustee ■WTit issued by a district court shall be return- 1
able not more than thirty days after the date thereof and be served 2
seven days at least before the return day. If co-partners are so sum- 3
moned as trustees and the partnership is properly described in the writ, 4
service of the writ upon one partner shall be sufficient. 5
1893, 396, § 17. 1894, 398, 5 2, R. L. 189, § 6. 1917, 326.
Chap. 24G.] trustee process. 2591
1 Section 8. The plaintiff may at any time insert the names of other New trustees.
2 trustees in the writ and cause the writ to be served upon them; and, se'rxdces.^^
3 after service upon a trustee, he may cause the writ to be af;;ain served R.^l.'foo.l'g.
4 upon him in hke manner and with the same effect as if it had not been p;|i||;|s'
5 previously ser\ed. A writ served upon a trustee after service upon the ^■piek*®25o'^'
6 defendant shall be again served upon the defendant.
142 Mass. 447. 215 Mass. 341.
1 Section 9. The plaintiff may proceed in the action against the de- Proceedings
2 fendant if the writ has been served upon him or if he has had notice of the disSarged'"^''
3 action or has appeared and answered thereto, although all the trustees nglilj'i^^'
4 have been discharged. R. s. io9, § lo. g. s. 142. § 7.
p. S. IS.3. § 9. 1 Pick. 389. 6 Gush. 560. 119 Mass. 142.
R. L. 189, § S. 13 Met. 471. 5 Gray, 309. 139 Mass. 471.
APPEARANCE AND ANSWER OF TRUSTEE.
1 Section 10. A person summoned as trustee in the supreme judicial ^^^^^" gij^g
2 or superior court shall appear and file his answer within ten days, or ^Sj^^gls 73
3 in a district court within three davs, after the return dav of the writ, 1852! 312! § se!
4 unless further time is allowed by the court. The answer shall disclose p.s.iss,'
5 plainly, fully and particularly what goods, effects or credits, if any, of is85,'3S4, § 9.
f) the defendant were in the hands or possession of the trustee when the 1917', 326. ^ *'
7 writ was served upon him. 12 Pick. i67. 3 Met. 297.
4 Cush. 267. 14 Grav, 453. 97 M.iss. 110. 220 Mass. 285.
12 Gray. 431. 10 .\llen. 160. 183 Mass. 455. 227 Mass. 7.
1 Section 11. Such answer shall be signed and sworn to by the trus- Answer to be
2 tee, except that in a district court it may be signed by the trustee or his except"" '
3 attorney, without being sworn to, if the alleged trustee declares that he R.^s.'i'og, § ii.
4 had not in his hands or possession at the time of service of the writ upon HH'^ ^n. | If.
5 him any goods, effects or credits of the defendant, and submits himself P.- 1- 1*'^-
6 thereupon to examination on oath.
p. S. 183, §§ 11, 13. R. L. 189, § 10. 1917,320.
1 Section 12. The plaintiff may from time to time examine the interrogatoriea.
2 alleged trustee upon written interrogatories filed in the clerk's office, it a' m I fi.
3 The answers thereto shall be signed, sworn to and filed in said office \lll\ fH] | gf;
4 within seven days after notice to the trustee or his attorney of the filing P. ^ ^^^'
5 of the interrogatories, unless the court otherwise orders. If the answers F;?!,^??'
6 are not so filed, the court may make such order as the case may require. R lT'i89, § ii.
21 Pick. 21. 131 Mass. 231. 220 Mass. 205. "^ ^"'''' *''''
3 Met. 297. 136 Mass. 407. 227 Mass. 7.
8 Cush. 518. 194 Mass. 398. 229 Mass. 316.
1 Section 13. If the answer of the alleged trustee shows that at the Discharge
2 time of service of the writ upon him he had not in his hands or possession itm^oT's 3.
3 any goods, effects or credits of the defendant, and the plaintiff declines §• f- }5|; 1 19;
4 to examine him, or if upon examination his answer appears to be true, he E ^ i^^s § 13
I- 1 Ti 1 !• I 1 ' R. L. 189, § 12.
5 shall be discharged. 9 Cush. 530. 220 Mass. 285.
1 Section 14. A person summoned as trustee who admits that he Admission
2 has in his hands any goods, effects or credits of the defendant, or who trus'teM.''^
3 wishes to submit the question to the court whether he is chargeable f^.f^- l^J!^ | ^^3
4 upon the facts, may make a written statement, on oath, of such facts as J.^^^s'f.'.T'lgY'
5 are material. The plaintiff may then examine him, on oath, upon written p- s. iss,' § is.
6 interrogatories, and the statement, interrogatories and answers shall be i9i7i326.'
7 filed in the clerk's office.
2592
TRUSTEE PROCESS.
[ClL\P. 246.
ra'Jiorahon. SECTION 15. A Corporation summoned as trustee may appear and
R* a' 109.' 1 6.' answer by its cashier, treasurer, clerk or such other officer as it shall
p'l isl'l 16' appoint or as the court shall require to attend for that purpose, and his
R- L. 1S9, § 14. answer and examination, on oath, shall be received as the answer and
examination of the corporation.
.\nswer of
trustee to be
taken as true,
etc.
1S17, 148. I 1.
R. S. 109. § 15.
G.S. 142, § 11.
Section 16. The answer and statements of a trustee, on oath, shall
be considered as true in determining how far he is chargeable; but either
party may allege and pro^■e any facts material in determining such ques-
tion and not stated or denied by the trustee.
P.S. 183. § 17.
R.L. 189. § 15.
3 Pick. 1.
5 Pick. 480.
6 Pick. 474.
12 Pick. 383.
2 Met. 376.
4 Gush. 314.
9 Cush. 530.
10 Cush. 104.
7 Gray, 4'.! 1.
11 Grav, 404.
97 Mass. 110.
99 Mass. 311. 469,550.
107 Mass. 116.
Ill Mass. 154.
126 Mass. 535.
127 Mass. 136.
140 Mass. 271.
145 Mass. 195.
166 Mass. 152.
1S9 Mass. 34V.
194 Mass. 398.
211 Mass. 146.
219 Mass. 495.
232 Mass. 493.
iions' of fact'" SECTION 17. A qucstion of fact arising upon such additional allega- 1
answel°° tious may be tried and determined by the court, or it may be submitted 2
1817, 148. § 1. ^Q g^ j^py jjj gm;]^ mauucr as the court orders. 3
R. S. 109, I 16. P. S. 183. § 18. 1917, 326. 189 Mass. 296.
G.S. 142, §12. R. L. 189, § 16. 97 Mass. 110. 232 Mass. 493.
Default of
trustee.
1758-9. 10. § 4.
1794, 65. I 5.
R. S. 109, § 14.
Section 18. A person who, being duly summoned as a trustee, neg- 1
lects to appear and answer as hereinbefore provided shall be defaulted 2
and adjudged a trustee. issi, 233, 5 73. 3
1S52, 312, I 50.
G. S. 142, § 13.
P. S. 183. § 19.
R. L. 189, § 17.
10 Mass. 25.
6 Allen, 582.
Penalty for
false answer
bv trustee.
1794, 65, § 9.
R. S. 109. 5 78.
G. S. 142, § 14.
P. S. 183. § 20.
R. L. 189. § IS.
1 Cush. 457.
8 Cush. 199.
4 Allen, 391.
Section 19. If a person summoned as trustee, his executor or adminis-
trator, or if an officer, agent or other person who appears and answers for
a corporation so summoned, knowingly and wilfully swears falsely in his
answer or upon his examination, he shall be liable in tort to the plaintiff
in the trustee process, or to his executor or administrator, for the full
amount due on the judgment recovered therein, with interest, to be paid
out of his own goods and estate.
1
2
3
■4
5
6
7
property LLUJLE to ATTACHilENT BY TRUSTEE PROCESS.
attachment by SECTION 20. The goods, cff ccts or Credits of
\''.y^i^% P"."*^- to, or deposited in the hands or possession of,
liOS-9, 7, §1. . 1 11 1 • 1' '11
1728-9,3, §1. his trustee shall, except as hereinaiter provided
1758-9! lb. § 1. to respond to the final judgment, as if they had
1794; 65! 1 1. original WTit of attachment. R. s. 109, § 4.
P. S. 183. § 21. , 11 Gray, 18.
R. L. 189. § 19. 12 Gray, 431, 437.
3 Mass. 319. 15 Gray, 532.
4 Mass. 102. 16 Gray, 69.
2 Pick. 204. 2 Allen, 466
the defendant intrusted
a person summoned as
, be attached and held
been attached upon an
G. S. 142, § 21.
5 Pick. 28, 178.
8 Pick. 298.
9 Pick. 435. 562.
14 Pick. 550.
16 Pick. 41.
18 Pick. 451.
20 Pick. 352.
12 Met. 397.
1 Cush. 490.
4 Cush. 314.
7 Cush. 487.
6Gray, 116, 320.
5 Gray, 229.
3 Allen, 161.
6 Allen, 572.
9 AUen, 570.
14 Allen, 15, 353.
97 Mass. 302.
100 Mass. 124, 239.
103 Mass. 396, 410.
104 Mass. 164.
113 Mass. 380.
116 Mass. 308.
120 Mass. 86.
121 Mass. 380, 422.
122 Mass. 296,
124 Mass.
129 Mass.
130 Mass.
132 Mass.
134 Mass.
149 Mass.
150 Mass.
151 Mass.
152 Mass.
153 Mass.
161 Mass.
172 Mass.
174 Mass.
183 Mass.
190 Mass.
206 Mass.
211 Mass.
220 Mass.
98. 366.
577.
86.
56.
271.
167.
234.
601.
64.
14.
287.
132.
208.
455.
219.
373.
146.
285.
Chap. 246.] trustee process. 2593
1 Section 21. Debts, legacies, goods, effects or credits due from or in Liability of
2 the hands of an executor or administrator as such may be attached in asTrua'tee's!' '"'
3 his hands by trustee process. k. s. io9, § 62.
G. S. 142, § 22. 1 Met. 476. 7 Gush. 406. 136 Mass. 501.
P. S. 183. § 22. 3 Met. S07. 2 Gray, 251. 150 Mass. 234.
R. L. 189, § 20. 4 Met. 486. 6 .Mle'n. 397. 151 Mass. 501.
19 Pick. 354. 10 Met. 459. 104 Mass. 275. 218 Mass. 360.
20 Pick. 563. 2 Gush. 111. 122 Mass. 296. 225 Mass. 432.
1 Section 22. After a dividend on the estate of an insolvent debtor has Liability t
trustee of
assignee in
2 been declared, it may, unless it is upon a claim for wages which would '""'''■'' °^
3 have been exempt from attachment by trustee process in the hands of the is58)^4o''^'
4 insolvent debtor, be so attached in the hands of the assignee. °- ^- ^*^' ^ ^^■
p. S. 183, § 23. R. L. 189, § 21. 6 Gush. 558.
1 Section 23. Funds, credits or dividends due from or in the hands Liability of
2 of receivers appointed by a court may be so attached after an order has issirias.
3 been made for their distribution.
p. S. 183, I 24. R. L. 189, §22. 115 Mass. 67. 119 Mass. 155.
1 Section 24. Money or any other thing due to the defendant abso- Attachment
2 lutely and without any contingency may be so attached before it has due"but not*""
3 become payable, but the trustee shall not be compelled to pay or deliver g^^s^^'iog. § 34.
4 it before the time appointed by the contract.
G. S. 142, § 24. R. L. 189, § 23. 99 Mass. 550. 149 Mass. 167. _
P. S. 183, 125. 4Met. 1. 131 Mass. 363. 183 Mass. 455.
1 Section 25. A person summoned as trustee having goods, effects Trustee
2 or credits of the defendant in his possession by a conveyance or title coSvlyance'
3 void as to the creditors of the defendant may be adjudged a trustee, fmudSient.
4 although the defendant could not maintain an action therefor against §: i: 142! 1 25!
5 him. p. s. 183, § 26.
R. L. 189, § 24. 151 Mass. 501. 172 Mass. 132. 190 Mass. 219.
1 Section 26. A trustee may retain or deduct from the goods, effects Mutual de-
2 or credits in his hands all demands against the defendant of which, had dSendant Tud"
3 he not been summoned as a trustee, he could have a^'ailed himself by way r"s."69,
4 of set-off on a trial or by the set-off of judgments or executions between }^ ^\ll\
5 himself and the defendant, and he shall be liable for the balance only p^|®i|3|,7
6 after all mutual demands, excluding therefrom any claim on either side R l. isg. 1 25.
7 for unliquidated damages for wrongs or injuries, between him and the 7Pick.'^i66'.
8 defendant have been adjusted. 19 Pick. 20. 5 Met. 263.
12 Met. 567. 122 Mass. 296. 149 Mass. 14. 215 Mass. 403.
7 Gray, 153. 132 Mass. 56, 427. 213 Mass. 384. 233 Mass. 32.
2 he has knowledge thereof, he makes any payment in good faith or be- Lyn
3 comes liable to a third person by reason of the goods, effects or credits ^n^"^
1 Section 27. If, after the service of process on the trustee, but before Trustee not
chargeable for
ayment
efore
knowledge of
4 in his hands, or delivers such goods, effects or credits to the defendant or i"g"o9 § s
5 to any other person who may be entitled thereto, he shall be allowed there- p |- 14|. | ^^■
6 for in the same manner as if the pavment or delivery had been made, or R l 189. § 26.
7 as if the liability had been incurred, before the service of the writ. s Cush. 544.
4 Allen. 485. 132 Mass. 56. 204 Mass. 55.
98 Mass. 142. 156 Mass. 1.
1 Section 28. If wages for personal labor and services of a defendant J^'^^^^ '"h "'
2 are attached for a debt or claim, other than for necessaries furnished to ment, when.
3 him or to his family, an amount not exceeding twenty dollars shall be re- isss! sob, § 2.
2594
TRUSTEE PROCESS.
[Chap. 246.
1S57
200, § 2.
G.S.
142. § 29.
1878
260, § 3.
P. S.
183. § 30.
1900
191.
IR. L
189. § 27
14 G
ray, 487.
S Allen, 210.
6 AUen, 572.
Tender and
offer
of
judgment.
1878
260,
5§4.
5.
P.S.
183, § 31.
R. L
189, § 28
served in the hands of the trustee and shall be exempt from such attach- 4
ment. If such wages are attached on a claim for such fiecessaries and 5
the MTit contains a statement to that effect, an amount not exceeding ten 6
dollars shall be so reserved ; but if the writ contains no such statement, 7
an amoimt not exceeding twenty dollars shall be so reserved. 8
7 Allen. 264. 9 Allen, 106. 142 Mass. 447. 160 Mass. 32.
Section 29. If, after wages for personal labor or services have been 1
attached and before the entry of the wTit, the defendant tenders to the 2
plaintiff or to his attorney the full amount due and recoverable in the 3
action and the fees of the officer for serving the MTit, the plaintiif shall 4
recover no costs, except the fees of the officer; and if the defendant is 5
defaulted without an appearance or if he files an offer of judgment on 6
the return day of the writ under section seventy-four of chapter two 7
hundred and tliirty-one, and the plaintiff accepts such offer or fails to 8
secure more than the amount thereof and of the interest thereon from 9
its date, the plaintiff shall recover no costs, except the entry fee and 10
the officer's fees. 1 1
Penalty for
attaching
wages exempt
from attach-
ment.
1878, 260, § 2.
P. S. 183. § 32.
Tl. L. 189, § 29.
Section 30. 'WTioever wilfully causes, or aids and abets in causing, 1
wages for personal services exempt from attachment to be attached by 2
trustee process in order to unlawfully hinder or delay their pajTnent to 3
the person to whom they belong shall, on complaint of the person injured 4
thereby or of the guardian or other person having the lawful custody of 5
any such person incompetent to act, be punished by a fine of not more 6
than fifty dollars, to the use of the person injured thereby. 7
Bond by
plaintiff to
indemnify
savings bank.
1850, 48.
G. S. 142. § 30.
P. S. 183, § 33.
R. L. 189, § 30.
164 Mass. 124.
Section 31. If a sa\'ings bank is charged as trustee, and the court 1
finds that the answer creates a doubt as to the identity of the defendant, 2
it may require the plaintiff to give bond, with surety approved by the 3
court, conditioned to indemnify such bank from any loss by reason of 4
pajTnent by it pursuant to the court's order. 5
Claims not
attachable by
trustee process.
1794,65, § 12.
R. S. 109,
1842,91.
G. S. 142,
§§ 29, 31.
i 30.
3 Mass. 289.
4 Met. 486.
6 Cush. 558.
7 Cush. 257.
Section 32. No person shall be adjudged a trustee in the following 1
cases : 2
First, By reason of having drawn, accepted, made or endorsed a nego- 3
tiable bill, draft, note or other security payable on time and not overdue. 4
1868, 95. 1890, 289. 20 Pick. 132.
P.S. 183, 5§ 29,34.
1886. 194.
R. L. 189, § 31.
2 Mass. 375, 524.
22 Pick. S3.
151 Mass. 383.
Second, By reason of having received or collected money or any other
thing as a sheriff or other officer upon an execution or other legal process
in favor of the defendant in the trustee process, although it may have been
demanded of him by the defendant.
Third, By reason of having money in his hands as a public officer, for
which he is accountable to the defendant merely as such officer.
14 Gray, 220.
5 AUen, 94.
130 Mass. 86.
153 Mass. 14.
218 Mass. 360.
230 Mass. 475.
5
6
7
8
9
10
I Mass. 471.
3 Mass. 33. 68.
4 Mass. 235.
II Mass. 488.
16 Mass. 341.
Fourth, By reason of money or any other thing due from him to the 11
defendant, unless it is, at the time of service of the writ upon him, due 12
absolutely and without any contingency. 5 Pick. 28. 6 Pick. 120. 13
11 Pick. 473.
12 Pick. 22.
2 Met. 352.
4 Met. 486.
12 Met. 12.
6 Cush. 264.
7 Gray, 153.
13 Gray. 200.
15 Gray, 532.
1 Allen, 394.
99 Mass. 187.
117 Mass. 238, 551.
124 Mass. 98.
128 Mass. 188.
131 Mass. 363.
135 Mass. 397.
147 Mass. 287.
157 Mass. 565.
Chap. 246:] trustee process. 2595
14 Fifth, By reason of a debt due from him upon a judgment, so long as 2 Mass. 91.
15 he is liable to an execution thereon. is Gray, 532. 9 Alien, S70. * '^^''^^' '^^'
16 Sixth, By reason of money or credits due for the wages of personal
17 labor or services of the wife or minor children of the defendant.
18 Seventh, By reason of money or credits due or accruing to the de- 132 Mass sp.
19 fendant as wages or lay as a seaman; but this clause shall not apply to "^^^ '''
20. the wages or lay due or accruing to a fisherman.
ADVERSE CLAIM.ANTS.
1 Section 33. If a person claiming, by assignment from the defendant Proceedings
2 or otherwise, goods, effects or credits in the hands of a supposed trustee claimed by
3 enters an appearance, he shall be admitted as a party in order to de- isT?, iIs'T i-
4 termine his title to such goods, effects or credits, and may allege and f§?7-?9.'
5 prove any facts which have not been stated or denied by the supposed J? ^|- /°J' ^ ^^•
6 trustee. Such allegations shall be tried and determined as provided in p^g^gg
7 section seventeen upon depositions or oral testimony as the court orders. |§ ^^-s?!
8 If he does not voluntarily enter an appearance, the court may issue an i ^Iass. iio.
9 order of notice to him. s Pick. 470. 24 pick. 204.
3 Met. 297. 6 Allen. 582. 124 Mass. 453. 142 Mass. 366.
10 Met. ISO. 14 Allen, 353. 125 Mass. 475. 143 Mass. 226.
7 Cush. 4S3. 105 Mass. 111. 126 Mass. 535. 147 Mass. 287.
11 Gush. 470. Ill Mass. 281, 127 Mass. 34. 162 Mass 524, 562.
S Gray, 49. 506. 532. 130 Mass. 316. 183 Mass. 455.
7 Gray, 546. 113 Mass. 382. 132 Mass. 161, 277. 189 Mass. 296.
11 Gray, 37, 225. US Mass. 406. 133 Mass. 543. 194 Mass. 398.
2 Allen, 541. 123 Mass. 35S. 137 Mass. 339. 212 Mass. 108.
1 Section 34. If it appears that the claimant holds a valid assign- Proceedings
2 ment from the principal defendant only as security for a debt, the court nfe'^i'tby'^"
3 shall, at the request of the plaintiff, ascertain and determine the amount gecurityYor
4 due upon such debt at the time of service of the writ upon the trustee, ^ew.
r 1 I 1 • Till -1 1 'PI 1865, 43, § 1.
5 and the claimant shall have ludgment and execution tor the amount so p- f'- iss, § 38.
1 SSS S4 5
6 found to be due him and for his costs; and after said judgment and exe- R "l! i89, § 33.
7 cution have been sati-sfied, the residue, if any, of the goods, effects or i^MaSaee!
8 credits in the hands of the trustee shall be subject to the attachment in
9 the trustee process. If judgment by default has been rendered against the
10 trustee and it appears that he has paid over, upon execution issued on the
1 1 original judgment, any part of the goods, effects or credits in his hands
12 liable to attachment, he shall be liable to the adverse claimant only for
13 the residue in his hands.
PROCEEDINGS IF ACTION PENDING AGAINST TRUSTEE.
1 Section 35. If, while an action is pending, the defendant is sum- ProcecdinEs if
2 moned in another action as trustee of the plaintiff, the earlier action may by defeSnt^
3 proceed so far as to ascertain by a verdict, award or otherwise the amount ji^^fog^"^"^'
4 due from the defendant, and it shall not be delayed on account of the ^^ |''i4o
5 trustee process, unless the court continues it for judgment until the ter- Ps^'43'540
6 mination of the trustee process or until the attachment therein is dis- R- l. iss', § 35.
7 solved by the discharge of the trustee, by the satisfaction of the judgment 97 Mass."i67.
8 or otherwise. The court may, upon application of the plaintiff in the 132 mSs^s?;:
9 trustee process, so continue such pending action upon terms. ^®^ ^'^^' "'^"
1 Section 36. If the action is not so continued and judgment is ren- Judgment
2 dered against the defendant, he shall not afterward, while liable to an chafgea'Lle as
3 execution thereon, be adjudged a trustee on account of the demand so k"s.''io9,^''32.
4 recovered against him. g. s. 142, § 19. p. s. i83, § 41. r. l. iso, § 36.
2596
TRUSTEE PROCESS.
[Chap. 246.
Proceedings
if defendant in
pending action
is adjudged
trustee of
plaintiff.
K. S. 109, § 33.
G. S. 142. § 20.
P. S. 183, § 42.
R. L. 189. 5 37.
7 Mass. 149.
Section 37. If, before final judgment in such pending action, the
defendant therein is adjudged a trustee in the trustee process, and pays
thereon the money demanded in the pending action, or any part thereof,
such fact shall be stated on the record of the action, and judgment therein
shall be rendered for the costs due to the plaintiff and for the part of the
debt or damages remaining due and unpaid.
119 Mass. 163. 125 Mass. 319.
Proceedings
if defendant
Section 38. If, while an action is pending, the plaintiff is summoned 1
Mndinrac^foiT ^^ trustcc of the defendant on account of a demand filed in set-ofl^ therein, 2
such pending action shall be subject to the three preceding sections in the 3
same manner and with the same effect as if it were an action brought 4
upon such demand in set-off by the defendant against the plaintiff". 5
pending action
by trustee.
1865. 155.
P. S. 183, § 43.
R. L. 189, § 38,
Form of judg-
ment charging
trustee.
R. S. 109, § 42.
JUDGMENT AND EXECUTION.
Section 39. If a person is adjudged a trustee, the amount for which 1
he is chargeable need not be specified in the judgment. g. s. 142, § 32. 2
P.S. 183, § 44.
R. L. 189, § 39.
11 Gray, 19.
2 Allen, 566.
136 Mass. 407.
225 Mass. 432.
Further at-
tachment of
goods, when.
R. S. 109,
§§43,44.
G. S. 142,
§§ 33, 34.
P. S. 183, § 45.
R. L. 189, § 40.
6 Gray, 241.
186 Mass. 574.
Section 40. If the goods, effects and credits in the hands of a per-
son adjudged a trustee are not demanded of him by force of the execution
within thirty days after final judgment, they shall be liable to another
attachment, whether made before or after the judgment; or if there
has been no such second attachment, they may be recovered by the
defendant. 236 Mass. 93. Op. a. g. (1920) 93.
Liability of
trustee after
thirty days,
when.
R. S. 109, §45.
G.S. 142, § 35.
P. S. 183, § 46.
R. L. 189, §41.
6 Gray, 241.
186 Mass. 574.
236 Mass. 93.
Section 41. If no such second attachment of the goods, effects and
credits has been made, and no action has been brought therefor by the
defendant, and if they have not been paid or delivered to the defendant
before they are demanded of the trustee by the officer, the trustee shall
be liable to pay and deliver the same, when so demanded, although said
thirty days have expired.
Demand on
absent trustee.
R. S. 109, § 46.
G. S. 142, § 36.
P. S. 183. § 47.
R. L. 189, § 42.
173 Mass. 439.
Section 42. If the trustee cannot be found in the commonwealth 1
by the officer to whom the execution is committed for service, a copy of 2
the execution left at his dwelling house or at his last and usual place of 3
abode, with a notice to him, endorsed thereon and signed by the officer, 4
that he is required to pay and deliver, toward satisfying the execution, 5
the goods, effects and credits for which he is liable shall be a sufficient 6
demand for the purposes of the two preceding sections. 7
Effect of
judgment
against trustee.
1708-9, 7. § 6.
1728-9,3, § 6.
1748-9, 6.
1758-9, 10, 5 7.
Section 43. The judgment against a trustee shall acquit and dis-
charge him from all demands by the defendant, his executor or adminis-
trator, for all goods, effects and credits paid, delivered or accounted for
by the trustee by force of such judgment.
R.S. 109, §47.
G. S. 142, I 37.
P. S. 183, § 48.
R. L. 189, § 43.
4 Met. 1.
6 Gray, 568.
7 Gray, 269, 505.
13 Gray, 51.
14 Gray, 487.
1 Allen, 286.
2 Allen, 123.
99 Mass. 530.
100 Mass. 453.
104 Mass. 104.
105 Mass. 340.
1794, 65, § 8.
Ill Mass. 213.
116 Mass. 210, 308.
129 Mass. 322.
131 Mass. 518.
183 Mass. 455.
Discharge of
trustee no bar
to action by
defendant.
R. S. 109, § 48.
Section 44. If a person summoned as trustee . is discharged, the 1
judgment shall be no bar to an action brought against him by the defend- 2
ant for the same demand. 3
G.S. 142, §38. P.S. 183, §49. R. L. 189, § 44.
Chap. 246.] trustee process. 2597
SCIRE FACIAS AGAINST TRUSTEE.
1 Section 45. If a person adjudged a trustee does not, upon demand, ^''^'^nlt"''"'
2 pay over to the officer goods, effects or credits sufficient to satisfy the trustee.
3 execution and if the execution is not otherwise satisfied, the plaintiff may 1728-9! 3. § 3.
4 sue out from the court where the judgment was rendered a writ of scire 1-58^9! 10, § 5.
5 facias against him or all, or a separate writ against each, of the trus- §§^5,'6.^'
6 tees, to show cause why judgment and execution should not be awarded |§ fj ^gj ■
7 against them or him and their or his own goods and estate for the amount P, fg'H'
8 remaining unsatisfied on the judgment against the defendant. Such p^^'^i'P'.^i';
9 writ may be issued by the court where the judgment was rendered, al- r. l.is9.§45.
10 though the amount of the debt and costs therein exceeds its jurisdiction. 21 Pick!'io9.'
4 Cush. 420. 99 Mass. 530. 151 Mass. 17. 228 Mass. 84.
9 Cush. 289. 122 Mass. 64. 186 Mass. 574. 229 Mass. 316.
2 Allen, 566. 135 Mass. 397. 206 Mass. 408. 233 Mass. 481.
1 Section 46. If a trustee, duly served with the scire facias, neglects Proceedings
2 to appear and answer, he shall be defaulted; and if he did not answer, "ftnisfeeon
3 and was not examined in the original action, judgment shall be rendered lyos-'grT!^? s.
4 against him upon such default for the whole amount remaining unsatis- Jyfllg' g ^ ^^■
5 fied on the judgment against the defendant. i-5s-9, lo, § 5.
1794, 65, §7. G. S. 142, §40. R. L. 189, 5 4G.
R. S. 109, § 39. P. S. 183, § 51. 151 Mass. 17.
1 Section 47. If a trustee defaulted on the scire facias has been ex- Same subject.
2 amined, or has answered and not been examined, in the original action, g's;i42!|4i!
3 judgment in the scire facias shall be rendered upon the facts stated upon r. L.mltl'.
4 such examination or in such answer, respectively, for any part remaining '^® '^'''^^- ^®^-
5 in his hands of the goods, effects or credits for which he was chargeable
6 as trustee, or for so much thereof as is necessary to satisfy the amount
7 then remaining due on the original judgment.
1 Section 48. If the trustee appears and answers to the scire facias, he Proceedings
2 may be examined therein; but if he has been examined in the original aS?°o/""""^"
3 action, he shall be examined anew only by order of the court. He may 1794*^65, § e.
4 prove any matter necessary or proper for his defence on the scire facias, f^ fi,^42'
5 A judffment against a trustee on scire facias shall express the amount P.- fj"!'
6 for which he is chargeable. p. s. i83, § 53.
R. L. 189, § 48. 9 Allen, 90. 149 Mass. 49. 186 Mass. 674.
1 Met, 426. Ill Mass. 154. 156 Mass. 1. 193 Mass, 479.
4 Cush. 431. 116 Mass. 299. 161 Mass. 287. 213 Mass. 3S4.
10 Gray, 164, 371. 134 Mass. 232. 173 Mass. 439. 229 Mass. 316.
1 Section 49. A writ of scire facias shall not be maintained against Limitation of
_ .... , , ..... ° action on scire
Z a person adjudged a trustee, unless served upon him witliin two years facias.
3 after judgment in the original action; or if the money or other thing is g.s.'i42, §43.
4 not payable when the judgment is rendered, unless so served within orife r. l.\*s9, § 49.
5 year after such money or other thing becomes payable.
4 Gray, 343.
DE.\,TH OF PARTIES.
1 Section 50. If a person summoned as trustee in his own right dies Death ot tms-
2 before the judgment recovered by the plaintiff has been fully satisfied, j-udgme°nt,
3 the goods, effects and credits in his hands at the time of the attachment q |; \°l[ 1 44;
4 shall remain bound thereby, and his executor or administrator shall be j^- ^ ^^^g \^|g
5 liable therefor as if the writ were originally served on him.
2598
TRUSTEE PROCESS.
[Chap. 246.
fTM^M^rii. Section 51. If a person so summoned dies before judgment in the
c'. s. 142,' 1 45.' original action, his executor or administrator may appear voluntarily
R L iII'Im' °^ ™^y ^^ cited to appear, as in other cases. The further proceedings
shall then be conducted in the same manner as if the executor or adminis-
trator had been originally summoned as trustee, except that the examina-
tion of the deceased, if any has been filed, shall have the same effect as
if he were living.
Same subject.
R. S. 109,
§§ 65, 66.
G. S. 142,
i§ 46, 47.
P. S. 1S3,
H 57, 58.
R. L. 1S9, § 52.
149 Mass. 49.
Section 52. If the executor or administrator does not appear, the 1
plaintiff, instead of suggesting the death of the trustee, may take judg- 2
ment against him by default or otherwise as if he were living, and the 3
executor or administrator shall pay upon the execution the amount 4
which the deceased would have been liable to pay to the defendant, and 5
shall be thereby discharged for the amount so paid. If he does not 6
voluntarily pay the amount in his hands, the plaintiff may proceed 7
against him bv scire facias. S
Death of trus-
tee after judg-
ment.
1794, 65. § 11.
R. S. 109, § 67.
G. S. 142, § 48.
P. S. 183, § 59.
R. L. 189. § S3.
15 Mass. 473.
Section 53. If a person summoned as trustee dies after judgment in
the original action, his executor or administrator may pay upon the exe-
cution the amount which the deceased would have been liable to pay
were he living, and he shall be discharged from all further demands on
account thereof in the manner before mentioned. If he refuses to make
such payment, the plaintiff may proceed against him by scire facias.
R^s^m r68. Section 54. If a person, against Mhom as trustee execution has been 1
pfill'leo" issued, is not living at the expiration of thirty days after final judgment 2
R. L. 189, § 54. in the trustee process, a demand, for the purpose of holding the attach- 3
ment, may be made upon the executor or administrator of such deceased 4
person within thirty days after his appointment, and shall have the 5
same effect as if made within thirty days after the judgment. 6
Service of
execution when
executor or
administrator
is adjudged
trustee.
R. S. 109. § 69.
G. S. 142, § 50.
P. S. 183, I 61.
PROCEEDINGS IF AN EXECUTOR IS CHARGED AS TRUSTEE.
Section 55. If an executor or administrator as such is adjudged a
trustee, the execution shall not be served on his own goods or estate nor
on his person, and he shall be liable for the amount in his hands only in
like manner and to the same extent as he would have been liable to the
defendant if there had been no trustee process. R. l. is9, § 55.
•Remedy
against execu-
tor failing to
pay amount for
which he is
charged.
R. S. 109, § 70.
G. S. 142, § 51.
P. S. 183, § 62.
R. L. 189, § 56.
225 Mass. 432.
Section 56. If, after final judgment against an executor or adminis- 1
trator for a sum certain due from him as trustee, he fails to pay the same, 2
t]ie original plaintiff in the trustee process shall have the same remedy for 3
recovering the amount, either upon a suggestion of waste or by a suit on 4
the administration bond, as the defendant in the trustee process would 5
have had upon a judgment recovered by himself for the same demand 6
against the executor or administrator. 7
Proceedings
if trustee is
charged for
specific prop-
erty.
PROCEEDINGS IF TRUSTEE H.\S SPECIFIC PROPERTY.
Section 57. If a person is charged as trustee by reason of personal
property other than money, which he holds or is bound to deliver to
the defendant, he shall deliver it, or so much thereof as may be neces-
Chap. 246.] trustee process. 2599
10.
22.
4 sary, to the officer holding the e.xecution, who shall sell the property and ^^*- ^^^ §j
5 apply and account for the proceeds in the same manner as if the property g.|. m, § 52.
6 had been taken on execution.
R. L. 1S9, § 57. 7 Cush. 487. 104 Mass. 164.
1 Section 58. The value of any property so delivered shall be ascer- Same subject.
2 tained and fi.xed, as between the trustee and defendant, in like manner r. s.' 109. § 23.
3 and upon the same principles as if delivered to the defendant. Upon p.'s.i83.'|64.'
4 the application of either party, the court may, pending the original fcjjy; sfg' ^ ^^•
5 action or upon the scire facias, determine the value, and make any other ^ ^''"^''- ^°-
6 order relative to such property and to the delivery thereof necessary or
7 proper to protect the rights of the trustee and of the defendant.
1 Section 59. If a person summoned as trustee is bound bv contract Delivery by
... .^ iiri ■■"11 trustee of spe-
2 to deliver specinc property to the detendant at a certain time and place c.fic property
3 within the commonwealth, he shall not be required by reason of the ?oMract^
4 trustee process to deliver it at any other time or place; and he may, G!s:i42i§54!
5 notwithstanding such process, tender or deliver it to the person entitled r.l.^^Io.Vm.
6 thereto under the contract at the time and place therein mentioned, gQ^^y ff^
7 unless he has been preyiously adjudged a trustee on account thereof. iw Mass. 164.
187 Mass. 596. 211 Mass. 146.
1 Section 60. If the court finds that property in the hands of a person Tender by
2 summoned as trustee is mortgaged, pledged or in any way liable for the .?riJount for
3 paj'ment of a debt to the person so summoned, it may allow the attaching hoid^pVoperty
4 creditor to pay or tender the amount due to the trustee, who shall there- i||9^i24;^§ i.
5 upon deliver the property, in the manner before provided, to the officer g- 1- J°|' 1 15-
6 holding the execution.
p. S. 1S3, § 66. 9 Gray, 46. 173 Mass. 439.
R. L. 1S9. § 60. 11 Allen, 354. 188 Mass. 70.
1 Section 61. If the court finds that the property is held for any Disnosai if
2 purpose other than to secure the payment of money and that the con- purpose tha"
3 tract, condition or other thing to be performed is such that it can be i||9,"m?^§ i.
4 performed by the attaching creditor without damage to the other parties, g g J^l | so.'
5 it may make an order for the performance thereof by him. Upon such ^ |^ i8|^ §5^|j
G performance, or upon a tender, the trustee shall deliver the property, in x Met. 172.
7 the manner before provided, to the officer holding the execution.
1 Section 62. Property received by an officer under either of the two Disposal of
2 preceding sections shall be sold and disposed of as if it had been taken on office"'^ ^^
3 execution, except that from the proceeds of the sale the officer shall r "1; 109.' 1 27.
4 repay to the attaching creditor the amount paid by him to the trustee for p|i||'||J'
5 the redemption of the property, with interest thereon, or shall indemnify R. l- isq, § 62.
6 the creditor for any otlier act or thing by him done or performed pursuant
7 to the order of the court for the redemption of the property.
1 Section 63. The preceding sections shall not prevent the trustee from Saie by trustee
2 selling the property in his hands for payment of the claim for which it is hcw as semr-
3 mortgaged, pledged or otherwise liable at any time before the amount K^s^'109, § 28.
4 due him is paid or tendered as provided in section si.xty or sixty-one, if pfigl'lol'
5 such sale would be valid as between him and the defendant. R- l- is^' 8 ^3.
2600
TRUSTEE PROCESS.
[Ch.\p. 246.
Liability of
trustee for
neglect to de-
liver property
for wnich he is
charged.
1794. 65, I 6.
Section 64. If a trustee refuses or neglects to deliver any property in 1
his iiands when lawfully required by the officer serving the execution, 2
he shall, after deducting the amount of any lien he has on such property, 3
be liable to the plaintiff upon a scire facias. 4
1S29, 124. § 1. G. S. 142, § 59. R. L. 189, § 64.
R. S. 109, § 29.
P. S. 1S3, § 70.
173 Mass. 439.
Liability of
carrier if pre-
vented by
trustee process
from making
delivery.
1905, 324.
206 Mass. 373.
211 Mass. 146.
214 Mass. 4G6.
Section 65. ^Mien a common carrier, summoned as trustee in an 1
action at law, has in his or its possession goods shipped by or consigned 2
to a defendant in such action, such carrier, in the absence of collusion 3
or fraud on his or its part, sliall not, except as other^sise provided in 4
chapter one hundred and eight, be held liable to the crnier or consignee 5
by reason of his or its failure to transport and to deliver said goods, until 6
the attachment is dissolved or the carrier is discharged as trustee. 7
Person other
than defendant
may file bond,
etc.
1877, 97.
§§1,2.
P. S. 183, ! 71.
R. L. 189, § 65.
129 Mass. 589.
136 Mass. 407.
156 Mass. 166,
226 Mass. 14.
DISSOLUTION OF ATTACHMENT BY TRUSTEE PROCESS.
Section 66. A person having an interest by assignment or other- 1
wise in money or credits attached by the trustee process in an action 2
against another may, at any time before final judgment, dissolve such 3
attaclunent or a part thereof by giving bond, in a sum not exceeding the 4
damages demanded, with sufficient sureties to be approved in writing by 5
the plaintiff or his attorney, by a master in chancery or by a justice of a 6
court, if the attachment is made within the jurisdiction thereof, con- 7
ditioned to pay to the plaintiff, within thirty days after final judgment 8
or after a special judgment entered under section twenty-five of chapter 9
two hundred and thirty-five, the amount for which the trustee may 10
be charged, not exceeding the value of the property in his hands, or so 11
much thereof as will satisfy the amount which may be recovered by the 12
plaintiff. If there are several trustees, such bonds may be made to apply 13
to one or more. The provisions of sections one hundred and twenty- 14
five and one hunrlred and twenty-six of chapter two hundred and 15
twenty-three, relative to notice, hearing, fees and the filing of the bond, 16
shall apply to bonds given under this section. 17
Deliverj- of
property by
trustee. Lim-
itation of action
on bond.
1877, 97. § 2.
P. S. 183. § 72.
R. L. 189, § 66.
Costs of
trustee.
1708-9, 7, I 5.
1728-9, 3, § 4.
1748-9, 6.
1758-9, 10. § 3.
1794,65, § 3.
1829, 128, 5 2.
R. S.109, §49.
G. S. 142,
§§ 60, 82.
P. S. 183, § 73.
R. L. 189, § 67.
1917, 326.
Section 67. After the filing of such bond, the trustee may deliver to
the person by whom or in whose behalf as principal the bond was given
the money or other thing in his hands, or that part thereof to which the
bond applies, and shall not after such delivery be liable to the plaintiff
therefor, nor shall any execution therefor issue against him. No action on
such bond shall be commenced after the expiration of six years from the
date thereof.
COSTS.
Section 68. A person summoned as a trustee in the supreme judicial
or superior court, who appears and answers pursuant to this chapter,
shall be allowed his costs for travel and term fees, and such further
amount for counsel fees and other necessary expenses as the court may
allow; if summoned in a district court, he shall be allowed the costs
fixed by section twenty-seven of chapter two hundred and sixty-one. If
there has been a trial between the plaintiff and the alleged trustee upon
an issue of fact, the court may award costs to either party.
12 Pick. 407.
19 Pick. 354.
12 Met. 397.
14 Gray, 4.53.
15 Gray, 70.
6 Allen, 122.
10 Allen, 160.
99 Mass. 501, 551.
117 Mass. 91.
123 Mass. 319.
128 Mass. 20.
215 Mass. 234.
224 Mass. 253.
Ch.\P. 246.] TRUSTEE PROCESS. 2601
1 Section 69. If a person is adjudged a trustee, his costs and charges Costs payable
2 shall be deducted from the goods, effects and credits in his hands, and he ^ien. ^ "''*'
3 shall be chargeable for the balance only to be paid on the execution. H^l] \lf ^ ^■
4 If such goods, effects and credits are not of sufficient value to discharge §■ |- \°l' | f^^-
5 the costs taxed in his favor, he shall have judgment and execution against p- s. isa. § 74.
6 the plaintiff for the balance of such costs, after deducting the amount loMet. s's'o.
7 disclosed, in the same manner as if he had been discharged.
11 Gray, 19. 2 Allen, 566. 224 Mass. 253.
1 Section 70. If a person summoned as trustee is discharged, he costs payable
2 shall have judgment and execution for his costs and charges against the wie''n!"°'' '
3 plaintiff.
170S-9, 7, § 5. 1758-9. 10, § 3. G. S. 142, § 62. 3 Cush. 341.
1728-9, 3, §4. 1794, 65, §4. P. S. 183, § 75. 11 Cush. 463.
1748-9, 6. R. S. 109, § 51. R. L. 189. § 69. 224 Mass. 253.
1 Section 71. If a person so summoned in an action pending in the Costs of person
2 supreme judicial or superior court is out of the commonwealth at the commonwealth.
3 time of service of the original writ upon Tiim, and appears and answers g.s'. mi I es!
4 within ten days after his return, or if he is so summoned in an action R;i;.\|g.| 70.
5 pending in a district court, and appears and answers within three days Jo Ma^ss^'25
6 after his return, he shall be allowed his costs and charges.
1 Section 72. If a person so summoned does not dwell or have a usual ^°^g^l^„^.
2 place of business in the county where the writ is returnable, he shall, moned out of
3 if he appears at any time in the original action or upon a scire facias, l^^^'^s,
4 be allowed his costs and charges, which shall be retained or recovered as r. s. 109, § 53.
5 before provided. is52, 237.
G.s. 142, §64. P. S. 1S3, §77. R. L. 189, § 71. 12 Pick. 529.
1 Section 73. A person so summoned, who dwells or has a usual place Liability of
2 of business in the county where the writ is returnable, and who neglects, fectfng to^"
3 without sufficient reason, to appear and answer within the time provided, jBglJ'e^, § 3.
4 shall be liable, if the plaintiff recovers judgment and does not otherwise i|g|- 10^' ^ ^*-
5 receive his costs, for all costs for the plaintiff's travel and term fees until p|ig|'|^|-
6 he appears. R. l. iso, § 72. 193 Mass. 479.
1 Section 74. If a person so summoned does not pay the costs when Recovery
2 demanded by the officer serving the execution, the officer shall state the r. a^iog, § 55.
3 fact in his return, and if it also appears by the return that the costs have p.' |.' 1 si; 1 79.'
4 not been paid, the court shall award a new execution against him for the ^- ^- 1*^' ^ '*■
5 costs.
1 Section 75. If several persons are summoned as trustees who are Liability of
2 liable for costs under any provision of the two preceding sections, the tees for pilTn-
3 second execution shall be awarded against them jointly ; and if any one i%4,'^65,*| 3.
4 pays more than his proportion, the others shall contribute equally to g |- J0|' | '^5-
5 indemnify him for the excess. p. s. is3, § so. r. l. iso, § 74.
1 Section 76. If, while an action by the trustee process is pending, the costs in
2 original defendant therein or any other person brings an action against uustee'^"'"^'
3 the alleged trustee to recover the goods, effects or credits or any part h.^l! ilb, § 75.
4 thereof in his hands or possession, costs in the later action shall be in
5 the discretion of the court.
2602
TRUSTEE PROCESS.
[CH.VP. 246.
Liability of
trustee for
costs on scire
facias, wlien.
1794, 65,
§§ 3, 6.
R. S. 109, § 57.
G. S. 142. § 68.
P. S. 183, § 81.
R. L. 189. § 76.
1 Pick. 104.
Section 77. If a person summoned as trustee, who dwells or has a 1
usual place of business in the county where the writ is returnable, is 2
defaulted in the original action, and if a writ of scire facias issues against 3
him, he shall be liable out of his own goods and estate for all costs on the 4
scire facias, although he is not adjudged a trustee, except as provided 5
in the following sections. 193 Mass. 479. 6
Same subject.
1794. 65. § 6.
R. S. 109. § 58.
G. S. 142, § 69.
P. S. 183, § 82.
R. L. 189, § 77.
Section 78. He shall not be liable for costs on the scire facias, nor
shall he be entitled to recover costs, if the court finds that he had goods,
effects or credits in his hands liable to attachment, and has paid and
delivered, on the execution issued on the original judgment, the full
amount thereof.
Same subject.
R. S. 109. § 59.
1851, 233, § 75.
1852, 312, § 5S.
G. S. 142, § 70.
P. S. 183, § 83,
R. L. 189, § 78.
Section 79. He shall not be liable for costs on the scire facias if he
was prevented from appearing in the original action by his absence from
the commonwealth or by any other sufficient cause, but the court may
allow him his costs as if he had appeared in the original action.
Execution for
costs against
trustee.
R. S. 109, 5 60.
G.S. 142, § 71.
P. S. 183. § 84.
R. L. 189, § 79.
Section 80. If a person summoned as trustee is held liable to pay
from his own estate the costs on the scire facias as before provided, and if
he is at the same time liable for the plaintiff's costs in the original action,
one execution shall be issued against him for both amounts.
feveraf*''™^* Section 81. If scvcral trustccs are liable on the scire facias, and the
r"s"^]U09 § 61 plaintiff, without sufficient reason, sues out two or more writs when he
G|i||.||2 might have joined all the trustees in one writ, he shall recover no more
R. L. 189, 1 80. costs than if he had sued out one writ, and the court may apportion the
costs among all the trustees liable therefor.
of°adv^e*^° SECTION 82. If an adverse claimant is admitted as a party, the court 1
isiThs § 1 ™^y award costs betw'een him, the plaintiff and the supposed trustee, or 2
R. s.' 109,' § 2i. any of them. G. s. i42, § -3. 3
p. S. 183, § 86.
R. L. 1S9, § 81.
IS Gray, 70.
6 AUen, 122.
99 Mass. 501.
Ill Mass. 281.
123 Mass. 319.
134 Mass. 249.
176 Mass. 124.
^°e^s*donot™" SECTION 83. If the damages recovered in an action brought under 1
do?fare*'° trustee process do not exceed ten dollars, exclusive of all costs in any 2
1855, 300, § 1. former action, the plaintiff shall recover no costs. i8o7, 200, § 1. 3
G. S. 142, § 74. 1881. 216, § 1. P. S. 183, §§ 87, 88. R. L. 189, § 82.
REFERENCES.
Validity of assignment of future earnings against trustee process, Chap. 154, § 6.
§ 1. Trustee process in divorce cases, Chap. 208, § 13. Same in equity. Chap.
214, § 7.
§ o. Service of trustee process on the treasurer of a foreign corporation or the
agent of a foreign insurance company or upon a volimtary association. Chap. 223,
§§3S-40.
§ 32. As to other exemptions, Chap. 235.
Chap. 247.]
REPLEVIN.
2603
CHAPTER 247,
REPLEVIN.
Sect.
replevin of beasts distrained.
1. Replevin of beasts distrained.
2. Bond.
3. Appraisal of property replevied.
4. Return of writ, etc.
5. Form of judgment for defendant.
6. Form of judgment for plaintiff.
REPLEVIN OF OTHER PROPERTY: .
7. Replevin of goods unlawfully taken
or attached.
S. Bond.
9. Form of judgment for defendant.
10. Damages, how assessed.
11. Disposal of money recovered by officer
after reple\'in of goods attached, etc.
Sect.
12. Same subject.
13. Form of judgment for plaintifT.
GENERAL PROVISIONS.
14. Approval of sureties on replevin bond.
15. Proceedings.
16. Fees of master.
17. Defects in bond not cause for dis-
missal.
IS. Limitation of actions against sureties
on bonds.
19. Assessment of damages.
20. Proceedings upon judgment for return
of goods attached, etc.
21. Form of writ of return.
22. Effect of foregoing provisions.
REPLEVIN OF BEASTS DISTRAINED.
1 Section 1. A person whose beasts have been distrained or impounded P^'p'^™ ''f
1 f p • 111* beasts diB-
2 in order to recover a penalty or lorieiture supposed to have been incurred trainefL
3 by their going at large or to obtain satisfaction for damages alleged to c\ lI^is! § s
4 have been done by them may cause them to be replevied.
132. § 1.
1789, 20, § 1.
R. S. 113. § 17.
G.S. 143, § 1.
P. S. 184, § 1.
R. L. 190, § 1.
2 Cush. 88.
7 Cueh. 355.
1 Section 2. Before the officer serving the writ delivers the beasts to Bond.
2 the plaintiff, he shall take from the plaintiff or a person in his behalf a i62^§*4."' ^ ''
3 bond payable to the defendant in a sum equal to double the value of the Jrao-i' ^
13, § 2.
4 beasts, with sufBcient sureties, conditioned to prosecute the replevin to R^I'ffsVig
5 final judgment and to pay such damages and costs as the defendant shall g. s. us. § s.
6 recover and to return the beasts if such shall be the final judgment. r'.'l. lod, § 2.
100 Mass. 122. 104 Mass. 328. 105 Mass. 44. 136 Mass. 515.
1 Section 3. The writ shall require that the bond be given for double Appraisal of
2 the value of the beasts but shall not express the amount for Mhich it fepievied.
3 shall be given. If the parties do not agree as to the value of the beasts, R*~s.'m,'/2o,
4 it shall be ascertained by three disinterested appraisers, who shall be p|j84'|4-
5 appointed and sworn by the officer, and the penalty of the bond shall be R./- 190, § 3.
6 double the value ascertained by such appraisers or by a majority of them.
1 Section 4. The officer shall return such bond with the writ to the Return ot writ,
2 court to which the writ is returnable, for the use of the defendant; and fysg, 2fi, § i.
3 he shall include in his return, endorsed on the writ, a certificate of the R.'s.'ns.'fii.
4 appointment of the appraisers, of the appraisal and of the expenses p|J||||-
5 thereof.
R. L. 190,
1917, 320.
12 .Met. 516.
97 Mass. 316.
1 Section 5. If the court finds that the beasts were lawfully taken or Formofjudg-
2 distrained, the defendant shall have judgment for the amount found to dc'tendant.
2604
REPLEVIN.
[Chap. 247.
1789, 26, § 2.
R. S. 113.
§§ 22, 2.1.
G.S. 143,
§§6.7.
P. S. 184,
l§6,7.
R. L. 190. § 5.
1917. 326.
be due from the plaintiff for the penalty or forfeiture or for the damages 3
for which the beasts were impounded, with the legal fees, costs, charges 4
and expenses incurred by reason of the distress, and with the costs of the 5
action of replevin ; or, instead thereof, the court may render a judgment 6
for a return of the beasts, to be held by the defendant irrepleviable by 7
the plaintiff, and for the damages for the taking of the beasts by the re- 8
plevin and for the defendant's costs. If so returned, the beasts shall be 9
held and disposed of as if they had not been replevied. 10
Sd^eLt Section 6. If the court finds that the beasts were unlawfully taken 1
i'789'26"r2 ^^ distrained, the plaintiff shall have judgment for damages caused by 2
R. s.'iis. § 24. such taking and detaining and for costs. 3
G. S. 143, § 8. P. S. 184, IS. R. L. 190, § 6. 1917, 326, § 2.
Replevin of
goods unlaw-
fully taken or
attached.
C. L. 132, § 1.
17S9, 26, § 4.
R. S. 113. § 27.
G.S. 143, § 10.
P. S. 184, § 10.
R. L. 190, § 8.
15 Mass. 359.
REPLEVIN OF OTHER PROPERTY.
Section 7. If goods exceeding twenty dollars in value are unlawfully 1
taken or detained from the owner or person entitled to their possession, or 2
if goods of that value, which have been attached on mesne process or taken 3
on execution, are claimed by a person other than the defendant in the 4
action in which they have been so attached or taken, the owner or such 5
other person may cause them to be replevied. 6
16 Mass. 147.
17 Mass. COG.
3 Pick. 2.55.
2 Cush. 88.
3 Cush. 261.
9 Cush. 407.
11 Cush. 218.
9 Gray, 216.
16 Gray, 213.
6 Allen, 227.
9 Allen, 116.
10 Allen, 211.
14 Allen, 62.
105 Mass. 113, 300.
114 Mass. 570.
115 Mass. 156.
116 Mass. 300. 371.
121 Mass. 107.
146 Mass. 329,
155 Mass. 539.
156 Mass. 141.
166 Mass. 146.
207 Mass. 407.
Bond.
C. L. 132. § 1.
1789, 26, § 4.
R. S. 113, § 29.
G.S. 143. § 12.
P. S. 184, § 12.
R. L. 190. § 9.
1920, 590, § 6.
8 Mass. 153.
11 Mass. 282.
14 Mass. 313.
5 Pick. 226.
1 Met. 508.
12 Met. 516.
8 Cush. 556.
5 Gray. 27.
6 Gray, 363.
13 Gray, 469.
3 Allen, 426.
5 Allen, 348.
Section 8. Except as otherwise provided in section thirty-seven of 1
chapter two hundred and fifty-five, before the officer serving the writ 2
delivers the goods to the plaintiff, he shall take from the plaintiff or a 3
person in his behalf a bond payable to the defendant in a sum equal to 4
double the value of the goods, with sufficient sureties, conditioned to 5
prosecute the replevin to final judgment and to pay such damages and 6
costs as the defendant shall recover and to return the goods if such shall 7
be the final judgment. The officer shall appraise the goods and return 8
the writ in the manner provided in sections three and four; but if the 9
■writ is returnable to the superior court, the bond shall be left with the 10
clerk of the court for the use of the defendant. 11
105 Mass. 44.
113 Mass. 268.
142 Mass. 519.
165 Mass. 505.
182 Mass. 575.
205 Mass. 64.
Form of
judgment for
defendant.
1789, 26, § 4.
R. S. 113, § 30.
Section 9. If the court finds that the defendant is entitled to a re- 1
turn of the goods, judgment shall be rendered therefor and for the dam- 2
ages caused by the taking by the replevin and for costs. 3
G.S. 143, § 13.
P. S. 184, § 13.
R. L. 190, § 10.
1917, 326.
7 Met. 590.
14 Gray, 449.
3 Allen, 429.
6 Allen, 227.
14 Allen, 62.
98 Mass. 343. 515.
103 Mass. 520.
104 Mass. 328.
109 Mass. 265.
114 Mass. 458.
131 Mass. 26.
136 Mass. 128. 515.
139 Mass. 126.
143 Mass. 440.
SsMseT' ''°" Section 10. If the goods when replevied had been taken on execu- 1
1789, 26, § 4. tion, or if they had been attached and judgment is afterward rendered for 2
g:s:i43!§ h! the attaching creditor, and if in either case the service of the execution 3
R. L. 190, § li. IS delayed by reason of the replevin, the damages to be assessed for the 4
Chap. 247.] replevin. 2605
5 defendant upon a judgment for a return shall be at the rate of not less 4 Mass. ch.
6 than twelve per cent a year on the value of the goods for the time during n pick^223.'
7 which the service of the execution was so delayed. ~°^ *^*^^' ^*'
1 Section 11. Money recovered by an officer in an action of replevin Disposal of
2 for goods attached or taken on execution by him or recovered by him in "leThylmcer
3 an action upon the replevin bond shall be applied as follows: of Eoo'^d^at'-'"
4 First, To pay the lawful fees and charges of the officer and the reason- R''s''iif|32
5 able expenses of the action of replevin and of the action on the bond, so Sf'iM.^f
-, n , , • 1 1 1 1 1 ' r. b. 184, § 15.
6 far as such expenses are not reuubursed by the costs recovered. R- l. iqo. § 12.
7 Second, To pay to the creditor at whose suit the goods were attached '^'''
8 or taken on execution the amount recovered by him in that action, or
9 so much thereof as remains unpaid, with interest thereon at the rate of
10 twelve per cent a year for the time during which the money has been
11 withheld from him, or the service of his execution has been delayed by
12 reason of the replevin.
1.3 If the attaching creditor in such case does not recover judgment in
14 the action in which the attachment was made, or if a balance remains of
15 the money so recovered by the officer after paying what is due to the
16 creditor, such money shall be applied in the same manner as the surplus,
17 if any, of the proceeds of sale would and ought to have been applied had
18 the goods been sold on execution.
1 Section 12. All amounts received by such creditor from the proceeds same subject.
2 of the sale of goods attached or taken on execution and afterward re- c' |; \\l] | H]
3 turned, or received by him for the value of goods not returned, or re- ^ ^ \®g^ ^fg
4 covered from the officer for the insufficiency of the sureties on the bond,
5 shall be applied to the discharge of the judgment recovered by the
6 creditor; and all amounts received as interest or damages for the delay
7 of his execution shall be applied, one half to the sole use of the creditor,
8 and the other half in discharge of the judgment.
1 Section 13. If the court finds that the goods were unlawfully taken Form of
2 or attached or unlawfully detained by the defendant, the plaintiff shall p'lain"™' '°^
3 have judgment for his damages caused thereby and for costs. ^ | }]|' | J^-
p. S. 184. §17, 1917,326, 120 Mass. 543.
R. L. 190, § 14. 8 Allen, 93.
general provisions.
1 Section 14. Sureties on a replevin bond may be approved in writing Approval of
2 by the officer who serves the writ or by the defendant or by a justice of repfeWn^rKi.
3 a district court or by a master in chancery, and, if approved otherwise p*'s'f84'§*is
4 than by the officer, he shall not be responsible for their sufficiency. jsss. 3»s. 1 1
142 Mass. 519. 144 Mass. 32.
1 Section 15. If such sureties are to be approved by a justice of a proceedings.
2 district court or by a master in chancery, the officer who serves the writ p*s''f84;§^f9
3 shall give written notice to the defendant or to the person from whose }>*''^ ^§^' I ^„
. Y , I , , . , . ^ , , „ , R. L, 190, § 16.
4 custody the property has been taken, stating the time and place of hear- issMass.eoo.
5 ing thereon and the names and residences of the proposed sureties, al-
6 lowing not less than one hour before the time appointed for the hearing
7 and at the rate of one hour additional for each mile of travel.
2606
REPLEVIN.
[Chap. 247.
Fees of master.
1870. 309, § S.
P- S. 184, § 20.
R. L. 190, § 17.
Section 16. The fee of the master for the hearing and decision shall 1
be as prescribed in section twenty-three of chapter two hundred and 2
sixty-two; and, if the bond is approved, such fee shall be taxed in the 3
plaintiff's costs, if he prevails in the action. 4
Defects in
bond not cause
for dismissal.
1878, 273.
P. S. 1.84, § 21.
R. L. 190, § 18.
1917, 326.
219 Mass. 194.
Section 17. An action of replevin shall not be dismissed by reason
of a defect in the form or substance of the bond taken therein, if the
coiu-t is satisfied that such bond was intended in good faith as a com-
pliance with the law requiring a bond to be taken before service of the
writ and if the plaintiff, within such time and upon such terms as the
court orders, files a new bond such as is required by law, approved by
the coiut or in the manner pro\itled in section fourteen.
Limitation of
actions against
sureties on
bonds.
R. S. 113. § 40.
G. S. 143. § 23.
P. S. 184. § 22.
R. L. 190, § 19.
1918, 257,
§ 440.
1919, 5.
Section 18. An action shall not be maintained against a surety on
a replevin bond, unless the writ is served on him within one year after
the final judgment in the action of replevin. If the writ of replevin is not
entered, an action on the bond shall not be maintained against a surety
unless it is entered within one year after the return day of the writ of
replevin. 1920, 2.
of^difm"ges. SECTION 19. Damages in replevin shall be assessed by the jury by
G iilijig' ■^'hich the cause is tried, if there is a trial by jury; otherwise, by the
p. s. 184, 1 23. court or by a jury impanelled therefor. 3
R. L. 190. § 20. 1917, 326.
1
2
Proceedings
upon judg-
ment for return
of goods
attached, etc.
1789, 26, § 4.
R. S. 113, § 36.
G. S. 143. § 18.
P. S. 184. § 24.
R. L. 190, § 21.
Section 20. If the goods replevied had been attached, they shall, 1
upon a judgment for a return, be held liable to the attachment until 2
final judgment in the action in which they were attached, and for thirty 3
days thereafter, so that they may be taken on execution. If such final 4
judgment is rendered before the return of the goods, or if the goods when 5
replevied were seized and held on execution, they shall be held subject 6
to the same attachment or seizure for thirty days after the return, in 7
order that the execution may be served thereon, or the service thereof 8
completed, in like manner as it might have been if the goods had not 9
been replevied. 10
Form of writ
of return.
1789. 26,
§§G,7.
Section 21. The writ of return in actions of replevin shall be sub-
stantially in the form heretofore established and used in like cases.
R. S. 113, 5 38.
G.S. 143, § 20.
P. S. 184, § 2G.
R. L. 190, § 23.
1918, 257, § 442.
1919,5.
1920, 2.
Effect of fore-
going pro-
visions.
R. S. 113, § 39.
G.S. 143, § 21.
r. S. 184, J 27.
R. L. 190, § 24.
1918.257,
§442.
1919, 5.
1920, 2.
Section 22. The foregoing provisions shall not preclude the de- 1
fendant from his remedy on the replevin bond, nor, except as provided 2
in section fourteen, from his remedy against the officer for the insuffi- 3
ciency of the sureties on the bond, to recover the value of the goods and 4
the loss or damage caused by the replevin, although he has endeavored 5
to recover the same by the WTit of return as before provided. 6
8 Met. 205.
REFERENCE.
Replevin of property held under claim of lien, Chap. 255, §§ 36-39.
Chap. 248.]
H.\BE.\S CORPUS AND PERSON.\L LIBERTY.
2607
CHAPTER 248.
HABEAS CORPUS AND PERSONAL LIBERTY.
Sect.
HABEAS CORPUS.
1 . Writ of habeas corpus.
2. By whom issued.
3. Petition for the writ.
4. Issue of writ.
5. Form of writ.
6. How signed and served.
7. Description of custodian of prisoner.
8. Designation of prisoner.
9. Advances prior to service of writ.
10. Return of writ.
11. Contents of return.
12. Prisoner to be produced.
13. Pro\asiou if prisoner is ill, etc.
14. Return before justice of court.
15. Examination of causes of imprisonment.
16. Notice to person interested in detention
of prisoner.
17. Notice to attorney general if prisoner
held for crime.
18. Custody of prisoner pending examina-
tion.
19. Release of prisoner on bail.
20. Bail of prisoner committed in civil ac-
tion for want of bail.
21. Bail of prisoner committed on criminal
charge.
Sect.
22. Prisoner to be remanded, when.
23. Prisoner to be discharged, when.
24. Second imprisonment after discharge.
25. Limitation of scope of chapter.
26. Penalty on officer refusing copy of war-
rant.
27. Proceedings upon refusal to obey writ.
28. Same subject.
29. Same subject.
30. Penalty for refusing to obey writ.
31. Resistance, etc., of writ a contempt.
32. Penalty for removing or concealing pris-
oner.
33. Recovery of penalty not to bar action
for false imprisonment, etc.
34. Person in custody of United States
marshal.
PERSONAL LIBERTY.
35. Personal liberty, how secured.
36. Proceedings to obtain personal liberty.
37. Notice to custodians, etc.
38. Examination of witnesses.
39. Probate court may request the district
attorney to conduct examination,
etc.
40. Payment of expenses regulated.
HABEAS CORPUS.
1 Section 1. Whoever is imprisoned or restrained of his liberty may,
2 as of right and of course, prosecute a writ of habeas corpus, according
3 to tiiis chapter, to obtain release from such imprisonment or restraint,
4 if it proves to be unlawful, unless —
5 First, He has been committed for treason or felony, or on suspicion
6 thereof, or as accessory before the fact to a felony, and the cause has
7 been plainly expressed in the warrant of commitment.
8 Second, He has been convicted or is in execution upon legal process,
9 civil or criminal.
10 ' Third, He has been committed on mesne process in a civil action in
11 which he was liable to arrest and imprisonment, unless excessive and
12 unreasonable bail was required.
Writ of h.ibeas
corpus.
1784, 72, § 1.
R. S. ill,
« 1.2.
1855, 489,
§§ 2, 20.
G. S.144,
§§ 1,2.
P. S. 185,
§§1,2.
R. L. 191,
2 Pick. 105,
172.
12 Gush. 598.
2 Gray. 406.
167 Mass. 11.
186 Mass. 301.
, § 1.
Section 2. The writ may be issued, irrespective of the county in By whom
which the person is imprisoned or restrained, by the supreme judicial i'784f72, § i.
or the superior court, by a probate or a district court, by a judge of fjf.'s.^''
any of said courts, or by a justice of the peace if none of said judges cPs'i||'||"
is known to such justice to be within five miles of the place where the }'s. i8s,§ s.
6 person is imprisoned or restrained. 19 Pick. 339.
1 Section 3. The petition for the writ shall be in writing, signed and f^e wri" ^°^
2 sworn to by the person for whose release it is intended, or by a person H^s'iiiVs
2608
HABEAS CORPUS AND PERSONAL LIBERTY.
[CiLlP. 248.
G.S. 144, M-
P.S. 1S5. § 4.
R. L. 191, § 3.
161 Mass. 46.
in his belialf , and shall state by whom and where the person is imprisoned 3
or restrained, the name of the prisoner and of the person detaining him, 4
if their names are known, or a description of them, if their names are 5
not known, and the cause or pretence of such imprisonment or restraint, 6
according to the knowledge and belief of the petitioner. 7
If the imprisonment or restraint is by virtue of a warrant or other 8
process, a copy thereof shall be annexed, unless it appears that such copy 9
has been demanded and refused or that, for a sufficient reason, a demand 10
therefor could not be made. 11
Issue of WTit.
17,S4, 72, § 2.
ISOS, SO.
R. S. Ill, § 4.
1SS5.4S9, § 3.
1859,291, § 1.
G. S. 144, § 5.
1861,91, § 1.
P. S. 185, § 5.
Section 4. The court or magistrate to whom the petition is presented
shall, without delay, issue a writ of habeas corpus, substantially in the
form heretofore established and used in the commonwealth, and return-
able forthwith to the supreme judicial court, or a justice thereof, at such
place as shall be designated in the writ. R. l. loi. § 4. loi Mass. 46.
Form of writ.
1784, 72,
§§1,2.
R. S. Ill, § 5.
1859, 291. § 2.
G. S. 144, § 6.
P. S. 185, § 6.
R. L. 191, §5.
Section 5. If the imprisonment or restraint is not by a sheriff, deputy
sheriff or jailer, the vrrit shall be in the following form:
Commonwealth of Massachusetts.
(Seal.) To the sheriffs of our several counties and to their respective deputies,
Greeting.
We command you that the body of , of
, by _ _ _ , of
imprisoned and restrained of his liberty, as it is said, you take and have before
a justice of our supreme judicial court at
immediately after the receipt of this writ, to do and
receive what our said justice shall then and there consider concerning him in
tliis behalf; and summon said then and there
to appear before our said justice to show the cause of the taking and detaining
of said ; and have you there tliis writ with
your doings thereon.
Witness at this
dav of in the vear
How signed Section 6. If the writ is issued by the court when sitting for the 1
R. s. Ill, § 6. transaction of business, it shall be signed by the clerk, otherwise by the 2
p.s.i85,'§ 7.' magistrate issuing it, and may be served in any county by any sheriff or 3
R.L.i9i,§6. deputy sheriff. 4
Description
of custodian
of prisoner.
R. S. Ill, § 10.
G. S. 144, § 8.
P. S. 185, § 8.
R. L. 191, § 7.
Section 7. The person who has the custody of the prisoner may be
designated by his office or by his own name, or, if they are unknown or
uncertain, he may be described by a fictitious name and the person upon
whom the writ is served shall be held to be the person intended.
Designation Section 8. The pcrsou restrained shall be designated by name, if 1
of prisoner. , " •! i ■ i -p i •
S-§-'M'li'- known: otherwise, he may be so described as to identuy him. 2
G. S. 144, § 9. „ . *^
P. S. 1S5, |9. R. L. 191, § 8.
Advances prior
to service of
writ.
1784, 72. § 3.
R. S. Ill, § 12.
G. S. 144, § 10.
P. S. 185, § 10.
R. L. 191, § 9.
Section 9. If the person restrained is confined in jail or is in the
custody of a civil officer, the court or magistrate granting the writ shall
certify thereon the amount to be paid for the expense of transporting
him from the place of imprisonment, and the officer shall not be boimd
to obey the writ unless that amount is paid or tendered to him.
Chap. 248.] habeas corpus and personal liberty. 2609
1 Section 10. Any person to whom the writ is directed shall receive Return of writ.
2 it, and, upon payment or tender of the charges demandable for its execii- r. s'lu. § is.
3 tion, shall make due return thereof within five days after receiving it. p | isl; | JJ;
R. L. 191, § 10.
1 Section 1 1 . The person in whose custody the prisoner is found shall J^™'™'^ "^
2 state in writing, plainly and unequivocally, to the court or justice before Fsf^'J]'
3 whom the writ is returnable — g- s^,!*''.
4 First, Whether the prisoner is in his custody or power or under his p. sriss]
r X • X §§12, 13.
5 restraint. r. l. xdi, § ii.
6 Second, If the prisoner is in his custody or power or under his restraint,
7 his specific authority for and the true and whole cause of such imprison-
8 ment or restraint, with a copy of the writ, warrant or other process, if
9 any, upon which the prisoner is detained.
10 Third, If the prisoner has been in his custody or power or under his
11 restraint, and has been transferred to that of anotiier, particvdarly to
12 whom, when, why and by what authority such transfer was made.
13 The statement shall be signed by him and, unless he is a sworn public
14 officer and makes the statement in his official capacity, shall be sworn
15 to by him.
1 Section 12. The person who makes the statement shall at the same Prisoner to
2 time produce the prisoner, if in his custody or power or under his re- itm, t^^s.
3 straint, according to the command of the writ, unless prevented by the g\ 1. illi | ll'.
4 illness or infirmity of the prisoner. p. s. iss, §14. n. l. ioi,§i2.
1 Section 13. If by reason of the illness or infirmity of the prisoner Provision if
2 he cannot without danger be taken to the place appointed for the return lif,' e™*"^ '°
3 of the writ, that fact shall be stated in the statement and, if proved, the ois ill] | isl
4 judge may proceed to the place where the prisoner is confined and there r. l. m',Vi3
5 make his examination; or he may postpone the examination or may
6 make such other order in the case as law and justice require.
1 Section 14. If the court to which the writ is returnable is not sitting Return before
2 for the transaction of business when the \\rit is returned, the return i'784r72, T"."^ '
3 shall be made before a justice thereof. If the writ is returned before a §: 1; \H] | %_
4 justice when the court is sitting for the transaction of business, he may r.'l.\|^i'.|\4.
5 adjourn the case into the court, to be there heard and determined. i^i m"ss' m
1 Section 15. After the writ has been returned, the prisoner may deny Examination
2 any of the facts set forth in the statement and may allege any other imprisonment.
3 material facts; and the court or justice shall examine summarily and R.^s.'ni,^*'
4 without delay the causes of the imprisonment or restraint, hear the H kSll',
5 evidence produced by any persons interested or authorized to appear f.^^'^'j^f-
6 and dispose of the prisoner as law and justice require, and may adjourn « i^?. is'
7 the examination from time to time.
1 Section 16. If it appears from the return of the writ or otherwise Notice to
2 that the prisoner is detained on a process under which another person tmstedTn de-
3 has an interest in continuing his imprisonment or restraint, he shall not JJ?soner°^
4 be discharged until notice has been given to such other person or his q; 1; J]]; | H'
5 attorney, if within the commonwealth. If such person or his attorney is J^ ^- ^^^''^ Yui
6 not within the commonwealth the court may order notice to be given to
7 him.
2610
HABEAS CORPUS AKD PERSONAL LIBERTY.
[CiLiP. 248.
attorn\v''gcn- SECTION 17. If it appears from the return of the virit or othen;\-ise
oner heiSYor that the pHsoner is imprisoned on a criminal accusation, he shall not be
R^s^iu § 20 discharged until notice has been given to the attorney general or other
G. s. 144] § 23. attorney for the commonwealth. p. s. iss, § 20. r. l. 191. § n.
Custody of
prisoner pend-
ing examina-
tion.
R. S. 111. §26.
G. S. 144. § 24.
P. S. 135. § 21.
Section 18. Until judgment is given, the court or justice may remand
the prisoner, bail him to appear from day to day, commit him to the
sheriff of the county, or place him under such other care and custody as
the circumstances of the case require. R. l. 191, § is. 107 Mass. 172.
Release of
prisoner on
baU.
1784, 72, § .5.
R. S. Ill, § 23.
G. S. 144, § 25.
P. S. 185. I 22.
R. L. 191, § 19.
Bail of pris-
oner committed
in civil action
for want of
bail.
1784, 72. 5 5.
R. S. Ill, §24.
G. S. 144, § 26.
P. S. 185, § 23.
Section 19. If the prisoner is detained for a cause or crime for
which he is bailable, he shall be admitted to bail if sufficient bail is offered ;
and if not, he shall be remanded with an order of the court or justice
expressing the amount in which he shall be held to bail and the court
at which he shall be required to appear; and any magistrate authorized
to admit to bail may, at any time before the sitting of said court, bail
the prisoner pursuant to such order.
Section 20. If the prisoner has been committed on mesne process
in a civil action for want of bail, and it appears that the amount for which
bail was required is excessive and unreasonable, the court or justice shall
decide how much bail is reasonable, and shall order that on giving such
bail the prisoner shall be discharged. R. l. i9i. i 20.
Bail of pris-
oner committed
on criminal
charge.
1812,30.
1821. 109.
R. S. 87, S3;
111, § 36.
G. S. 144, § 30.
Section 21. If a person is committed to jail on a criminal accusa-
tion for want of bail, a justice of the superior court or of a district court
or a trial justice may issue a writ of habeas corpus and cause the prisoner
to be brought before him, when it is necessary for the purpose of admitting
him to bail pursuant to chapter two hundred and seventy-six.
p. S. 1S5, §27. R. L. 191, § 21. 2 Gray, 406.
femanded" ^^ SECTION 22. If the prisoner is lawfully imprisoned or restrained and 1
r'^s'hi § 25 ^^ °°t entitled to be admitted to bail, he shall be remanded to the person 2
§-|- 'i-'ll'- from whose custody he was taken or any other person or officer author- 3
P. S. ISOi § 24. •iiii'^'i* 4
R. L. 191, § 22. ized by law to detain hun. 4
discharge*d', " SECTION 23. If no legal cause is shown for the imprisonment or re- 1
r784!'72, § 5. ' straint, the court or justice shall discharge the prisoner.
R. S. 111. §22.
G. S. 144, § 28.
P. S. 1S5. § 23.
R. L. 191, § 23.
10 Gray, 240.
Second im
-
prisonment
after disc!
harge.
1784, 72. i
n2.
R.S. Ill,
§34.
G.S. 144.
§ 29.
P.S. 185,
§26.
R. L. 191
,§24.
107 Mass.
154.
153 Mass.
154.
Limitation of
scope of
chapter.
1784.72.1
12.
R.S. 111.
§§ 35, 37.
G. S. 144.
§§31,32.
P. S. 185,
§§28,29.
R. L. 191
.125.
Section 24. No person who has been discharged upon a habeas
corpus shall be again imprisoned or restrained for the same cause, unless
indicted therefor, convicted thereof, or committed for want of bail by a
court of record having jurisdiction of the cause; or unless, after a dis-
charge for defect of proof or for some material defect in the commitment
in a criminal case, he is again arrested on sufficient proof and committed
by legal process.
Section 25. This chapter shall not affect the power of the supreme
judicial court, or of a justice thereof, to issue a writ of habeas corpus at
discretion, and thereupon to bail a person for whatever cause he has been
committed or restrained or to discharge him as law and justice require,
unless he has been committed by the go^■ernor and council, the senate
or the house of representatives, in the manner and for the causes men-
Chap. 248.] h.\be.\s corpus and personal liberty. 2611
7 tioned in the constitution; nor affect the power of any court or magis- loTMass. 172,
8 trate to issue a writ of habeas corpus, when necessary to bring before
9 it or him a prisoner for trial in a criminal case pending before it or him ;
10 or to bring in a prisoner to be examined as a witness in a suit or proceed-
1 1 ing, civil or criminal, pending before it or him, if the personal attendance
12 and examination of the witness is necessary for the attainment of justice.
1 Section 26. An officer who refuses or neglects for six hours to de- Penalty on
2 liver a true copy of the warrant or process by which he detains a prisoner ("n^'^copy^of
3 to any person who demands such copy and tenders the fees therefor shall "y^lJ"?' 5 g
4 forfeit two hundred dollars to such prisoner.
R. S. 111,§27. G. S. 144, § 33. P. S. 185. § 30. R. L. 191, § 26.
1 Section 27. If a person to whom a writ of habeas corpus is directed Proceedings
n p ••! ■ Ti .. upon refusal
2 refuses to receive it, or neglects to execute it according to the provisions to obey writ.
3 of this chapter and no sufficient excuse is shown therefor, the court or §§ 7,'8. '
4 justice before whom the writ was returnable shall forthwith by process of c'. s. m', § .^4^
5 attachment, as for a contempt, compel obedience to the writ, and punish r. L/fgi.Viz.
6 the person guilty of the contempt.
1 Section 28. If such attachment is issued against a sheriff or his Same subject.
2 deputy, it may be directed to a special sheriff or to some other person g! i: ill; | st'.
3 designated therein, who shall have full power to execute it; and if the r. L.'fgi.Vls.
4 sheriff or his deputy is to be committed upon such process, he may be
5 committed to the jail of any county other than his own.
1 Section 29. Upon the refusal or neglect of the person to whom the same subject.
2 writ of habeas corpus is directed to receive and execute it, the court or §! s! ill; i 3°;
3 justice may issue a precept to any officer or other person designated r l^^qiVIq
4 therein, commanding him. to bring the prisoner forthwith before such
5 court or justice, who shall thereupon discharge, bail or remand the pris-
6 oner as if he had been brought in upon the writ of habeas corpus.
1 Section 30. Whoever refuses or neglects to receive and execute a Penalty for
2 writ of habeas corpus shall forfeit four hundred dollars to the party obey *rit°
3 aggrieved thereby. i784, 72, § 7.
R. S. Ill, §31. G.S. 144, §37. P. S. 185, §34. R. L. 131, § 30.
1 Section 31. Whoever resists the service of the writ of habeas corpus. Resistance,
2 or disobeys it when served, shall be liable to attachment as for a contempt f comcmpt.
3 of the court or justice before whom the writ is returnable.
1848,254. G.S. 144, §38. P. S. 185, § 35. R. L. 191, § 31.
1 Section 32. Whoever, having in his custody or power a person en- Penalty for
2 titled to a M'rit of habeas corpus, transfers him to the custody, or places 7<m°^^\ing^
3 him under the power or control, of another person, conceals him or changes k.'s°T[ i, § 32.
4 the place of his confinement, with intent to evade the service of such i>\siss||n'
5 writ or to avoid the effect thereof, whether the writ has been issued or i' l. loi, § 32.
6 not, shall forfeit four hundred dollars to the party aggrieved thereby.
1 Section 33. The recovery of any penalty imposed by the foregoing Recovery of
2 provisions of this chapter shall not bar an action at common law for Ea?actio"n°fo'r°
3 false imprisonment, or for a false return to the writ of habeas corpus, or onme™.''etc".
4 for any other injury or damage sustained by the aggrieved party. §■ g \\l' | H'
p. S. 185. § 37. R. L. 191, § 33.
2612
HABEAS CORPUS -VXD PERSONAL LIBERTY.
[Ch.\p. 248.
Person in
custody of
United States
niarshal.
1S61,91. I 3.
P. S. 185, I 39.
R. L. 191, § 34.
Section 34. This chapter shall not authorize the taking of a person by
writ of habeas corpus out of the custody of the United States marshal, or
his deputy, who holds him by legal and sufficient process issued by any
court or magistrate of competent jurisdiction; but this section shall not
affect the authority of the supreme judicial court or of its justices, in
accordance with the provisions of the constitution of the United States
and of the commonwealth, to investigate and determine the validity and
legal effect of any process which may be relied on to defeat the WTit, or
any other matter properly arising.
Personal lib-
erty, how
secured.
1S94, 536. § 1.
R. L. 191, §48.
PERSONAL LIBERTY.
Section 35. No person shall be deprivetl of his liberty or held in
custody by any person or in any place against his will or, if he is a minor,
against the will of his parents, guardian or other person entitled to his
custody, except by due process of law; but this section shall not apply
to persons who have been legally convicted of crime and are ser\ing
sentence therefor.
Proceedings
to obtain per-
sonal liberty.
1894. S3G, § 2.
R. L. 191, § 49.
Section 36. Whoever has reason to believe that another person is
deprived of his liberty or held in custody in violation of the preceding
section may file a petition, on the oath of the petitioner, in the pro-
bate court for the county where such person is believed to be detained,
stating his name, age and general description, where, when and under
what circumstances he was deprived of his liberty, where he is believed
to be detained, the name of the person so depri\ing him of his liberty,
if known, the name of his supposed custodian and any other material
facts and circumstances.
Notice to cus-
todians, etc.
1894, 53fi. 5 3.
R. L. 191, § 50.
Section 37. Upon the filing of such petition, the court shall cause
notice to be served upon all the supposed custodians or persons alleged
to be detaining or holding in custody said person, as stated in said petition,
or as otherwise known, ordering them to appear before said court at a
time and place named therein, to be examined as said court shall order;
and may cause said person to be brought before it for examination as
to his desire to be released and as to any other relevant matters.
Examination
of witnesses.
1894, 536, § 4.
R. L. 191, I 51.
Section 38. The court may examine the witnesses separately and
may permit the petitioner, parent, guardian or other person entitled to
the custody of a person depri\ed of his liberty, in person or by counsel,
to examine publicly his alleged custodian as to the condition of such per-
son and the place where he is detained or held in custody ; and may also
examine separately and apart, or publicly, such person, and may make
orders for his release or permitting correspondence or personal interviews
between him and his friends or relatives, and may modify its orders upon
notice to the parties.
Probate court
may request
the district
attorney to
conduct exam-
ination, etc.
1894, 536, § 5,
R. L. 191, § 52
Section 39. The probate court may request the district attorney
for the district where it is held to attend the examination under the
preceding section, and to conduct or assist in conducting the examina-
tion. If the court is imable to obtain satisfactory information, or to
satisfactorily determine the questions involved or to furnish proper re-
lief, it shall notify the district attorney, who may institute proceedings
under sections one to thirty-four, inclusiNe, or such other proceedings as
Chap. 249.] audita ql-erela, certiorari, m.\ndamus, etc. 2613
8 the case may require. The provisions of said sections shall apply to all
9 proceedings under the four preceding sections so far as appropriate.
1 Section 40. The fees for the service of process and notices and for Payment of
2 summoning witnesses shall, upon the approval of the court or district regubted.
3 attorney, be paid by the county where such person is detained, if the r.^l.Tqi, §53
4 petitioner is not able to pay them.
CHAPTER 249.
AUDITA QUERELA, CERTIORARI, MANDAMUS AND QUO WARRANTO.
Sect.
quo "warranto.
6, Application for information in nature of
quo warranto.
7. Hearing on application, etc.
S. Injunction.
9. Attorney general may intervene.
10. Judgment.
11. Respondent's costs.
12. Informations against persons holding
public office, etc.
13. Effect of chapter.
Sect.
audita querela.
1. Writ of audita querela.
2. Damages, etc.
3. Release from imprisonment.
CERTIOR-IRI.
4. Petition, writ, decree and costs.
MANDAMUS.
5. W^rit of mandamus.
AUDITA QUERELA.
1 Section 1. The WTit of audita querela for the purpose of preventing, writ of audita
2 setting aside or annulling any proceedings upon a judgment or execution i7l5^47, §§ 1,
3 shall be sued out of and be returnable to the court in which the judgment fj ^g' Wh
4 was rendered. It shall be sued out and served like an original writ, the ^ |-*j^'l
5 forms of process shall be the same as those heretofore established and |§ 5,"*o/
6 used in the commonwealth, the proceedings so far as appropriate shall §§ i-3. «.'
7 be the same as in personal actions and the court, after the writ has been id Massr'ibi.'
8 sued out, may issue an injunction. 17 Mass. 153.
S Met 228. 11 Gray, 3S0. 14 Allen, 172. 161 Mass. 327.
11 Gush. 3.5. 13 Gray, 1. 100 Mass. 244. 215 Mass. 72.
7 Gray. 20B. 9 .iUen, 572. 151 Mass. 390. 223 Mass. 467.
1 Section 2. If the plaintiff prevails upon a writ sued out to set aside Damases, etc.
2 or annul proceedings upon an execution, he shall recover the damages r*!' 112,^*5.
G. S. 145, S a.
p. S. 180, ^ 4.
4 shall be a bar to anv other action tiiereafter brought for the same damages. ^- ^- ^^-' ^ ^■
3 sustained by said proceedings, and the judgment upon the audita cjuerela p- 1; Jl;,; 1 4
1 Section 3. If the plaintiff is imprisoned on the execution or other Release from
2 process complained of, the court may release him upon his giving bond i'78'o!'*47,Ti2.
3 to the defendant in such sum as the court orders, with two or more Rf.g^^^'
4 sureties approved by the court, conditioned that if final judgment upon 55 f"^'
5 the audita querela is rendered for the defendant, he will, within thirty & L^igi^s^
6 days thereafter, surrender himself to the jailer or other officer by whom
7 he was imprisoned to be detained in custody under the former execution
8 or process or shall within that time pay the amount due on the former
9 execution or process, with the costs. If the plaintiff so surrenders him-
10 self, he shall be in custody under the execution or other process on which
11 he was imprisoned as if the writ had not been sued out.
2614
QUO W.UKR.VNTO.
[ClLVP. 249.
Petition, writ,
decree and
costs.
R. S. 112,
l§ 21-23.
1858. 109.
G. S. 145,
§§ 8-12.
1870. 119.
1873, 355.
P. S. 186,
§§ 7-12.
R. L. 192, § 4.
1902. 544. § 27.
4 Mass. 556,
565.
11 Mass. 462.
1 Met. 122.
2 Met. 220.
10 Met. 217.
CERTIORARI.
Section 4. A petition for a writ of certiorari to correct errors in
proceedings which are not according to the course of the common law
may be presented to a justice of the supreme judicial court, and he may,
after notice, hear and determine the same. The writ shall not be issued
unless the petition therefor is presented within six years next after the
proceedings complained of. It may be issued from the clerk's ofBce in
any county and shall be returnable as the court orders. The court at
any time after the petition is presented may impose costs upon any
party, may issue an injunction and may order the proceedings brought
up; and, after they are brought up, may quash or afBrm them, or may
make such order, judgment or decree as law and justice may require.
S Gush. 529.
2 .\llen, 463.
5 .Mien, 13.
6 .\llen, 131.
98 Mass. 491.
103 Mass. 120.
112 Mass. 206, 218.
113 Mass. 52.
114 Mass. 583.
116 Mass. 73, 84,
87, 189, 193.
117 Mass. 563.
lis Mass. 561.
119 Mass. 556.
122 Mass. 290.
132 Mass. 42.
134 Mass. 313.
143 Mass. 589.
144 Mass. 352.
146 Mass. 298, 403.
147 Mass. 455.
153 Mass. 161.
154 Mass. 395.
155 Mass. 467.
160 Mass. 282.
166 Mass. 399.
16S Mass. 239.
171 Mass. 338.
172 Mass, 28.
176 Mass. 22,
180 Mass. 288.
181 Mass. 6, 432. 463.
183 Mass. 42. 119.
198 Mass. 584.
205 Mass. 94.
209 Mass. 316.
213 Mass. 17.
222 Mass. 542.
Writ of
mandamus.
1851. 233,
§§ 51-54.
1852, 312,
l§ 38-41.
G. S. 145,
5§ 13-15.
1873, 355.
P. S. 186,
5§ 13-16.
R. L. 192, § 5.
104 Mass. 498.
193 Mass. 569.
195 Mass. 222.
196 Mass. 267.
227 Mass. 142.
229 Mass. 200,
208.
236 Mass. 330.
Application
for informa-
tion in nature
of quo war-
ranto.
1851, 233,
§§ 55, 56.
1852. 312,
§§ 42, 43.
G. S. 145,
SI 16, 17.
MANDAMU.S.
Section 5. A petition for a writ of mandamus may be presented to
a justice of the supreme judicial court, and he may, after notice, hear
and determine the same. Upon the return of the order of notice, the
person required to appear shall file an answer showing cause why the
writ should not issue, and the petitioner may traverse any material
facts alleged in the answer or may demur thereto. The court may re-
quire a third person who has or claims a right or interest in the subject
matter to appear and answer and to stand as the real party. If the
petitioner prevails, his damages shall be assessed and judgment shall be
rendered therefor, with costs, and for a peremptory vrrit of mandamus;
otherwise, the party answering shall recover costs of the petitioner. No
action shall be maintained for a false answer. All writs and processes
may be issued from the clerk's office in any county and shall be return-
able as the court orders.
QUO warranto.
Section 6. A person whose private right or interest has been injured
or is put in hazard, by the exercise of a franchise or privilege not conferred
by law, by a private corporation or by persons claiming to be a private
corporation, whether he is a member of such corporation or not, may
apply to a justice of the supreme judicial court in any county for leave to
file an information in the nature of a quo warranto. i87i, 366.
p. S. 186, §§ 17, IS.
R. L. 192. § 6.
9 Gush. 596.
1 Gray, 340.
3 Gray, 116.
5 .41Ien. 221.
103 Mass. 138.
126 Mass. 300.
128 Mass. 308.
132 Mass. 174.
133 Mass. 538.
148 Mass. 285.
149 Mass. 436.
163 Mass. 446.
169 Mass. 229, 534.
170 Mass. 71.
194 Mass. 280.
197 Mass. 194.
236 Mass. 564.
1 Op. A. G. 81. 633.
Hearing on
applicatiori,
etc.
1851, 233,
|§ 57, 58, 63.
1852, 312,
§§ 44, 45, 49.
G. S. 145,
§§ 18, 19.
Section 7. The court shall give a summary hearing and if it appears
that there is probable cause to believe that the respondent has exercised
a franchise or privilege not conferred by law, whereby the private right
or interest of the complainant has been injured or is put in hazard, shall
grant leave to file the information, which shall be filed in the county
CiiAP. 250.]
WRITS OF ERROR, ETC.
2615
6 where the respondent has its principal place of business. A copy of the p. s. isfi,
7 information, with an order of notice returnable and to be served when k. l. 192, § 7.
8 and as it directs, shall be served on the respondent and on the attorney
9 general.
1 Section 8. If leave is given to file such information, the court, at J°i>;°^'i™-, ,„
1 n n ^ * 1 • -p.. . .. 1851, 2SS, § 59.
2 any time before nnal judgment, may issue a writ oi injunction restraining 1852, 312, § 46.
3 the respondent from exercising the franchise or privilege in question until b.' s.' ise,' § 21!
4 the further order of the court.
R. L. 192, § 8.
1 Section 9. If the attorney general believes that there has been a Attorney
2 usurpation of a franchise or privilege not conferred by law, he may inter- mtTreen™.''^
3 vene, control the subsequent proceedings and demand a judgment of \lll] ifi; | tl[
4 fine and forfeiture, and the complainant shall no longer be liable for p |; }||' | 32!
5 costs. The court shall enter judgment according to the principles of the ^- ^- 1^^, § 9.
6 common law.
If the attorney general does not intervene, and the court J"^«™„%°*- , „
loOl, Zoo, § DU.
Section 10.
finds that the respondent has exercised a franchise or privilege not con- ism! 312! § 47!
ferred by law, judgment of forfeiture shall not be entered, but judgment p.' s.' ise,' I 23!
shall be entered that the corporation, or the persons claiming to be such, ' " - * ' ■
be perpetually excluded from the exercise of such franchise or privilege,
6 and that the directors, managers or agents, guilty of the usurpation, pay
7 the costs of the complainant.
1 Section 11. If the court finds that the respondent has not exercised ^34^°'"^"'°''^
2 a franchise or privilege not conferred by law, he shall recover costs.
1852, 312, § 48. G. S. 145, § 23. P. S. 186, § 24. R. L. 192. § 11.
costs.
1851, 233.
§§ 61, 62.
1
Section 12. The supreme judicial court shall have jurisdiction of agi°nTt'pe°-^
2 informations in the nature of quo warranto filed bv the attornev general sons holding
111- 1 • • I • I 'ill o? * public omce,
3 against a person holding or claiming the right to hold an oince or em- etc.
4 ployment, the salary or compensation of which is payable by the com- r. l. i92, § 12.
5 monwealth, a county, city or town. les Mass. 446. 225 Mass. 372.
1 Section 13. This chapter shall not affect the duty of the attorney Effect of
2 general to proceed in all cases in which he might otherwise act. isIi.ms, § 64.
1852. 312. 5 50. R. L. 192, § 13. 167 Mass. 424.
G. S. 145, § 24. 3 Gray, 116. 170 Mass. 71.
P. S. 186, § 25.
CHAPTER -250.
WRITS OF ERROR, VACATING JUDGMENT, WRITS OF REVIEW.
Sect.
writs of error.
1. Writs of error.
2. Proceedings.
CIVIL CASES.
3. Judgments reviewable on writ of error.
4. Judgments not reviewable on writ of
error.
Sect.
5. Limitation of time for writ of error.
6. Stay of execution.
7. Filing of bond, and its effect.
8. Costs and damages.
CRIMINAL CASES.
9. Judgments reviewable on writ of error.
10. Voiiuo of writ.
2616
WRITS OF ERROR.
[Chap. 250.
Sect.
11. Writ of error in capita! case.
12. Proceedings upon reversal of judg-
ment.
13. Validity of con\-iction not affected by
age.
V.iCATING JUDGMENT.
14. Vacating judgment.
15. Petition to vacate judgment.
16. Order of notice and supersedeas.
17. Bond.
IS. Judgment vacated without security,
when.
19. Terms on petitioner.
20. Discharge of attachment, bond, etc.,
after judgment vacated.
Sect.
■WRIT3 OF REVIEW.
21. Writ of re\"iew as of right.
22. Writ of reriew upon petition.
23. Order of notice and supersedeas.
24. Bond.
25. Supersedeas without security, when.
26. Terms.
27. Writ of re\new, how and when sued out.
28. Form of writ of re\aew.
29. Service of writ.
30. .\ttachment on writ.
31. Procedure upon joinder of issue.
32. Procedure upon non-joinder of issue.
33. Judgment upon review.
34. Costs.
35. Procedure in replevin, etc.
36. One of several defendants may review.
Writs of error.
R. S. 112, § 10.
G. S. 146, § 1.
P. S. 187, § 1.
E. L. 193, § 1.
WRITS OF ERROR.
Section 1. ^Vrits of error in civil and criminal cases shall issue as of 1
course from and be returnable to and be heard and determined by the 2
supreme judicial court. 235 Mass. 304. 3
Proceedings.
R. S. 112, § 15.
G. S. 146, § IS.
P. S. 187, 5 15.
R. L. 193, § 2.
5 Met. 334.
141 Mass. 194.
168 Mass. 297.
170 Mass. 152.
Section 2. The proceedings upon writs of error, as to the assign-
ment of errors, the scire facias, pleadings, judgment and all other matters
not expressly provided for, shall be according to the course of the com-
mon law as modified by practice and usage in the commonwealth and
by the general rules of the supreme judicial court. 200 Mass. 40s.
Judgments
reviewable
on writ of
error.
R. S. 82, § 20.
1840,87, §4.
G. S. 146, § 2.
P. S. 1S7, § 2.
R. L. 193, § 3.
CniL C.\SES.
Section 3. A judgment in a civil action may be re-examined, re-
versed or affirmed upon a vrrit of error in the county where it was
rendered for any error in law or in fact, except as hereinafter provided.
If tlie judgment is reversed, such judgment shall be rendered as the
court below should have rendered.
10 Met. 172.
SCush.eiO.
10 Gush. 415.
9 Gray, 311.
4 .\Uen, 94.
152 Mass. 585.
154 Mass. 157.
155 Mass. 86.
164 Mass. 239.
Judgments not
reviewable on
writ of error.
R. S. 100, § 24.
1851,233.
§§ 114, 115.
1852.312,
§§ 77, 78.
G. S. 146,
§13.4.
P. S. 187. § 3.
R. L. 193. § 4.
3 Met. 372.
7 Met. 590.
13Grav,392.
171 ilass. 563.
176 Mass. 48.
Section 4. A judgment in a civil action shall not be reversed on a
writ of error for error arising upon a plea or answer in abatement or for
a defect of form which might by law have been amended; nor by reason
of a mistake relative to the venue of the action; nor because the judg-
ment is not in conformity with the pleadings, if it is in conformity with
the verdict; nor for any error in law if the defendant appeared and a
verdict was rendered, unless it occurred after verdict. This section
shall not prevent either party from assigning an error affecting the
jurisdiction of the court. 206 jiass. 408.
Limitation of
time for WTit
of error.
1 805, 35.
R. S. 112,
§5 19,20.
G. S. 146.
§§5,6.
P. S. 187, § 4.
Section 5. A judgment in a civil action shall not be reversed upon 1
a writ of error, unless the writ is sued out within six years after the entry 2
thereof; but if an action of contract or writ of scire facias has been 3
brought thereon, the writ of error may be sued out Mithin six years after 4
the briuEcing of such action or writ. R. l- 193, i s. 5
Chap. 250.] writs of error. 2617
1 Section 6. A writ of error shall not stay or supersede the execution, stay of
2 unless the plaintiff in error or a person in his behalf gives bond to the r°s"iT2,'
3 defendant, with one or more sureties, conditioned that the plaintiff shall ^ "ill",
4 prosecute his writ to effect, and shall pay and satisfy such judgment as Pl'fsj 5 5
5 mav be rendered thereon. The sufficiency of the sureties and the amount ?• l. i93' s 0
1 Al&ss 15G
6 of the bond shall be determined by a justice of the supreme judicial
7 court or by the clerk from whose office the writ issued.
1 Section 7. Such bond shall be filed in the clerk's office for the use Filing of bond,
2 of the defendant in error and no execution shall be thereafter issued upon i^i! n2'!§°i3.
3 the judgment while the writ of error is pending. If execution has been p. f; 1I7'; | e.
4 already issued, the clerk shall make an entry of the issuing of the writ of ^- ^- ^^^- ^ "■
5 error and of the filing of the bond, and issue a certificate thereof; and,
6 after notice of such entry to the officer holding the execution, all further
7 proceedings thereon shall be stayed.
1 Section S. The prevailing party shall be entitled to costs, and, if 2°n^l l"'^
2 the judgment is affirmed, the court shall award to the defendant in error g |- 112. | J*-
3 damages for his delay at a rate of not less than six nor more than twelve p. s.' is7,' § 7. '
4 per cent a year on the amount recovered by the former judgment, and 1 Mass. si,
5 mav award him double costs. 4 Mass. 436. 6 Mass. 4. 208,411,443.
criminal CASE.S.
1 Section 9. A judgment in a criminal case may be re-examined and ■'"4^™''^^
reviewable on
writ of error.
1S32, 130, § 5.
2 reversed or affirmed upon a writ of error for any error in law or in fact- ^"t °' "''°'^
R. S. 82, §31. G.S. 146, §11. 3 Gush. 212.
1S40, 87, § 4. P. S. 187, § 8. 158 Mass. 164.
1842, 54. R. L. 193, § 9. 188 Mass. 443.
1 Section 10. Writs of error in such cases may be brought at any time venue of writ.
2 after judgment and may be entered in any county. After the writ has §f^",'|.^'
3 been returned, the court shall examine the case without delay, but may p. 1; il"; | g."'
4 adjourn the examination from time to time.
R. L. 193. § 10. 5 Met. 334.
1 Section 11. A writ of error upon a judgment for a capital crime writ of error
2 shall not issue, unless allowed bj^ a justice of the supreme judicial court n.'^i^iu.'^^''^'
3 after notice to the attorney general or other attorney for the common- q s'^hI,
4 wealth; but a writ of error upon a judgment in any other criminal case p^,|^i|f'
5 shall issue as of course, but it shall not stay or delay the execution of the |§ ^j^^ls s n
6 judgment or sentence, unless by an express order of a justice of the
7 supreme judicial court, who may make a further order for the custody of
8 the plaintiff in error or for releasing him on bail.
1 Section 12. If a final judgment is reversed by reason of error in the Proceedings ■
2 sentence, such judgment shall be rendered in the case as the court below "f'i'udKment'
3 should have rendered, or it may be remanded for that purpose to said \llf^ l^\ ^ ^'
4 court. If the plaintiff in error is discharged, the costs shall be paid by jj- %li}'
5 the county where he was convicted.
P.M. 187. §§ 13, 14. 107 Mass. 194. 224 Mass. 39.
R. L. 193. § 12. 107 Mass. 11. 177 U. S. 155.
1 Gush. 302. 172 Mass. 204. 1 Op. A. G. 459.
1 Section 13. Upon a writ of error or other proceeding to reverse or validity of
2 avoid a con\iction of a crime or to obtain the discharge of a person \\ho afflcted'byTge.
2618
VACATING JUDGMENT.
[Chap. 250.
1892, 266.
R. L. 193,
13.
is held in custody thereunder, the fact that he was under the age of seven-
146 Mass. 4S9. tccn at the time of tlie conviction shall not affect the validity of the
conviction nor entitle the person to be discharged.
Vacating
judgment.
1875, 33.
P. S. 187, § 17.
1893, 396, § 33.
1895, 234, § 1.
R. L. 193, § 14.
118 Mass. 61.
145 Mass. 18.
151 Mass. 321.
154 Mass. 157.
VACATING JUDGMENT.
Section 14. If final judgment has been rendered in a civil action,
the court in which it was entered may, within three months thereafter,
if the execution has not been satisfied in whole or in part, Aacate it, upon
the motion in writing of the prevailing part.v, and dispose of the case as
if it had not been entered. Such motion shall be filed in the case and,
except by special order of the court, no bond shall be required.
182 Mass. 443.
226 Mass. 14.
235 Mass. 304.
236 Mass. 225.
Petition to va-
cate judgment.
1875, 33.
P. S. 187,
§§ 17, 18.
1893, 396.
1895, 234.
R. L. 193,
141 Mass. 20.
151 Mass. 321.
155 Mass. 5S1.
§ 33.
§2.
, § 13.
Section 15. If a final judgment has been entered and the execution
has not been satisfied in whole or in part, either party, or any one or more
of several plaintiffs or defendants, within one year thereafter may file
in the court in which such judgment was rendered a petition to vacate
it. In the supreme judicial or the superior court, the petition shall be
filed in the county A\here the judgment was entered.
158 Mass. 381.
165 Mass. 238.
171 Mass. 292.
175 Mass. 558.
187 Mass. 468.
210 Mass. 578.
223 Mass. 4.S9.
233 Mass. 483.
Order of notice
and super-
sedeas.
1875, 33.
P. S. 187, § 18.
1893, 396, § 33.
1895,234, § 3.
R. L. 193, § 16.
168 Mass. 445.
171 Mass. 292.
Section 16. The court may thereupon order notice thereof return-
able at such time and to be served in such manner as it may direct, and
may issue a stay or supersedeas of an execution issued on such judgment
and an order for a return thereof with a certificate of the proceedings
thereon. Upon the hearing of such petition, the court may vacate such
judgment, and dispose of the case as if the judgment had not been
entered.
Bond.
1875, 33.
P. S. 187,
§§ 19,39.
1888, 405, I 3.
1893, 396, § 33.
1895, 2.34, § 4.
R. L. 193, § 17.
148 Mass. 596.
131 Mass. 321.
156 Mass. 359.
161 Mass. 301.
179 Mass. 107.
187 Mass. 468.
231 Mass. 409.
Section 17. Except as hereinafter provided, the petitioner shall,
before judgment is vacated under such petition and before execution
is stayed or superseded, give bond to the adverse party with security
approved by the court, conditioned, if the obligor is the prevailing party,
that if final judgment shall be thereafter rendered for the obligee, the
obligor shall pay his costs and, if the obligee is the prevailing party, that
if the judgment is not vacated on said petition, the obligor shall satisfy
said judgment and all costs accrued on any execution issued thereunder,
and that if it is so vacated, he shall satisfy the execution that shall issue
in favor of the obligee on any judgment thereafter rendered in said
action, or if a special judgment shall be entered in favor of the obligee in 11
accordance with section twenty-six of chapter two hundred and thii-ty- 12
five, he will pay to the plaintiff within thirty days after the entry of 13
such judgment the amount for which it shall be entered. 14
Judgment va-
cated without
security, wlien.
1882, 249.
1895, 234, § 5.
R. L. 193, § IS.
187 Mass. 468.
231 Mass. 409.
Section 18. If the petitioner had no actual knowledge before the
judgment was entered that the action was pending against him and
there was no attacliment of property in the original action, the judgment
may be vacated and the execution stayed or superseded without se-
curity; but if there was such attachment, the amount of the bond shall
be fixed at the actual value of the property attached, as agreed upon by
the parties or as determined by the court upon a summary hearing after
notice to the adverse party.
Chap. 250.] wtiits ob^ review. 2619
1 Section 19. The court may impose costs or terms upon either party Terms on
2 to a motion or petition to vacate a judgment. petitioner.
187.5.3.3. P. S. 187, §19. 1895, 234, §6. R. L. 193, § 19.
1 Section 20. The hability upon an attachment made, bond given or Disch.-ii-ge of
2 bail taken in the original action shall not continue after the original bond,™™''
3 judgment has been vacated, except that if a judgment is vacated under vacated'.'^'""'"'
4 section fourteen within thirty days after the entry thereof, such liability p^'tf'flj ^ 20
5 shall, if a subsequent judgment is rendered, continue during such time J^^l' wi'llo
6 thereafter as it would have continued upon the original judgment had I'-i Mass.' 301. '
„ ., , , , , ^ fe J O 226 Mass. 14.
I it not been vacated.
WRITS OF REVIEW.
1 Section 21. If judgment is rendered, as provided in chapter two writ of review
2 hundred and twenty-seven, upon the default of a defendant upon whom ilss-pf 10, § s.
3 service has not been made by reason of his being out of the commonwealth Jgf 7' If
4 or by reason of his residence being unknown, he may, within one year r^|'|.?'5 4.
5 after the judgment, as of right and without any petition therefor, take 99. § 1? '
6 a writ of review out of the court in which the judgment was rendered. p. s.' isi,' § 21.'
1895, 234, § 8. 3 Gray, 508, 104 Mass. 367.
R. L. 193, § 21. 4 Allen, 94. 165 Mass. 238.
1 Section 22. After the entry of final judgment in a civil action, the writ of review
2 court in which the judgment was entered may, upon petition, grant a c\ l" i52,'''§°i';
3 writ of review. If judgment was rendered in the absence of the petitioner f 701-2^6. 5 1.
4 and without his knowledge, the petition shall be filed within one year jl?^; || | \-
5 after the petitioner first had notice of the judgment; otherwise, within JZ?!??'^ ^■
6 one year after the judgment was rendered. In the supreme judicial §§ 1-3. '
7 or the superior court, the petition shall be filed in the county where the §§ 2,'3. '
8 judgment was entered. igi7, ss. 1822, 61.
R. S. 92, § 5; 10 Gray, 92. 147 Mass, 240.
99, §§ 18-20, 26-28. 8 Allen, 23, 568. 151 Mass. 17.
1852, 126. 104 Mass. 367. 155 Mass. 581.
G. S. 146, |§ 21, 21. 106 .Mass. 514. 157 Mass. 306.
P. S. 187, §§ 22, 25. Ill Mass. 2S1. 164 Mass. 239.
1893, 396. § 33. 114Mass.54. 165 M.ass. 234. 238.
1895, 234, §9. 116 Mass. 313. 169 Mass. 167.
R. L. 193, § 22. 117 Mass. 291. 170 .Mass. 360.
1917. 326. 126 Mass. 523. 1S2 Mass. 443.
14 Mass. 360. 135 Mass. 122. 218 Mass. 495.
19 Pick. 60. 136 Mass. 416. 220 Mass. 137.
1 Met. 288. 140 Mass. 421. 235 Mass. 114.
3 Gray, 136, 415. 146 Mass. 465. 205 U. S. 141.
1 Section 23. After the filing of the petition for a writ of ^e^•iew, the order of
2 court may order notice thereof returnable at such time and to be served si?pe'rsed''eas.
3 in such manner as it directs, and may issue a stay or supersedeas of an \lllzl[ \l[ | };
4 execution on such judgment and an order for the return thereof to the §; |; jlisf §^22.
5 court with a certificate of the proceedings thereon.
1875, 33. P. S. 187, §§ 18, 23. 1S95, 234. § 10. R. L. 193, § 23.
1 Section 24. Except as hereinafter provided, the petitioner for a Bond.
2 writ of review shall, before execution is stayed or superseded, give bond 1751-2! 11', § l
3 to the adverse party with security approved by the court, conditioned §|*i'';|,''6.
4 that if a writ of review is not granted the obligor shall satisfy the judg- Jf 'J'||-
5 ment originally entered and all costs accrued on any execution issued §§ 12. 22, 23^^
6 thereon, and that if a writ of review is granted, he will forthwith prose- i.sVs, 33,'
7 cute a review to final judgment and will satisfy such execution as may be p.'s. is7.
8 issued against him on the review, or if a special judgment shall be entered i,s,ss!'4'u5, § 3.
9 against him under section twenty-six of chapter two hundred and thirty- ^^l[ 193; 1 2!;
2620
■n-RITS OF RE-\TE-U'.
[Chap. 250.
10 Allen, 346,
14 Allen, 66.
five, he will pay to the plaintiff within thirty day.s after the entry of 10
108 Mass. 356. gucli judgment the amount for which it shall be entered. 11
111 Mass. 2/9. J r?
118 Mass. 470.
148 Mass. 562.
Supersedeas
without secu-
rity, when.
1895. 234, § 12.
R. L. 193, § 25.
Section 2.5. If the petitioner had no actual knowledge before the
judgment was entered that the action was pending against him and
there was no attachment of property in the original action, the execution
may be stayed or superseded without security; but if there was such
attachment, the amount of the bond shall be fixed at the actual value of
the property attached, as agreed upon by the parties or as determined
by the court upon a summary hearing after notice to the adverse party.
Except as provided in this and the preceding section, the execution shall
not be stayed or superseded by the W'rit of review.
1788? n. 5 5. Section 26. The court may grant a vrcit of review upon terms and if 1
Q- 1; ?46,\^22. t^^ review is not granted may impose costs. 2
1875,33. P. S. 187, §19. 1S95, 234. § 13. R. L. 193, § 26.
Writ of re-
view, how and
when sued out.
1701-2,6, § 1.
1788, 11,
§§1,3.
1791,17,152,3.
Section 27. The writ of review shall be sued out within three months
after the order granting the petition; otherwise, such order and any
stay or supersedeas previously ordered in the proceedings shall be thereby
vacated and the original judgment shall be in full force.
p. S. 187. § 26.
1895, 234, § 14.
R. L. 193, § 27.
1822, Gl.
R. S. 99, §
G. S. 146,
148 Mass. 562.
163 Mass. 528.
226 Mass. 126.
Form of writ
of review.
R. S. 99, § 3.
G. S. 146, § 26.
P. S. 187, § 27.
1895, 234, § 15.
R. L. 193, § 28.
Section 28. It shall not be necessary to recite at length the decla- 1
ration and other proceedings in the original action, but the form of writ 2
of review shall be substantially as follows : 3
Summon A to answer B in the re\iew of an action of contract (tort or reple\an),
brought by said A against said B, in whicli action said A by the consideration of
the justices of our coui-t, held at C wthin and for our said county of M on the
day of , recovered judgment against said B for the
sum of doUars, debt (or damages), dollars, costs, which
judgment said B says is 'WTong and erroneous.
Or the former judgment maj' be briefly described in any manner 4
provided by the rules of the courts. 5
Senaceof SECTION 29. The Writ shall be served in the same manner as an
178666^^' ^ "' original writ, except that if the defendant is not an inhabitant of the
179V so' 5 2 commonwealth, or is not found therein, it may be served on the person
R.s.'99,'§5^ who appeared as his attorney in the original action, and the court may
p.' s.' 187,' § 29.' continue the case to enable the absent party to appear and answer.
1895, 234, § 17. R. L. 193, § 30.
Section 30. If the writ is sued out by the original plaintiff, the de-
fendant's ffoods and estate mav be attached as they might have been
Attachment
on writ.
R. S. 99.
§§ 6, 12. .
g|- ".9'| 29- in the original action, and for this purpose the writ of review may be so
iS9"5. 234, § 18. framed as to require an attachment in the common form, and that the
defendant be summoned. An attachment made, bond given or bail taken
in the original suit shall not be held to satisfy the judgment on the
review.
Procedure
upon joinder
of issue.
R. S. 99, § 7.
Section 31. If an issue of fact was joined in the original action, 1
the case shall be tried on the review upon the same issue, unless the court 2
Chap. 251.]
ARBITRATION.
2621
■3 allows such amendments of the original pleadings by either party as g, s. hh, § .^o.
4 might have been allowed in the original action. ' ' ^*^' ^^'
1S95, 234, § IB.
K. L. 103, § 32.
7 Mass. 472.
3 Cush. 3S1.
3 Grav, 415.
117 Mass. 291.
1 Section 32. If judgment in the original action was rendered without Procedure
2 a joinder of issue, the parties shall plead or answer upon the review joinder of issue.
3 in like manner as they might have done in the original action, and the i7S6,cii, §2. '
4 cause shall be tried upon any issue of fact or law joined upon such plead- r^^I' *^
5 ings or answer.
p. S. 1S7, § 32.
1895, 234, § 20.
G. S. 146, § 31.
R. L. 193, 5 33.
99,
8,9.
S Cush. 299.
1 Section 33. Judgment shall be given upon the review as the merits judgment
2 of the case upon the law and the evidence require. If the amount re- nio-i!"!."'
3 covered by the plaintiff in the original action is reduced on the review, sj'l?.'!,'''
4 the original defendant shall have judgment and execution for the differ- \l^f ^l § *•
5 ence, with costs; or, if the former judgment has not been satisfied, one IVfo^ji ,.
6 judgment may be set off against the other, and an execution issued for g. s. 'iw.
&S "iO "iS
7 the balance. If the original plaintiff" recovers a greater amount than was p. s.'i87,'
8 awarded to him in the original action, he shall have judgment and execu- is95,'234,
9 tion for the excess. r. l. 193, §34. 19 Pick. go. §§21,23.
11 Met. 266.
3 Allen, 472.
5 Allen, 582.
117 Mass. 281.
133 Mass. 587.
151 Mass. 321.
1 Section 34. The prevailing party shall recover costs unless the Costs.
2 court in granting the review otherwise orders. ^'^ '
1788,11, §5. G. S.Hfi, § 33. R. L. 193,
1817,85.
R. S. 99, § 11.
G. S.Hfi, § 33.
P. S. 187, § 34.
1895, 234, § 22.
I 35.
11 Met. 266.
133 Mass. 587.
Section 35. In actions of replevin and in actions in which a set-off f/°et^n'etc
is filed, the original defendant shall be considered, relative to everything S |'- jffi^s'l-
contained in sections twenty-one to thirty-six, inclusive, as a plaintiff p'.'s.'is7,'§36.'
in other actions, so far as respects any damages awarded to him either r. £'. 193', § se.
in the original action or upon the review.
1 Section 36. If judgment was recovered against several defendants One of several
2 in the original action, one or more of them may review in like manner as ruirrevw
3 if he or they had been the only defendants, and if the amount recovered 55'f.:6.'^'
4 in the original action is increased or reduced, the court shall make such jf '|'||
16.
5 order as will carry into effect the two judgments according to the rights p'iliS'liy'
6 of all parties. isos, 234, § 25. r. l. 193, § 37.
CHAPTER 251.
ARBITRATION.
Sect.
1. Submission of controversies to arbi-
tration.
2. Form of agreement.
3. Statement of specific demands.
4. Effect of agreement to submit all de-
mands.
5. Limit of time for making award.
6. Revocation of submission. Hearing
ex parte.
Sect.
7. Hearing by all the arbitrators, but
award by majority.
8. Award to be returned into court.
9. Proceedings upon such return.
10. Powers of court relative to award.
11. PajTnent of costs, expenses, etc.
12. Appeal and writ of error.
13. Fees of justice, etc.
2622
ARBITRATION.
[Chap. 251.
Submission of
controversies
to arbitration.
R. S. 114, § 1.
G. S. 147. § 1.
Section 1. Controversies which might be the subject of a personal 1
action at law or of a suit in equity may be submitted to the decision of 2
one or more arbitrators, as provided in this chapter. 3
p. S. 188, § 1.
R. L. 194, § 1.
8 Mass. 1.
2 Gray, 407.
13 Grav. 298.
113 Mass. 67.
119 Mass. 490.
140 Mass. 508.
152 Mass. 41G.
184 Mass. 534.
192 Mass. 517.
232 Mass. 267.
Form of
agreement.
1786, 21, § 1.
R. S. 114, § 2.
G. S. 147, § 2.
1863, 157, § 2.
P. S. 188, § 2.
1899, 178. § 5.
R. L. 194, § 2.
20 Pick. 480.
6 Cush. 108.
10 Cush. 114.
8 Gray, 425.
4 Allen. 17.
100 Mass. 319.
101 Mass. 359.
113 Mass. 67.
179 Mass. 261.
Section 2. The parties shall appear in person or by their lawful 1
agents or attorneys before a justice of the peace or special commissioner 2
and shall there sign and acknowledge an agreement in substance as 3
follows: 4
Know all men that ,
of , and , of
, hereby agree to submit the
demand, a statement whereof is hereto annexed, (and all other demands between
them, as the case may be,) to the determination of and
, the award of whom, or of a majority of whom,
being made and reported within one year from this day to the superior court for the
county of , the judgment thereon shall be final; and
if either of the parties neglects to appear before the arbitrators, after due notice given
to him of the time and place appointed for hearing the parties, the arbitrators may
proceed in his absence. Dated this day of in
the year
The justice or special commissioner, either of whom may be one of
the arbitrators, shall annex to the agreement a certificate, in substance as
follows :
ss. . Then the above named and
personally appeared, (or the above named
personally, and said by ,
his attorney, appeared, as the case may be,) and acknowledged the above instrument
by them signed to be their free act. Before me,
Justice of the Peace (or Special Commissioner).
Statement of
specific
demands.
R. S. 114. § 3.
G. S. 147, § 4.
P. S. 188, § 3.
R. L. 194, § 3,
Section 3. If a specific demand is submitted to the exclusion of
others, it shall be set forth in the statement annexed to the agreement;
otherwise it shall not be necessary to annex any statement of a demand,
and the submission may be of all demands between the parties or of
all demands which either has against the other. The submission may
be varied in this respect in any other manner, according to the agreement
of the parties.
Effect of
agreement to
submit all
demands.
R. S. 114, § 4.
Section 4. An agreement to submit all demands shall include only 1
such as might be the subject of a personal action at law or of a suit in 2
equity. G. s. 147, § 3. p. s. iss, § 4. r. l. 194, § 4. 3
Limit of time
for making
award.
R. S. 114, 5 6.
G. S. 147, § 5.
P. S. 188, § 5.
R. L. 194, § 5.
13 Gray, 300.
4 Allen, 17.
Section 5. The time within which the award shall be made and re-
ported may be varied according to the agreement of the parties, but no
award made after the time fixed by the agreement shall have any legal
effect, unless made upon a recommitment by the court to which it is
reported. l** Mass. les. 153 Mass. 361.
Revocation
of submission.
Hearing
ex parte.
R. S. 114, § 5.
Section 6. Neither party may revoke the submission without the 1
consent of the other; and if cither neglects to appear after due notice, 2
the arbitrators may hear and determine the cause ex parte. 3
G. S. 147, § 6. P. S. 188, § 6. R. L. 194, § 6. 221 Mass. 518.
Chap. 2.51.] arbitration. 2623
1 Section 7. All the arbitrators shall meet and hear the parties, but bearing by
2 an award by a majority of them shall be valid, unless the concurrence arbitrators,
3 of all is expressly required in the submission. by'maiority.
R. S. lU, § 11. P. S. 188. § 7. 113 Mass. 67. 148 Mass. 367.
G. S. 147, § 7. R. L. 194, § 7. 135 Mass. 26. 221 Mass. 518.
1 Section S. The award shall be delivered by one of the arbitrators Award to be
2 to the court designated in the agreement, or shall be enclosed and sealed cou"™*"* '°'°
3 by the arbitrators and transmitted to the court, and shall remain sealed j^'^g' fi\ 1 7;
4 until opened by the clerk. g. s. 147, 5 s.
p. S. 188, § 8. R. L. 194, § 8. 119 Mass. 489. 158 Mass. 69.
1 Section 9. The award may be returned at any time limited in the Proceedings
2 submission, and the parties shall attend without any express notice for re'tmn.""''
3 that purpose; but the court may require actual notice to be given to §! I il?! i 9°'
4 either party before it acts upon the award. p. s. i88, § 9.
R. L. 194, § 9. 5 Met. 2S7. 144 Mass. 165. 153 Mass. 361.
1 Section 10. The court shall have cognizance of the award in the Powers of
2 same manner, and may proceed thereon, as if it had been made by to'award^'"''
3 referees appointed by a rule of court, and may accept, reject or recommit r*|; i}4^ ^'
4 it to the same arbitrators for a rehearing. When accepted and con- ^^ | ^-^^ ^ j^
5 firmed by the court, judgment shall be rendered thereon as upon a like p- s. iss,' § lo.
6 award by referees. i Cush. 389.
11 Gush. 549. 115 Mass. 40. 130 Mass. 74.
4 Allen, 20. 119 Mass. 490. 143 Mass. 316.
6 Allen, 333. 121 Mass. 150. 151 Mass. 279.
106 Mass. 365. 123 Mass. 129, 152 Mass. 416.
109 Mass. 306. 190, 652, 587. 179 Mass. 261.
1 Section 11. If there is no provision in the submission relative to Payment of
2 costs and expenses, the arbitrators may make an award relative thereto, p^'^esretc.
3 including compensation for their own services; but the court may reduce §_ | \lf^ | \j[
4 the charge for compensation.
P. S. 188. § 11. 113 Mass. 67. 147 Mass. 282.
R L. 194. § 11. 135 Mass. 26. 153 Mass. 361.
1 Section 12. An appeal founded on matter of law apparent upon Appeal and
2 the record shall be allowed from any order or judgment of the superior i79\,°42^'^""^'
3 court on an award made under this chapter; or a party aggrieved may § I }J*' | }?■
4 bring a writ of error for any error in law or fact as in other cases. The g f^ \^^- 1 J^.
5 supreme judicial court shall thereupon render such judgment as the io6 Mass! 365.
6 court below ought to have rendered.
1 Section 13. The fees of the justice or special commissioner for the Fees of justice,
2 agreement of submission and acknowledgment shall be forty cents, lyge, 21, § 2.
3 and the fees in court shall be the same as for like services relative to an g; |; }J|; | J|;
4 award made under a rule of court.
p. S. 188, I 13. 1899. 178, § 6. R. L. 194, § 13.
REFERENCES.
Arbitration, under insurance policies of losses by fire, Chap. 175, §§ 100, 101.
in probate court of demands for and against estate, Chap. 204, §§ 13, 14.
of claims against insolvent estates of deceased persons. Chap. 198, § 14.
as to debts due to executor or administrator personally, Chap. 197, § 6.
in insolvency. Chap. 216, § 67.
2624
IMPROVEMENT OF LOW LAND AND SWAMPS.
[ClLiP. 252.
CHAPTER 252.
IMPROVEMENT OF LOW LAND AND SWAMPS.
Sect.
IMPROVEMENT OF LOW LAND.
1. Improvement of low land, etc.
2. Drainage board; members to receive
no compensation.
3. Investigation by drainage board ; annual
report.
4. Survey by board and co-operation by
the United States.
5. Petition to the board; appointment of
district drainage commissioners and
their compensation.
6. Formation of drainage district.
7. Petition to county commissioners to
bear expense in the first instance.
Provision for raising money therefor.
8. Powers and duties of the commission-
ers; acquiring or taking of land, etc.,
and recovery of damages therefor.
9. No prescriptive right to additional
water power or water supply, etc.
10. Proceedings when commissioners in-
tend to do certain acts on land of
person not a party.
Sect.
11. Payment of expenses by the county.
12. Commissioners to make returns to the
assessors.
13. Commissioners to fix amounts due
from towns; appeal.
14. Method of collecting money due from
towns.
construction of ro.^ds, etc., to sw.\mps,
ETC.
15. Roads to swamps and quarries.
16. Petition and security.
17. Notice of petition.
18. Lajing out, taking and damages.
19. .'Assessment of benefits.
20. Repairs.
21. Petition to mayor and aldermen or
selectmen.
22. Fees.
23. Appeal to county commissioners.
Improvement
of low land,
etc.
1702. 11. § 1.
1795, Ii2. § 1.
R. S. 115. § I.
G. S. 148, § 1.
IMPKOVEMENT OF LOW LAND.
Section 1. If it is necessary or useful to drain or flow a meadow,
swamp, marsh, beach or other low land held by several proprietors, or
remove obstructions in rivers or streams leading therefrom, such im-
provements may be made as provided in the thirteen following sections.
p. S. 189. §1. 16 Gray, 417.
R. L. 195. 5 1.
1918, 289. § 1.
148 Mass. 1.
154 Mass. 579.
114 U. S. 606.
3 Op. A. G. 538.
Drainage
board ;
members to
receive no
compensation.
1918. 280, § 2.
1919, 350,
§§34.90.
Section 2. One member of the department of public health desig-
nated by it, and one member of the department of agriculture designated
by it, shall constitute the drainage board, in the twelve following sec-
tions called the board. Members thereof shall receive no additional
compensation.
Investigation
by drainage
board; annual
report.
1917,212, § 1.
1918, 289, § 2.
1919. 98.
Section 3. The board may investigate the question of utilizing the
wet lands, including meadows, swamps, marshes, beaches and other low
lands, and may ascertain what lands, if any, may advantageously be
drained for agricultural or industrial uses, the protection of the public
health, the utilization of deposits therein, or for other purposes. It may
publish and disseminate facts of general interest ascertained in the con-
duct of any such investigation, and may make and publish sur\-eys of
tracts of land in need of drainage, showing their situation, areas and
outlets, the best methods and the cost of draining them, the uses to
which they are best adapted, and such other details as it deems advisa-
ble. It shall make an annual report.
IG.
ass. 5S3,
Chap. 252.] improvement of low land and swamps. 2625
1 Section 4. In carrying out the provisions of sections one to fourteen, Survey by
2 inclusive, the board shall seek the co-operation and assistance of the cooperation
3 United States department of agriculture, and may employ necessary states."'"""'
4 engineers, assistants or other agents, who may enter on land wliich the Jgjg' |gg' 1 1-
5 board desires to survey or examine. 1919, 98.
1 Section 5. The proprietors, or a majority in interest either in value Petition to the
2 or area, may petition the board setting forth their desire to form a drain- pofnuiSt of
3 age district as provided in the following section, stating the proposed drlVnage com-
4 name of said district, the necessity for the same, with a description ^^^Tom-^"^
5 of the proposed starting point, routes and termini of the work and a 5'|S|''\'J°-
6 general description of the lands proposed to be affected, together with §§ i.'z. '
7 the names of known owners of said lands. And if the purpose of such §§ i.'s, 4.
8 proprietors is the repair and maintenance of ditches or other work there- f§ 2^.'f6, 13.
9 tofore constructed under any law of the commonwealth, the petition shall §| f ; "f ; jo.
10 give a general description of the same with such particulars as may be IfSe'llg
11 deemed important. Upon the receipt of said petition the board shall fjfg*!' ,o
12 proceed, at the expense of the commonwealth, to make such surveys of R. l. I'os',
13 the land proposed to be drained as it shall deem necessary, and shall lois, 2S9',
14 further ascertain by such surveys or other investigations the need of llg'A
15 any drainage required for the benefit of the public health, agricultural
16 and other uses to which the land can be put after drainage, and its value
17 for such uses after drainage, and in general the advisability of under-
18 taking the proposed drainage or maintenance, and shall make recom-
19 mendations in relation thereto, including a statement of what portion,
20 if any, of the expense should be borne by the commonwealth on account
21 of the cost of that part of the improvement relating to the public health;
22 and if the board approves of the undertaking, it shall issue a certificate
23 appointing three, five or seven district drainage commissioners, who shall
24 be sworn to the faithful performance of their duties, and fix their com-
25 pensation, which shall not exceed five dollars a day, while in conference,
26 and their necessary traveling expenses while performing their duties, and
27 authorize said commissioners to form a drainage district under the fol-
28 lowing section. Any such commissioner may be removed by the board
29 for cause. For the purposes of this and the nine following sections, a
30 mortgagor or mortgagee in possession shall be deemed a proprietor.
1 Section 6. The district drainage commissioners, in the eight follow- Formation
2 ing sections called the commissioners, after being sworn, shall call a dLt^kt""^^
3 meeting of the proprietors of the land to be improved by giving, in such i^'S'^so. § •'>-
4 manner as the board may order, a notice to each known proprietor, signed
5 by the commissioners and setting forth the time and place of the meeting
6 and the purpose of organizing under sections four, eight and nine of
7 chapter one hundred and fifty-eight a drainage district to carry out the
8 proposed improvements and maintenance.
1 Section 7. The commissioners, after the certificate of organization Petition to
2 of such district has been issued by the state secretary, shall petition the mi^s'ime°s"to
3 county commissioners of the county where the greater part of the land hl^thrtrer'
4 lies, annexing a certified copy of the petition under section five and of p*^v"s^on for
5 the determination of the board thereon, and shall request the county Jf^efor™""^^
6 commissioners to vote to pay in the first instance the total expense in- i8i8,2sb,
7 volved in making the improvements found by the board to be for the 1920,330.
2626
IMPROVEMENT OF LOW L.\ND AND SWAMPS.
[CILA.P. 252.
general advantage of the proprietors, except that part of the expense 8
determined by the board to be for the pubHc heaUh which shall be paid 9
by the commonwealth, and the said county commissioners may so vote. 10
To defray any expense incurred by said county commissioners under 11
such vote, the county may issue registered bonds to an amomit not ex- 12
ceeding such expense, payable in not more than twenty years from their 13
date of issue and bearing interest at a rate to be fixed by the comity 14
treasurer with the approval of the county commissioners, payable semi- 15
annuallv on the first davs of Januarv and Julv. 16
Powers and
duties of the
commissioners;
acquiring or
taking of land,
etc., and re-
covery of
damages
therefor.
1702, 11, § 4.
1745-6, 10,
§§2,4.
1795, 62.
§§ 1,5,6.
R. S. 115,
§1 5, 6, 15-17.
G. S. 148,
§§4,5, 14-16.
P. S. 189, §§ 4,
S, 14, 16, 17.
1885, 384, § 5.
R. L. 195,
§§ 4, 5, 14,
1918, 289,
§§9. 12.
11 Met. 321.
, 16.
Section S. If the seven preceding sections have been complied with
and the county commissioners of the county where the greater part of
the land lies have voted to pay in the first instance the total expense of
the proposed improvement, except such as is to be borne by the com-
monwealth, the district drainage commissioners shall carry out the im-
provement in a manner approved by the board and for that purpose may
employ suitable persons to perform the work under their direction. They
may take in the manner provided by chapter seventy-nine on behalf of
the drainage district, or acquire by purchase or otherwise, and hold all
lands, easements and rights in land within the drainage district necessary
to eft'ect the improvement, as approved by the board. Any person dam-
aged in his property by any such taking may recover his damages in the 12
manner pro^uded by said chapter from the comity where the greater part 13
of the land improved lies. 14
111 Mass. 454. 3 Op. A. G. 538.
1
2
3
4
5
6
7
8
9
10
11
No prescriptive
right to ad-
ditional water
power or water
supply, etc.
1918,289, § 11.
Section 9. No person obtaining an additional water power or water
supply by the doing of any work contemplated by sections one to fourteen,
inclusive, shall gain a prescripti^'e right to the use thereof, nor be en-
titled to any compensation for the taking thereof under said sections by
the remo\'al of any dam or flashboards or by the changing of the height
or dimensions of any dam.
Proceedings
when com-
missioners in-
tend to do
certain acts
on land of
person not a
party.
1745-6, 16,
§§1.4.
1795, 62, § 5.
R. S. 115,
§§ 14, 18.
G. S. 148,
§§ 13, 17.
P. S. 189,
§§ 13, 15.
1885, 384, § 5
R. L. 195,
§§ 13, 15.
1918, 289,
§§ 17, 18.
Section 10. If the commissioners find it necessary or expedient to
lower or raise the water to obtain a x'lew of the land or for the more con-
venient or expeditious removal of obstructions, they may open the flood
gates of any mill or make other needful passages tlirough or around the
dam thereof, or erect a temporary dam on the land of a person not a party
to the proceedings, and may maintain such dam or passages as long as
necessary for such purposes; but before so doing, they shall give to such
person reasonable written notice of their intention. If such person ap-
peals from their decision and gives reasonable written notice thereof to
any commissioner, the commissioners shall suspend all proceedings upon
his land until such appeal is determined; provided, that the petition 11
therefor is entered in the superior court for the county where the greater 12
part of the land improved lies not later than the next return day after 13
the expiration of seven days from the time of giving such notice. 14
9
10
Payment of
expenses by
the county.
1795, 62, § 3.
R. S. 115, § 11.
G.S. 148, § 10,
P. S. 189, § 10.
Section 11. The commissioners shall make returns to the county
commissioners of the county where the greater part of the land lies of
their doings and expenditures under sections one to fourteen, inclusive,
and, after approval by the county commissioners, may draw on the
Chap. 252.] improvement of low l.vnd and swamps. 2627
5 county treasurer at proper intervals for sums not exceeding ninety per r. l. las, § lo.
6 cent of such expenditures up to tlie time of draft, and upon the completion
7 of the improvement for the balance thereof.
1 Section 12. The commissioners as soon as the improvement is Commissioners
2 completed shall make a return to the assessors of each town where the tSrns^to the
3 land impro\ed lies containing the names of the owners and occupants of iln'llfe?, § 3.
4 such land in said town and the amounts of such land belonging to and g |- J]|' | }J-
5 occupied by said owners and occupants.
p. S. 1S9, I 10. R. L. 195, I 10. 1918, 289, § 13.
1 Section 13. The commissioners shall, after due notice and a hear- Commissioners
2 ing, determine what proportion of the total expense of the improvement, due from°"°*^
3 of the cost of maintenance of drains and ditches and of the payment for i702.''iit'"'^*'"
4 works or structures taken or otherwise acquired in connection therewith, fl^'^l jg s 4
5 except such as is to be paid by the commonwealth, shall be paid by each JP|-g-'
6 town where anv of the land improved lies, and shall return their award R. s'. 115,
7 to the board, which shall, upon acceptance thereof, send a copy thereof 17.
8 to each such town. Any such town aggrieved by such award may, by §§ &-s,^i5,
9 petition joining all the other such towns as party respondents, appeal to p'g jgg
10 the superior court for the county where the greater part of the land im- || ^^- ^^■
11 proved lies; provided, that such petition is entered not later than the jf^L'igs'^^*
12 next return dav after the expiration of thirtv davs from its receipt of said §§ 6^8. 16.
• * .^*'. . 1918 289
13 copy. Questions of fact shall, upon motion of either party, be tried by §§ 6,'7, 13, 19.
14 jury in such manner as the court orders. The court may affirm, reverse
15 or alter the award, and the decision of the court shall take effect as an
16 original award. The board shall forthwith send to the county commis-
17 sioners of the county where the greater part of the land lies a copy of the
18 award as finally determined. The sum so ascertained to be due from any
19 such town shall be paid by the treasurer thereof to said county in not
20 exceeding twenty equal annual instalments to be collected in the same
21 manner as taxes.
1 Section 14. The assessors of each such town shall divide the sum Method of
2 ascertained to be due from their town under the preceding section, among money due
3 the various parcels of land therein which are within the drainage district ^"(Jo.'iTTi-
4 and are benefited by the improvement in proportion to the special benefit ji'^l'ffs^ ^"
5 received by each such parcel therefrom and shall assess the same in the |,^r?-.c
6 same manner as betterments are assessed under chapter eighty. The §§Vs.
7 provisions of said chapter relative to the apportionment, division, reassess- §§6^8.
8 ment, abatement and collection of assessments for betterments, and to f^^g'.®^'
9 interest, shall apply to assessments made under this section, except s^Met^l^o^ ^'
10 that such assessments shall be apportioned in twenty equal annual in- * '^''^y' is'^-
11 stalments or in such lesser number as the assessors may determine.
construction of roads, etc., to swamps, etc.
1 Section 15. A town or person owning low land, ponds, swamps. Roads to
2 c^uarries, mines or mineral deposits, which, on account of adjacent lands quJmM.*"
3 belonging to other persons or occupied as a highway, cannot be ap- cf^g." l°i; | /g.
4 preached, worked, cultivated, drained or used to advantage in the ^- 1; 'f^: Vi*?
5 ordinary manner without crossing such land or highway, may construct P/q,;^^"'
6 roads, drains, ditches, tunnels and railways thereto and, when the con- i9i9,'5.
2628
IMPRO\'EXIENT OF LOW L.UvD .\ND SWAMPS.
[CiLKF. 252.
1920, 2.
3 Allen, 7.
185 Mass.
186.
Petition and
security.
1855. 104,
§ 2.
G. S. 148,
§20.
P. S. 189,
§20.
R. L. 195,
§ 18.
1918.257.
§ 197.
1919,5.
1920, 2.
striiction of such improvements is required by public convenience and 7
necessity, may take the land of such other persons for the location of 8
such improvements as hereinafter provided. 9
Section 16. A party desiring to make such improvements shall file 1
a petition therefor with the county commissioners for the county where 2
the greater part of the land lies, setting forth the names of the persons 3
interested, if known to the petitioner, and also in detail the nature of 4
the proposed improvement and the situation of the adjoining land. The 5
petitioner shall give such county security satisfactory to the commis- 6
sioners that he will indemnify such county from all damages and charges 7
which it is obliged to pay by reason thereof. 8
Notice of
petition.
1853, 104. § 3.
G. S. 148. § 21.
P. S. 1.S9, § 21.
R. L. 195, § 19.
1918, 257,
§ 198.
1919, 5.
1920, 2.
Section 17. The commissioners at their first meeting after the filing
of the petition shall order notice of the time and place of meeting, to
consider the petition, to be published once in each of tliree successive
weeks in a newspaper, if any, published in the county; otherwise, in a
newspaper published in an adjacent county. They shall also give notice
thereof to the clerk of each town where the land lies.
Laying out,
taking and
damages.
1855, 104, §
G. S. 148, §
P. S. 189, §
R. L. 195, S
1918. 257,
§ 199; 285.
1919,5.
1920, 2.
Section 18. If, after examination, inspection and a hearing, they 1
^ find that the improvements prayed for are required by the public con- 2
|2- venience and necessity they shall so lay out and establish the same as to .3
20. do as little injury as practicable, and if it is necessary to take private 4
property for such improvements may take it on behalf of such county 5
under chapter seventy-nine. Any person sustaining damage in his prop- 6
erty by the laying out or establishment of such improvements shall be 7
entitled to recover the same under said chapter. 8
Assessment
of benefits.
1855, 104, § 6.
G. S. 148. § 23.
P. S. 189, § 23.
R. L. 195, § 21.
1918, 257,
§200.
1919, 5.
1920, 2.
Section 19. The commissioners shall assess the amount awarded as
damages upon the persons for whose use the improvements are to be
made, in proportion to the benefit to be received by each ; but no person
shall be assessed an amount greater than the benefit to be received by
him. The provisions of chapter eighty relative to the abatement and
collection of betterments shall apply to assessments made under this
section.
i8^55*'i04. § 5. Section 20. If it is necessary to repair an improvement so made, a
p.' I.' 189,' 1 24.' majority of the persons benefited by it may cause such repairs to be made,
ills' 257' ^ ^^' ^""^ ™^y ^y "-"^'^ "^ equity compel contribution on the basis of the award
1 2oi. ' from the owner of each parcel of land for the use of which the improve-
1920^ 2. ment was made.
Petition to
mayor and
aldermen or
selectmen.
1857, 292,
§§1.3.
G. S. 148,
§§ 25, 26.
P. S. 189,
§§ 25, 26.
R. L. 195, 5
Section 21. If the land mentioned in section fifteen lies entirely in 1
one town, the petition may be made to the mayor and aldermen or select- 2
men thereof, who shall proceed thereon in all respects as above provided 3
for county commissioners, except that they need not give notice to their 4
town. Such petition shall be filed in the office of the town clerk before 5
23. proceedings are had thereon; and the petition with the order thereon 6
shall be recorded in said office within two months after the order has 7
been made. 8
ill?', 292, Section 22. The mayor and aldermen or selectmen shall each receive
G. s! 148, § 27. two dollars for each day's services upon such petition, and the town clerk
Ch.\p. 253.]
MILLS, DAMS AND RESERVOIRS.
2629
3 shall receive for recording a petition or order thereon the same fees as are p. s. is9, § 27.
4 provided for registers of deeds by section tliirty-eight of chapter two ■ • ■
5 hundred and sixty-two.
Section 23. A party aggrieved by the refusal of the mayor and ^ouP^I^'ooj.
aldermen or selectmen to make such order, may, within one year there- f^^'°2gl\ <,
after, petition the county commissioners, who shall thereupon proceed g.s.'i48,§2"8.
in all respects as though the petition had been originally filed with them. r. l. 195, 1 25.
1918, 257. § 202.
1919,5.
1920, 2.
CHAPTER 253.
MILLS, DAMS AND RESERVOIRS.
11.
12.
1.3.
14.
15.
16.
Sect.
mills and mill dams.
1. Erection of mill and dam.
2. Dam not to injure existing mill, etc.
3. Height of water, etc.
4. Petition for overflow, etc., of land.
5. Notice.
6. Pleadings and trial.
7. Jury.
8. .Assessment of damages ; judgment.
9. Jurj- to determine height of dam, etc.
10. Jury to assess annual and gross dam-
ages.
Petitioner may elect to take gross
amount.
Such amount to be paid within three
months.
Annual compensation if no election.
Lien on mill, etc., for payment of dam-
ages.
Action to recover damages and enforce
lien.
Sale on execution.
17. Right of redemption.
IS. Costs, etc.
19. Other remedies prohibited.
20. Existing mills and dams not affected,
except, etc.
21. Claim of new assessment.
22. Same subject.
23. Costs avoided by offer to pay in-
creased compensation.
24. Costs avoided by offer to accept
smaller compensation.
25. Offer to tenants.
26. Effect of acceptance of offer.
27. Verdict not to bar new petition, when.
28. Tender to stop costs.
29. Judgment upon acceptance of tender.
30. Who may join in petition.
31. Pleas in abatement.
32. New petition after abatement.
33. Petition when public way is to be
overflowed.
34. Notice.
35. Commissioners may order change of
grade, etc., of ways.
Sect.
36. Commissioners to assess damages.
37. Costs.
38. Order to be protection to petitioner.
CR.INBEKRT LAND AND ICE PONDS.
39. Dam to flow cranberry land.
40. Apportionment of expense.
41. Ice ponds.
D.IMS OF RESERVOIR CORPORATIONS.
42. Land flowed by reservoir corporation.
43. Security.
SAFETY OF RESERVOIRS AND DAMS.
44. Reservoir, etc., not to be constructed
or altered, until.
45. Examination of reser\-oir or dam.
46. Alterations or repairs.
47. Proceedings upon failure to comply
with such order.
48. Costs.
49. Acts of commissioners not to impair
liability, etc.
50. Jurisdiction.
REPAIRING AND REBUILDING MILLS AND
MILL DAMS.
51. Power of majority to repair, etc.
52. Meeting of proprietors.
53. Notice.
54. Proceedings.
55. Apportionment of expense of work.
56. Lien for such payment.
57. Proprietor under guardianship.
58. Apportionment of expenses between
tenant for life or years and re-
mainderman.
59. If proprietor has mortgaged his interest.
60. Tenant in tail.
61. Recovery of amount paid for repeiirs.
62. Contracts between parties.
MILLERS.
63. Millers to keep scales, etc.
G4. Toll.
2630
MILLS, DAMS ,VND RESERVOIRS.
[Chap. 2.53.
Erection of
mill and dam.
1795, 74. § 1.
R. S. 116. § 1.
G. S. 149, § 1.
MILLS AND MILL DAMS.
Section 1. A person may, as hereinafter provided, erect and main-
tain a water mill and a dam to raise water for working it, upon and
across any stream not navigable.
p. S. 190, § 1.
R. L. 196, § 1.
8 Cush. 113.
12 Allen, 89.
100 Mass. 241.
Ill Mass. 454.
154 Mass. 579.
225 Mass. 155.
113 U. S. 9.
Dam not to
injure existing
mill, etc.
R. S. 116, § 2.
1841, 18.
G. S. 149, § 2.
P. S. 190, § 2.
R. L. 196, § 2.
17 Mass. 289.
10 Pick. 348.
22 Pick. 312.
23 Pick. 216.
10 Met. 359.
2 Allen, 350,
355.
12 Allen, 80.
13 Allen, 10.
99 Mass. 480,
486, 488.
102 Mass. 463.
I(i2 Mass. 422.
177 Mass. 46.
Section 2. Such dam shall not be erected to the injury of a mill 1
lawfully existing above or below it on the same stream, nor to the injury 2
of a mill site on the same stream on which a mill or mill dam has been 3
lawfully erected and used, unless the right to maintain a mill on such 4
last mentioned site has been lost by abandonment or otherwise; nor 5
shall a mill dam be erected or raised to the injury of any such mill site 6
which has been occupied as such by the owner thereof, if, within a reason- 7
able time after commencing such occupation, he completes and puts in 8
operation a mill for the working of which the water of such stream is 9
applied ; nor shall a mill or dam be placed on the land of any person with- 10
out such grant, conveyance or authority from the owner as would be 11
necessary to con\-ey land. ise Mass. 89. 226 Mass. sse. 12
Height of
water, etc.
1795, 74, § 4.
R. S. 116, § 3.
G. S. 119, § 3.
Section 3. The height to which the water may be raised and the 1
period of time for which it may be kept up in each year may be determined 2
by jury. p. s. loo, § 3. 3
R. L. 196, § 3.
12 Met. 142.
4 Cush. 549.
7 Gray, 294.
113 Mass. 238.
142 Mass. 482.
Petition for
overflow, etc.,
of land.
1713-14,
15, § 2.
1795, 74, § 2.
1825, 109, § 2.
R. S. 116,
§§ 4, 5.
1840, 87, § 2.
G. S. 149,
§§4,5.
P. S. 190,
§§4,5.
R. L. 196, § 4.
1905, 259, § 1.
Section 4. The owner or occupant of land which has been overflowed 1
or otherwise injured by such dam may obtain compensation therefor if, 2
within three years thereafter, he files a petition in the superior court for 3
the county where the land or any part thereof lies describing the land 4
alleged to have been overflowed or injured and stating the damages 5
sustained so that the record will show with sufficient certainty the matter 6
heard and determined. If the land overflowed or injured is outside the 7
commonwealth such petition shall be filed in the superior court for the 8
county where the dam or any part thereof is maintained. 9 Pick. 62. 9
3 Met. 357.
10 Met. 203.
11 Met. 570.
12 Met. 182.
6 Cush. 170. 303.
13 Gray, 146,442.
16 Gray, 43.
2 Allen, 350.
10 Allen, 420.
12 Allen, 89. 455.
102 Mass. 458.
108 Mass. 160.
116 Mass. 138.
129 Mass. 292.
131 Mass. 337.
177 Mass. 46.
190 Mass. 143.
225 Mass. 155.
Notice.
1797, 63. § 1.
1824, 153, § 1.
R. S. 116,
§§ 6, 7.
G. S. 149,
§§6,7.
P. S. 190,
§§ 6, 7.
R. L. 196, § 5.
Section 5. Notice of the filing of such petition shall be given by an
officer qualified to serve civil process by delivering, fourteen days at
least before the return day thereof, to the owner or occupant of such
mill or dam, or leaving at his place of abode, or, if he is not found within
the commonwealth and has no place of abode therein, at the mill, an
attested copy of the petition.
Pleadings
and trial.
1797, 63, §
R. S. 116,
§§8,9.
G. S. 149,
§§8,9.
P. S. 190,
§§ 8,9.
Section 6. The respondent may answer in bar that he has a right 1
to maintain such dam, that the petitioner has no interest in the land 2
alleged to be flowed or injured or any other matter which may show 3
that the petitioner cannot maintain the petition; but he shall not answer 4
that the land described is not injured by the dam. If a plea or answer is 5
Chap. 253.] mills, daiis and reservoirs. 2631
6 filed, the subsequent pleadings and the trial shall be conducted as in an n. l. i96. § e.
_ ,. . 1 3 Mass. 1S4.
7 action at law.
6 Mass. 398. 12 Cush. 259. 7 Gray, 294. 16 Gray, 187.
10 Met. 37. 4 Gray. 581. 9 Gray, 177. 123 Mass. 301.
1 Section 7. If the respondent is defaulted or if the issue is decided {^Hi^^^
2 in favor of the petitioner, the case shall be tried by a jury; and, if either i5^| 2.^ ^
3 party requires it, the jury shall, under the direction of the court, view the i797i ea. § 3.
4 land alleged to be injured. isi?, 173.
1824, 153, § 2. G.S. 149, §§ 11, 13-15. R. L. 196, § 7.
R. S. 116, §§ 11, 13, 14. P. S. 190, §§ 11-13. 2 Cush. 341.
1 Section S. The jury shall assess the amount of damages sustained 0/^?™™';
2 within three years last preceding the filing of the petition and to the date {^'Jll^j^"'-
3 of their verdict, taking into consideration any damage caused by the is, § 3. '
4 dam to other land of the petitioner as well as the damage caused thereby 1824; 153,' § 3.
5 to the land overflowed ; and they shall also allow by way of set-off any r.^|.' ne,'
6 benefit caused thereby to the petitioner's land. Upon the acceptance ^^ s^lw,
7 and recording of their verdict, judgment and execution shall be issued in |>^ s'^ll\
8 accordance therewith. R. l. i96, § 8. §§ i*-i6-
17 Pick. 58. 102 Mass. 458. 131 Mass. 572.
16 Gray, 46. 108 Mass. 160. 162 Mass. 422.
2 Allen, 436. 113 Mass. 88. 177 Mass. 46.
1 Section 9. If it is alleged in the petition that the dam has been Jurytodeter-
2 raised to an unreasonable height, or that it ought not to be kept up and Sim. etc'.*
3 closed during the whole year, the jury shall determine by their verdict \IIq] /li.Vi.
4 how much the dam shall be lowered and whether it shall be left open, and, g; 1; J^®' | If
5 if so, during what part of the year. p. s. iqo, § n.
R. L. 196, §9. 113 Mass. 238. 142 Mass. 482.
1 Section 10. They shall also determine by their verdict what amount, ^^y tp assess
•in 1 • ■ 111 • J annual and
2 if any, to be paid annually to the petitioner, would be a just and reason- gross damages.
3 able compensation for the damages that may be thereafter caused by the is. § 2. '
4 dam, so long as it is used in conformity with the verdict; and also what Jslo! 122; f 2.
5 amount in gross would be a just and reasonable compensation for all §; |; J|g; | Jq:
6 damages thereafter to be caused by such use of the dam and for the right ^ t/fge^Vf^.
7 to maintain and use it forever as aforesaid.
110 Mass. 298. 131 Mass. 337.
1 Section 11. The petitioner may, within three months after the Petitioner may
2 verdict has been allowed and recorded, elect, by a WTiting filed in the gross amount.
3 clerk's office, to take the amount so awarded in gross, instead of such r^"!.' ii'o,' 1 26.
4 annual compensation.
G. S. 149, § 21. R. L. 196, § 11. 126 Mass. 458.
P. S. 190, § 19. 4 Met. 603. 131 Mass. 337, 572.
1 Section 12. The owner or occupant of the mill or dam shall, within Such amount
2 three months after such election, pay to the petitioner or secure to his within three
3 satisfaction said amount with interest from tiie date of the verdict, "sm! i'22, § 2.
4 After the expiration of said three months, and until pajTiient of said g; | }]!;; 1 1},-
5 damages and interest, such owner or occupant shall lose all benefit of R.t.'ige.Viz.
G the provisions of this chapter. 4 Cush. 245.
1 Section 13. If the petitioner does not within said three months make Annual com-
2 his election, as aforesaid, he and all persons claiming under him shall, no°ei'ection.
3 so long as the dam is kept up and maintained, be entitled to receive from r.^s.' ho, § 22.
2632
MILLS, DAMS .\ND RESERVOIRS.
[Chap. 253.
PI l*^- 1 |j3- the owner or occupant of the mill the annual compensation so established 4
R. L. 196, § 13. by the jury, unless the amount is increased or diminished upon a new 5
petition, as hereinafter provided. 6
Lien on mill,
etc., for pay-
ment of
damages.
R. S. 116, § 23.
G. S. 149, § 24.
P. S. 190, I 22.
R. L. 196, § 14.
Section 14. The person who is entitled to receive said annual com-
pensation or gross damages shall have a lien therefor, from the time of
the filing of the original petition, on the mill and mill dam with their
appurtenances and on the land under and adjoining the same and used
therewith; but such lien shall not extend to any amount due more than
tliree years before the commencement of an action therefor.
Action to re-
cover damages
and enforce
lien.
1713-14.
15, § 3.
1795, 74, § 3.
R. S. 116, « 24.
G. S. 149, I 25.
Section 15. Such person may recover, in contract in the superior
court from the person who owns or occupies the mill when the action
is brought, the whole amount due and unpaid for the three years last
preceding, and costs, although the amount recovered is less than twenty
dollars.
p. S. 190, § 23.
R. L. 196, § 15.
4 Met. 426.
10 Met. 359.
13 Met. 172.
4 Cush. 245.
2 Gray, 407.
108 Mass. 160.
Sale on
execution.
R. S. 116.
§§ 23, 26.
G. S. 149.
§§ 26, 27.
p. S. 190, § 24.
R. L. 196, § 16.
123 Mass. 183.
Section 16. The execution issued on such judgment, if not other-
wise satisfied, may, within thirty days after judgment, be levied on the
land so subject to the lien; and the officer may thereupon sell, in the
manner provided for the sale of land on execution, such land or so much
thereof as is necessary to satisfy the execution and the expenses of the
levy. Such sale shall be valid against any claim which has accrued
within the time covered by the lien.
Right of
redemption.
R. S. 116, 5 27.
G. S. 149, I 28.
P. S. 190, § 25.
R. L. 196, § 17.
Section 17. A person who is entitled to the land so sold may redeem 1
the same within one year after the sale, upon paying to the purchaser 2
or to the person holding under him the amount paid therefor, with interest 3
at the rate of twelve per cent a year. 4
Costs, etc.
1713-14,
15, § 4.
Section 18. The party prevailing upon such petition shall be entitled 1
to costs, except as otherwise provided. 2
G. S. 149, §§ 10, 32, 33.
P. S. 190. §§ 10, 27.
R. L. 196, § 18.
1795, 74. §§ 2,3.
1797, 63, § 4.
R. S. 116, S§ 10,31,32.
2 Met. 506.
2 Gray, 497.
2 Allen, 436.
Other remedies
prohibited.
R. S. 116, § 30.
G. S. 149, § 31.
P. S. 190, I 28.
Section 19. No action shall be maintained at common law for the 1
recovery of damages for the erection, maintenance or use of a mill or 2
mill dam, if a remedy therefor is provided in this chapter. 3
R. L. 196. 5 19.
12 Met. 142.
2 Allen, 350.
12 Allen, 89.
113 Mass. 235, 238.
225 Mass. 155.
Existing mills
and dams not
affected,
except, etc.
R. S. 116, § 28.
G. S. 149, § 29.
P. S. 190. § 29.
R. L. 196, § 20.
97 Mass. 402.
113 Mass. 235,
238.
Section 20. This chapter shall not, except as herein expressly pro- 1
vided, affect the right to keep up, maintain and use any lawfully existing 2
water mill and mill dam ; but if the owner or occupant thereof makes any 3
material change by raising the dam or by altering the machinery or the 4
manner of using the water, so as to cause additional damage to the land 5
of another, it shall be considered a new mill or dam, in respect to such 6
additional damage, and the remedy for compensation therefor shall be 7
substantially the same as in the case of a new dam. 8
Claim of new
assessment.
R. .S. 116, § 33.
G. S. 149, I 34.
Section 21. If either partj^ is dissatisfied with the annual compen- 1
sation established by proceedings upon a petition under this chapter or 2
Chap. 253.] mills, d.\ms and reservoirs. 2633
3 corresponding provisions of earlier laws, a new petition may be filed for p. s. i9o, § 3o.
4 the increase or diminution of such compensation or for ascertaining the ?Masi^2'ol."^'
5 gross amount of the damages, and the proceedings shall be conducted 3 Ull I57;
6 substantially in the manner provided for an original petition; but if a JloSMas's^sos
7 petitioner has declined to accept gross damages which have been awarded
8 to him, they shall not be again assessed within ten years thereafter.
1 Section 22. Such new petition may be maintained by and against ?2?l^|"4«S'-
2 either of the parties to the original petition or by and against a person 1799! vs.' § 3.
3 lawfully holding under either of them, but it shall not be brought until §§ 34, 35.'
4 the expiration of one month after the payment of the year last preceding 55' fj"!.'
5 was due. p. s. 190, § 31. r. l. i96, § 22.
1 Section 23. The owner of the mill or dam may, within said month. Costs avoided
2 offer in MTiting to the owner of the land any increase of said annual com- pay'inTreased
3 pensation; and if the owner of the land does not agree to accept it, but nggJ^Tsrl'i!''
4 files a new petition to obtain an increase, he shall pay the costs, unless §■ g Wl'^ | If
5 he recovers a greater annual compensation than was so offered. ^- 1; ^^a §32.
1 Section 24. The owner of the land may, within said month, offer in Costs avoided
2 writing to the owner of the mill or dam to accept a smaller amount than accept'^smaiier
3 that established as said annual compensation; and if the owner of the lygg^Ts'rl'™'
4 mill or dam does not agree to pay such reduced compensation, but files §■ |- \\^- 1 |g-
5 a new petition to obtain a diminution thereof, he shall pay the costs, SL\g°'||4
6 unless the annual compensation is reduced by the verdict to an amount
7 less than the offer.
1 Section 25. Such offers may be made by or to the respective tenants oser to
2 or occupants of the land and of the mill or dam, in like manner and with 1799? 7^8,
3 like effect as if made by or to the respective owners, except that no r, g. I'le, § 3s.
4 agreement founded thereon shall bind said owners unless made with their p- f; ^gg' | ^^
5 consent. R. l. i96, § 25.
1 Section 26. If the offer so made by either party is accepted by the Effect of
2 other, it shall establish the annual compensation to be thereafter paid, oVoief'^"^
3 as if it had been established by a judgment upon a new petition, if a mem- §; 1; \\l[ 1 40;
4 orandum of such offer and acceptance and of the agreement, signed by the ^- 1; ^^^^ i||-
5 respective parties or by persons authorized by them, is filed and recorded
6 in the office of the clerk of the court in which the former judgment was
7 rendered, with a note of reference on the record of the former judgment
8 to the book in which the agreement is recorded.
1 Section 27. If, upon a petition by the owner of the land, the jury verdict not to
2 return a verdict that he is not entitled to any annual compensation, the tion^whe'ri'! '"
3 judgment thereon shall not bar a new petition for damages alleged to §; |; hIJ; | t°:
4 have arisen after such verdict and for compensation for damages there- r;l.\96,§27.
5 after sustained. 10 Mass. 72.
1 Section 28. In every original petition brought by the owner of land Jj™'^^^^'"
2 alleged to be injured by a mill dam, the respondent may bring into court i|||. js^, § 4.
3 and there tender any amount which he considers proper to be paid to the R. s.' nt>.' | 4i.
4 petitioner for the damages incurred up to the time of such tender, and p.'s.i9o,'§37.'
2634
MILLS, DAMS .\ND RESERVOIRS.
[Chap. 253.
R. L. 196, § 2S.
7 Gray, 186.
may also offer to pay any certain annual compensation for the damages
which may be thereafter caused by the dam. If the petitioner does not
accept the amount so tendered with his costs to that time, he shall, unless
he recovers greater damages or greater annual compensation than was
so offered, be entitled to his costs to the time of the tender, and the re-
spondent shall be entitled to his costs after said time.
Judgment
upon accept-
ance of tender.
R. S. 116, § 42.
G. S. 149, § 43.
P. S. 190, § 38.
R. L. 196, § 29.
Section 29. If the petitioner accepts the amount so offered for the
past damage and for future annual compensation, he shall have judgment
therefor and for costs to that time; or the petitioner may accept either
the amount tendered for past damages or the offer for future annual com-
pensation, and proceed to trial on the residue of the petition under the
same liability for costs.
Who may join
in petition.
1841, 86.
G. S. 149, § 44.
P. S. 190, § 39.
R. L. 196, § 30.
Section 30. Two or more persons who are jointly or separately 1
interested in the land injured may join in a petition, and the jury may 2
assess joint or several damages as the interest and title of the petitioners 3
may require; and judgment and execution shall conform thereto. 4
Pleas in
abatement.
R. S. 116, § 43.
1839, 151, § 5.
G. S. 149,
5§45, 46.
P. S. 190, § 40.
R.L. 196, §31.
9 Gray, 177.
16 Gray, 187.
Section 31. The provisions of chapter two hundred and thirty-one
relative to pleas in abatement shall apply to petitions under this chap-
ter; and if new respondents are summoned in pursuance of said pro-
visions, the petitioner may have a verdict against such of the respond-
ents as he proves are liable, although he fails as to the rest. A petition
shall not be abated by the death of any party, but it may be prosecuted or
defended by the surviving petitioners or respondents, or by the executor
or administrator of the deceased.
New petition
after abate-
ment.
R. S. 116, §43.
G. S. 149, § 46.
P. S. 190, § 41.
R. L. 196, § 32.
Section 32. If a petition is abated or defeated for any matter of
form, or if a judgment for the petitioner is reversed for error, the pe-
titioner, or any person claiming under him, may file a new petition for
the same cause within one year after the abatement or other determina-
tion of the original petition or after the reversal of the judgment, and
recover all damages sustained during the three years last preceding or
at any time after the filing of the first petition.
Petition when
public way is
to be over-
flowed.
1873, 144, § 1.
P. S. 190, § 42.
R. L. 196, § 33.
119 Mass. 356.
Section 33. If a person who owns, erects or maintains a water mill
or a dam to raise water for working such mill upon or across a stream
not navigable desires to raise, erect or maintain a dam at such a height
or in such a manner as to overflow or otherwise injure an existing public
way, he may apply by petition to the county commissioners of the county
where such way is located, stating the height at which it is desired to
maintain such dam and the ways which may be injured thereby, and
asking for the alteration, change of grade or specific repairs of such ways.
Notice.
1873, 144, § 2.
P. S. 190, § 43.
R. L. 196, § 34.
Section 34. Notice of the hearing upon such petition shall be given 1
to the towns where the ways are situated, and to the owners or occu- 2
pants of the land affected thereby, in like manner as notice of the laying 3
out of highways is given. 4
Commissioners
may order
change of
grade, etc., of
ways.
Section 35. Said commissioners may, after a hearing, order such 1
alteration, repairs or change of grade of such ways as will in their judg- 2
ment enable the petitioner to raise, erect and maintain such dam with- 3
Ch.\P. 253.] MILLS, DAMS AND RESERVOIRS. 2635
4 out overflowing or otherwise injuring such ways, and they may give i873, 144, § 1.
5 written direction and authority to the petitioner to make at his own ex- r, l. mVs^i
6 pense such alterations, changes of grade and repairs within a reasonable
7 time. They shall record all such orders and shall cause certified copies
8 thereof to be filed and recorded in the office of the clerk of each town in
9 which such alterations, changes of grade or repairs are ordered.
ommissioners
to assess
1 Section 36. The commissioners shall assess and order the petitioner c^
2 to pay all damages sustained by any person or town by reason of the damages.
3 alterations, changes of grade or repairs ordered by them, and any person \^l] \\j] ^ ^•
4 or town aggrieved by such assessment may, on application within one RL^ggllfs
5 year from the entry of such order, have the damages assessed by a jury lis m^^s' ^se.
6 in the manner provided in chapter se\enty-nine.
1 Section 37. The costs of proceedings under the four preceding sec- Costs.
2 tions shall be paid by the petitioners, who may be required by the county p. s.'i9o,'§ 46.
3 commissioners to give bond with sufficient sureties for the payment ^' ^' ^^^' ^ ^^'
4 thereof.
1 Section 38. The order of the countv commissioners, dulv issued Ord^ertobe
, . " , ^ protection to
2 under section thirty-five, shall authorize the petitioner to do all acts p^J;^""™^''-^^
3 necessary to be done in compliance therewith: and if it is shown that p- s.'i9o,'§ 47.
• '* ■ •• •• RL 196 § 38
4 the petitioner has substantially complied with such order, no indictment
5 shall be maintained for the flowage of, or injury to, the ways mentioned in
6 such order, which may be caused by the dam.
CRANBERRY hAND AND ICE PONDS.
1 Section 39. An owner or lessee of land appropriated or which he Dam to flow
2 desires to appropriate to the cultivation and growth of cranberries may 1866,206.
3 erect and maintain a dam upon and across a stream to flow and irrigate fss^i m°' ^ **'
4 said land, subject to this chapter so far as applicable; but he shall not ^lo, ill'. ^ ^^"
5 erect and maintain a dam across a navigable stream or across the outlet Js\^ifi°ig
6 of a great pond, without a license therefor from the division of water- ii7 Mass. 213.
7 ways and public lands of the department of public works. isi Mass! 207'.
154 Mass. 579. 190 Mass. 143. 210 Mass. 128. 226 Mass. 586.
1 Section 40. If a dam has been so erected or maintained or if a Apportionment
2 person has at his own expense made, kept open or repaired any ditches isn.^'iel^'
3 or drains for the improvement or cultivation of such tract of land, any r. l.\^96,V46.
4 owner or lessee of a like tract, who uses such dam, ditches or drains or
5 who by more remote means receives benefit thereby for the flowing,
6 irrigating or draining of such last mentioned tract, shall pay to the
7 person who has erected or maintained such dam or incurred such ex-
8 pense his proportionate part thereof, which shall be determined by the
9 aldermen of tlie city or the selectmen of the town and certified to such
10 owner or lessee. Any person aggrieved by such determination may
11 within three months after notice thereof appeal therefrom to the superior
12 court for the county where the dam, ditches or drains are situated, and
13 shall be entitled to a jury trial; but before taking his appeal he shall
14 give one month's notice, in ^\Titing, to the aldermen or selectmen of his
15 intention so to appeal, and shall therein specify particularly his objec-
16 tions to the determination, to which specification he shall be confined upon
17 the hearing by jury. If such owner or lessee fails to pay to the person
2636
MILLS, D.UIS AND RESERVOmS.
[Ch.u>. 253.
entitled such proportionate part as finally determined, within said three 18
months if there is no appeal, otherwise witliin seven days after final 19
determination, he shall pay double the amount so determined with all 20
expenses arising from such failure; and such person may recover the 21
same in contract in his own name. But no covenants or agreements by 22
or between the owners or lessees of such land shall be affected by this 23
section. 24
Ice ponds.
1898, 480.
R.L. 196, §41.
Section 41. An owner or lessee of land used for an ice pond may erect
and, between November first and March first, maintain a dam across a
stream not navigable, for the purpose of making an ice pond by flowing
adjoining land, subject to tliis chapter so far as applicable, if he annually
pays to the owner of land which may be overflowed or injured thereby
the amount of the tax which may from time to time be assessed on such
land ; but such dam shall not be erected without the consent of all of the
owners of the land which would be flowed by it, unless the person propos- 8
ing to erect it shall furnish to such owners as do not consent to the erec- 9
tion security, satisfactory to them or approved by a justice of a coiu-t of 10
record or by a master in chancery, for the payment of any damages which 1 1
may be caused by flowing the land of such owners. 12
Land flow
ed
by reservoir
corporation.
1869, 383, § 1.
P. S. 190, § 50.
R. L. 196, § 42.
Security.
1869, 383,
P. S. 190,
R. L. 196,
,12.
§ 51.
§43.
DMMS OF RESERVOIR CORPORATIONS.
Section 42. A domestic reservoir corporation may flow the land
of other persons by its reservoir dam, and a person whose land or prop-
erty has been flowed or injured by such dam, unless compensation has
been otherwise made, may obtain compensation therefor as provided
in this chapter.
Section 43. The court in which a petition for such compensation
is pending shall, if requested by the petitioner, require such corporation
to give satisfactory security for the payment of all damages and costs
which may be awarded thereon; and if, upon petition and notice to
the corporation, the court finds that the security has become insufl[i-
cient, it shall require the corporation to give further security. If the
corporation neglects for one month or for such further time as the court
allows to comply with any such order, it shall lose all rights under this
chapter, and the court may restrain it from flowing or injuring such
land or property until such security has been given.
S.\FETY OF RESERVOIRS AND DAMS.
Reservoir, etc
not to be
Section 44. A reservoir, reservoir dam or mill dam shall not be
a°terld!°unti" constructcd or materially altered until plans and specifications of the
^^s'lw'iii proposed work have been filed with and appro\ed by the county com-
R. L. 196, § 44. missioners of the county where it is situated. Said commissioners shall
retain and record such plans and specifications and shall inspect the
work during its progress; and if at any time it appears that the plans
and specifications are not faithfully adhered to, they may appoint an
inspector to be constantly engaged at the expense of the owners in the
supervision of the work. Upon a refusal of the owners or of their agents
to adhere to said plans and specifications, said inspector may order the 10
discontinuance of the work. This and the six following sections shall 11
not apply to small dams, constcucted for irrigation or for other pur- 12
poses, the breaking of which would involve no risk to life or property. 13
Chap. 253.] mills, dams and reservoirs. 2637
1 Section 45. The county commissioners shall, as often as once in Examination
2 three years, if in their judgment the public good requires it, thoroughly dam'^"""^ °'
3 examine every reservoir, reservoir dam and mill dam, by the breaking a.^tul'.lh.
4 of which loss of life or damage to a road or bridge is likely to be caused, ^^i'lgo'Ha
5 and they shall at any time make such examination upon written ap- j|9i' ^is-
6 plication by the aldermen of the city or selectmen of the town where §§ i. s. '
7 such damage is likely to be caused or by a person whose property is ' '
8 likely to be so damaged. Such examination shall be made after notice
9 to the owner of such reservoir or dam or to his agent and, if made upon
10 such application, it shall be by the commissioners personally with the
11 aid of a competent engineer. In other cases, the commissioners may
12 cause it to be made by a competent engineer, who shall report to them
13 in writing whether he considers it safe and in good condition and, if
14 not, its condition in detail and the work or change required for safety
15 and the public good. The engineer shall be allowed by the commis-
16 sioners a reasonable compensation for his services, which shall be paid
17 by the county.
1 Section 46. If, upon such examination, the structure is not, in the Alterations or
2 judgment of the commissioners, sufficiently strong to resist the action iso4,'^327, § i.
3 of the water under any circumstances which may reasonably be expected is?!', i Is, § 3*'
4 to occur, they shall, with the advice of an engineer, determine and ^^^^ 99''/2^*'
5 direct what alterations or repairs are required to make the structure R l. ig'e, § 46.
6 permanent and secure, and shall in writing order the owners thereof to
7 make such alterations or repairs within a reasonable time, and the re-
8 suits of such examination and the orders thereon shall be duly recorded
9 by said commissioners.
1 Section 47. If the owner of a reservoir or dam which has been so Proceedings
2 examined and adjudged to be unsafe refuses or neglects to make such "ocompi'jl^with
3 alterations or repairs as the commissioners order, they shall cause such i854,'32"'
4 reservoir or dam, or such parts thereof as they may consider necessary ^ | ^;jg
5 for the safety of life, property, roads or bridges on the stream below, f liP'.^'Jj'
6 to be removed or the water to be drawn off. After such removal, no p. s.'i90.'§s5.
7 structure shall be erected except in compliance with the three preceding
8 sections; and after the water has been drawn off, the reservoir shall
9 not be filled again until the orders of the commissioners have been com-
10 plied with.
1 Section 48. The commissioners shall make such orders as to the Costs.
2 costs of all proceedings under the three preceding sections as they may G^s.'iw.'lsi.
3 consider just; but if the reservoir or dam is adjudged unsafe, said costs p^^i'igo'^ie.
4 shall be paid by the owner. R. l. i96, § 4s.
1 Section 49. No order, approval, request or advice of the county Acts of com-
2 commissioners shall impair the legal duties and obligations of the owners tolmpatrua-
3 of reservoirs, reservoir dams or mill dams or their liability for the con- ists^'k'I, § e.
4 sequences of their illegal acts or of the neglect or mismanagement of f^ l.\^9o, V^.
5 their servants or agents.
1 Section 50. The supreme judicial and the superior courts shall have Jurisdiction.
2 jm-isdiction in equity to enforce the six preceding sections.
G. S. 149. § 52. 1875, 17S, § 7. P. S. 190, § 58. li. L. 196, § 50.
2638 MILLS, D.iAIS -\KD RESERVOIRS. [CH-VP. 253.
REPAIRING ,UsT) REBUILDING MILLS AND MILL DAMS.
Power of Section 51. If a mill which is owned by joint tenants or tenants in 1
majority to i> i -ii • •
repair, etc. common, OF the dam or appurtenances or such mill, require repairs or 2
1795, 74, §6. ■ rebuilding in whole or in part, and all the proprietors do not agree to join 3
g! s! 149] § 5.3! therein, a majority in interest of the proprietors may cause the Mork to 4
R.L,'i96,\^5i. be done at the expense of the whole in proportion to their respective 5
interests. 6
pJoprieto?a SECTION 52. One or more of the proprietors may call a meeting by a 1
i795~74'i'5 ^' notice signed by the person or persons who call it, addressed to each of 2
R. s.'iie, §45. the other proprietors, stating that the mill, dam or appurtenances re- 3
p.' s.' 190,' §60.' quire repairs or rebuilding and that their attendance is requested at a 4
■ ■ ■'^ ■ meeting of the proprietors thereof at the mill at a time named to consult 5
and agree upon the measures to be taken for such purpose. 6
1709^10, 3, § 1. Section 53. The notice shall be served by an officer qualified to serve 1
R ^1' ne ^ ^' cW\\ process by delivering an attested copy thereof to each proprietor, 2
G 1^149 5 55 °^ ^y leaving such copy at his last and usual place of abode, not less than 3
p.'s.i9o,'§6i.' seven nor more than thirty days before the day appointed for the meet- 4
ing, and such officer's return, specifying the persons on whom he has 5
served the notice and the time and manner of the service on each, shall 6
be sufficient evidence thereof. 7
i709^io,°3,^'§ 2. Section 54. At such meeting, or at any adjournment thereof, the 1
R^i'.neS^is. majority in interest of the proprietors of the mill may take measures 2
p' I' i9o' 1 62 to cause the mill or the dam or appurtenances thereof to be repaired or 3
R. L. 196, § 54. rebuilt, as they shall consider most for the interest of all concerned therein. 4
of^llTpeSe"™* Section 55. Each proprietor shall, upon demand, after the work is 1
r7°o9-io, 3, § 2. completed, pay to the proprietors by whom it has been advanced his just 2
R ^s' ne \^49 ^n*^ equal part of the expense of such repair or rebuilding, in proportion to 3
G. s. 149! § 57. liis share or interest in the mill, with interest from the time of the advance. 4
p. S. 190, § 63. R. L. 196, § 55.
^^rat^"'''' Section 56. The proprietors who advance the money so expended 1
R^l'ue^^so ^^^^' have a lien therefor on the rents and profits of the mill and may re- 2
G. 1. 149^ 1 68. tain so much thereof as belongs to any proprietor indebted to them for 3
R. L. 196, §56. such advance, to be applied to the pajinent of his debt; or they may 4
maintain an action for the debt or for as much thereof as has not been 5
received from the rents and profits. 6
9
^d?f'|w- Section 57. The guardian of a proprietor may act for him in calling 1
i79s!'74, § 7. or attending a meeting of the proprietors, and may there vote and do all
R. s. 116, § 51. such other acts as the ward could do if competent to act. 3
G. S. 149, § 59. P. S. 190, § 65. R. L. 196, § 57.
oUx°p1L°ef''°' Section 58. If part of the mill is held by a tenant for life or years, 1
f'oriife''!Jr''^eare *^^^ amount duc for the repairs and other ex-penses on that part of the 2
and remainder- mill shall be apportioned on the tenant for life or years and on the re- 3
1795, 74, § 7. mainderman or reversioner in proportion to the value of their respective 4
o'. s. 149! § 6o! interest; and the person to whom the money is due from such remainder- 5
R.L. '196,^58. man or reversioner shall have a lien on the rents and profits belonging 6
Ch.\p. 254.]
LIENS ON BUILDINGS AND LAND.
2639
7 to him after his estate comes into possession, if not sooner paid, notwith-
8 standing any limitation by lapse of time.
1 Section 59. A mortgagee in possession shall be considered a pro- if proprietor
2 prietor for the pm-poses of this chapter; but if the action is brought hfs^nte^llt.^'^'^
3 against the mortgagor before his right of redemption has been foreclosed, J^'^l' Jf^ ^54
4 he shall also be liable for all amounts so due on account of his share p- 1- 1|9, 1 6i.
5 of the mill, so far as the same have not been recovered from the mort- R- l. i96, § 59.
6 gagee. All amounts paid on this account by the mortgagee shall be
7 allowed, between him and the mortgagor, as so much paid for repairs or
8 improvements.
1 Section 60. A tenant in tail of a part of a mill shall, for the purposes Tenant in tail,
2 of this chapter, be considered the proprietor thereof in fee simple. r"!.' iie.Vss.
G. S. 149, § 62. P. S. 190, § 68. R. L. 196, § 60.
1 Section 61. All amounts due from one proprietor to another for Recovery of
2 money advanced under this chapter may be recovered in contract
3 if two or more proprietors are so indebted, by a suit in equity.
4 amount so recovered shall be apportioned by the court amon
5 plaintiffs, if more than one, according to their respective rights.
diit^ lor repairs.
rpu_ R. S. U6, §56.
-•^"C G s. 149, § 63.
tVlp P. S. 190, § 69.
"-"^ R. L. 196, § 61.
1 Section 62. This chapter shall not affect any contract or agreement Contracts be-
r» T 1 1 • p Ml 1 • 1 •! T tween parties.
2 by or between the proprietors or a mill as to the repair or rebuilding i709-io, s, § 4.
3 thereof. R. s. iie, §58.
G. S. 149, § 64.
p. S. 190, § 70.
R. L. 196, § 62.
4 Mass. 559.
MILLERS.
1 Section 63. A miller occupying and using a grist mill who neglects Miners to keep
2 to provide himself with scales and weights or a vibrating steelyard to c.^L.^io6'!§ 2.
3 weigh corn, grain and meal to and from the mill, when required, or who i72s-9?6f' ^ ^
4 refuses so to weigh corn, grain or meal when required, shall for each flgg'-l 19 § s
5 offence forfeit to any person who sues therefor not more than five dollars. J7®o • I'h ^A,.
*■ K. 0, Ufa, § o9.
G. S. 149, § 65. P. S. 190, § 71. R. L. 196, § 63.
1 Section 64. The toll for grinding any kind of grain shall not exceed J°l- joe § 2
2 one sixteenth part thereof.
1709-10, 3, § 3. 1762-3, 19, § 6. R. S. 116, § 60. P. S. 190, § 72.
172S-9, 6, § 2. 1795, 74, § 9. G. S. 149, § 66. R. L. 196, § 64.
CHAPTER 254.
LIENS ON BUILDINGS AND LAND.
Sect.
1. Lien for labor.
2. Lien in case
Notice.
3. Labor or material subsequently
nished or performed.
4. Same subject. Written contract.
5. Bill in equity to enforce lien.
6. Public property exempted.
of written contract.
fur-
Sect.
7. Lien invalid against prior mortgage.
S. Lien dissolved unless statement is filed.
9. Recording and inspection of statement.
10. Dissolution by notice.
11. When bill to be filed. Inaccuracy in
statement, etc.
12. Dissolution by bond in case of personal
labor.
2640
LIEXS OX BVILDEsGS .\XD L.\XD.
[CH.VP. 254.
Sect.
13. When attachments do and do not
prevail. Attaching creditors, how
paid, as between themselves.
14. Dissolution by bond of creditor.
15. Dissolution by decree of court.
16. Trial.
17. Claims allowed.
18. Sale.
19. Notice of sale.
20. Redemption.
Sect.
21. Distribution.
22. Costs.
23. Bill against heirs or assigns of original
owner.
24. Bill by executor or administrator of
creditor.
GENERAL PROVISIONS.
25. Sale of estate less than a fee simple.
26. Action at law not barred.
Lien for labor.
1820, 2S1.
R. S. 117. § 1.
1851, 343. § 1.
1852, 307, I 1.
1855, 431. § 1.
G. S. 150. § 1.
1872, 318, § 1.
P. S. 191,
5§1,2.
1900, 256.
R. L. 197,
5§1.2.
1915, 292,
§1 1, 13.
5 Cush. 119.
1 Gray. 297,
576.
Section 1. A person to whom a debt is due for personal labor per-
formed in the erection, alteration, repair or removal of a building or
structure upon land, by virtue of an agreement with, or by consent of,
the owner of such building or structure, or of a person having authority
from or rightfully acting for such owner in procuring or furnishing such
labor, shall, under the provisions of this chapter, other than sections
three and four, have a lien upon such building or structure and upon the
interest of the owner thereof in the lot of land upon which it is situated,
for not more than eighteen days' work actually performed during the
forty days next prior to his filing a statement as provided in section eight.
3 Gray, 233.
136 Mass. 314.
13 Gray, 311,414.
140 .Mass. 256.
526
11 Allen, 444.
143 Mass. 105.
105 Mass. 345.
147 Mass. 493.
106 Mass. 228, 528, 531.
148 Mass. 104.
112 Mass. 18.
loo Mass. 549.
115 Mass. 429.
156 Mass. 205,
355
117 Mass. 167, 176.
160 Mass. 48.
120 Mass. 58.
162 Mass. 593.
123 Mass. 45. 570.
163 Mass. 7.
124 Mass. 404.
164 Mass. 146.
126 Mass. 148.
165 Mass. 113,
429.
129 Mass. 570.
169 Mass. 351.
131 Mass. 177.
170 Mass. 50.
171 Mass. 294.
179 Mass. 153.
182 Mass. 150.
189 Mass. 53.
191 Mass. 458.
199 Mass. 480.
204 Mass. 494.
211 Mass. 169.
216 Mass. 41.
219 Mass. 463.
227 Mass. 446.
233 Mass. 112.
234 Mass. 210.
150.
Lien in case
of written
contract.
Notice.
1855, 431,
§U,4.
G. S. 150,
l§2,4.
1872,318, §3.
P. S. 191,
§§1-4.
1898, 562, § 77.
R. L. 128,
§ 76; 197,
§§ 1.3.4.
1915, 292,
§§ 2, 13.
1916, 306, § 1.
7 Gray. 429.
2 Allen, 424.
5 AUen, 403,
540
7 AJlen, 412.
8 Allen, 543,
573
11 Allen, 152.
101 Mass. 435.
106 Mass. 52S.
112 Mass. 309.
116 Mass. 374.
124 Mass. 516.
126 Mass. 169,
274, 309.
128 Mass. 108.
141 Mass. 280,
523.
144 Mass, 534.
147 Mass. 493.
Section 2. A person entering into a written contract with the owner
of land for the whole or any part of the erection, alteration, repair or
removal of a building or structure upon land, or for furnishing material
therefor, shall have a lien upon said building or structure and upon the
interest of the owner in said lot of land as appears of record at the date
when notice of said contract is filed or recorded in the registry of deeds
for the county or district where such land lies, to secure the pajTnent
of all labor and material which shall thereafter be furnished by virtue 8
of said contract. Said notice may be filed or recorded by any person 9
entitled under this chapter to enforce a lien, and shall be in substantially 10
the following form: 11
Notice is hereby given that by ^-irtue of a written contract, dated ,
between , omier, and , contractor, said contractor is to
furnish labor and material for the erection, alteration, repair or removal of a
building on a lot of land described as follows:
Said contract is to be completed on or before
A notice of any extension of such contract, stating the date to which 12
it is extended, shall also be filed or recorded in the said registry prior to 13
the date stated in the notice of the contract for the completion thereof, 14
and may be filed by any party entitled to file the original notice. 15
155 Mass. 549.
158 Mass. 71, 468. 552.
159 Mass. 124. 206.
168 Mass. 467.
172 Mass. 597.
173 Mass. 332.
178 Mass. 163, 238,
260, 288.
182 Mass. 150, 480.
188 Mass. 401.
190 Mass. 168.
192 Mass. 175.
198 Mass. 56.
199 Mass. 480.
201 Mass. 484.
204 Mass. 122, 494.
213 Mass. 159. 456.
216 Mass. 81.
219 Mass. 463.
226 Mass. 148.
227 Mass. 446.
233 Mass. 264, 314.
234 Mass. 210.
CH.A.P. 254.] LIENS ON BUILDINGS -tXD LAND. 2641
16 Such notices, and all other instruments hereinafter required to be Notices, etc.,
17 filed or recorded in the registry of deeds, affecting registered land shall registered land.
18 be filed and registered in the manner prescribed by section seventy-
19 eight of chapter one hundred and eighty-five. Such notices, and all
20 other instruments hereinafter required to be filed or recorded in the
21 registry of deeds, affecting unregistered land shall be indexed in a separate
22 book to be kept for that purpose.
23 If registered land is included with unregistered land in any such notice
24 or other instrument, an attested copy thereof shall be filed with the
25 assistant recorder and registered.
1 Section 3. If the notice aforesaid shall have been filed or recorded Labor or
, • 1 1 material sub-
2 m the registry of deeds, as herembefore provided, any person who shall, f'>"''?*'y
3 subsequent to the date of filing or recording notice of said contract, furnish performed.
4 labor or material, or perform labor, under a contract with the contractor isie] sou! § 2.
5 or with any sub-contractor of said contractor, shall be entitled to enforce ^'^^ *^''^''' ^^°'
6 a lien on the premises therein described for any labor performed, or labor
7 or material furnished, subsequent to the filing or recording of said notice
8 and prior to the date of the termination of said contract as stated in said
9 notice or notices.
1 Section 4. Whoever, subsequent to the date of the original con- Same subject.
2 tract, furnishes labor or material, or both labor and material, or per- tract.''" '^°"
3 forms labor, under a written contract with a contractor, or with a sub- op'^^cf.' ^ ''
4 contractor of such contractor, may file in the registry of deeds for the ^^®^^^ ^'^•
5 county or district where such land lies a notice of his contract substan-
6 tially in the following form:
Notice is hereby given that by ■^'irtue of a written contract dated ,
between , contractor (or sub-contractor), and said
is to furnish labor or material, or both labor and material, or per-
form labor in the erection, alteration, repair or removal of a building or stmcture
by , contractor, for , owner, on a lot of land described
as follows:
Said contract is to be completed on or before . ,
7 A notice of any extension of such contract, stating the date to which
8 it is extended, shall also be filed or recorded in said registry prior to the
9 date stated in the notice of the contract for the completion thereof.
10 Upon filing a notice, as hereinbefore provided, and giving actual notice
11 to the owner of such filing, the sub-contractor shall have a lien to secure
12 the payment of all labor and material, which he shall thereafter furnish,
13 upon the building or structure, and upon the interest of the owner, as
14 appears of record at the time of such filing, in the lot of land on which
15 said building or structure is situated. But such lien shall in no event
16 exceed the amount due or to become due under the original contract when
17 notice of the filing of the sub-contract is given by the sub-contractor to
18 the owner; and the time for the performance of the contract of the sub-
19 contractor shall not be extended beyond the time for the performance of
20 the original contract and any extension thereof, if the objection thereto
21 of the owner is filed in the registry of deeds and actual notice of such
22 objection is given by the owner to the sub-contractor within five days
23 after the owner received notice of tlie filing of the contract as provided
24 in this section.
2642
LIENS ON BUILDINGS AND L.\ND.
[Ch.\p. 254.
Bill in equity
to enforce lien.
1819, 156,
§§ 1-3.
R.S. 117,
§§ 3-5, 7-10,
30,31.
1851,343, §4.
1852, 307, § 2.
1855,431,
K5,6.
1858, 55.
G. S. 150,
§§ 7-9, 11-17,
37, 38.
1871,343, §3.
P. S. 191,
B 9-11, 13,
15-20,39,40.
1888, 344,
§§1-3.
1893, 396, § 12.
1894,431.
R. L. 197.
§§ 9-14, 24.
1908, 127.
1915, 292,
§§4,13.
1916,306. §3.
4 Cush. 532.
5 Cush. 119.
3 Allen, 458.
103 Mass. 227.
118 Mass. 595.
129 Mass. 570.
Section 5. All proceedings to enforce a lien upon land for the erec- 1
tion, alteration, repair or removal of a building or other structure, shall 2
be begun by bill in equity filed in the superior court for the county where 3
the land lies. The petitioner shall bring his bill in his own behalf and in 4
behalf of all other persons in interest who shall become parties. The o
subpoena shall be returnable not more than sixty days subsequent to the 6
entry of the bill and shall contain a brief description of the property, 7
sufficient to identify it, and a statement of the amount alleged to be due. 8
An attested copy thereof shall be filed in the registry of deeds and re- 9
corded as provided in section nine. All other parties in interest may 10
appear and have their rights determined in such bill, and at any time 11
before a final decree, upon the suggestion of any party in interest that 12
any other person is or may be interested in the suit, or of its own motion, 13
the court may issue a subpoena to such person, or a precept directing 14
him to appear in said cause on or before a clay certain or be forever 15
barred from any rights thereunder. The court may in its discretion pro- 16
vide for notice to absent parties in interest. The terms "party in in- 17
terest" and "person in interest", as u.sed in this chapter, shall include 18
mortgagees and attaching creditors. i4i Mass. 273. lei Mass. 462. 19
175 Mass. 34.
176 Mass. 164.
178 Mass. 163.
164 Mass. 144.
168 Mass. 435.
170 Mass. 449.
187 Mass. 513.
191 Mass. 133.
217 Mass. 33.
Spt?"""*'' Section 6. No lien shall attach to any land, building or structure 1
s^AUenflbl.^" thereon owned by the commonwealth, or by a county, city, town, water 2
114 Mass. 476. qj. gpg district. 204 Mass. 494. 226 Mass. 148. 3
Lien invalid
against prior
mortgage.
1852,307, § 1.
G. S. 150, § 3.
P. S. 191, § 6.
R. L. 197, § 6.
1915, 292,
§§ 6. 13.
1916,306, §4.
5 Cush. 119.
103 Mass. 470.
109 Mass. 411.
Section 7. No lien, except under section one, shall avail as against a
mortgage actually existing and duly registered or recorded prior to the
filing or recording in the registry of deeds of the notice required by this
chapter, and no lien under section one shall avail as against such a mort-
gage unless the work or labor performed is in the erection, alteration,
repair or removal of a building or structure which erection, alteration, re-
pair or removal was actually begun prior to the recording of the mortgage.
117 Mass. 167, 176.
120 Mass. 408.
121 Mass. 418.
136 Mass. 314.
155 Mass. 649.
160 Mass. 48.
161 Mass. 462.
168 Mass. 538.
170 Mass. 311.
172 Mass. 553.
177 Mass. 506.
182 Mass. 150.
191 Mass. 424.
192 Mass. 175.
214 Mass. 92, 121.
Op. A. G. (1919) 112.
Lien dissolved
unless state-
ment is filed.
1851,343, § 2.
1855,431. I 2.
G. S. 150, § 5.
1872, 318, § 2.
1874,321, §4.
1877, 93, § 1. ■
P. S. 191, §6.
1892, 191.
R. L. 197, § 6.
1915, 292,
§§ 7, 13.
1918,265, I 3.
7 Gray, 429.
13 Gray, 3U.
8 Allen, 690.
109 Mass. 395.
110 Mass. 116.
116 Mass. 375.
117 Mass. 167,
179.
119 Mass. 459.
120 Mass. 58,
510.
124 Mass. 404,
548.
126 Mass. 276.
Section 8. Liens under sections two and three shall be dissolved 1
unless the contractor, or some person claiming by, through or under him, 2
shall, within thirty days after the date on which the principal contract 3
is to be performed, file in the registry of deeds in the county or district 4
where the land lies a statement, signed and sworn to by him, or by some 5
person in his behalf, giving a just and true account of the amount due 6
him, with all just credits, a brief description of the property, and the 7
names of the owners as set forth in the notice of contract. A lien under 8
section four shall be dissolved unless the sub-contractor, or some person 9
claiming by, through or imder him, shall, within thirty days after the 10
date on which the contract of said sub-contractor is to be performed, file 11
in the registry of deeds in the county or district where the land lies 12
a statement, signed and sworn to by him, or by some person in his behalf, 13
giving a just and true account of the amount due him, with all just credits, 14
a brief description of the property, and the names of the owners as set 15
forth in the notice of contract. A lien under section one shall be dissolved 16
Chap. 254.] liens on buildings and land. 2643
17 unless a like statement, giving the names of the owners of record at the 128 Mass. 5.34.
18 time the work was performed or at the time of filing the statement, is filed 142 Mass' sa '
19 within the forty days provided in said section.
143 Mass. 3S0. 161 Mass. 338,402. 179 Mass. 360. 211 Mass. 169.
145 Mass. 565. 163 Mass. 7. 183 Mass. 375. 213 Mass. 456.
148 Mass. 280. 167 Mass. 136. 187 Mass. 417. 215 Mass. 582.
151 Mass. 129. 168 Mass. 435. ' 198 Mass. 56. 217 Mass. 33.
154 Mass. 590. 171 Mass. 231. 204 Mass. 122. 231 Mass. 418.
156 Mass. 317. 175 Mass. 167, 175. 205 Mass. 407. 234 Mass. 210.
159 Mass. 202, 206. 176 Mass. 104. 208 Mass. 583.
1 Section 9. Any statement provided for in section eight shall remain Recording and
2 in the custody of the register and be open to public inspection. He shall statement."
3 record it in a book kept therefor, but the items of the account, except the g*^|; fio, 1 1."
4 total amount claimed due, may be omitted from the record.
1S75, 20. 1877, 93, § 2. P. S. 191. § 7. R. L. 197, § S.
1 Section 10. The lien of any person may, so far as his interest is Dissolution
2 concerned, be dissolved by a notice signed by him, stating that his lien isia^isft § 6.
3 is dissolved, filed in the registry of deeds where the notice of the contract is43', 343, 1 s^'
4 is filed under which contract the lien is claimed.
G. S. 140, §41. 1891,244. 1915, 292, § 13.
P. S. 191, § 45. R. L. 197, § 31. 1918, 265, § 2.
1 Section 11. The lien shall be dissolved unless a bill in equity to whenbiin
be filed. I
accuracy in
2 enforce it is filed within sixty days after the filing of the statement re- ^^ ''''"^' ^'"
3 quired by section eight. The validity of the lien shall not be affected by ia5'|™3°*'§'*3'''
4 an inaccuracy in the description of the property to which it attaches, if plilf'lg'
5 the description is sufficient to identify the property, or by an inaccuracy isai wi-
6 in stating the amount due for labor or material unless it is shown that §§7,'9. ''
7 the person filing the statement has wilfully and knowingly claimed more §§ s,'i3.'"
8 than is due him.
6 Gray, 531. 108 Mass. 103. 163 Ma.ss. 7. 199 Mass. 480.
7 Gray. 429. 141 Mass. 273. 164 Mass. 410. 205 Mass. 407.
13 Gray, 100. 148 Mass. 280. 168 Mass. 435. 211 Mass. 169.
2 Allen, 424. 154 Mass. 590. 176 Mass. 83, 164. 210 M.ass. 41.
3 Allen, 464. 161 Mass. 402. 17.8 Mass. 2SS. 217 Mass. 33.
8 Allen, 590. 162 Mass. 432. 189 Mass. 53. 234 Mass. 210.
1 Section 12. Any person in interest may cause to be recorded in the Dissolution by
2 registry of deeds in the county or district where the land lies a bond pereonai'iabor.
3 having as surety a company or corporation authorized to do a surety §§'1^-3^^'
4 business in the commonwealth or individual sureties as herein pro- Jt'/'s^'
5 vided, in which bond the register of deeds and his successors in office shall r^'|-,i^^'
G be obligees, in a penal sum fixed by the building commissioner or other i895"'404.
7 officer performing like duties under any statute, ordinance or by-law of ino6,' 223.'
8 a town wdiere the land in question lies, or, if there is no such officer, by a loil; Ml',
9 justice or clerk of a court having jurisdiction in the locality where the loo^Kifss. 340.
10 land lies. The bond shall describe the land in such detail as is required o'l'l jJa^' tol"
11 in a common conveyance of land, and shall be in form substantially 228 Mass. 58i,
12 as follows: 230' Mass. 259.
Know all Men by these Presents.
That we of in the County of
and Commonwealth of Massachusetts, as principal, and in the
Commonwealth, as surety or sureties, are holden and stand firmly bound and
obliged unto , Register of Deeds for the County
of , in the full and just sum of Dollars to be paid unto
said Register and his successors in said office, to which pa>nnent, well and truly
to be made, we bind ourselves, our heirs, executors, administrators, successors
and assigns, jointly and severally, firmly by these presents.
Sealed with our seals and dated the day of in the
year of our Lord one thousand nine hundred and
2644
LIENS ON BUILDINGS AND LAND.
[Chap. 254.
The condition of this obligation is such, that whereas said is in-
terested in the erection, alteration, repair or removal of a building on a certain lot
of land situated within the Registry District in the Commonwealth,
bounded and described as follows . and desires under the provisions of
chapter two hundred and fifty-four of the General Laws and acts in amendment
thereof and in addition thereto to free said land from claims for personal labor
in accordance with the provisions of said chapter and amendments thereto;
Now, therefore, if the above bounden shall pay or cause to be
paid for any and all personal labor performed in the erection, alteration, repair
or removal of said building on said land, under the contract stated in the certifi-
cate on the back hereof, irrespective of any agreement made between him and
the owner or any other persons now interested or who may hereafter be interested
therein, then the above written obligation shall be nuU and void; otherwise to
remain in full force and virtue.
Signed, sealed and delivered in presence of
(Seal)
(Seal)
(Seal)
(Certificate on Back of Bond.)
(Date)
I, , principal in the within bond, hereby certify that the proposed
work on the lot of land described in said bond is the erection — alteration — -
repair — removal of a building, that a fair estimate of the cost of the labor on
said building will not exceed dollars. The work is to be done under
a contract made (date) the parties thereto being
of and of . Said work is to be completed
on or before
(Signed.)
If individual sureties are given on said bond, the sureties sliall be not
less than tliree in number, each of whom shall have owned real estate for
at least one year next prior to the date of the bond, of a value not less
than the penal sum of the bond, and said bond shall not be recorded unless
the bond and sureties shall have been approved by a justice or clerk of a
court having jurisdiction in the locality where the land lies, after an ex-
amination on oath of all the sureties by said justice or clerk.
After the recording of said bond no lien shall thereafter attach for
personal labor performed under the contract in respect to which the
bond is given.
The register of deeds may refuse to record the said bond if it be de-
fective in form or substance, but no party to any such bond shall be dis-
charged by any defect therein as against any party who has in good faith
allowed his lien to be dissolved by lapse of time in reliance on the bond.
The bond may be enforced by a bill in equity in the superior court brought
by any party in interest. The petitioner shall bring his bill in his own
behalf and in behalf of all other persons in interest who shall become
parties. A copy of the subpoena shall be filed and recorded in the registry
of deeds.
13
14
15
16
17
18
19
20
21
22
2.3
24
25
26
27
28
29
30
31
when attach-
ments do and
do not prevail.
Attaching
creditors, how
paid, as
between
themselves.
1819, 156, § 4.
R.S. 117,
§§ 21-23. 25.
G.S. 150,
§§ 28-30. 32.
1801,131.
P. S. 191,
§5 31-33,35.
Section 13. The rights of an attaching creditor shall not prevail
as against a lien under section one, nor against the claim of a lienor where
notice or notices of contract have been filed or recorded in the registry of
deeds under sections two and four prior to the recording of the attach-
ment. An attachment recorded prior to the filing or recording of the
notice of contract shall prevail against a lien, other than for personal
labor, to the extent of the ^'alue of the buildings and land as they were
at the time when the labor was commenced or the material furnished for
which the lien is claimed, and in case of a sale under section eighteen the
Chap. 254.] liens on buildings and l.and. 2645
10 court shall determine, in the manner provided in section sixteen, what j?'j''jg7
11 proportion of the proceeds of the sale, as derived from the value of the §§25-27.'
12 property at such time, shall be held subject to the attachment. If the §§ io. 13.'
1.3 attaching creditor recovers judgment, the proceeds so held subject to i9i8i257, '
14 his attaclmient, or as much thereof as may be necessary, shall be applied fg^'itt's^^^' ^ *'
15 upon his execution, and the residue, if any, shall be disposed of in the 1920,2.
16 same manner as if there had been no such attachment. If the interest
17 of the owner of the property is attached after the filing of the notice, the
18 proceeds of any sale of the property under said section eighteen, after dis-
19 charging all prior liens and claims, shall be applied to satisfy the execu-
20 tion of the attaching creditor, provided the lienor or the officer making
21 the sale has actual notice of the attachment. Several attaching credi-
22 tors as between themselves shall be paid according to the order of their
23 attachments.
1 Section 14. In a bill in equity under section five, the court may, Dissolution
2 in its discretion, accept a bond, with sufficient surety or sureties, to dis- creditor. °
3 solve the lien of any creditor or all liens, as to the whole or any part of §§'1-3^"^'
4 the property, or any interest therein. Such bond shall be filed by the §f"'3^4.
5 obligor in the registry of deeds within ten days after its approval, and s"; 42-4]'
6 shall not dissolve the lien unless so filed. It shall be recorded, and may is9o,3S3.
7 then be taken from the registry by the obligee.
1895, 404. 1915. 292, §§11, 13. 213 Mass, 463.
R. L. 197, §§ 28-30. ISl Mass. 181. 215 Mass. 582.
1900, 223. 187 Mass. 300, 306. 228 Mass. 581, 598.
1909', 237. 190 Mass. 439. 230 Mass. 259.
1 Section 15. If it appears to the court that no person is entitled to Dissolution by
2 a lien, or that every lien has been discharged by payment thereof, the i9i5;'^292,''§"i2'
3 court shall forthwith cause a decree to be entered to the effect that the
4 lien is dissolved, and a certificate to that effect shall be sent forthwith
5 by the clerk to the register of deeds. Such certificate shall be filed and
6 recorded in the manner provided in sections eight and nine.
1 Section 16. The court shall determine all claims in a summary Trial.
2 manner according to equity procedure but without abridging the right §§3,'?.
3 of jury trial. R. s. ii7, §§ lo, ii.
G. S. 150, §§ 17, 18. R. L. 197, § 15. 179 Mass. 214.
P. S. 191, |§ 19, 21. 170 Mass. 1. 213 Mass. 456.
1 Section 17. A claim due absolutely and without condition, although claims
2 not payable at the time of determination, shall be allowed with a rebate is'i9,'i.5R, § 4.
3 of interest to the time when it would become payable. If the owner has j'j li"!;
4 failed to perform his part of the contract and by reason of such failure the G- %^^^'
5 other party is, without his own default, prevented from completely per- FjIg^lV
6 forming his part thereof, he shall be entitled to a reasonable compensa- r. l.'io?, § 16.
7 tion for as much as he has performed, in proportion to the price stipulated 192 kass^ 175!
S for the whole.
1 Section 18. If a lien is established the court shall order a sale of fgjg ur, § 3
2 the property to be made by an officer qualified to serve civil process. Is'ii"!'
3 The court may order a sale of a part of the property sufficient to satisfy P.-'lj^j?-
4 the claims allowed, if such part can be set off from the residue and sold p. s. I91,'
5 without damage to the whole.
R. L. 197, § 17. 215 Mass. 582. 230 Mass. 259.
2646
LIENS ON BUILDINGS AND hAND.
[Chap. 254.
mtise.fl: Section 19. The officer shall give notice of the time and place of 1
g! I isa i 23! s^l^ 3S provided for sales of land on execution or as ordered by the court. 2
p. S. 191, § 26. R. L. 197, § 18.
Redemption.
1819, 156, § 3
Section 20. An interest in land sold under this chapter may be 1
G. 1' ISO,' 1 24; redeemed, as provided for sajes of land on execution. 2
p. S. 191, § 27.
R. L. 197, § 19.
?8'i9?i56!T5 Section 21. If all the claims against the property covered by the
f§ 18^20.' 'i^i^ ^'sre ascertained at the time of ordering the sale and if the proceeds
?§■ 25^27' ^^ ^^^^ ^^'^ ^^^ sufficient therefor, the court may order the officer to dis-
P;|i9i. tribute them, after deducting all lawful charges and expenses, to and
R. L. 197, § 20. among the several creditors to the amount of their respective debts, with
116 Mass. 19(.
141 Ma.«s. 280.
175 Mass. 34.
206 Mass. 585.
1
2
3
4
5
6
7
8
9
10
interest, or, if insufficient, to distribute the same among the creditors in
proportion to the amount due to each. If all the claims were not ascer-
tained at the time of ordering the sale or other sufficient cause is shown,
the court may order the officer to bring the proceeds of the sale into court
to be disposed of according to its decree. If the whole cannot be con-
veniently distributed at one time, the court may make successive orders 11
of distribution. If there is a surplus of the proceeds of the sale after 12
making all payments before mentioned, it shall be paid over to the owner 13
of the property ; but/ before it is so paid over, it may be attached or taken 14
on execution in like manner as proceeds from a sale on execution. 15
R°s.'ii7, § 32. Section 22. Costs shall be in the discretion of the court and shall 1
p|' ill' 111' be paid from the proceeds of the sale or by any of the parties, as it may 2
R. L. 197. § 2i. order. 3
Bill against
heirs or assigns
of original
owner.
R. S. 117, § 27.
G. S. 150, § 34.
P. S. 191, § 37.
R. L. 197, § 22.
S Cush. 119.
181 Mass. 181.
187 Mass. 513.
Section 23. If the person for whom the labor has been performed or 1
furnished or the material has been furnished dies or conveys away his 2
estate or interest before the filing of the bill, it may be filed and prose- 3
cuted against his heirs or against the persons holding the estate or in- 4
terest which he had in the land at the time when the labor or material was 5
performed or furnished. If the bill was filed in the lifetime of such per- 6
son, it may be prosecuted against his executor, administrator, heirs or 7
assigns as if the estate or interest had been mortgaged to secure the debt. 8
Section 24. If the creditor dies without having filed such bill, it 1
Bill by execu-
tor or adminis-
creduor' ^1^7 bc filed and prosecuted by his executor or administrator; or if he 2
R. s. 117, § 28. (jjgg after having filed it, it may be so prosecuted. 3
G. S. 150, § 35. P. S. 191, § 38. R. L. 197, § 23. 1915, 151, § 7.
Sale of estate
less than a fee
simple.
R. S. 117, § 26.
G. S. 150, § 33.
P. S. 191, § 3«.
R. L. 197, § 32.
13 Met. 149.
103 Mass. 470.
177 Mass. 506.
214 Mass. 92.
216 Mass. 81.
general provisions.
Section 25. If the person for whom the labor has been performed 1
or with whom the original contract has been entered into for the whole 2
or any part of the erection, alteration, repair or removal of a building or 3
structure upon land, or for furnishing material therefor, has an estate less 4
than a fee simple in the land or if the property is subject to a mortgage 5
or other encumbrance, the lien shall bind such person's whole estate and 6
interest in the property, and such estate or interest may be sold and the 7
proceeds applied according to this chapter. 8
CH-^P. 255.] MORTGAGES, ETC., OF PERSONAL PROPERTY, LIENS.
2647
1 Section 26. This chapter shall not prevent a person entitled to a lien Action at law
2 under it from maintaining an action at law as if he had no lien. r° s^inf § 33
G. S. 150, § 40. P. S. 191, § 46. R. L. 197, § 33. 200 Mass. 406.
CHAPTER 255
MORTGAGES, CONDITIONAL SALES AND PLEDGES OF PERSONAL
PROPERTY, AND LIENS THEREON.
Sect.
mortgages.
1. Mortgages of personal property to be
recorded.
2. Mortgage of vessel or goods at sea
exempt.
3. Town clerk to record mortgages, etc.
4. Redemption.
5. Notice of intention to foreclose.
6. Notice of foreclosure to be recorded.
7. Foreclosure.
PLEDGES.
8. Notice of intention to sell.
9. Sale.
10. Contract rights not affected.
CONDITIONAL SALES.
11. Redemption in case of default.
12. Conditional sales of furniture, etc.
13. Foreclosure of right of redemption.
LIEN3 ON VESSELS.
14. Liens on vessels.
15. Lien dissolved unless statement is
filed in clerk's office.
16. Inaccuracies not fatal.
17. Liens on vessels may be enforced by
petition, etc.
IS. Form of petition.
19. Who may join in petition.
Sect.
20. Distribution of proceeds of sale.
21. Payment by owner of vessel.
22. Other liens not affected.
OTHER LIENS.
23. Lien of boarding and lodging house
keepers.
24. Lien for pasturing, boarding and keep-
ing domestic animals.
2."). Lien of garage keepers.
26. Enforcement.
27. Notice.
28. Notice if owner is unknown or out of
commonwealth.
29. Order for sale and distribution of pro-
ceeds.
30. Appeal.
31. Preceding sections not restrictive.
32. Dissolution of liens on personal
property.
33. Same subject.
34. Dissolution of certain liens of bailees.
35. Priority between lien of vendee's or
lessee's bailee and vendor or lessor.
36. Recovery of certain personal property
held under a lien.
37. Bond. Hearing on sufficiency of sure-
ties.
38. Trial of claim under which lien is
claimed.
39. Costs.
MORTGAGES.
1 Section 1. Mortgages of personal property shall, within fifteen days
2 from the date written in the mortgage, be recorded on the records of the
3 town where the mortgagor resides when the mortgage is made, and on
4 the records of the town where he then principally transacts his busi-
5 ness. If the mortgagor resides out of the commonwealth, and the prop-
6 erty mortgaged is within the commonwealth when the mortgage is made,
7 the mortgage shall be recorded on the records of the town where the
8 property then is. If a record in two different places is required and
9 the mortgage is recorded in one within said fifteen days, it may be re-
10 corded in the other within ten days after the date of the first record.
11 The mortgage shall not be ^•alid against a person other than the parties
12 thereto until so recorded; and a record made subsequently to the time
13 limited shall be void. This section shall apply to bills of sale given for
Mortgages of
personal
property to be
recorded.
1832, 157, § 1.
R. S. 74, § 5.
1843, 72, § 2.
G.S. 151, § 1.
1874, 111, § 1,
1875. 14.
F. S. 192,
§§ 1,2.
1SS3, 73.
R. L. 198, § 1.
1913,656.
1915. 226, § 1.
2 Pick. 607.
1 Met. 436.
8 Met. 19.
10 Met. 481.
13 Met. 200,
304, 358.
6 Cush. 298.
2648
MORTGAGES OF PERSONAL PROPERTY.
[CH.A.P.
iOO.
12 Cush. 109.
6 Gray, 100.
7 Gray, 239.
12 Gray, 154.
16 Gray, 379.
1 Allen, 373.
2 Allen, 264.
security. If the condition for redemption of the property included in such 14
bill of sale is in writing, it shall be recorded with and as a part of the bill 1,5
of sale; if the condition for redemption is oral, a wTitten statement of such 16
condition signed by the mortgagee shall be so recorded. 17
11 Allen, 231.
97 Mass. 452.
99 Mass. 397.
103 Mass. 4S2.
104 Mass. 249.
121 Mass. 435.
134 Mass. 48.
137 Mass. 460.
142 Mass. 379.
144 Mass. 207.
151 Mass. 300.
173 Mass. 88.
179 Mass. 120.
181 Mass. 73.
183 Mass. 123.
1S4 Mass. 361.
190 Mass. 219.
194 Mass. 493.
203 Mass. 46.
213 Ma.ss. 210.
215 Mass. 13, 156.
222 Mass. 587.
224 Mass. 448.
225 Mass. 491.
232 Mass. 124.
236 Mass. 435.
236 U. S. 97.
Mortgage of
vessel or goods
at sea exempt.
1832, 157, § 1.
R. S. 74, § 6.
1851, 57.
G. S. 151, § 2.
Town clerk
to record
mortgages, etc.
1832, 157, § 2.
R. S. 74. S 7.
G. S. 151, § 3.
1865, 43,
5§2,3.
P. S. 183, § 39;
192, § 4.
R. L. 198, § 3.
191.3, 650.
1915, 226,
5§ 1.2.
105 Mass. 442.
Redemption.
R. S. 107,
§§40,41.
G. S. 161,
§§4,5.
P. S. 192,
§§5,6.
R. L. 198, § 4.
142 Mass. 519.
152 Mass. 20.
190 Mass. 326.
231 Mass. 391.
Section 2. The preceding section shall not apply to a mortgage of, 1
or other instrument relative to, a ship or vessel of the United States, or 2
to goods at sea or abroad if the mortgagee takes possession of such goods 3
as soon as may be after their arrival in the commonwealth. 4
55 Me. 76.
P. S. 192, i
R. L. 198,
3.
I 2.
5 Allen, 280.
225 Mass. 491.
Section 3. Town clerks shall, upon payment of their fees, record in
books kept for the purpose mortgages of personal property, bills of sale
given for security and assignments of future earnings delivered to them,
noting in such books and on each such instrument the time when it is
received; and it shall be held to be recorded at the time when it is left
for that purpose in the clerk's office. The fees for recording and for all
other services relative thereto shall be the same as are allowed to registers
of deeds for like services. i4i Mass. ii7.
Section 4. The mortgagor or a person lawfully claiming under him 1
may, after breach of condition, redeem the mortgaged property at any 2
time before it is sold in pursuance of the contract between the parties, 3
or before the right of redemption is foreclosed. The person entitled to 4
redeem shall pay or tender to the mortgagee or to the person claiming 5
under him the amount due on the mortgage, or shall perform or offer 6
performance of the condition, and shall pay all reasonable and lawful 7
charges and expenses incurred in the care and custody of the property 8
or otherwise arising from the mortgage; and if upon such payment 9
or performance, or upon tender thereof, the property is not forthwith 10
restored, the person entitled to redeem may recover it in replevin, or 11
may recover damages for its conversion. 12
Notice of
intention to
foreclose.
1843, 72. § 1.
1856, 174.
G. S. 151, § 6.
P. S. 192, § 7.
R. L. 198, § 5.
10 Cush. 119.
2 Gray, 203.
190 Mass. 326.
231 Mass. 357.
Notice of
foreclosure to
be recorded.
1858, 3.
G. S. 151, § 7.
P. S. 192. § 8.
R. L. 198, § G.
Section 5. The mortgagee or his assigns may, after breach of con- 1
dition and subject to section ninety-three of chapter one hundred and 2
forty, give to the mortgagor, or to the person in possession of the prop- 3
erty claiming the same, written notice of his intention to foreclose the 4
mortgage for breach of the condition thereof, which shall be served by 5
leaving a copy with the mortgagor or person in possession of the property 6
claiming the same, or by publishing it at least once in each of three sue- 7
cessive weeks in one of the principal newspapers, if any, published in the 8
town where the mortgage is properly recorded or where the property is 9
situated; otherwise, in one of the principal newspapers published in the 10
county. 1 1
Section 6. The notice, with an affidavit of the service thereof, shall 1
be recorded wherever the mortgage is recorded, and such notice and 2
affidavit, if so recorded, or a copy of the record thereof, shall be evidence 3
of the giving of the notice. 4
97 Mass. 489. 122 Mass. 129. 190 Mass. 325. 211 Mass. 320.
CH-^P. 255.] PLEDGES, CO^■DITIOXAL SALES OF PERSONAL PROPERTV'. 2649
1 Section 7. If the condition is not performed or tender of perform- Foreclosure.
2 ance made within si.xty days after such notice is so recorded, the right to a^l.'ifi.Vs.
3 redeem shall be foreclosed. p. s. 192, § 9.
R. L. 198, § 7. 122 JIass. 129. 190 Mass. 326. 211 Mass. 320.
PLEDGES.
1 Section 8. The holder of personal property in pledge for the pay- Notice of in-
2 ment of money or for the performance of any other thing may, after g.°s.°i5i?|9.'
3 failm-e to pay or perform, give written notice to the pledgor that he R.L.'mVs?'
4 intends to enforce paAinent or performance by a sale of the pledge, and iTj^Mass^soo
5 such notice shall be served and, with an affidavit of the service, be re-
6 corded in the office of the clerk of the town where the pledgee resides,
7 in the manner and with the effect provided in sections five and six for
8 notices of foreclosure.
1 Section 9. If the money to be paid or thing to be done is not paid q^'I; jjj j jq
2 or performed, or tender thereof made, within si.xty days after such notice ^ |; ^^^^ ^, y-
3 has been so recorded, the pledgee may sell the pledge by public auction i75 iiass'. 320.
4 and apply the proceeds to the satisfaction of the debt or demand and of
5 the expenses of the notice and sale. Any surplus shall be paid on demand
6 to the party entitled thereto.
1 Section 10. The two preceding sections shall not authorize the Contract rights
2 pledgee to dispose of the pledge contrary to the terms of the contract G°s^i5"i,l'ii.
3 under which it is held, nor shall they limit his right to dispose of it in R.i/igs.l 10.
4 any other manner allowed by the contract or by law.
162 Mass. 527. 226 Mass. 30.
CONDITIONAL SALES.
1 Section 11. Except as other\\'ise pro\aded in chapter one hundred Redemption
2 and fifty-nine, if a contract for the sale of personal property is made default.
3 on condition that the title thereto shall not pass until the purchase p':s.'i92,'| is.
4 money has been fully paid and the vendor upon default takes from the fa/'jial'. li i.'
5 vendee possession of the property, the vendee may, within fifteen days
6 after such taking, redeem the property so taken by paying to the vendor
7 the full amount then unpaid, with interest and all lawful charges and
8 expenses due to the vendor.
1 Section 12. Such contracts for the sale of furniture or other house- Conditional
2 hold effects in the fprm of a lease or otherwise shall be in MTiting and a tSrnlture. etc.
3 copy thereof shall be furnished to the vendee by the vendor at the time r**l; igg] 1 12.
4 of such sale; and all payments made by or in behalf of the vendee and JgS MaS: 31°'
5 all charges in the nature of interest or otherwise, as they accrue, shall, if
6 the vendee so requests, be endorsed by the vendor or his agent upon such
7 copy. A failure of the vendor through negligence to comply with any
8 provision of this section shall suspend his rights under the contract while
9 the failure continues. His refusal or wilful or fraudulent failure so to
10 comply shall be a waiver by him of the condition of the sale.
1 Section 13. Thirty days at least before taking possession of said ItlfglfoP
2 furniture or effects for default of the vendee, the vendor shall demand in J^s'i'^s is"*' 2
3 writing of the vendee or other person in charge of said furniture or eft'ects is92'. 411!
. . 1898 545
4 the balance then due, and shall furnish to said vendee or other person an r. l! 19s', § 13.
2650 LIENS ON PERSONAL PROPERTY. [Ch.1P. 255.
182 Mass. 31. itemized statement of the account showins; the amount due thereon. 5
lob Mass. 51 -Ti.-! ii*p
187 Mass. 486. If gaid vendcc or other person can by the exercise of reasonable care and 6
218 Mass 112
(HHgence be found by the vendor, the fifteen days during which his right 7
of redemption exists under section eleven shall not begin to run until 8
said demand has been made, said statement furnished and said thirty 9
days have expired. If seventy-five per cent or more of the contract price 10
has been paid by a vendee whose right of redemption has expired, the 11
furniture or effects shall, if the vendee or his legal representative in writ- 12
ing so requests the vendor, be sold by public auction after due advertise- 1.3
ment, which shall be published at least three days prior to the sale in one 14
of the principal newspapers, if any, published in the town, otherwise in 15
one of the principal newspapers published in the county, where the fur- 16
niture or effects are situated. If the vendor refuses or neglects to make 17
the sale as provided herein, the right of redemption shall not be fore- 18
closed. If a balance of the proceeds of the sale remains after deducting 19
the actual expenses of the sale by auction and paying from said proceeds 20
to the vendor the balance of the contract price due him, it shall be paid 21
to the vendee or his legal representative. 22
LIENS ON VESSELS.
vesslis°° Section 14. If by virtue of a contract, ex-press or implied, with the 1
1855' 23i' 1 1' owners of a vessel or with the agents, contractors or sub-contractors of 2
p'lili'lif ^^"^^ owners, or with any of them, or with a person Mho has been em- 3
R. L. 198. § 14. ployed to construct, repair or launch a vessel or to assist therein, money 4
134. ™^' ' ' is due for labor performed, materials used or labor and materials furnished 5
l^Uen'/wb*' in the construction, launching or repairs of, or in the construction of the 6
ii^Uenfis'?. launching ways for, or for pro^■isions, stores or other articles furnished 7
103 Mass' 227' ^^r or ou accoimt of such vessel in the commonwealth, the person to whom 8
119 Mass' 179' ^^'^^ moucy Is due shall have a lien upon the vessel, her tackle, apparel 9
134 Mass! 186! and fiu"niture to secure the pajTnent of such debt, and such lien shall be 10
157 Mass! 625! preferred to all others on such vessel, except that for mariners' wages, and 11
167 u.T'eoe. shall continue until the debt is satisfied. 217 Fed. Rep. 617. 12
220 Fed. Rep. 281. 230 Fed. Rep. 1017. See U. S. Comp. Sts. §§7783-7787.
unlesfltat™'' Section 15. Such lien shall be dissolved unless the person claiming 1
■nent is Hed in [^ within thirty days after the vessel departs from the port at which she 2
1848, 290. § 2. was when the debt was contracted, files in the office of the clerk of the 3
G. s.' 151,' I Ts. town where the vessel was at such time, a statement, subscribed and 4
i89'"6,404'. ^ ■ sworn to by him or by a person in his behalf, giving a true account of the 5
?5 G'ray,*2l4^^' demand claimed to be due to him, with all just credits, the name of the 6
Is^i'ias's^lijo person with whom the contract was made, the name of the owner of the 7
191 itiasi 133 '^'essel, if known, and the name of the vessel or a description thereof suffi- 8
167 U.S. 606.' cient for identification. The statement shall be recorded by such clerk 9
617. ' in a book kept by him for that purpose, and the fees therefor shall be the 10
220 Fed. Rep. t A' 4. 11
281. same as tor recording mortgages, 11
230 Fed. Rep. 1017. SeeU. S. Comp. Sts. 5§7783-77S7.
notTa'tar'"^ SECTION 16. A place in which the vessel is wholly or partly con- 1
p- 1; jIg,' 1 16.' structed shall be held to be the port where she was when the debt was 2
n'g^iviass' 179^' contracted. The lien shall not be affected by any inacciu-acy in the de- 3
^fl n T'eor"' scription of the vessel, if she can be recognized thereby, nor in stating 4
217 Fed.Rep! the amouut due for labor or materials, unless it is found that the person 5
220 Fed. Rep. filing the Statement has knowingly claimed more than is due. 6
~^^- 230 Fed. Rep. 1017. SeeU. S. Comp. Sts. §§ 7783-7787.
Chap. 255.] liens on personal property. 2651
1 Section 17. A person having such lien, unless the contract described i-'™', °° ,
. • p • ••*" II p t> 1 f vessels may be
2 in section tourteen is a maritime contract and the eniorcement or the hen enforced by
3 is within the exclusive jurisdiction of the courts of the United States, may ilsk' 231! § 3.
4 enforce the lien by a bill in equity in the superior court for the county §§ 15, 17.'
5 where the vessel was at the time when the debt was contracted or fjty'lo.
G where she is at the time of filing the bill. The subsequent proceedings fg^- J^|; ^ '^•
7 shall, except as hereinafter provided, be as prescribed in chapter two hun- ||j-}.' ig^,. ^
8 dred and fifty-four so far as applicable. Upon the filing of the petition, SAiien, 207.
9 a process of attachment against such vessel, her tackle, apparel and fur- 109 Mass;576;
10 niture, shall issue, and the attachment may be dissolved as in a civil ac- 235 Mall. 471'.
11 tion, but such dissolution shall not dissolve the lien.
167U. S. 606. 220 Fed. Rep. 2S1. See U. S. Comp. Sts. §§ 77S3-7787.
217 Fed. Rep. 617. 230 Fed. Rep. 1017.
1 Section 18. The bill shall contain a brief statement of the labor, Form of
2 materials or work done or furnished, or of the stores, provisions or other cra°M, § le.
3 articles furnished, and of the amount due therefor, with a description of r. L^fgs.Vfs
4 the vessel which is subject to the lien, and all other material facts and ^^^ Fed Re^'
5 circumstances, and shall pray that the vessel may be sold and the proceeds 6i7.
6 of the sale applied to the discharge of the debt. 2si.
230 Fed. Rep. 1017. See U. S. Comp. Sts. §§ 7783-7787.
1 Section 19. Two or more persons having such liens upon the same who may join
2 vessel may join in one bill in equity to enforce them, and the proceed- is55,'23i?§ t.
3 ings shall be the same and the respondent may defend as to each petitioner p; |; m- 1 1^-
4 as if each had filed a separate bill.
R. L. 198. 5 19. 217 Fed. Rep. 617. 230 Fed. Rep. 1017.
167 U. S. 606. 220 Fed. Rep. 2S1. See U. S. Comp. Sts. §§7783-7787.
1 Section 20. If money is due to more than one person holding such Distribution
2 lien and all parties interested ha^•e been cited to appear and answer, the "f L'^ie'i^^''^
3 claims of all shall be marshalled, and the court shall make such order or }?'°t ^?}' I ^
4 decree as may be necessary to prevent the enforcement of a double hen ps- ^^<?c V''
• 5 for the same labor, materials, stores, provisions or other articles, and to i67 u. s. 606. '
6 secure the rights of each. The proceeds from the sale of the vessel, after 617. " ' ^^"
7 deducting all costs and expenses, shall be distributed among the se^-eral Isi. " ' ^"^
8 claimants according to the amount of their respective debts, except that, foi7^'^''' ^^"^
9 if such proceeds are insufficient to satisfv the liens of all, those who have &"'' ^- 1;
,. n , . ' . . . Comp. bts.
10 hens for labor shall receive a percentage on their respective claims one §§7783-77S7.
1 1 third greater, as near as may be, than those who ha^e liens for materials,
12 stores or other articles.
1 Section 21. If a contractor or sub-contractor unreasonably neglects Payment by
2 or refuses to pay for labor procured by him to be performed in construct- °.^ssef. °'
3 ing, repairing or launching a vessel upon which a lien exists therefor and p*|^'i9*2^§ 22,
4 the owner or other person who made the agreement with such contractor J^;7'tr's*'606^''
5 or sub-contractor pays the debt secured by the lien, he shall have the 217 Fed. Rep.
6 same claim against such contractor or sub-contractor as if the lien had 220'Fed. Rep.
7 been enforced by judgment.
230 Fed. Rep. 1017. See U. S. Comp. Sts. §§ 7783-7787.
1 Section 22. The eight preceding sections shall not affect any lien other liens not
2 on foreign vessels which exists independent of statute. affected.
1855, 231, §6. R. L. 198, § 22. 220 Fed. Rep. 281.
G. S. 151. § 20. 167 U. S. 606. 230 Fed. Rep. 1017.
P. S. 192, § 23. 217 Fed. Rep. 617. See U. S. Comp. Sts. §§7783-7787.
2652
LIENS ON PERSONAL PROPERTY.
[Chap. 255.
Lien of board-
ing and lodg-
ing house
keepers.
1859. 229.
G. S. 151, § 29.
P. S. 192. § 31.
1897, 292.
R. L. 198, § 28.
OTHER LIENS.
Section 2.3. Boarding house or lodging house keepers shall ha-\^e a
lien on the baggage and effects brought to their houses and belonging to
their guests, boarders or lodgers, except mariners, for all proper charges
due for fare and board or lodging, which may be enforced as provided
in sections twenty-six to thirty, inclusive.
10 Allen, 360. 110 Mass. 15S. 115 Mass. 70,
Lien for pas-
turing, board-
ing and keep-
ing domestic
animals.
1877, 96.
1878, 208.
Section 24. Persons having proper charges due them for pasturing,
boarding or keeping horses or other domestic animals which are brought
to their premises or placed in their care by or with the consent of the
owners thereof shall have a lien on such animals for such charges.
p. S. 192, §§ 32, 33.
R. L. 198, § 29.
136 Mass. 543.
139 Mass. 126.
140 Mass. 76.
155 Mass. 481.
161 Mass. 512.
Lien of garage
keepers.
1913, 300, § 1.
223 Mass. 332.
Section 25. Persons maintaining public garages for the storage 1
and care of motor vehicles brought to their premises or placed in their 2
care by or with the consent of the owners thereof shall have a lien upon 3
such motor vehicles for proper charges due them for the storage and care 4
of the same. 5
Enforeement.
G. S. 151, § 21.
P. S. 192, f 24.
18S8. 40.
R. L. 198,
§5 23, 29.
1013,300, § 2.
1917,326.
14 Allen. 139.
154 Mass. 105.
Section 26. A person who has a lien, which is not described in sec- 1
tions fourteen to twenty-two, inclusive, or in chapter two hundred and 2
fifty-four, for money due to him on account of work and labor, storage, 3
care and diligence, or money expended on or about personal property 4
under a contract express or implied, if such money is not paid, in the 5
case of a lien described in section twenty-four or twenty-five within ten 6
days, or in other cases within sixty days, after a demand in writing 7
delivered to the debtor or left at his usual place of abode, if within 8
the commonwealth, or mailed postpaid to him at his usual place of abode 9
without the commonwealth, may file a petition in the superior court or 10
in a district court within the jurisdiction of which the petitioner resides 11
or has his usual place of business for an order for the sale of the prop- 12
erty in satisfaction of the debt. 13
§§24,29.
1917, 326.
170 Mass. 210.
G°s.''ioi, § 22. Section 27. The court shall thereupon issue a notice to the owner
R L \^9s ^ ^^' °^ ^^^^ property to appear at a time and place designated, which shall be
served by an officer qualified to serve civil process or by a disinterested
person by delivering to the owner or by leaving at his usual place of
abode, if within the commonwealth, a copy thereof seven days before
the hearing in proceedings to enforce liens described in section twenty-
four or twenty-five or fourteen days before the hearing in other cases.
The return, if not made by an officer, shall be on oath.
1^ unknown^o""^ SECTION 28. If the owucr or his usual place of abode is unknown, the
monwea°th' petition may be filed sbcty days after the money becomes due, and the
?§■ 23^24' notice describing the property may be issued "to the unknown owner",
^i^^ i^i; § 26. or to the owner, naming him, "whose usual place of abode is unknown".
R. l! 198, § 25. If the owner resides out of the commonwealth or he or his usual place
of abode is unknown, the notice may be gi\en by publication, as pro-
vided in section five.
CtL^P. 255.] LIENS ON PERSONAL PROPERTY. 2653
1 Section 29. If, upon default or a hearing, it is found that a lien Order for sale
2 exists upon the property and that the property ought to be sold for the tion o'/pr'o-""
3 satisfaction of the debt, the court may make an order for such sale, de- G.'a'isi,
4 termine and record the amount then due and award costs to the prevailing P |^i||' ^^'
5 party. Any proceeds of the sale remaining after satisfying the debt, costs |§ '^•?^^ ^P^e
6 and charges, shall be paid to the owner upon demand. i9i7," 32b.'
1 Section 30. A party may appeal from the final order of a district Appeal.
2 court, as in other civil actions, to the superior court, which shall make an p.' s.' 192.' § 29.'
3 appropriate order. If the respondent appeals, he shall gi\'e bond for the igi?,' 326.'
4 prosecution of his appeal and for the payment, if judgment is rendered
5 against him, of any balance of the debt, with costs, which may remain
6 unsatisfied after a sale of the property.
1 Section 31. The eight preceding sections shall not restrict the right Preceding
2 of a person who has a lien upon property to hold or dispose of it in any restrictive.
3 other lawful manner. p. s. 192, § 34. r. l. 198, §30. . . o , .
1 Section 32. Liens claimed by public warehousemen and others Dissolution of
2 upon personal property for storage thereof, by innkeepers, boarding house s'onai°property.
3 keepers and lodging house keepers upon the baggage and effects of guests, \111\ '^\ ^ ^'
4 boarders or lodgers, by stable keepers and others for the boarding, keeping
5 or pasturage of horses or other domestic animals, by persons maintaining
6 public garages for the storage and care of motor vehicles, by agents, con-
7 signees and factors for advances, disbursements or expenses upon mer-
8 chandise, by attorneys at law upon books, papers, documents or other
9 personal property, and by any other persons for money due to them on
10 account of work and labor, care and diligence, or money expended on or
11 about personal property under a contract express or implied, may, ex-
12 cept as otherwise provided in section thirty-four, be dissolved as pro-
13 vided in the following section.
1 Section 33. A person who owns or has an interest in any personal i9^7^|9o,^^§°V.
2 property upon which such a lien has been claimed may, at any time after
3 a petition is brought for its enforcement and before the property is law-
4 fully sold to satisfy said lien, dissolve the lien upon his interest in the
5 whole or any part of said property by giving bond to the person claim-
6 ing the lien, ^\■ith sufficient sureties, who shall be approved in writing
7 by the claimant or by his attorney, or by a justice of a district court or
8 master in chancery, conditioned to pay to such person within thirty days
9 after the final judgment or order of sale of said property or the interest
10 therein or part thereof for which said bond may be given, an amount
11 fixed as the value of said interest or such part thereof as may be necessary
12 to satisfy the amount for which said interest or part thereof may be sub-
13 ject to said lien. The property upon which the lien is to be dissolved shall
14 be described in the bond. If the parties do not agree as to the value of
15 the property or of the part to be released from said lien, the value may
16 be determined in accortlance with the provisions of sections one hundred
17 and twenty-five and one hundred and twenty-six of chapter two hun-
18 dred and twenty-three. If the said property, or the part to be released
19 from said lien, consists of books, papers, documents or other similar prop-
20 erty and the parties do not agree upon the amount for which said bond
21 shall be given, it may be fixed in like nuinncr at such amount as may
2654 LIENS ON PERSONAL PROPERTY. [ChAP. 255.
be reasonable, giving due consideration to the amount for which said 22
lien is claimed, and upon the delivery of the bond in accordance with the 23
provisions hereof the lien upon the propertj^ described therein shall be 24
dissolved. The person claiming a lien upon said personal property shall, 25
upon demand therefor, furnish the person owning or having an interest in 26
said property with a statement of the amount and reasons, or other 27
considerations, for which the lien is claimed. 28
certa°i'nUens°^ Sectiox 34. The licn of a bailee of personal property exceeding 1
of bailees. twcuty dollars in value to secure a claim for which he has a lien, shall, 2
l§5.'6. ' if the amount of such claim has been agreed upon or otherwise estab- 3
lishcd, terminate upon tender, at any time before the property is law- 4
fully sold to satisfy the lien, by the bailor or upon his behalf, or by any 5
other person otherwise having the right of possession, of a bond in a penal 6
sum equal to twice the amount of such claim, signed by a surety com- 7
pany qualified to act in the commonwealth, or by sureties approved by 8
a justice of a district court or a master in chancery in the county where 9
the property is held, and conditioned to pay the amount found due on 10
such claim to the bailee within thirty days after final judgment, or order 1 1
of sale of such property. In any suit to replevy any such property 12
held to secure such a claim, a bond as described herein shall satisfy the 13
requirements of section eight of chapter two hundred and forty-seven. 14
bet^"ln lien of SECTION 35. As Egaiust E Conditional vendor or lessor, or person 1
lessee's baiJee claiming Under him, the lien of a bailee of the vendee or lessee or person 2
fessor™'^"'^ ""^ claiming under him on property exceeding twenty dollars in value, for 3
1920, 590, §7. consideration furnished, without actual notice of the conditional sale or 4
lease, shall prevail; provided, that the property was delivered to the 5
bailee prior to the breach of any condition of the sale or lease. 6
certa^nper°onai SECTION 36. If pcrsoual property excecdiug twenty dollars in value 1
Sndetl^iien'' '^ detained from the owner, or person otherwise entitled to its posses- 2
1920,590. § 1. sion, under the claim of a lien, and the contract under which the alleged 3
claim arose did not specifically state in writing the aggregate amount of 4
charges to accrue for the services or materials to be furnished, the owner 5
or such other person may cause the said property to be replevied in the 6
manner and subject to the provisions set forth in sections seven to twenty- 7
two, inclusive, of chapter two hundred and forty-seven, so far as the 8
same may be applicable, except as is otherwise pro\-ided in the three 9
following sections. 10
j^°oi sufi^"^ Section 37. Before the officer serving the writ delivers the goods to 1
sSetie°^ the plaintiff' he shall take from the plaintiff', or from a person acting in 2
1920, 590, § 3. ijjg behalf, a bond payable to the defendant in such sum and with such 3
surety or sureties as may be satisfactory to the defendant, or as may be 4
approved by a justice of a district court or a master in chancery in the 5
county where the action is brought. If the sureties are to be so approved, 6
the officer who serves the ■«Tit shall give written notice to the defendant 7
or to the person from whose custody the property has been taken, stating 8
the time and place of hearing thereon and the names and residences of the 9
proposed sureties, allowing not less than one hour before the time ap- 10
pointed for the hearing and at the rate of one hour additional for each 11
mile of travel. The amount of the bond required shall not exceed twice 12
Chap. 256.] eecogniz.vnces for debts. 2655
13 the sum for which a lien is claimed by the defendant. If the defendant
14 or his agent or attorney does not appear in person, and does not state in
15 writing the amount of his claim, no bond shall be required.
1 Section 38. If the court finds that the defendant has a lien on the Trial of claim
2 property but that the defendant is not otherwise entitled to possession uenls claimed.
3 of the property, judgment shall be rendered for the defendant for the ^®^''' ^®'*' ^ ^'
4 amount due under the contract, together with, or deducting, costs as
5 determined by the following section. Upon payment of this amount
6 to the defendant the bond provided for in the preceding section shall be
7 held satisfied, and shall be delivered up to the plaintifi'.
1 Section 39. In actions of replevin brought under section thirty-six, Costs.
2 costs shall be taxed against the plaintiff' in cases where the court decides ^^^°'^^°' ^ *•
3 that the claim of the defendant for which he asserted a lien was no greater
4 than the amount due under the contract. In all other cases costs shall be
5 taxed against the defendant.
REFERENCES.
Conditional sales of heating apparatus, plvunbing fixtures, etc., Chap. 1S4, § 13.
Mortgages or pledges of personal property under small loans act. Chap. 140,
§§ 107, 108.
Warehousemen's liens, Chap. 105.
Bills of lading given as security. Chap. 108.
IVIechanics' liens, Chap. 254.
Liens of innkeepers. Chap. 140, §§ 14-16.
Sales by pawnbrokers. Chap. 140, § 71.
CHAPTER 256.
RECOGNIZANCES FOR DEBTS.
Sect.
1. Recognizance for debt.
2. Record of recognizance.
3. Execution.
4. Same subject.
5. Death of conusee.
6. Death of conusor.
Sect.
7. Death of one of several conusors or
conusees.
S. Limitation of time for issue of original
execution.
9. Remedy for wrongful execution.
1 Section 1. A person who is competent to contract by bond may Recognizance
2 subject his person and property to be taken on execution by entering nsifse.
3 into a recognizance before the superior court in anv countv, substantially r'^I'us^ ^'
4 as follows: ' " ffU-o
5§ 1-3.
Be it remembered that on this day of , f ; i-s''^'
of personaUv appeared before and acknowledged himself R- L. 199, 5 i.
to be indebted to of in the sura of to be J|| l\l^\ ^i;
paid to said on the day of , (or in years,
orin months, from this day) with interest from this day; and, if not tlien
paid, to be levied upon his goods, chattels, lands and tenements, and, for want
thereof, upon his bod}-. In v.'itness whereof said hath hereto set
his hand.
2656
EECOGNIZ.VNXES FOR DEBTS.
[ClLiP. 256.
The clause as to the payment of interest may be altered or omitted
according to the agreement of the parties; but, unless the recognizance
otherwise expressly provides, interest shall be allowed for any delay after
the time for payment.
Record of
recognizance.
1781,36.
1782,21, § 2.
R.S. lis,
§§4,5.
G. S. 152, I 4.
P. S. 193. § 4.
R. L. 199, § 2.
Section 2. The recognizance shall be attested by the clerk of the
court, shall be recorded at length in a book kept for the purpose and the
original shall then be delivered to the conusee. It shall not be taken
unless the justice who takes it knows or has satisfactory evidence that the
person oft'ering to enter into it is the person whom he represents himself
to be and who is described as the conusor.
Execution.
17S1, 36.
1782,21,5 2.
R.S. 118,
§§ 6, 12. 16.
G. S. 152,
§§ 5, 8. 12.
P. S. 193,
§§6,8,12.
R. L. 199, § 3.
Section 3. If the debt is not paid at the time named in the recogni-
zance, the court may issue an execution in favor of the conusee for the
amount due, which shall be directed, served and returned in like manner
and have like efl'ect as an execution issued upon a judgment of said
court. Such execution may be levied and shall be obeyed in any county
to which it is directed. The conusee shall be entitled to an alias and
other successive executions as in a civil action.
Same subject,
1781,30.
1782,21, §2.
R.S. 118,
§§7,8.
G. S. 152, § 6.
P. S. 193. § 7.
R. L. 199, § 4.
8 Mass, 79.
Section 4. Before such execution issues, the original recognizance
shall be filed with the clerk, who shall compute the amount, deducting
any payments endorsed, and shall issue an execution therefor in common
form except that it shall recite the recognizance and state the amount
then due. Such execution may be issued by the clerk without a special
order of the court.
Death of
conusee.
17S1, 36.
1782,21.§§2.o. ...
K-S. US, §13. tary or of atlministration, take out the execution and the form thereof
p,'s.i93,'§ 9.' shall be altered accordingly. R. l. 199, § 5.
Section 5. If the conusee dies before the debt is paid, his executor
2 3^ or administrator may, upon exliibiting to the clerk his letters testamen-
Death of
conusor.
R.S. lis, § 14.
G. S. 152, § 10.
P. S. 193, § 10.
R. L. 199, § 6.
Section 6. If the conusor dies before the debt is fully paid, no exe-
cution therefor shall issue as of course, but his estate shall be liable for the
debt in like manner as if judgment therefor had been rendered against him
in his lifetime; and the conusee or his executor or administrator may
recover the same from the executor, administrator, heirs or devisees of
the conusor in contract or by a scire facias.
Death of one
of several
conusors or
conusees.
1782, 21, §2.
R.S. 118, 1 17.
G. S. 152, 1 13.
P. S. 193, § 13.
R. L. 199, § 7.
Section 7. If one or more of several conusees or conusors dies before
the debt is fully satisfied, the rights and obligations of the survivors and
the proceedings for the recovery of the debt shall be substantially the
same as in the case of the death of one or more joint judgment creditors
or debtors.
Limitation of
time for issue
of original
execution.
1781,36.
1782,21, §5.
R.S. 118. § 15.
G.S. 152, § 11.
P. S. 193, § 11.
R. L. 199, § 8.
Section 8. No original execution shall issue as of course upon such
recognizance after the expiration of three years from the time therein
named for payment of the debt or from the time of the last payment en-
dorsed thereon, but the conusee or his executor or administrator may
after that time have a scire facias or an action of contract on it against
the party liable, in like manner and with like effect as upon a judgment.
ClL\P. 257.] SEIZURE AND LIBELLING OF FORFEITED PROPERTY.
2657
1 Section 9. A person who is injured by the wrongful issue or levy of ^^on^^i'""^
2 an execution under this chapter may have a writ of audita querela or ejeoutjon.
3 other remedy as if the execution had been issued upon a judgment; and, i7S2! 21', § 4.
4 except as other^^ise expressly provided, the parties to such recognizance ois! 152! § u'.
5 and their representatives shall be entitled and liable to the remedies R.L.'igl'.Va'.'
6 provided for judgment creditors and debtors.
reference.
Fee for recording, etc., Chap. 262, § 4.
CHAPTER 257.
SEIZURE AND LIBELLING OF FORFEITED PROPERTY.
Sect.
1. Seizure of forfeited property.
2. Libel by person making seizure.
3. Jurisdiction and venue of libel.
4. Notice if libel is filed in superior
court.
5. Notice if libel is filed in district court.
6. Proceedings.
7. Decree.
8. Disposition of proceeds.
Sect.
9. Seizure without probable cau.se.
10. Costs.
1 1 . Delivery of property to claimant.
12. Appraisal on application of claimant.
13. Appraisal on application of person mak-
ing seizure.
14. Appraisal conclusive as to jurisdiction.
15. Sale of perishable goods.
1 Section 1. Property which has been forfeited for an offence may. Seizure of for-
2 if no other provision is made, be seized by a person entitled to enforce 1793, 43,°!"'^"
3 the forfeiture or, except as othen^'ise provided, by a police officer or §! 1; III'. | v'
4 constable of the town where the forfeited property is found, and shall r L^looVi
5 be safely kept by him until it is disposed of as hereinafter provided.
155 Mass. 10.
14 Gray, 37,5.
103 M.1SS. 456.
1 Section 2. The person who makes the seizure shall, within fourteen Libel by per-
2 days thereafter, file a libel in tlie superior court or in a district court, Iti'zme. ^
3 stating briefly the cause of the seizure without the details, and praying r."!.' ii^8,\^2i.
4 for a decree of forfeiture. g, s. 153, § 2.
p. S. 194, § 2. R. L. 200, § 2. 1917, 326, 15 Gray, 166.
1 Section 3. A libel may be brought either in the superior court in the jurisdiction
2 county where the offence was committed, or in a district court having juris- onibTi""*^
3 diction of the offence if the value of the property seized does not exceed §§®2,'3.^'
4 the maximum jurisdiction of that court in ci^■iI actions. The value for l^gi'al'
5 such purpose shall be ascertained by an appraisal as hereinafter provided, f; f Y'^'
p. S. 194, § 3. 1917, 326, 1919, 5, 9§ . ■
R. L. 200, § 3. 19 IS, 257, § 445. 1920, 2.
1 Section 4. Upon the filing of a libel in the superior court, the clerk Notice if libei
2 shall issue an order of notice, stating briefly the substance of the libel, perio? court.'
3 which the libellant shall cause to be published twice at least in a news- r.°|; thh^is.
4 paper published in the county, the first publication to be not less than p- 1- j'||' 1 1-
5 fourteen days before the return day. is85, 384, § i. r. l. 200, § 4.
1 Section 5. If the libel is filed in a district court the court shall issue Notice if libci
2 an order of notice, stating briefly the substance of the libel and the time uict^courtf'""
2658
SEIZURE ,'VND LIBELLING OF FORFEITED PROPERTY. [Ch.\.P. 257.
1793, 43,
§3.
R. S.
118,
n.i
,32,
153,
34.
§§1S
1,14.
Proceedings.
1793,
43,
§2.
R. S.
118,
h'l
,25.
153,
§§5,
6.
P.S.
194,
§§5,
6.
R. L.
200,
,§6.
1917,
326.
Decree.
1793,
43,
§2,
E.S.
118,
§26.
G.S.
153,
§ 7.
P.S.
194,
§ 7.
R.L.
200,
,§7.
Disposition of
proceeds.
6.S.
153,
§8.
P.S.
194,
§8.
R. L.
200, § 8.
and place appointed for the hearing, which the libellant shall cause to be 3
posted in a public place within the jurisdiction of such court not less than 4
seven days before the time appointed for the hearing. 5
P.S. 194, §§ 12, 13.
R. L. 200, § 5.
1917,326.
Section 6. The libel shall be entered and conducted as a civil action;
and if after notice no claimant appears, the court shall, upon a hearing,
decree a forfeiture, restoration or other appropriate disposition of the
property. If a claimant appears, he may allege and answer any matter
material for his defence, and either party shall be entitled to claim a jury
trial upon issues of fact as in other civil actions.
Section 7. If the libellant maintains his action, the court shall decree 1
a forfeiture and sale of the property and a distribution of the proceeds, 2
or other appropriate disposition thereof. If he fails to maintain it, the 3
court shall decree a restitution of the property to the claimant. 4
Section 8. If property is sold under sticli decree, the proceeds shall 1
be applied under the direction of the court to the paj-ment of the expenses 2
of the seizure, prosecution and sale; and in default of any other provi- 3
sion for the disposition of the residue, it shall be paid to the person who 4
made the seizure. 5
Seizure with-
out probable
cause.
1793, 43, § 2.
R. S. 118, § 27.
Section 9. If it is found that the seizure was groundless and without 1
probable cause, reasonable damages shall be assessed for the claimant, 2
and the court shall render judgment for such damages with costs. 3
G. S. 153, § 9.
P. S. 194, § I
R. L. 200, § 9.
i793!43, § 2. Section 10. In all other cases the court shall award costs to the pre- 1
G I' lis' I lo' vailing party or may order the costs and charges of keeping and selling 2
p. s. 194,' § 10. the property or any part thereof to be paid out of the proceeds. 3
R. L. 200, § 10.
property to SECTION 11. Property which is alleged to have been forfeited may 1
179™ 43,'§ 1. after its seizure be delivered to the owner or a person entitled to claim '^
G i' 153' 1 17' ^^^^ same, upon his giving to the person who made the seizure a bond
P- s. 194^ 5 16 Jn double the value of the property, with sufficient surety, conditioned
to restore the propertj', or pay the appraised value thereof if it is decreed
forfeited, and to abide by and perform the final order, decree or judgment.
appUrattin of SECTION 12. The valuc of the property shall be determined by three
i7*9™43''§ 1 disinterested persons appointed by the parties or by a justice of the
c' s 1-3' I is' P6^<^6 t<^ whom the claimant applies therefor, or, if the appraisal is made
p.'s.' 194,' § 17.' after the libel has been filed, by the court before whom it is pending.
R. L. 200, § 12.
1917, 326.
appiicationof SECTION 13. The pcrsou wlio makcs the seizure shall forthwith,
sdzu're.™^'^"* unless an application for an appraisal has been made by a claimant,
R^I.'nW^ss. apply to a justice of the peace, who shall appoint three disinterested
p' I' 194' I IS persons to make an inventory and appraisal of the property seized. Such
R- L. 200, § 13. appraisers shall be sworn and shall return their inventory and appraisal
to the court before whom the libel is pending.
Crap. 258.]
CLAniS AGAIXST THE COMMONWEALTH.
2659
1 Sectiox 14. The appraisal, under section twelve, if any, otherwise, Appraisal con-
2 under section thirteen, shall be conclusive as to the jiu-isdiction of the j^SfcUon"
3 court in which the libel is to be filed. 1793, 43. 1 1.
R. S. 118, § 39. G. S. 153, § 20. p. S. 194, § 19. R. L. 200, § 14.
1 Section 15. If appraisers appointed under section thirteen certify Saie of pensh-
2 that property so seized is perishable and likely to depreciate in value by r. sAT^'
■^ being kept, any district court may order a sale by auction of such prop- g. s°'i53,
erty at such time and after such notice as the order, which shall be en-
dorsed on the inventory, shall direct;
21. 22.
P' S. 194,
but this section shall not affect |§ 1°',^ § is
6 the power of the court in which the libel is pending to order a sale of isi"^ ^au.'
7 the propertv for sufficient cause at anv time during the pendency of the
8 libel.
REFERENCES.
Seizure of lobsters, Chap. 130, §§ 110-11.3.
Forfeiture of seines, etc., illegally used. Chap. 130, §§ 74, 76, 1.52.
Note. — This chapter does not apply to gaming implements (103 Mass. 456).
CHAPTER 258.
CLAIMS AGAINST THE COMMONWEALTH.
Sect.
1, Jurisdiction of claims against the com-
monwealth, etc.
2. Certain cases to be tried without a jurj',
etc.
Sect.
3. Decision in favor of petitioner.
4. Judgment in favor of commonwealth.
5. Statutes of limitation applicable.
1 Section 1. The superior court, except as otherwise expressly pro- jurisdiction
2 vided, shall have jurisdiction of all claims at law or in equity against the againstWe
3 commonwealth. Such claims may be enforced by petition stating clearly commonwealth,
4 and concisely the nature of the claim and the damages demanded, and Jf"?:,^^^'
5 such petition shall be served by the sheriff of Suffolk county or any p. s. 195,
6 of his deputies by leaving an attested copy thereof in the hands or in iss?', 246.
7 the office of the attorney general, and a like copy in the hands or in the 1905! 370! 1 1'.
8 office of the state secretary, thirty days at least before the return day \~l HlH] 1%
9 thereof.
ISl Mass. 315.
193 Mass. 387
197 Mass. 137.
204 Mass. 482.
205 Mass. 523.
212 Mass. 534.
224 Mass. 28.
236 Mass. 599.
Section 2. The laws relative to tender, offer of judgment, set-ofT ^''be trfed^^
and recoupment shall apply to the said petition, and the case shall be without a
tried bv the court without a jurv. All hearins^s shall be in open court, ex- 1879', 255.
cept that on motion by the attorney general or the petitioner an auditor p. s.' 165. § 3.
5 or master may be appointed, and questions of law may be taken to the ^^l[ fo?; 5 2.
6 supreme judicial court, as in other cases. If the amount claimed exceeds Jgolilss ^ ^'
7 two thousand dollars, the petition shall be brought in Suffolk countv, i^?^, 204, § 1
01 • • o ^ 11 • 1 11 • • -1 1910, 55o, § 3;
8 otherwise in Suffolk county or m the county where the petitioner resides, ''i-'-.,
9 If the petition is to recover damages for injuries sustained while traveling 197 Mass! 137!
10 on a state highway, it may be brought in Suffolk county or in the county
11 where the petitioner resides or where the injuries were sustained.
2660
CLAIMS AGAINST THE COMMONWEALTH.
[Chap. 258.
Decision in
favor of
petitioner.
1879, 255, § 4.
P. S. 195, § 4.
R. L. 201, § 3.
1 Op. A. G.
556.
Section 3. If the final decision is in favor of the petitioner, the chief 1
justice of the superior court shall certify to the governor the amount found 2
due, with the legal costs; and the governor shall draw his warrant for 3
such amount on the state treasurer, who shall pay the same from any 4
appropriations made for the purpose by the general court. 5
frvcfrTf^cVm- Section 4. If the decision is in favor of the commonwealth, judg- 1
isra^lss'^j 4 Dient for costs and execution thereon shall issue in its favor against the 2
p. s.'i95,'§5. petitioner; and if such judgment is final, the claim shall be forever 3
barred. 4
R. L. 201, §4.
Statutes of
limitation
applicable.
1S79, 255, § 5.
Section 5. Laws relative to the limitation of actions shall apply to 1
claims against the commonwealth and to the remedy herein provided. 2
p. S. 195, § 6. R. L. 201, § 5.
REFERENCES.
Speedy trials in land damage cases against commonwealth, Chap. 79, § 34.
Writ of entry against commonwealth, Chap. 237, § 2.
Chap. 259.]
PREVENTION OF FRAUDS AND PERJURIES.
2661
TITLE V.
STATUTES OF FRAUDS AND LIMITATIONS.
Chapter 259. Prevention of Frauds and Perjuries.
Chapter 260. Limitation of Actions.
CHAPTER 259.
PREVENTION OF FRAUDS AND PERJURIES.
Sect.
1. Certain contracts actionable only if in
writing.
2. Consideration need not be in writing.
3. New promise by insolvent debtor to be
in writing.
Sect.
4. Representation as to another's credit to
be in writing.
5. Agreement to make a will, etc., to be in
writing.
6. Contracts for sale of stocks, etc., void,
when.
1 Section 1. No action shall be brought:
2 First, To charge an executor or administrator, or an assignee under
.3 an insolvent law of the commonwealth, upon a special promise to answer
4 damages out of his own estate; 1692-3, 1.5, § 2. 1733, 37, § 1.
1.
Certain con-
tracts action-
able only if in
writing.
29 Car. II,
0.3, §4.
17SS, 16, § 1.
R. S. 74. § 1.
1848, 252.
G. S. 10.5, <
P. S. 78. §
R. L. 74, §
5 Second, To charge a person upon a
6 debt, default or misdoings of another;
12 Cuah. 282.
12 Gray. 357.
1. 205 Mass. 472.
special promise to answer for the n uass. 229.
6 Pick. 509.
7 Pick. 220.
9 Pick. 306.
15 Pick. 1.59.
17 Pick. 538.
18 Pick. 369, 467.
20 Pick. 467.
3 Met. 396.
13 Met. 539.
5 Cush. 488.
6 Cush. 549.
7 Cusii. 133.
1 Gray, 391.
5 Gray, 45.
8 Gray, 233.
9 Gray, 76.
13 Gray, 613.
1 Allen, 405.
2 Allen, 417.
3 Allen, 540.
5 Allen, 370.
11 Allen, 365.
13 Allen. 114,136.
98 Mass. 296.
100 Mass. 327.
105 Mass. 443.
106 Mass. 400.
107 Mass. 272.
108 Mass. 246.
Ill Mass.
116 Mass.
lis Mass.
120 Mass.
124 Mass.
129 Mass.
130 Mass.
131 Mass.
134 Mass.
160 Mass.
172 Mass.
174 Mass.
176 Mass.
181 Mass.
501.
541.
137,521.
322.
105.
373.
437.
47,93.
27. 140.
166. 225.
355.
511.
570.
345.
189 Mass.
191 Mass.
192 Mass.
201 Mass.
206 Mass.
207 Mass.
208 Mass.
209 Mass.
217 Mass.
218 Mass.
230 Mass.
231 Mass.
232 Mass.
48.
469.
204.
318,469.
472.
409.
399.
421,570.
13.
5.
21, 248.
362.
566.
Third, Upon an agreement made upon consideration of marriage;
233 Mass. 468.
132 Mass. 359.
154 Mass. 593.
8 Fourth, Upon a contract for the sale of lands, tenements or heredita- 4 Mass. 400,
9 ments or of any interest in or concerning them ; or,
488.
5 Mass. 133.
11 Mass. 342.
12 Mass. 513.
16 Mass. 39.
17 Mass. 249.
1 Pick. 328.
17 Pick. 638.
20 Pick. 134.
1 Met. 313, 483.
2 Met. 423.
6 Met. 319.
7 Met. 57.
8 Met. 34.
1 Cush. 79.
6 Cush. 549.
8 Cush. 223.
5 Gray, 492.
6 Gray, SDO.
9 Gray, 313.
,361.
13 Gray, 86.
2 Allen, 439.
8 Allen, 540.
9 Allen, 387.
10 Allen, 82.
11 Allen, 141,
99 Mass. 354.
102 Mass. 24.
103 Mass. 408, 484.
104 Mass. 309.
107 Mass. 290.
109 Mass. 130.
1 10 Mass. 92.
111 Mass. 250.
113 Mass. 31,372.
115 Mass. 256.
116 Mass. 416, 515.
118 Mass. 521.
119 Mass. 526.
123 Mass. 185,506.
124 Mass. 478.
130 Mass. 388.
133 Mass. 414.
134 Mass. 109.
135 Mass. 500.
137 Mass. 309.
139 Mass. 3.
141 Mass. 368.
145 Mass. 69.
153 Mass. 268.
162 Mass. 566, 579.
165 Mass. 273.
173 Mass. 580.
176 Mass. 566.
181 Mass. 401.
1S9 Mass. 285.
193 Mass. 444.
195 Mass. 124.
196 Mass. 395, 509.
201 Mass. 596.
204 Mass. 346.
205 Mass. 396, 547.
208 Mass. 300.
210 Mass. 328.
211 M.ass. 37.
213 Mass. 380.
216 M.as3. 416.
218 Mass. 483.
220 Mass. 186.
225 Mass. 341.
226 Mass. 1.56.
229 Mass. 87.
231 Mass. 324.
234 Mass. 17.
2662
PHEVENTION OF FRAUDS AND PERJURIES.
[Chap. 259.
3 Pick. 83.
13 Pick. 1.
IS Pick. 569.
19 Pick. 364.
7 Mass. 233.
13 Mass. 87.
2 Pick. 64.
3 Pick. 83.
7 Pick. 301.
8 Pick. 9. 252.
15 Pick. 159.
Fifth, Upon an agreement that is not to be performed within one 10
year from the making thereof;
11
22 Pick. 97.
7 Met. 46.
8 Met. 59.
11 Met. 411.
4 Cush. 42.
1 Gray, 131.
5 Gray, 41.
11 Gray, 168.
16 Gray, 448.
9 AUen, 8.
11 Allen, 123.
97 Mass. 208.
99 Mass. 461.
105 Mass. 443.
106 Mass. .56.
118 Mass. 279.
145 Mass. 361.
151 Mass. 433.
167 Mass. 544.
175 Mass. 427, 536.
181 Mass. 256.
208 Mass. 399.
209 Mass. 570.
218 Mass. 4S3, 542.
220 Mass. 324.
230 Mass. 24S.
232 Mass. 239. 566.
234 Mass. 51G.
Unless the promise, contract or agreement upon
brought, or some memorandum or note thereof, is
by the party to be charged therewith or by some
him lawfully authorized.
which such action is 12
in writing and signed 1.3
person thereunto by 14
15
16 Pick. 227.
19 Pick. 502.
20 Pick. 9.
2 Met. 283.
3 Met. 486.
12 Met. 353.
13Met. 385,453, 520.
2 Cush. 355.
4 Cush. 497.
6 Cush. 508.
8 Cush. 223.
9 Cush. 31.
11 Cush. 1, 127.
2 Gray, 387,476.
5 Gray, 492.
6 Gray, 25, 500.
7 Gray, 33.
9 Gray, 397.
10 Gray, 609.
16 Gray, 202. 436.
9 Allen, 412,419.474.
10 Allen, 322, 326.
11 Allen, 123,361.
12 Allen, 130.
154 Mass. 257.
13 Allen, 333.
157 Mass. 439.
14 Allen, 242, 407. 487.
158 Mass. 113.
98 Mass. 545.
161 Mass. 161, 248.
101 Mass. 291,409,449.
165 Mass. 273.
102 Mass. 204.
167 Mass. 426.
104 Mass. 407.
169 Mass. 595.
107 Mass. 290.
170 Mass. 461.
112 M.ass. 15, 19.
171 Mass. 152.
114 Mass. 16.
174 Mass. 296.
115 Mass. 413.
175 Mass. 349.
116 Mass. 223,515.
176 Mass. 287, 425.
117 Mass. 96.
178 Mass. 172.
119 Mass. 482.
179 Mass. 427.
121 Mass. 494.
180 Mass. 377.
132 Mass. 129.
197 Mass. 325.
134 Mass. 127.
204 Mass. 346.
135 Mass. 500.
208 Mass. 300.
141 Mas.s. 368.
210 Mass. 560.
142 Mass. 130, 232.
213 Mass. 380.
143 Mass. 386.
216 Mass. 57, 416.
144 Mass. 256, 465.
229 Mass. 95.
153 Mass. 308,321.
234 Mass. 17.
Consideration
need not be
in writing.
R. .S. 74. §2.
G. S. 105, § 2.
P. S. 78, § 2.
Section 2. The consideration of such promise, contract or agree-
ment need not be set forth or expressed in the writing signed by the
party to be charged therewith, but may be proved by any legal evidence.
R.L. 74, §2. 5 Cush. 488.
17 Mass. 122. 1 Gray, 391.
15 Pick. 159. 4 Gray, 318.
18 Pick. 467.
159 Mass. 451.
191 Mass. 565.
193 Mass. 444.
208 Mass. 399.
210 Mass. 560.
216 Mass. 57.
New promise
by insolvent
debtor to be
in writing.
1S56, IS.
G..S. 105, § 3.
P. S. 78, § 3.
R. L. 74, § 3.
1 Cush. 77.
5 Cush. 484.
6 Cush. 210.
7 Cush. 462.
7 Gray, 460.
8 Gray, 230.
7 Allen, 463.
Section 3. No promise for the payment of a debt, made by an 1
insolvent debtor who has obtained his discharge from such debt under 2
proceedings in bankruptcy or insolvency, shall be evidence of a new or 3
continuing contract whereby to deprive the debtor of the benefit of 4
relying upon such discharge in bar of the recovery of a judgment 5
upon such debt, unless such promise is made by or contained in some 6
writing signed by him, or by some person thereunto by him lawfully 7
authorized. 124 Mass. Sei. 130 Mass. 14. 8
136 Mass. 102.
139 Mass. 12, 297, 345.
141 Mass. 14, 16.
161 Mass. 16.
171 Mass. 347.
193 Mass. 576.
Representation
as to another's
credit to be in
writing.
1834, 182, § 5.
R. S. 74, § 3.
G. S. 105, § 4.
P. S. 78. § 4.
R.L. 74, §4.
6 Met. 246.
4 Gray, 156.
Section 4. No action shall be brought to charge a person upon or 1
by reason of a representation or assurance made concerning the char- 2
acter, conduct, credit, ability, trade or dealings of any other person, 3
unless such representation or assurance is made in WTiting and signed 4
by the party to be charged thereby, or by some person thereunto by 5
him lawfully authorized. 6
13 Gray, 285.
14 Gray. 608.
15 Gray, 562.
2 Allen, 386.
8 Allen. 207.
122 Mass. 189.
142 Mass. 120.
157 Mass. 1.
179 Mass. 174.
186 Mass. 69.
206 Mass. 318.
222 Mass. 504.
Agreement to SECTION 5. No agreement to make a will of real or personal propertv 1
make a will, . » . , ,i , ■ • ,• i i -,
etc.. to be in or to give a legacy or make a devise shall be binding unless such agree- 2
18^88, 372. ment is in writing signed by the person whose executor or administrator 3
Ch.\p. 260.]
LIMITATION OF ACTIONS.
2663
4 is sought to be charged, or by some person by him duly authorized, f^^^^^^^^gg
5 This section shall not apply to any agreement made prior to May JUm"^^ ofi
6 seventeenth, eighteen hundred and eighty-eight.
179 Mass. 30.
191 Mass. 579.
19S Mass. 441.
218 Mass. 105.
230 Mass. 428.
233 Mass. 468.
1 Section 6. Every contract, written or oral, for the sale or transfer
2 of a certificate or other evidence of debt due from the United States or
3 from an individual state, or of stock or a share or interest in the stock
4 of a bank, company, city or village, incorporated under a law of the
5 United States or of an individual state, shall be void, unless the party
6 contracting to sell or transfer the same is, at the time of making the
7 contract, the owner or assignee thereof, or authorized by the owner or
8 assignee or his agent to sell or transfer the certificate or other evidence
9 of debt, share or interest so contracted for.
Contracts for
sale of stocks,
etc., void,
when.
1836, 279.
G.S. 105, § 6.
P.S. 78. §6.
R. L. 74, §7.
12 Met. 428.
3 Gush. 137.
7 Gray, 160.
3 Allen, 238.
10 AUen, 245,
337.
98 Mass. 161.
103 Mass. 313.
107 Mass. 49.
127 Mass. 476.
135 Mass. 431.
139 Mass. 492. 531.
141 Mass. 225.
149 Mass. 171.
151 Mass. 504.
195 Mass. 419.
199 Mass. 242.
200 Mass. 209.
REFERENCE.
Contracts to sell goods, etc., valued at S500 or more not enforceable unless mem-
orandum is signed by party to be charged, Chap. 106, § 6.
CHAPTER 260.
LIMITATION OF ACTIONS.
Sect.
limitation of personal actions.
1. Limitation of twenty years.
2. Limitation of six years.
3. Limitation of four years.
4. Limitation of two years.
5. Actions for penalties.
6. Mutual current account.
7. Disabilities.
8. Same subject.
9. Suspension in case of non-resident de-
fendant.
10. Extension of time in case of death.
11. Suits against executors, etc., on their
contracts, etc.
12. Extension of time in case of fraudulent
concealment.
13. Acknowledgment or new promise.
14. Effect of part payment.
15. Promise or payment by joint con-
tractor, etc.
16. Judgment in such case.
17. Plea in abatement. ■
Sect.
IS. Actions by commonwealth.
19. Special limitations.
20. Presumption of satisfaction of judg-
ment.
limitations of real actions AND RIGHTS
OF entry.
21. Actions for recovery of land.
22. When the twenty years begin to run.
23. Same subject.
24. Corporation sole.
25. Disabilities.
26. Death during disability.
27. Successive disabilities.
28. Requisites of effectual entry.
29. Estates tail.
30. Same subject.
31. Actions by the commonwealth.
PROCEEDINGS UPON F.^ILURE OF ORIGIN-IL
ACTION.
32. Extension of time in case of abatement.
LIMITATION OF PERSONAL ACTIONS.
1 Section 1. The follo^^■ing actions shall be commenced only within J;j.^n'y'y^re.
2 twenty years next after the cause of action accrues: 1770-1,9, § s.
1786, 52, § 5. P. S. 197, §§ 1, 0, 7. 11 Met. 210.
R. S. 120. §§ 1, 4, 7. R. L. 202. § 1. 6 Cush. 493.
G. S. 155, |§ 1, 4. 7. 3 Met. 390. S Cush. 365.
2664
LIMITATION OF ACTIONS.
[Chap. 260.
4 Met, 164.
9 Cush. 365.
215 Mass. 18.
16 Mass. 290.
8 Pick. 246.
17 Pick. 386.
19 Pick. 43.
23 Pick. 282.
6 Cush. 493.
194 Mass. 244.
First, Actions upon contracts under seal.
170 Mass. 236. 215 Mass. 552.
217 Mass. 120.
Second, Actions upon bills, notes or other evidences of indebtedness
issued by a bank.
Third, Actions upon promissory notes signed in the presence of an
attesting witness, if brought by the original payee or by his executor or
administrator. i Met. 21. 4 Met. 219,537.
13 Met. 128.
1 Cush. 276.
4 Cush. 176.
5 Cush. 442.
6 Cush. 139, 172.
10 Cush. 92.
1 Gray, 261.
115 Mass. 534, 594,599.
123 Mass. 559.
124 Mass. 149.
125 Mass. 446.
126 Mass. 342.
134 Mass. 245.
142 Mass. 12.
150 Mass. 1G6.
167 Mass. 74.
205 Mass. 376.
213 Mass. 330.
Fourth, Actions upon contracts not limited by the following section or 9
bv anv other law. 10
Limitation of
six years.
1718-19,
10, § 1.
1740-1,4,
§§1,2.
22 Pick. 430.
9 Met. 182.
4 Gray, 385.
6 Gray, 515.
3 Allen, 42.
7 Allen, 499.
106 Mass. 563.
7 Pick. 152.
156 Mass. 21.
Section 2. The following actions shall, except as otherwise pro- 1
vided, be commenced only within six years next after the cause of 2
action accrues: 1743-9, i7, § i. 3
1770-1,9, §2.
1786, 52, § 1.
R. S. 120, § 1.
G. .S. 155, § 1.
P. S. 197, § 1.
R. L. 202, § 2.
13 Pick. 418.
7 Met. 116, 227.
2 Cush. 92.
110 Mass. 345, 454.
117 Mass. 359.
132 Mass. 436.
142 Mass. 383.
145 Mass. 503.
146 Mass. 118.
150 Mass. 158.
151 Mass. 46.
168 Mass. 133.
170 Mass. 63.
173 Mass. 233.
177 Mass. 212.
First, Actions of contract founded upon contracts or liabilities, express 4
or implied, except actions limited by the preceding section or actions 5
upon judgments or decrees of com-ts of record of the United States or of 6
this or of any other state of the United States. 7
130 Mass. 373.
159 Mass. 17.
168 Mass. 234.
189 Mass. 104.
193 Mass. 488.
194 Mass. 244.
Second, Actions of tort.
162 Mass. 412.
200 Mass. 599.
213 Mass. 330.
215 Mass. 18. 552.
216 Mass. 156, 289.
217 Mass. 120.
218 Mass. 425.
200 Mass. 293.
219 Mass. 23.
230 Mass. 49.
232 Mass. 38:
233 Mass. 591.
234 Mass. 467.
2 0p. A. G 502.
201 Mass. 502.
Third, Actions of replevin.
9
Limitation of
four years.
1796, 71.
R. S. 14, § 78;
120, § 3.
Section 3. Actions against sheriffs for the misconduct or negligence 1
of their deputies shall be commenced only within four j-ears next after 2
the cause of action accrues. 3
G. S. 155, § 3.
P. S. 197, § 2.
R. L, 202. § 3.
10 Met. 244.
12 Cush. 161.
4 Gray, 295.
Limitation of
two years.
1740-1, 4.
§§ 1,2; 9, §2.
1770-1,9, § 2.
1786, ,52. § 1.
R. S. 120, § 2.
G. S. 155, § 2.
1801, 177,
§§ 1,2.
P. S. 197, I 3.
R. L. 202, § 4.
1902, 40G.
Section 4. Actions for assault and battery, false imprisonment,
slander, actions against sheriffs, deputy sheriffs, constables or assignees
in insolvency, for the taking or conversion of personal property, and
actions of tort for injuries to the person against counties, cities and towns,
sliall be commenced only within two j-ears next after the cause of action
accrues; and actions for libel shall be commenced only within one year
next after the cause of action accrues.
1913, 435. 4 Gray, 295. 156 Mass. 21. 197 Mass. 178.
Actions for
penalties.
1788, 12. I 1.
R. .S. 120,
§§21,22.
G. S. 155,
§§20,21.
Section 5. Actions for penalties or forfeitures under penal statutes, 1
if brought by a person to wliora the penalty or forfeiture is given in 2
whole or in part, shall be commenced only within one year next after 3
the offence is committed. But if the penalty or forfeiture is given in 4
Chap. 260.] limit.'^tion of actions. 2665
5 whole or in part to the commonwealth, an action therefor by or in behalf ^^^- 1^''-
6 of the commonwealth mav be commenced only within two years next ?■ ^ 202 §5.
_ „ , „ . -.^ 1 11 Cush. 512.
7 atter the otience is committed.
6 Gray, 338. 134 Mass. 471. 145 Mass. 311. 216 Mass. 156.
1 Section 6. In an action of contract brought to recover the balance Mutual cur-
2 due upon a mutual and open account current, the cause of action shall be r.^s.^^m^F 5.
3 held to have accrued at the time of the last item proved in the account. p;|; 197 'I |;
R. L. 202, 5 6. 97 Mass. 476. 169 Mass. 285.
2 Mass. 217. 118 Mass. 486. 173 Mass. 233.
3 Pick. 96. 121 Mass. 300. 201 Mass. 135.
3 Met. 216. 136 Mass. 30. 217 Mass. 120.
llCush. 2.'i8. 144 Mass. 35. 230 Mass. 49.
4 Allen, 108. 154 Mass. 472.
1 Section 7. If the person entitled thereto is a minor, or is insane or Disabilities.
2 imprisoned when a right to bring an action first accrues, the action may lo. § 2. '
3 be cc5mmenced within the time hereinbefore limited after the disability 1745^9; ivf/i.
4 is removed. 1770-1, 9, § 6.
1786. 52, § 4. G. S. 155, § 6. P. S. 197, § 9. 136 Mass. 564.
R. S. 120. § 6. 1880, 13. R. L. 202, § 7. 199 Mass. 109.
1 Section 8. If a person is disabled from commencing an action be- same subject.
2 cause he is a subject or citizen of a country which is at war with the §; a lit'. § s!
3 United States, the time of the continuance of such war after the cause r l,2'o2,Vs''
4 of action accrues shall be excluded in determining the period herein lim-
5 ited for the commencement of the action.
1 Section 9. If, when a cause of action hereinbefore mentioned accrues Suspension in
2 against a person, he resides out of the commonwealth, tlie action may be resident°de-
3 commenced within the time herein limited after he comes into the com- i'74s-9'i7, § 3.
4 monwealth; and if, after a cause of action has accrued, the person against Jre^li^fj^"'
5 whom it has accrued resides out of the commonwealth, the time of such g- 1- J^o, 1 9.
6 residence shall be excluded in determining the time limited for the com- isso, 98. '
7 mencement of the action; but no action shall be brought by any person r'.'l. 202. j o.'
8 upon a cause of action which was barred by the laws of any state or u Mass. 203.
9 country while he resided therein. 17 Mass. 55, iso.
I Pick. 263. 15 Gray, 349. 118 Mass. 337.
II Pick. 36. 6 Allen, 322. 423. 125 Mass. 574.
16 Pick. 359. 10 Allen, 433. 128 Mass. 219.
7 Met. 435. 99 Mass. 504. 145 Mass. 370.
11 Met. 210. 100 Mass. 167. 146 Mass. 20.
5 Gray, 397. 109 Mass. 40, 239, 410. 147 Mass. 81.
6 Gray, 427, 517. Ill Mass. 526. 217 Mass. 548.
1 Section 10. If a person entitled to bring or liable to any action Extension of
2 before mentioned dies before the expiration of the time hereinbefore ofTeSh™^^
3 limited, or within thirty days after the ex-piration of said time, and the J^''^|; ilo,\^io.
4 cause of action by law sur\'ives, the action may be commenced by the p. 1. 1|3, § lo.
5 executor or administrator at any time within the period within wliich R- l 202 | To.
6 the deceased might have brought the action or witliin two years after 5 AUon,' 27. '
7 his giving bond for the discharge of his trust and against the executor hs Mass.' 489'.
8 or administrator in accordance with the limitations provided by chap- HI l\l^[ 5s6.
9 ter one hundred and ninety-seven, relative to the limitation of actions |°^ J^J^^I; ^||;
10 against the executor or administrator by creditors of the deceased. 219 Mass. 23.
1 Section 11. An action founded on any contract made or act done, suits against
2 if made or done by any person acting as the executor, administrator etc™oi"'their
3 or other legal representative of the estate of a deceased person, shall Hl^^'^^l^ ''"^'
4 be brought within one vear, or, if made or done by anv person acting 1914J099, §3.
^ * ' ' ^ ^ r o 23o Mass. 1*1.
2666
LIMITATION OF ACTIONS.
[Chap. 260.
as trustee, guardian or conservator, shall be brought within two years, 5
after the right of action accrues; provided, that this section shall not 6
apply to actions upon probate bonds, or to actions in favor of the estate 7
of which such person shall have been such legal representative, or to 8
actions in favor of a beneficiary or ward, or to actions brought by the 9
commonwealth. 10
Extension of
time in case
of fraudulent
Concealment.
R.S. 120, § 12
G.S. 155, § 12
P.S. 197, § 14.
R. L. 202, § 11
3 Pick. 74.
Section 12. If a person liable to a personal action fraudulently con-
ceals the cause of such action from the knowledge of the person entitled
to bring it, the period prior to the discovery of his cause of action by the
person so entitled shall be excluded in determining the time limited for
the commencement of the action.
9 Pick. 212.
4 Cush. 208.
5 Allen, 130.
118 Mass. 147.
134 Mass. 372.
138 Mass. 570.
144 Mass. 313.
145 Mass. 484.
1G2 Mass. 412.
178 Mass. 397.
180 Mass. 334.
201 Mass. 242, 602.
203 Mass. 159.
210 Mass. 35.
222 Mass. 147.
Acknowledg-
ment or new
promise.
1834, 182, § 1.
R. S. 120, § 13.
G. S. 153, § 13.
P. S. 197, § 1.5.
R. L. 202, § 12.
13 Pick. 206.
Section 13. No acknowledgment or promise shall be evidence of a
new or continuing contract whereby to take an action of contract out of
the operation of this chapter or to depri\'e a party of the benefit thereof,
unless such acknowledgment or promise has been made by, or is contained
in, a writing signed by the party chargeable thereby. 22 Pick. 291.
1 Met. 394.
8 Met. 432.
9 Met. 482.
3 Cush. 355.
6 Cush. 151.
7 Grav, 274,387.
116 iSiass. 529.
136 Mass. 326.
137 Mass. 604.
159 Mass. 245,248.
168 Mass. 133, 134, 249.
177 Mass. 321.
17S Mass. 417.
222 Mass. 314.
233 Mass. 591.
Effect of part
payment.
1834, 182,
§§ 1.3.
R. S. 120, § 17.
G. S. 155, § 17.
P. S. 197, § 16.
R. L. 202, § 13.
2 Met. 168.
6 Met. 553.
8 Met. 352.
9 Met. 482.
6 Cush. 172.
Section 14. The preceding section shall not alter or impair the
effect of a payment of principal or interest made by any person ; but no
endorsement or memorandum of any such payment, written or made
upon a promissory note, bill of exchange or other writing by or on behalf
of the party to whom such payment has been or purports to ha\e been
made, shall be sufficient proof of the payment to take the case out of the
provisions of this chapter. 7 Gray, 274,387.
11 Allen, 523.
97 Mass. 8.
122 Mass. 558.
123 Mass. 588.
124 Mass. 174.
130 Mass. 199.
132 Mass. 30. 273.
154 Mass. 472.
178 Mass. 417.
ISO Mass. 27.
197 Mass. 347.
200 Mass. 599.
Promise or
payment by
joint con-
tractor, etc.
1834, 182, § 1.
R. S. 120,
S§ 14. 18.
Section 15. A joint contractor or his executor or administrator shall
not lose the benefit of this chapter so as to be chargeable by reason only
of an acknowledgment or promise made or signed, or by reason of a pay-
ment made, by any other joint contractor or his executor or administrator.
G.S. 155, § 14.
P. S. 197, § 17.
R. L. 202, § 14.
4 Pick. 382.
14 Pick. 387.
2 Allen, 245.
123 Mass. 588.
134 Mass. 567.
156 Mass. 34.
200 Mass. 599.
235 Mass. 249.
Section 16. If, in actions against two or more joint contractors or 1
Judgment in
such case.
R ^1' I'o' 1 1.5 ^g^iiist the executor or administrator of a joint contractor, it appears
G. s. 155,' § 15. that the plaintiff is barred by this chapter as to one or more of such con-
P. S. 197, § 18. . . .
R. L. 202, 1 15. tractors, but is entitled to recover against any other or others of them by
virtue of a new acknowledgment or promise or otherwise, judgment shall
be given for the plaintiff as to the defendants against whom he is entitled
to recover, and for the defendants not liable.
ment'° ^'"'*'^ Section 17. An answer in abatement alleging the non-joinder of a
R 's' ilo' I K. P^^^y defendant to an action of contract shall be o^'e^^uled if it appears,
c'. s. 155] § 16.' upon issue joined, that the action as against him was barred by limitation.
p. S. 197, § 19. R. L. 202, § 16.
Ch.\P. 260.] LIMITATION OF ACTIONS. 2667
1 Section 18. The limitations of the preceding sections of this chapter, Actions by
2 and of section thirty-two so far as applicable to personal actions, shall R.TT2aT2o!'
3 apply to actions brought by or for the commonwealth. *^- ^- ^^^' ^ ^®-
p. S. 197, § 21. R. L. 202. § 17. 1S9 Mass. 104. 2 Op. A. G. 502.
1 Section 19. If a special provision is otherwise made relative to the special
2 limitation of any action, any provision of this chapter inconsistent there- i^e^Mrrs.
3 with shall not apply. irss, 12, § 1.
R. S. 120, §§ 4, 23. P. S. 197. § 22. 136 Mass. 564.
G. S. 155, § 22. R. L. 202, § 18. 199 Mass. 109.
1 Section 20. A judgment or decree of a court of record of the United P/esumption
r»o 1? 7 piiii 1 t .1 1 • f^ t ^^ satisfaction
2 btates or oi any state thereor shall be presumed to be paid and satisfied of judgment.
3 at the expiration of twenty years after it was rendered. ■ ■ .
G. S. 155, § 23. 22 Pick. 533. 173 Mass. 433.
P. S. 197. § 23. 1.34 Mass. 353. 194 Mass. 244.
R. L. 202, § 19. 136 Mass. 2S0.
LIMIT.A.TION OF REAL ACTIONS AND RIGHTS OF ENTRY.
1 Section 21. An action for the recovery of land shall be commenced, -Actions for
*' rccovcrv oi
2 or an entry made thereon, only within twenty years after the right of la^nd.
3 action or of entry first accrued, or within twenty years after the demand- isoji 75] § 1.
4 ant or the person making the entry, or those under whom they claim, a', s. ill'. 1 1'.
5 have been seized or possessed of the premises, except as hereinafter r. l.^202,V20.
6 provided. 7 Met. 24. S Met. 87.
156 Mass. 280. 172 Mass. 395. 198 Mass. 91. 229 Mass. 374.
1 Section 22. If such right or title first accrued to an ancestor or when the
2 predecessor of the person who brings the action or makes the entry, or to begin' to^?un^
3 any other person under whom he claims, the twenty years shall be com- §; |; {54; | f;
4 puted from the time when the right or title so first accrued. ^- 1; ^2*0^2' \ li
1 Section 23. In the construction of sections twenty-one to thirty- Same subject.
2 one, inclusive, the right of entry or of action to recover land shall be held §'. i: 154; § 3.'
3 to have first accrued at the times, respectively, hereinafter mentioned: r. l.^b.^m.
4 First, If a person has been disseized, at the time of such disseisin. iocush.241.
14 Allen, 516. 110 Mass. 161. 119 Mass. 414. 178 Mass. 356, 524. 15 Gray, 322.
5 Second, If he claims as heir or devisee of a person who at his death was i3o Mass. 121.
6 seized, at the time of such death; but if a tenancy by the curtesy or other 235 Mass. 34s.
7 estate intervened after the death of such ancestor or devisor, at the time
8 when such intermediate estate expired or would have expired by its own
9 limitation.
10 Third, If there has been sucli intermediate estate or if a person claims 9 Mass. 50s.
11 under a remainder or reversion, so far as his right is affected by the limi- iso mIss. 297.
12 tation prescribed in said sections, at the time when the intermediate
13 or precedent estate would have expired by its own limitation, notwith-
14 standing any forfeiture thereof for which he might have entered at an
15 earlier time. This clause shall not prevent a person from entering if
16 entitled so to do by reason of any forfeiture or breach of condition; but
17 in such case, his right sliall be held to have accrued when the forfeiture
18 was incurred or the condition was broken.
19 Fourth, In all cases in whicli no other express provision is made, at the s Met. S7.
20 time when the claimant or the person under whom he claims first became
21 entitled to the possession of the premises under the title upon which the
22 entry or the action is founded.
2668
LIMITATION OF ACTIONS.
[ClLAP. 260.
Corporation
sole.
1828. 137, § 1.
R. S. 119, § 4.
G. S. 154, § 4.
P.S. 196, 5 4.
R. L. 202, § 23.
Section 24. If a corporation sole is disseized, any of its successors 1
may enter upon the premises, or commence an action for the recovery 2
thereof, M-ithin five years after the death, resignation or removal of the 3
disseisee. 4
Disabilities.
1697, 22, § 1.
1786, 13, § 4. •
R. S. 119, § 5.
G. S. 154, § 5.
P.S. 196, § 5.
R. L. 202, § 24.
4 Mass. 182.
16 Pick. 161.
Section 25. If, when such right of entry or of action first accrues,
the person entitled thereto is a minor, or is insane, imprisoned or absent
from the United States, he, or a person claiming under him, may make
the entry or commence the action within ten years after such disability
is removed.
2 Allen, 306. 3 Allen, 328. 10 Allen, 557. 190 Mass. 449.
Death during
disability.
R. S. 119,§ 6.
G. S. 154, § 6.
P.S. 196, § 6.
R. L. 202, § 25.
Section 26. If the person first entitled to such right of entry or of
action dies while under any of the disabilities mentioned in the preceding
section and there has been no determination of, or judgment upon, the
title, right or action which accrued to him, the entry may be made or
the action commenced by his heirs, or by any other person claiming
under him, within ten years after his death.
Successive
disabilities.
R. S. 119, § 7.
G. S. 154, § 7.
P. S. 196, § 7.
R. L. 202, I 26.
Section 27. If, when such right of entry or of action first accrues, the
person entitled thereto is under any of such disabilities and dies without
having recovered the premises, no further time for making such entry
or commencing such action than is hereinbefore prescribed shall be
allowed by reason of the disability of any other person.
Requisites of
effectual entry.
R. S. 119, § 8.
G.S. 154,5 8.
P.S. 196,5 8.
R. L. 202, 5 27.
2 Met. 583.
8 Met. 599.
Section 28. No person shall be held to have been in possession of
land within the meaning of this chapter merely by reason of having made
an entry thereon, unless he has continued in open and peaceable posses-
sion thereof for one year next after such entry or unless an action has
been commenced upon such entry and seisin within one year after he
was ousted or dispossessed.
Estates tail.
R. S. 119, § 9.
G. S. 154,5 9.
P. S. 196, 5 9.
R. L. 202, 5 28.
Section 29. If the right of entry or of action of a tenant in tail, or
of a person entitled to a remainder in tail, is barred by this chapter,
the estate tail and all remainders and reversions expectant thereon shall
also be barred, as fully as they might have been by a conveyance made
by the tenant in tail in the manner provided in chapter one hundred and
eighty-tliree.
Same subject.
R. S. 119, 5 10.
G. S. 154,5 10.
P. S. 196, § 10.
R. L. 202, § 29.
Section 30. If a person entitled to recover land as a tenant in tail or
as a remainderman dies before the expiration of the period hereinbefore
limited for making an entry or commencing an action therefor, no per-
son claiming any estate which the tenant in tail or remainderman might
have barred shall make an entry or commence an action to recover
such land, except within the period during which the tenant in tail or
remainderman, if he had so long lived, might have made such entry or
commenced such action.
Actions by the
commonwealtli.
R. S. 119,5 12.
G.S. 154,5 12.
1867,275.
P.S. 196,5 11.
1893,470. 5 4.
R. L. 202. 5 30.
4 Mass. 622.
Section 31. No action for the recovery of land shall be commenced
by or in behalf of the commonwealth, except within twenty years after its
right or title thereto first accrued, or within twenty years after it or
those under whom it claims have been seized or possessed of the premises;
but this section shall not apply to the province lands in the town of
Chap. 260.] limitation of actions. 2669
6 Provincetown lying north and west of the line fixed by section twenty- 9 Met. iss.
7 five of chapter ninety-one, to the Back Bay lands, so called, in Boston, 152 Mass. 444.
8 or to any property, right, title or interest of the commonwealth below Iss Mass! los!
9 liigh water mark or in the great ponds.
204 Mass. 173. 236 Mass. S7. 1 Op. A. G. 53.
proceedings upon failure of original action.
1 Section 32. If, in an action duly commenced within the time limited Jiml°n case^of
2 in this chapter, the writ fails of a sufficient service or return by reason of lyyj^^'^g's 3
3 an unavoidable accident or of a default or neglect of the officer to whom J^l'ifg^^ij.
4 it is committed, or if the writ is abated or if the action is otherwise avoided i-'o, § 11.'
5 or defeated by the death of a party thereto or for any matter of form, 155, § 11!
6 or if, after a verdict for the plaintiff or demandant, the judgment is igyi/il'. ^ '
7 arrested, or if a judgment for the plaintiff or demandant is reversed, the fg Me^t°^i5^ ^^'
8 plaintiff or demandant or any person claiming under him may commence ^ g^*; H^
9 a new action for the same cause within one year after the abatement or L^^"^' '^5„»
.. „, ...."^p I c ^ '2" Mass. 419.
10 other determination of the original action, or after the reversal of the i"4 Mass. i7i.
11 judgment; and if the cause of action by law survives, the executor or loo Mass! 513'.
12 administrator of the plaintiff or the heir or devisee of the demandant may
13 commence such new action within said year.
REFERENCES.
Effect on statute of limitations of absence from the commonwealth while engaged
in military or naval service of the United States, 1917, 342, § 17.
Limit of time for bringing petitions for damages caused by taking property by
eminent domain. Chap. 79, §§ 16-19.
Limit of time for bringing action on claimant's bond in trustee process, Chap.
246, § 67.
Limit of tune for bringing action on replevin bond. Chap. 247, § 18.
2670
COSTS IN CI\'IL ACTIONS.
[Chap. 261.
TITLE VI.
COSTS AND FEES.
Chapter 261. Costs in Civil Actions.
Chapter 262. Fees of Certain Officers.
CHAPTER 261.
COSTS IN CIVIL ACTION'S.
Sect.
1. Prevailing party to recover costs.
2. Costs if defendant insolvent.
3. Costs on appeals from district courts,
etc.
4. Costs in superior court.
5. Costs if defendant brings money into
court.
6. Costs in real actions and in reple\'in.
7. Costs in unnecessary actions.
8. Costs in cases tried together.
9. Costs if plaintiff prevails on certain
■ counts only.
10. Second action for same cause stayed,
when.
11. Taxation of double or treble costs.
12. Costs in suits for discovery.
13. Costs in discretion of court, when.
14. Costs in actions by the commonwealth.
15. Costs in such actions brought in behalf
of private person.
Sect.
16. Judgments for costs against the com-
monwealth.
17. No travel for attorney general.
18. Powers of arbitrators and courts.
19. By whom costs shall be taxed; notice,
etc.
20. Appeal from taxation.
21. Costs, execution for, pending appeal.
22. Costs of such appeal, allowance of,
etc.
23. Items of costs in supreme judicial
court and superior court.
24. Costs when place for trial is designated.
25. Expenses of printing briefs.
26. Items of costs in district courts.
27. Costs, items of, in actions by trustee
process in district courts.
28. Computation of travel in favor of a
corporation.
Prevailing
party to
recover costs.
17S4, 2S. § 9.
Section 1. In ci\il actions the prevailing party shall recover his 1
costs, except as otherwise provided.
G. S. 156, § 1.
p. S. 198, § 1.
R. L. 203, § 1.
7 Met. 590.
8 Met. 272, 343.
2 Gush. 325.
4 Gray, 201.
1 Allen, 212.
3 Allen, 467, 468.
102 Mass. 116.
103 Mass. 680.
126 Mass. 232, 287, 290.
R.S. 121, §1.
129 Mass. 135.
1.39 Mass. 210.
143 Mass. 192.
187 Mass. 421.
208 Mass. 195.
232 Mass. 124.
Cost.s if defend-
ant insolvent.
1841, 124, § 4.
1843, 55.
1848, 267.
G. S. 156,
§§ 2, 3.
P. S. 198,
§§ 2, 3.
K. L. 203. § 2.
4 Cush. 500.
Costs on ap-
peals from
district courts,
etc.
Section 2. If a discontinuance or a nonsuit is entered in an action
solely in consequence of an answer of the defendant which alleges his
discharge in bankruptcy or insoh'ency, the defendant shall reco\'er no
costs. If issue is joined upon such defence solely and judgment is ren-
dered for the defendant, he shall recover only his costs accruing after
the joinder of such issue.
Section 3. If, in a civil action before a district court, the plaintiff 1
appeals from a judgment in his favor or if the defendant appeals from 2
Chap. 261.] costs in cuil actions. 2671
3 a judgment in his favor upon a demand in set-off and does not recover i825, 92.
4 in the superior court a greater amount for debt or damages than he g' si iSe! § 4.
5 recovered by the first judgment, he shall recover no costs arising after p^"'i98%\^'
6 the appeal, and shall pay the costs of the appellee arising after the appeal. J^j^- 32I; ^ ^•
1 Section 4. If, in a personal action, except an action of replevin or an Costs in
2 action under section fifteen of chapter two hundred and fifty-three, mo^T^rs."
3 which is commenced in the superior court, the plaintiff does not recover 17S676'2^'§^3^'
4 final judgment for more than twenty dollars as damages, he shall recover ^°^- 'If; ^ ^•
5 no costs, unless the right to an easement or the title to land is dra'wn in ||g3. ii,-. ^
6 question and the justice before whom the action is tried so certifies, or g. s.' ise!
7 unless the plaintifi"s claim, as established on the trial, exceeds twenty 1S62', s'e.
8 dollars and is reduced to that amount or less by set-offs which could not §§ 5^7. '
9 have been proved in payment.
R. L. 203, § 5. 1 Gray, 625. 10 Allen, 68.
13 Met. 144. 2 Gray, 336. 11 Allen, 352.
2 Gush. 325. 11 Gray, 486. 100 Mass. 191.
6 Gush. 275. 2 Allen. 26S. 133 Mass. 470.
8 Cush. 280. 4 Allen, 400. 134 Mass. 14.
12 Cush. 457. 6 .Ulen. 243. 192 Mass. 600.
1 Section 5. If a defendant brings money into court and offers it in Costs if defend-
2 satisfaction of the damages, the plaintiff shall in all cases recover the costs money mto
3 which had previously accrued. '^°"''
R. S. 121. § 14. G. S. 156. § S. P. S. 19S, § 9. R. L. 203, § 6.
1 Section 6. The prevailing party in a real action or in ^eple^'in shall ^ "tlonsVnd'in
2 recover costs irrespective of the amount of damages recovered. replevin.
R.S. 121,513. G. S. 156, §9. P. S. 198, § 10. R. L. 203, § 7.
1 Section 7. A plaintiff who brings several actions in the same or in Costs in unnec-
2 different courts against the same defendant upon causes of action which i7«-4^23!"^'
3 might have been joined in one action, or who brings separate actions R.^s.'ili.V^s.
4 against defendants who might have been joined, shall recover costs in f879'. 226, 1 2°'
5 one action only, unless the court, after a hearing, otherwise orders. g- 1; i^o^- 1 ii-
10 Cush. 303.
1 Section 8. If two or more cases are tried together in the supreme Costs in cases
2 judicial court, in the superior court or in a district court, the presiding 1892, 231.
3 justice may reduce the -sxitness fees and other costs; but not less than the fss^Sls'. lei
4 ordinary witness fees and other costs recoverable in one of the cases which ?^| J^J*^^; ||J;
5 are so tried together shall be allowed.
1 Section 9. If a verdict is rendered for the plaintiff upon one or more Costs if piain-
2 counts upon several and distinct causes of action, and for the defendant certaln^unts'
3 upon any others, each party shall recover costs for the travel and attend- r"'!; 121. 5 le.
4 ance of witnesses, for depositions and for other e\ndence produced, ex- pi;lii;}il'
5 amined or used on the trial of the counts upon which the verdict is in his f ■^J'et^M'i^ ^°'
G favor, but shall not recover for the like charges incurred on the trial of 2 Met. 509.
7 the other counts. 13 Met. 436.
2 Cush. ISO. 4 Cush. 148. ITO Mass. 162. 222 Mass. 581.
1 Section 10. If a judgment for costs upon a nonsuit or discontinuance Second action
2 remains unsatisfied, the court in which a subsequent action for the same stayed, when.
3 cause is brought may order proceedings therein to be stayed until such r*1.' Jff; | ft.
4 costs have been paid, and may further order that the action be dismissed p.l./gs,'!/!.'
5 unless they are paid within a time fixed by the order. ^- ^- ^"^^ * "•
2672
COSTS IN CniL ACTIONS.
[Chap. 261.
doubfe°OT°^ Section 11. If double or treble costs are allowed, the witness fees, 1
isfJ'^iol'^s 1 ^^^ costs of taking depositions, of procuring evidence and of copies and all 2
K- s i2i' 1 18. court dues, shall be taxed and recovered singly, and the remainder only 3
*^ * ^* ±oK)f ^ itS. ni IT 1111 1 111 111
p.'s.' 198,' § li. of the taxable costs shall be doubled or trebled.
R. L. 203, § 12.
Costa in suits
for discovery.
1841, 129.
G. S. 156, § 15.
P. S. 198, § 16.
R. L. 203, § 13.
1 Met. 237.
225 Mass. 500.
Section 12. In suits in equity in which, as to one or more of the
defendants, the plaintiff seeks merely for a discovery of facts which are
material to his rights and interests in a pending or anticipated suit, and
not for a decree against them, the court shall allow such defendants all
their reasonable costs and expenditures, according to the usual course of
proceedings in equity in like cases, and likewise although the plaintiff
prays for a decree, if the court is satisfied that the prayer is frivolous, a
mere pretence, or is not essentially connected with the subject matter of
the discovery.
?retion°oP Section 1.3. In suits iu equity and in other civil actions and pro- 1
i82?'i09''?'5 ceedings in which no provision is expressly made by law, the costs shall 2
S- i' }f i' i t'?- be wholly in the discretion of the court, but no greater amount shall be 3
U. b. 15b, § l(i. 11', .11 1I»-*1T • * 1
p. s, 198, § 17. taxed therein than is allowed tor similar charges in actions at law. 4
R. L. 203, § 14.
1 Allen, 212.
103 Mass. SO.
104 Mass. 363.
126 Mass. 290.
206 Mass. 28.
214 Mass. 121.
223 Mass. 325.
by^'he'com-'""^ Section 14. In civil actions and in proceedings which are instituted
monweaith by. Or iu the name of, the commonwealth, and not at the relation, in
p' I' 198 '111' behalf, or for the use, of a private person, the commonwealth shall be
R. L. 203, § 15. liable for costs as is an individual. 4 Gray, 25.
actioni"hrought SECTION 15. A private person at whose relation, for whose use or 1
in behalf of j^ whose bchalf an action or proceeding is commenced in the name of the 2
private person. *^ iiiiii'iip
R. s. 121, 1 23. commonwealth or or the attorney general shall be liable tor costs, as if 3
p.' s.' 198,' § 19.' it had been begun in his own name. R. l. 203, § 16. 4
cos'tlllgainst"'^ SECTION 16. If a judgment for costs is rendered against the com-
weafth"™""" monweaith, the treasurer of the county to which the costs in such case
G s' 156' 1 19' ''^ould have been paid had the judgment been in favor of the common-
1862, i4.i'. wealth shall pay it upon the production of an attested copy thereof;
R. L. 203, § 17. but if the costs would have been paid to the commonwealth had the
judgment been in favor of the commonwealth, the state treasurer shall
pay it upon the production of an attested copy thereof.
auoTney^'°'^ SECTION 17. If costs are taxed for the commonwealth, no fees shall 1
i8i"'i82 § '' be taxed or allowed for the travel of the attorney general or any at- 2
R s. 121, § 25. torney for the commonwealth. 3
C.S. 156, §20. P. S. 198, §21. R. L. 203, § IS.
Powers of
arbitrators
and courts,
1786, 52, § 3.
R. S. 121,
§§21,26.
G. S. 15S, § 21.
P. S. 198, § 22.
R. L. 203, § 19.
Section 18. This chapter shall not affect the power of arbitrators
or referees to award costs; nor the power of a court to require costs to
be paid by either party as the condition of an amendment, continuance
or other order which is passed upon his motion, or to withhold and
refuse costs on like occasions.
2 Gush. 325. 8 Allen, 431. 103 Mass. 580. 108 Mass. 232.
Section 19. Costs shall be taxed bv the clerk of the court. No costs 1
By whom costs
shall be taxed;
i72s^9,^2?'| 1. shall be taxed without notice to an adverse party who gives seasonable 2
Chap. 261.] costs in cmL actions. 2673
3 notice in -^Titing to the clerk of his desire to be present at the taxation i829, 52. § 1.
4 or causes such notice to be entered on the docket. Notice given by or a, f; \il[ | H;
5 to the attorney in the action shall be equivalent to notice by or to the r. l. 203,|2o.
6 party. 1917, 326. 9 Met. 3I6. 6 AUen, 514.
1 Section 20. Either party may appeal from the taxation by the clerk Appeal from
2 to the court in which the action is pending, or to a justice thereof. illg!'^; § i.
R. S. 121. § 28. R. L. 203, § 21. 1 Gray. 420.
G. S. 156. § 23. 8 Gush. 236. 104 Mass. 363.
P. S. 198, § 24.
1 Section 21. If the appellant is liable for the costs, the appellee Costs, execu-
2 may take out execution and cause it to be satisfied, if he first gives Ing^ppear^'
3 bond with sufficient surety, who shall be approved by the clerk, in a R~s.'m,V30.
4 sum equal to the costs, payable to the appellant, conditioned to repay p|ing'|||-
5 such part of the costs as may be disallowed upon the appeal, and to R- L- 203, § 22.
6 perform such other order as the court or justice shall make thereon.
1 Section 22. The costs incurred by the appeal may be allowed to Costs of such
2 either party by the court or justice before whom such appeal is heard, an?eof.''et"''"
3 and they may be added to or deducted from the costs awarded in the K'l.'m.Vsi-
4 principal action or may be collected upon a separate execution. p- 1- j^||' 1 1^-
R. L. 203, § 23. 126 Mass. 287. 15S Mass. 274.
102 Mass, IIB. 135 Mass. 570. 174 Mass. 67.
1 Section 23. There shall be allowed, in a ci^■il action in the supreme items of costs
2 judicial court or in the superior court, in addition to other disbiu-se- dictaUourVa^id
3 ments allowed by law, the following costs: T7oi-2,''7^,T3'.'
4 For the entry fee, three dollars. }||5' If , j
5 For the declaration, fifty cents. R- s. i2i,
6 For an attorney's fee, if an issue in law or fact is joined, two dollars i842T67.'
7 and fifty cents; if not, one dollar and twenty-fi\e cents. §1^8." '
8 For a term fee, five dollars for each sitting while the action is pending, HU', III'. § ¥.'
9 not exceeding three sittings, except by an order of the coiu-t. If an G.^i'.ite.izv.
10 action or question of law therein is carried to the full court, two ad- j.^'g 'i^'^g^s 23
11 ditional term fees may be allowed. If the defendant is defaulted with- if%?fii'l79.
12 out having appeared, only one term fee shall be allowed. 263, § 24.'
13 For travel, except to carry to, or to take from the clerk's office any leor.iy, 237.
14 writ or process, thirty-three cents for every ten miles, not exceeding 137 Mass! lis.
15 eighty miles out and home, unless the party, his agent or attorney ^"^ ^'''*^' '^'
16 actually travels more than forty miles for the express purpose of at-
17 tending the court in such cause. In such case, allowance may be made,
IS in the discretion of the court, according to the distance actually
19 traveled.
20 If the defendant was arrested on mesne process, and the plaintiff
21 shall recover more than twenty dollars, exclusive of costs, the plaintiff
22 shall have taxed in his costs against the defendant the costs paid by
23 the jjlaintiff upon and after the arrest and all lawful charges paid by
24 him for the defendant's support in jail.
25 If the defendant was arrested on mesne process and final judgment
26 is rendered in his favor, he shall have taxed in his costs against the
27 plaintiff all costs paid by the defendant on account of the arrest.
1 Section 24. If the shire town where a case shall be tried has been Costs when
2 designated under section eighty-two of chapter two hundred and thirty- fj designated!
2674
COSTS IN CIVIL ACTIONS.
[Chap. 261.
1SS2, 264. § 2^ one, no costs shall be allowed for sittings held in any other town unless 3
R. L. 203, § 2o. ^j_jg action is actually tried in such other town by agreement of the 4
parties. 5
Expenses of
printing briefs.
1865,
33.
P. S.
198,
§29.
R. L.
203,
§26.
ia04.
413.
Item;
3 of costs
in district
courts.
1786,
73.
1795,
41,;
§1.
R. S.
121,
§§32
:-34,
36.
G. S.
156.
§27.
1870,
151,
§3.
1876,
227,
§5.
P.S.
198,
§30.
R.L.
168,
§79;
203, (
§27.
1917,
326.
Section 25. The prevailing party shall be allowed such sum, not
exceeding twenty-fi\'e dollars, as the court considers reasonable, for
expenses actually incm-red in printing the briefs which may be re-
quired for the argument of the case at the law sitting of the supreme
judicial court.
1
2
3
4
5
6
7
8
9
10
Section 26^ There shall be allowed, in a civil action in a district
court, except actions by the trustee process, in addition to other dis-
bursements allowed by law, the following costs:
To the plaintiff or complainant, —
For a writ and declaration, petition or complaint, one dollar.
For an attorney's fee, if there is an appearance for the defendant,
two dollars and fifty cents; if not, one dollar and twenty-five cents.
For a term fee, three dollars, if there is an appearance for the de-
fendant; and if not, one dollar.
For travel, the fees allowed therefor by section twenty-three.
For attendance, thirty-three cents for each day's actual attendance 11
by him or his attorney; but not for more tlian tliree days' attendance, 12
if the defendant is defaulted without haA-ing appeared, or for attendance 13
after the day on which the action is finally disposed of for the sitting, 14
which day shall be entered on the docket. 15
If the defendant was arrested on mesne process, and the plaintiff 16
shall recover more than twenty dollars, exclusive of costs, the costs 17
paid by him upon and after the arrest and all lawful charges paid by 18
him for the defendant's support in jail. 19
To the defendant, — 20
For travel, the fees allowed therefor by section twenty-three. 21
For attendance, thirty-three cents for each day's attendance by him 22
or his attorney; but not for attendance after the day on which the 23
action is finally disposed of for the sitting, which day shall be entered 24
on the docket. 25
For a term fee, three dollars. 26
For an attorney's fee, two dollars and fifty cents. 27
If the defendant was arrested on mesne process and final judgment is 28
rendered in his favor, he shall have taxed in his costs against the plaintiff 29
all costs paid by the defendant on account of the arrest. 30
Items of costs
in actions by
trustee process
in distnct
courts.
G. S. 156, § 27.
1877, 177, § 1.
P. S. 198, § 31.
R. L. 203, § 2S.
1917, 320.
Section 27. There shall be allowed, in an action by the trustee
process in a district court, in addition to the other disbursements
allowed by law, the following costs:
To the plaintiff, —
For a writ and declaration, one dollar.
For an attorney's fee, one dollar and fifty cents.
For a term fee, if there is an appearance, one dollar; and if not,
seventy-five cents.
For travel and attendance, the same fees as are allowed to a plaintiff
by the preceding section.
To the defendant, —
For an attorney's fee, one dollar and fifty cents.
1
2
3
4
5
6
7
8
9
10
11
12
Chap. 262.]
FEES OF CERTAIN OFFICERS.
2675
13 For travel and attendance, the same fees as are allowed to a de-
14 fendant by the preceding section.
15 To the trustee, —
16 For an attorney's fee, fifty cents.
17 For an answer in writing, twenty-five cents.
18 For travel and attendance, the same fees as are allowed to a defendant
19 by the preceding section.
20 For an answer to interrogatories, such costs as the coiu-t may allow.
21 To an adverse claimant, —
22 Such costs as the court may allow.
1 Section 28. If a corporation is entitled to costs, travel shall be Computation of
2 computed from the town where the corporation is situated, if it is in oracorpor™'^
3 its nature local; otherwise, from the town where its business is chiefly r°s. 121, §35.
4 or commonly transacted.
G. S. 156, § 2S. P. S. 198, § 33. R. L. 203, I 30.
REFERENCES.
Briefs, costs and expenses of, in Boston municipal court, Chap. 231, § 109.
Costs in grade crossing proceedings, Chap. 159, § 66.
CHAPTER 262.
FEES OF CERTAIN OFFICERS.
Sect.
justices op the peace.
1. Justices of the peace.
DISTRICT COUHTS.
2. District courts.
3. Special justices.
CLERKS OF COURTS.
4. Clerks of courts.
6. Copies.
6. Additional fees for record of judgment.
7. Fees collected in advance.
SHERIFFS, DEPUTY SHERIFFS AND CONSTA-
BLES.
8. Sheriffs, etc.
9. Processes returned by m.iil, etc.
10. Use of horse and carriage, etc.
11. Leaving copy of writ, etc.
12. Deputy sheriff for attendance upon
county commissioners.
Serving precepts for elections, etc.
In poor debtor proceedings.
Copies of writs, etc.
Service of process issued by land court.
Service of execution of ejectment, etc.
Officer to specify items if required.
Endorsement of fees on writ. Certifi-
cate of use of horse and carriage.
Sect.
20. Making search for person, etc., named
in writ, etc.
21. Allowance of expense in criminal cases.
22. Attendance upon certain courts.
MAGISTRATES.
23. Examination of sureties, etc.
24. Certain bail fees limited.
JURORS, WITNESSES, APPRAISERS, COMMIS-
SIONERS, ETC.
25. Jurors' fees, etc.
26. Service of process relative to inquests.
27. Officer in cases against juvenile of-
fenders.
28. Arrests for drunkenness.
29. Witness fees.
30. Witnesses held in jail.
31. Appraisers, etc.
32. Interpreters, and witnesses from with-
out the commonwealth.
33. W'itnesses in neglect and delinquent
cases.
TOWN CLERKS.
34. Fees.
FOR MARHIAOES.
35. Marriages.
2676
FEES OF CERTAIN OFFICERS.
[Chap. 262.
Sect.
STATE SECRETARY.
36. State secretary.
37. Examination of the records, etc.
REGISTERS OF DEEDS.
38. Registers of deeds.
L-IND COURT.
39. Certain fees of land court.
REGISTERS OF PR0B.\TE AXD INSOLVEXCT.
40. Registers of probate and insolvency.
NOTARIES PUBLIC.
41. Notaries public.
COMMISSIONERS IN OTHER STATES.
42. Commissioners in other states, etc.
GENERAL PROVISIONS.
43. Cases not specified.
44. Copies.
45. "Page" defined.
46. List of fees to be posted in public
offices.
Sect.
47. Return of expense in criminal cases
under oath.
48. Single fees only for seirice, etc., of
processes at same time.
49. No fee for issuing or seizing more than
one mittimus, etc.
50. Salaried officers not to be paid fees,
except, etc.
51. Fees and expenses of officers in criminal
cases.
52. Pa^inent of fees and expenses.
53. Certain officers.
54. Compensation of officers for attending
superior court in criminal cases.
55. Railroad police.
56. Certain public officers not entitled to
witness fees, etc.
57. Officers may be allowed expenses.
58. Penalty.
59. Witnesses* fees apportioned in certain
cases.
60. Witnesses' fees to be refused in certain
cases.
61. Officers not to purchase orders, etc.
62. Penalty for false certificates of wit-
nesses, etc.
63. Refusal of fees to delinquent magistrate.
64. Refusal of fees to complainant.
Jufitices of
peace.
1795,41, §
R. S. 122,
G. S. 157,
5U.2.
1860, 191,
1S66, 193.
1879,254.
P. S. 199,
R. L. 204,
the
1.
5 1.
§1.
§2.
5 1.
§1.
District
courts.
1795,41, § 1.
R. S. 122, § 2.
1SS3, 369.
ISoo. 449, § 14.
1859, 241.
G. S. 157, § 2.
1870. 330. § 2.
1877, 177, § 2;
240.
1879, 226, § 1.
P. S. 199, § 2.
JUSTICES OF THE PEACE.
Section 1. The fees of justices of the peace shall be as follows:
For a subpcena for one or more witnesses, ten cents.
For taking a deposition, fifty cents; for writing the deposition and
caption, at the rate of twelve cents a page; for notice to the adverse
party, twenty cents. The justice shall certify his fees and the deponent's
fees on the deposition.
For administering an oath required by law, except on a trial or exam-
ination before him, to one or more persons at one time, twenty-five cents.
For the acknowledgment of a deed by one or more grantors, if taken
at one time, twenty-five cents.
For issuing a warrant under section tliirty-six of chapter two hun-
dred and eighteen, one dollar.
For taking a deposition to perpetuate testimony, each justice shall 13
be entitled to the fees prescribed for all services which are personally 14
rendered by him. 15
DISTRICT COURTS.
Section 2. The fees of district courts shall be as follows:
In civil actions, —
For a blank writ of original summons or attachment and summons,
five cents.
For the entry of an action, or for the filing of a petition, including
filing of papers, entering up and recording judgment, one dollar.
For each order of notice and rule of reference, fifty cents.
R. L. 204, §2. 1904, 350, §1. 1909,186. 1913, 3S, § 1.
Special jxisticea,
1879, 254
Section 3. A special justice, when not holding court, shall be paid 1
R.L.2M,§3. by the county one dollar for each warrant issued by him. 2
Chap. 262.] fees of certain officers. 2677
CLERKS OF COURTS.
1 Section 4. The fees of clerks of courts shall be as follows: cierks of
2 For a blank writ of attachment and summons or an original summons, 1795'^ii § 1
3 five cents R s.' 122. § 2.
o ii\c tei»LS. 1853,309.
4 For a subpoena for one or more witnesses, ten cents. i^se, 246.
5 For a venire facias for jurors, six cents. p.'s.'i99.'§ 4.'
6 For a writ of review or other writ in civil proceedings, not before §§ 3.' 5. '
7 mentioned, five cents. llfl'ino.' ^ ~'
8 For entry of an action or suit, or of a libel for divorce, or of a peti- \lll] |[:
9 tion in the supreme judicial or superior court or for filing a petition ilobVy^ § 3
10 to the county commissioners, three dollars, which shall be paid by the fgo4 sso'^^'
*11 party entering the same, and no other fee shall be charged for taxing: ifii Mass. 593.
10 4. * • • U • ■ J.- i- r • ■ 168 Mass. 304.
IZ costs, tor issuing any subpoena, injunction or execution or tor issuing 236 Mass. 326.
13 any order of notice or other mesne, interlocutory or final order, rule,
14 decree or process authorized by law.
15 Upon commencement of any proceedings under chapter two hundred p*s"'ir'"li4
16 and twenty-four or under chapter two hundred and twenty-five, relative isoi, 313.
17 to debtors in a district court, there shall be paid to the clerk of such R. l! ibs!
18 court an entry fee of three dollars or of one dollar respectively, which fgistV?!, § 7.
19 shall be in payment of hearing applications, examination and continu-
20 ances, and the issuing of all notices and certificates required in such
21 proceedings.
22 For the entrj^ record and transmission of papers of each question or
23 cause in the supreme judicial court for the commonwealth, three dollars.
24 For a certificate of the proof of a deed in court, twenty cents.
25 For the warrant for a county tax, twenty cents.
26 For taking and recording a recognizance under chapter two hundred nsi^liss
27 and fifty-six, fifty cents. R. s. 11s, § 19.
G. S. 152. § 15. P. S. 193, § 15. R. L. 199, § 10.
28 In civil actions which are entered by the commonwealth or by a 1902, 253.
29 county no entry fee shall be paid; but, if the commonwealth or the 2 0p1a.g. 456.
30 county prevails, the entry fee shall be taxed against the other party.
31 In civil actions in which Boston is a party no fee or expense shall
32 be paid to any clerk of a court of Suffolk county by or on behalf of the
33 city; but, if the city prevails, the fees allowed by law shall be taxed.
1 Section 5. When clerks cause copies to be printed which they are Copies.
2 required to furnish, they shall make no charge for such printed copies p. s.'i99,'§ 5.'
3 in excess of the amount actually paid for tlie printing thereof. They Pop! a! G.^522.
4 may require the estimated cost of said printing to be paid in advance,
5 and they shall supervise the printing and correct the proofs without
6 charge. All written copies, including such as are prepared for printing,
7 shall be charged for at the rate of twenty cents a page.
1 Section G. When a judgment or decree is entered up, and upon Additional
2 inspection it appears that the record thereof or the record of the pro- oFfudgmrat!^
3 ceedings will be of unusual length, the court may order the prevailing r**l.' Iw! | s!
4 party to pay such amount, in addition to the entry fee, asmay be just
5 and equitable.
1 Section 7. Clerks of the courts shall collect all fees in adv-ance. Fees collected
ISS8, 257, § 8. R. L. 204, § 9. 168 Mass. 304. '" '»''^'^""^«-
2678
FEES OF CERTAIN OFFICERS.
[Ch.\p. 262.
Sheriffs, etc.
Fees for serv-
ice of
writs, etc.
1795,
41, i
S 1.
R. S.
122,
§5.
G. S.
157,
§§ 4. 7.
1S60,
191,
§ I.
1865,
101.
1877,
177,
§1.
1878,
272,
§ 1.
P. S.
199,
§6.
R. L.
204,
§ 10.
1913,
611,
§§1.
18.
1917,
326.
102 Mass.
514.
139 Mass.
29U.
Custody of
personal
property, etc.
182 Mass. 144.
235 Mass. 258.
Attachment of
real estate, etc.
1838, 186.
1S39, 89.
1847, 267, § 3.
G. S. 123, § 52.
1870,264, § 1.
1873, 297, I 1.
P. S. 161, § 63.
R. L. 167, § 60.
1913.611,
§1 1,18.
Service of writ
of replevin, etc.
Le^'y on real
estate, etc.
SHERIFFS, DEPUTY SHERIFFS AND CONSTABLES.
Section 8. The fees of sheriffs, deputy sheriffs and constables for
the service of civil process shall be as follows:
For service of an original summons or scire facias, either by reading
it or by leaving a copy thereof, one dollar for each defendant upon
whom service is made, except as herein otherwise provided.
For service of a libel for divorce, including copy, five dollars.
For service of a capias, of an attachment with summons or of a
trustee process, one dollar for each service upon each defendant or
trustee.
For service of subpoena in a bill in equity under chapter two hun-
dred and fifty-four, fifty cents for each defendant upon whom service
is made; for each copy of such subpoena, thirty cents; for filing an at-
tested copy of such subpoena at the registry of deeds, fifty cents.
For each copy of a supreme judicial, superior, probate or land court
writ, precept or process, except as herein otherwise provided, one dollar.
For each copy of a district court writ, precept or process, fifty cents.
If the officer by the direction of the plaintiff or his attorney makes a
special service of a writ or precept, either by attaching personal property
or arresting the body, he shall be entitled to one dollar for each de-
fendant upon whom the writ is so served, and four dollars additional for
custody of the body arrested, and at the same rate for each day during
which he has such custody. If the officer employs an assistant in the
arrest of the body, he shall be entitled to two dollars a day for such
assistant.
For the custody of personal property attached, replevied or taken on
execution, not more than two dollars for each day of not more than
eight hours for the keeper while he is in charge, and not more than one
dollar a day for the officer for a period not longer than ten days; but
the officer may be allowed a greater compensation for himself or for his
keeper, or compensation for a longer period, by the written consent of
the plaintiff and the defendant whose property has been attached, re-
plevied or taken on execution, or by order of the court upon a hearing.
He shall also be entitled to expenses for packing, labor, teaming, storage
and taking and preparing a scliedule of property attached, replevied or
taken on execution, if he certifies that such expenses were necessary
and are reasonable.
For an attachment on mesne process of land or of any leasehold
estate, one dollar for each defendant against whom an attachment is
made, five cents a mile each way for travel from the place of service to
the registry, and his fee for the copy deposited in the registry of deeds
or land court, together with the recording fees actually paid.
For a special attachment of real estate, one dollar additional for each
person against whom an attachment is made.
For the service of a writ of replevin : for seizure of property, one dollar
for each defendant; securing and swearing appraisers, two dollars, and
the actual amount paid to appraisers, as hereinafter provided; examin-
ing and approving sureties, one dollar; delivery of property replevied,
one dollar; for each service, one dollar; for each copy, at the rate herein-
before provided for copies of writs, precepts or other processes.
For a levy on real estate: for preparing and serving notice of sale,
including copy and travel, three dollars for each debtor.
1
2
3
4
5
6
7
8
9
10
11
12
1.3
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
Chap. 262.] fees of certain officers. 2679
52 For preparing and posting notices of sale, six dollars.
53 The necessary expenses of advertising.
54 For the sale of land or of anj- leasehold estate, five dollars. is62, loo, § 3.
55 For preparing, executing and acknowledging deed, five dollars. r l.V7'8,|^6'.
56 For travel, five cents a mile each way from the place where he receives §§\^;is,''
57 the execution to the office of the register of deeds, and his fee for the
58 copy.
59 For a sale of personal property on mesne process or on execution the saie of personal
60 followin<T- property on
uu lUiluvMUf,. ^ ^ mesne process,
61 For strvice of a copy of notice to appoint appraisers, one dollar for ''*''•
62 each person upon whom service is made.
63 The necessary ex-penses of taking and preparing a schedule of property
64 proposed to be sold.
65 For attendance upon and swearing appraisers, two dollars.
66 The amount actually paid to appraisers as hereinafter provided.
67 For preparing and posting notice of a proposed sale, one dollar.
68 The necessary expenses of keeper, labor and advertising.
69 For custody of property, one dollar a day.
70 For services as auctioneer, or for services of an auctioneer in selling
71 property, a fair and reasonable amount.
72 If the sale is made on execution, poundage may be charged as herein-
73 after provided.
74 The fair compensation for the services of an appraiser shall not be
75 more than three dollars for each day's service, but the officer may be
76 allowed a greater compensation for the appraisers by an order of the
77 court.
78 For each adjournment of sale of real or personal property, two
79 dollars.
80 For taking bail and furnishing and writing the bail bond, one dollar, Taking bail,
81 which shall be paid by the defendant, and taxed in his bill of costs, if "''^^
82 he prevails.
83 For serving an execution in a personal action by copy and demand fj^Ju^f^ns
84 on debtor or on trustee, one dollar and travel, if the execution is not poundage.
85 collected in whole or in part; for serving an execution in a personal
86 action, and collecting damages or costs on an execution, warrant of
87 distress or other like process, for an amount not exceeding one hundred
88 dollars, four cents for every dollar; all above one hundred dollars, and
89 not exceeding five hundred dollars, two cents for every dollar; and all
90 above five hundred dollars, one cent for every dollar; but such per-
91 centage shall be allowed only upon the amount actually collected. A
92 levy of the execution upon his body shall be considered, so far as the
93 fees of the officer are material, a full satisfaction of the execution if
94 the debtor has recognized with surety or sureties as required by law.
95 For serving a writ of seisin or possession in a real action, five dollars .serving writ of
96 for each parcel. _ _ ... . 102 wat: 5i4.
97 For serving an execution upon a judgment for partition, or for assign- serving execu-
98 ment of dower or curtesy, one dollar a day. judgment, etc.
99 For serving a writ of capias in a civil proceeding, five dollars. Serving writ of
100 For serving a writ of habeas corpus, five dollars, together with the serving writ of
101 fee for service and copy. habeas corpus.
102 For serving a venire or notice to jurors for attendance upon any Serving a
103 court, civil or criminal, fifty cents for each person upon whom ihe serv- "■"'"'"'■
104 ice is made.
2680
FEES OF CERTAIN OFFICERS.
[Chap. 262.
Summoning
witnesses.
Dispersing
warrants, etc.
Travel.
1862, 216, §§ 1,
6,7.
1865, 101.
1882, 215.
Serving
criminal
process.
1862, 216, § 1.
1881, 127, § 2.
Copies.
1862, 216, § 8.
1805, 259, 1 1.
For summoning witnesses, fifty cents for each person upon whom serv-
ice is made, and twenty-five cents for each copy served, together with
the fee paid to the witness.
For dispersing treasurer's warrants and proclamations of all kinds,
eight cents each, without allowance for travel.
For travel in the service of original writs, executions, warrants, sum-
monses, subpoenas, notices and like processes, five cents a mile each
way, to be computed from the place of service to the court or place of
return; and if the same precept or process is served upon more than
one person, the travel shall be computed from the most remote place of
service, with such further travel as was necessary in serving it; if the
distance from the place of service to the place of return exceeds twenty
and does not exceed fifty miles, five cents a mile one way only shall be
allowed for all travel exceeding twenty miles, and, if it exceeds fifty
miles, only one cent a mile one way shall be allowed for all travel ex-
ceeding that distance.
For travel in the service of venires and notices to jurors, five cents a
mile for the distance actually traveled.
For serving criminal process, as follows:
For serving a warrant of capias in a criminal proceeding, fifty cents,
and of a summons upon the defendant, ten cents, for each person upon
whom the same is served.
For a copy of a mittimus, warrant or other precept required by law
in criminal cases, twenty-five cents.
For travel in summoning witnesses in criminal cases, ten cents a mile
each way for a distance of not more than twenty miles, and for any
excess over twenty miles, five cents a mile each way, and no more.
The distance shall be computed from the most remote place of service
to the place of return, but upon a subpoena the court shall reduce the
fee for travel to a reasonable amount for the service performed if the
travel charged has not been actually performed by the officer who made
the service.
105
106
107
108
109
110
111
112
11.3
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
1.32
133
1.34
1.35
136
Processes
returned by
mail, etc.
1878, 272, §
P. S. 199, "
R. L. 204
1913, Oil,
§§ 2, 18.
§11,
Section 9. If the person who delivers or forwards a process to an
officer for service requests him to return it by mail or express, com-
pensation shall not be allowed for more than twenty miles' travel in
the service, unless the officer actually and necessarily travels more than
that distance in serving the same, exclusive of travel from the place of
service to the place of return, and an officer in such case, who properly
directs such process to the place of return and sends it by mail, postage
prepaid, or delivers it to an ex-press company, shall not be liable for
damages if it fails to reach its destination.
1
2
n
O
4
5
6
8
9
Use of horse
and carriage,
1864, 274, § 1.
P. S. 199, § 8.
R. L. 204, § 12.
1905, 336.
1912, 184.
1913, 611,
§§ 3, IS.
102 Mass. 514.
110 Mass. 423.
Section 10. If it is necessary in the service of civil process for an
officer to use a horse and carriage or other conveyance for a distance
exceeding two miles one way, he may be allowed therefor fifteen cents
a mile for the distance traveled one way, not exceeding thirty miles.
If he uses the horse and carriage or other conveyance of another person
he shall be allowed the amount actually expended by him tlierefor; but
no allowance for the actual amount so expended by him shall be made
unless the officer certifies that it was necessart for him to use a horse
and carriage or other conveyance, and that he actually used it for the
distance, and paid therefor the amount stated in his certificate.
1
2
3
4
5
6
7
8
9
10
Chap. 262.] fees of certain officers. 2681
1 Section 11. Where the officer is by law directed to give or leave a Leaving copy
2 copy of any process, he may charge for each copy at the rate prescribed igi's^ti'i^'s 5.
3 by section fifteen, except as otherwise provided.
1 Section 12. A deputy sheriff shall be allowed five dollars a day for Deputy sheriff
2 attendance upon a meeting of the county commissioners by their order, u°pon"oun'ty''^
3 and five cents a mile for travel out and home once a week during the ^res'^if'Ti"'
4 attendance, to be paid by the coimty.
R. S. 122, § S. 1S36. 1S5. 1S66, 190. R. L. 204, § 15.
1843, 75, § 2. G. S. 157, § 4. P. S. 199, § 11. 1913, 611, §§ 6, 18.
1 Section 13. Sheriffs and other officers shall be paid by the common- servins pre-
2 wealth, for serving precepts for the election of representatives in con- efe^'ctiJns. etc.
3 gress, fifty cents each, and for the ser\-ice of subpoenas issued by order f^fg |q| '"■
4 of the general court or either branch thereof the same fees as are allowed is^g, 257, 1 4.
5 for the service of subpoenas issued by a court.
p. S. 199, § 12. 1899,218. P.. L. 204, § Ifi. 1913, Oil. §7.
1 Section 14. The fees of such officers in poor debtor proceedings in poor debtor
2 shall be as follows: " ?ssl!«9,1i3.
3 For the service of citations or notices, the same as for the service of l^^?' U^' f S.
4 writs. 1913,611,
5 For the commitment of a defendant or debtor arrested in poor debtor
6 proceedings or on mesne process or execution, one dollar for each com-
7 mitment, and one dollar for each copy left with the jailer.
8 For each day's attendance at court or before a magistrate on the
9 examination of a defendant or debtor in his custody, or in the service of
10 a writ of habeas corpus under section fifty-seven of chapter two hundred
1 1 and twenty-four, including the fee for custody, five dollars.
12 The necessary expense of a horse and carriage or other conveyance
13 to and from the jail in the service of a process.
1 Section 15. The fee for copies of any process of more than one page copies of writs,
2 shall be at the rate of fifty cents a page, except as provided in section il/ia. on, § lo.
3 eight.
1 Section 16. In the service of any process issued by the land court, service of proc-
2 the fees shall be one dollar for posting a copy on each parcel of land, fand'court ^
3 and the same fees for copy, service and travel as are hereinbefore pro- '^'''' ""' ^ "'
4 vided for the service of ^^■rits.
1 Section 17. In the service of an execution of ejectment the fees serviceof
2 shall be: for demand, one dollar; for delivery, one dollar; for all neces- ej'ectm'e°n't,°etc.
3 sary expenses, including packing, teaming and labor; and the officer 1913.011,512-
4 may be allowed additional compensation by an order of the court from
5 which the execution issued.
1 Section IS. An officer receiving fees for any official duty or service, ofRcerto
2 who, upon request of the person paying them, refuses or neglects to ffre^uired"^
3 make out in writing in his return a particular account of such fees, R™s'f22,Vis.
4 specifying for what they respectively accrued, shall forfeit to such person pfig^'lo/'
5 three times the amount so paid.
1893, 469, §2. R. L. 204, § 37. 1913, Oil, §§ 14, IS.
2682 FEES OF CERTAIN OFFICERS. [ChAP. 262.
Em onTrit' °^ Section 19. No fees for the service of any process of Avhich the 1
use of irore°^ officcr is required to make a return shall be allowed, unless itemized and 2
a^d carriage, cndorsed On the process; and no allowance for the use of horse and .3
R. s.' 122. § 9. carriage or other conveyance in the service of a civil process shall be 4
1864. 274, ' made, unless the ofRcer certifies that it was necessary for him to use a 5
R I.' 199, §§ 28, horse and carriage or other conveyance, and that he actually used such 6
ptL. 204, § 38. conveyance for the distance set forth in his certificate. An officer who 7
191.3' ill' makes a false certificate under this section or section ten shall forfeit S
§§ 15, 18.' thirty dollars for each offence, to the use of the commonwealth. 9
110 Mass. 423.
srar'^hfor Section 20. An ofBccr shall not be allowed any fees for making a 1
person, etc., diligent scarch for any person named in a process, except the amount 2
named in writ, ^ i i i i ■ • i • i i i i . i •
f,.! A,, « ,T actually expended by him in making such search and stated in his 3
lyio, oil, 3 17. .
return. 4
Mp°ens°in°^ Section 21. In the service of precepts in criminal cases, the officer 1
^cS'",^l'^^f'?- shall be allowed the actual, reasonable and necessary expenses incurred 2
I860, 191, § 3. , . . • 1 , • 1 'e 1 M
1862, 216, § 1. in going or returning with the prisoner, and it he necessarily uses his 3
1885, 2.54. ' own horse and carriage or other con\'eyance, he shall be allowed therefor 4
fifteen cents a mile for the distance traveled one way, and if he uses .5
the horse and carriage or other conveyance of another person, he shall 6
be allowed the amount actually expended by hira therefor; but no 7
allowance for the use of a horse and carriage or other conveyance shall 8
be made unless the officer certifies that it was necessary for him to use a 9
horse and carriage or other conveyance and that he actually used them 10
for the distance, and paid therefor the amount, stated in his certificate. 11
If, in the service of a mittimus, the journey from the town where the 12
prisoner is held to the town where he is to be committed can be made 13
by railroad, no allowance shall be made for the use of a horse and car- 14
riage or other conveyance. 15
upon°cM°ain SECTION 22. The fee for attending before a district court or trial 1
R"s'*i22 ? 5 justice shall be one dollar a day, upon one warrant only, if there are 2
}?ti'Tot^^- two or more against the same defendant at the same time. If the 3
loOD, 185. ini ...1 ' 1 1*1
G. s. 157. § 4. defendant in a crimmal case is brought in bv a summons, the fee for 4
issi! 127; 1 2. attendance shall be the same as that taxed upon a warrant. 5
p. S. 199, § 10. R. L. 204, § 14. 1910, 317.
MAGISTRATES.
Sfretieretc" °^ SECTION 23. The fccs of magistrates for the examination of sureties 1
1S17, 186 § 1. and approval of bonds or for the taking of recognizances shall be in 2
1848. 320, § 2. each case two dollars for the citation, if any, and the first day's hearing, 3
i855;249, §i; and two dollars in addition for each adjournment thereof. These fees 4
1S57, HI, shall be paid in advance. 5
§§ 22, 29. G. S. 123, I 106; 124, 1877, 97, § 2. 1889, 415, § 6.
§ 48; 125, § 4. P. S. 161, §§ 124, 127; R. L. 167, §§ 118, 122;
1866, 193, §1. 162, § 68; 163, § 4; 183, 168, 5 75; 169, § 4;
1867,137,5 2. § 71; 184, 5 20. 189, § 65; 190, § 17.
1870, 291, I 4; 309, § 3. 1888, 419, | 13. 1911, 150.
Certain bail SECTION 24. The maximum fee to be charged by any person author- 1
1907, 327. ized to take bail in the case of a person arrested for any misdemeanor 2
shall be two dollars. 3
Chap. 262.] fees of certain officers. 2683
JURORS, WITNESSES, ."LPPIL^ISERS, COMMISSIONERS, ETC.
1 Section 25. The compensation of traverse jurors impanelled to try Jurors- fees, etc.
2 cases of murder in the first degree shall be five dollars, and that of all HU] 63,' § i.
3 other traverse jurors and of grand jurors four dollars, for each day's r *s* 122 ' § io''
4 service. All jurors shall receive once in each week twelve cents a mile J|||' ^J- j
5 for travel out and home. If the expense of a juror who attends court, g. s.'i57,§s.'
6 necessarily and actually incurred for transportation out and home once iseg] 73. '
7 in each week, exceeds the amount of the said allowance for travel, he 1I79! ilk
8 shall be allowed the amount of such expense in lieu of the said travel TsqI, sss. ^ ^^'
9 allowance. If a grand or traverse jiuor is required to be in attendance fgoslitt' ^ ^^'
10 for five or more consecutive days he shall receive his fees not later than Jgjg'ff?'
11 the end of every fifth day of such attendance. Op. a. g. (1919) rs.
1 Section 26. Officers who serve subpoenas or other processes in con- service of
2 nection with inquests held by district courts shall be paid their fees to°i"qSe''sts."''*
3 and expenses by the county as in criminal cases, in the same manner as ^^l] |^; | Vs.
4 the fees of witnesses are paid in criminal cases in said courts.
1 Section 27. In cases against juvenile offenders, an officer who officer in cases
2 attends as a witness at a place other than that of his residence may be ole'iSeri"^*'"'^
3 allowed by the court or justice his increased necessary expenses, not r^^l! Im, § 19.
4 exceeding the witness fee before such court or justice, and the reason-
5 able necessary expense of serving a mittimus.
1 Section 28. If an officer, whose compensation for services in crimi- Arrest? for
•I'lp ii(> 1 fl druiiKenness.
2 nal proceednigs is derived from taxable fees, makes an arrest for drunken- iS92, 200,
3 ness and the person arrested is discharged without being taken into R. l. 204, § 20.
4 court or before a trial justice, he shall be entitled to the same fees as if p- ■ ■
5 a complaint had been made against the person arrested. If the arrest
6 is made without a warrant, the officer shall make a sworn statement of
7 his fees, in the nature of a return upon a precept, and shall send it
8 to the court or trial justice having jurisdiction of the offence. Special
9 police officers who make arrests for drunkenness in towns where the
10 police officers or constables receive salaries shall be entitled to no fees
11 under this section.
1 Section 29. The fees for attending as a witness before the depart- witness fees.
1 70 'i J 1 Si
2 ment of industrial accidents, the board of conciliation and arbitration, isos! as. § 2.
3 in a civil case in the supreme judicial court, superior court, land court, R.a'ifi, § 10,
4 probate court or court of insolvency, or to persons, except the debtor, Jftfllos!
5 who are examined under section eighty-two of chapter two hundred c^sUr'ti'
6 and sixteen, unless fraudulent conduct is charged and proved against Jfgg'l-''^^-
7 them, shall be one dollar and fifty cents a day; for attending before i87o!ioi.
8 any of said courts in a criminal case, before county commissioners, or 1S90.277'.
9 before the general cotu't, one dollar and twenty-five cents a day; for fg'os,' I?!' § 15!
10 attending before a trial justice, district court, referee, arbitrator or on JgJi; |j|; ^ **■
1 1 any other occasion for which no express provision is made, fifty cents J^is. |23; 273.
12 a dav; and in all cases, five cents a mile for travel out and home; pro- 1 ^la^^. 295
.','.„, . , , , HI- 1 • Ho Mass. 203.
13 vided, that it the witness has a usual place or business or employment in i76Mass. 4S.
14 the city or town where the court trial or hearing is held, travel shall
l"} be reckoned out and to such place of business or empkn-ment, and not
16 out and home. Each witness shall certify in writing the amount of his
17 travel and attendance.
2684
FEES OF CERTAIN OFFICERS.
[Chap. 262.
Witnesses held
in jail.
1894, 40B, § 2.
R. L. 204, § 22.
Section 30. A witness who is detained in jail under section fort}-- 1
nine of chapter two hundred and seventy-six because of his inability 2
to furnish sureties shall be allowed as a witness fee such sum as the 3
court shall order, but not less than one dollar and fifty cents for each 4
day of his detention. 5
Section 31. The court shall determine the compensation of pri\ate 1
Appraisers,
etc.
R^l.' *22,\^o. persons who perform service required by law, or in the execution of 2
G. s. 157, § 8. legal process, if no other provision is made therefor. 3
p. S. 199, § 1.5. 1886, 135. R. L. 204, § 23.
and'wHncsses Section 32. District courts and trial justices may allow reasonable 1
t™"common- Compensation to interpreters and to witnesses from witliout the com- 2
"893*385 monwealth in criminal proceedings before them, which shall be paid by 3
E. l'. 204, § 24. the counts' in the same manner as witness fees. 4
witnesses in
neglept and
delinquent
cases.
1907, 158.
Section 33. All laws in relation to the payment of witness fees and
to the payment of expenses of officers in criminal cases shall apply in
cases arising under sections forty-two to sixty-four, inclusive, of chapter
one hundred and nineteen.
Fees.
1796, 41,
R.S. 122,
12.
1849, 202,
18.50, 121,
G. S. 157,
P. .S. 199.
R. L. 204,
190S, 121.
1911, 730,
§1.
§§n,
§2.
§4.
§9.
§ Ifi.
, TOWN CLERKS.
Section 34. The fees of town clerks shall be as follows : 1
For entering notice of an intention of marriage and issuing the certifi- 2
cate thereof, and for entering the certificate of marriage which is filed by 3
persons married out of the commonwealth, one dollar, which shall be 4
paid at the time of such entry or filing. 5
For a certificate of a birth or death, twenty-fi\e cents. 6
1919, IGS, § 2.
FOR .MARRIAGES.
The fee for lawfully solemnizing and certifA'ing a mar-
Marriages. ^p-rTrnxr ^'%
1795,41. § 1. _ OECIION O.)
S' a H;' I ]\' riatje sliall be one dollar and twentv-five cents.
G, S. 157, § 10. '^^ *
P. S. 199, § 17. R. L. 204. § 26.
201 Mass. 261.
ST.ATE SECRETARY.
1795; 4i"§ '"''■ Section 36. The fee for copies of any official papers certified by the 1
G I' 157' I if state secretary shall be fifty cents for the first page and forty cents for 2
1863, 231', § 1. ■ each additional page. iscs, 259, § 1. is70. 224, § 59. 3
P. S. 199, § IS. R. L. 204, § 27. 1920, 508, § 8.
Examination of Section 37. Every person upon whose application an examination
the records, etc. , ^ . . ' .. . p i in
1863, 231, §3. of records or papers is made by direction oi the state secretary shall
R. h. 204, § is. pay to the secretary therefor the actual expense thereof, and of copying
^' ■ ■ ■ the manuscript or record required; but any person whom the secretary
considers to be entitled to exemption from said fees shall receive such
service and copies for such reduced fees, or without fee, as the secretary
may determine.
REGISTERS OF DEEDS.
S^d'eri^ Sectkin 3S. The fees of registers of deeds, except as otherwise pro- 1
r^s'qo'Iso- ■^'•cled, to be paid when the instrument is left for recording, filing or 2
122, § 15. deposit, shall be as follows: 3
Ch.\P. 262.] FEES OF CERTAIN OFFICERS. 2685
4 For entering and recording a deed or other paper, certifying the same isss. su. 5 1.
5 on the original, and indexing it, and for all other duties pertaining i57%'i2! ^ ^^'
6 thereto, forty-five cents. If it contains more than one page, at the fgo^ilo. ^^*'
7 rate of forty-five cents for each page after the first; provided, that if {f ^^ 2''^'§^''^-
8 the deed or other paper contains the names of more than two parties PJ.'In'^'sVi'
9 thereto, other than the husband or wife of the grantor or grantee, an lao's, 365.
10 additional fee of ten cents each shall be charged for indexing the names i9io;273.'
11 of additional grantors or grantees or other parties thereto. The mini- Soil; fSo! 1 1^'
12 mum fee for recording a deed or conveyance shall be one dollar, and for i'op. Iv.^i.^al'
13 recording a mortgage, two dollars.
14 For all copies, at the rate of forty cents a page.
15 For entering in the margin a discharge of a mortgage, fifty cents.
16 For entering an attachment or an execution, for each defendant
17 named, fifty cents.
18 For entering a discharge of an attachment or of a lien on buildings
19 and lands, fifty cents.
20 For entering and filing a plan, of a size not over fourteen inches by
21 nine and one half inches, one dollar; for larger sizes, not less than two
22 dollars.
23 For entering a partial release of an attachment, fifty cents.
24 An additional fee of twenty-five cents each shall be charged for mak-
25 ing marginal references when they are required.
26 For notation of reference under section twenty or twenty-one of chapter
27 thirty-six, twenty-fi\'e cents.
28 For filing, recording and indexing a notice of a federal tax lien, fifty
29 cents.
L-USTD COURT.
1 Section 39. The fees payable under chapter one hundred and eighty- Certain fees
c\ n ^ It 1 p M **f land court.
2 live shall be as follows: isss, 662,
3 For the entry of every original petition or writ and transmitting it r. l. 12s,
4 to the recorder, when filed with an assistant recorder, three dollars. i9a5%49,
5 For every plan filed, seventy-five cents. 1915^20 53
6 For indexing an instrument recorded while a petition for registration
7 is pending, twenty-five cents.
8 For examining title, on a petition to register land, five dollars, and
9 one tenth of one per cent of the value of the land; on a petition to
10 register easements or rights in land, the actual amount allowed therefor
1 1 to the examiner by the court.
12 For each notice by mail, twenty-five cents and the actual cost of
13 printing.
14 For each notice by publication, twenty-five cents and the actual cost
15 of publication.
16 For entry of an order dismissing a petition for registration of title, or
17 for foreclosure of a tax title, or a decree of registration, foreclosure
18 or redemption, and sending a memorandum to assistant recorder, one
19 dollar.
20 For a copv of a decree of registration, foreclosure or redemption, one
21 dollar.
22 For the entry of an original certificate of title and issuing one dupli-
23 cate, three dollars.
24 For making and entering a new certificate of title, including issue
25 of one duplicate, one dollar.
26 For each additional duplicate certificate after the first, fifty cents.
2686 FEES OF CERTAIN OFFICERS. [ChAP. 262.
For the registration of every instrument, whether single or in dupli- 27
cate or triplicate, including entering, indexing and filing it and attesting 28
the registration thereof, and also making and attesting a copy of memo- 29
randum on one instrument or on a duplicate certificate when required, 30
one dollar and fifty cents. 31
For making and attesting copy of memorandum on each additional 32
instrument or duplicate certificate if required, fifty cents. 33
For filing and registering an adverse claim, tliree dollars. 34
For entering statement of change of residence or post office address, 35
including endorsing and attesting it on a duplicate certificate, twenty- 36
five cents. 37
For entering any note in the entry book or in the registration book, 38
twenty-five cents. 39
For the registration of a suggestion of death or notice of issue of a 40
warrant in insolvency or of adjudication of bankruptcy, twenty-five 41
cents. 42
For the registration of a partial release, discharge or release of a mort- 43
gage or other instrument creating an encumbrance, fifty cents. 44
For the registration of a memorandum or certificate of entry for pos- 45
session or deposition in proof thereof, fifty cents. 46
For the registration of any levy, or of any discharge or dissolution of 47
any attachment or levy, or of any certificate of or receipt for payment 48
of taxes, or of a notice of a federal tax lien or of any mechanic's lien or 49
lien for labor or materials, or a notice of any pending action or of a 50
judgment or decree, fifty cents. 51
For endorsing on any mortgage, lease or other instrument a memo- 52
randum of partition, one dollar. 53
For every petition after the original registration, one dollar. 54
For a certified copy of any decree or registered instrument, the same 55
fees as are provided for registers of deeds. 56
REGISTERS OF PROBATE AXD INSOLVENCY.
probat"and SECTION 40. The fccs of Tcgistcrs of probate and insolvency shall be 1
is9tr69-:§2. as follows :_ _ _ ^2
R. L. 204, § 30. For copies of records or other papers in their charge, the fees which 3
are provided by this chapter for similar copies unless the fees are other- 4
wise fijxed by law. 5
NOTARIES PUBLIC.
No|arie|pubiic. gj-^TioN 41. The fces of notaries public shall be as follows: 1
G^i'. \h, % 13. ^or *^1^6 protest of a bill of exchange, order, draft or check for non- 2
R L^loiVsi acceptance or non-payment, or of a promissory note for non-payment, 3
if the amount thereof is five hundred dollars or more, one dollar; if it 4
is less than five hundred dollars, fifty cents; for recording the same, 5
fifty cents; for noting the non-acceptance or non-payment of a bill of 6
exchange, order, draft or check or the non-payment of a promissory 7
note, se^•enty-five cents; and for each notice of the non-acceptance or 8
non-payment of a bill, order, draft, check or note, given to a party 9
liable for the payment thereof, twenty-five cents; but the whole cost 10
of protest, including necessary notices and the record, if the bill, order, 11
draft, check or note is of the amount of five hundred dollars or more, 12
shall not exceed two dollars, and if it is less than five hundred dollars, 13
Chap. 2G2.] fees of certain officers. 2687
1-t shall not exceed one dollar and fifty cents; and the whole cost of noting,
15 including recording and notices, shall in no case exceed one dollar and
16 twenty-fi^'e cents.
commissioners in other states.
1 Section 42. The fees of commissioners appointed under section four Commissioners
2 of chapter two hundred and twenty-two shall be as follows: etc" """ '*'"
3 For administering oaths and certifying the same under their official r a'lM. § 22.
4 seals, one dollar for each; for taking acknowledgments of deeds and ns\iist' M^'
5 other instruments and certifying the same under their official seals, one i^s Mass. 295.
6 dollar for each; for each written page contained in any deposition or affi-
7 davit taken by them, fifty cents; for administering the oath or affirma-
8 tion to each deponent, one dollar; for authenticating, sealing up and
9 directing each deposition, one dollar; for services not hereinbefore
10 specified, the same fees as are allowed to justices of the peace in this
11 commonwealth for like services; but the court to which a deposition is
12 returnable shall order further allowance therefor if it appears proper to
13 do so.
GENERAL PROVISIONS.
1 Section 43. The fees of public officers for any official duty or serv- Cases not
2 ice shall, except as otherwise pro\ided, be at the rate prescribed in this r.^s. 1^22, § 21.
3 chapter for like services.
1855,311, § 3.
1898, 562, « 110.
7 Gray, 128.
G. S. 157, § 14.
R. L. 128, 1 109;
13 Gray, 77.
P. S. 199, § 23.
204. § 33.
118 Mass. 422.
1S93, 469, 1 2.
1913, 611, § 16.
2 Op. A. G. 610
1 Section 44. The department of public utilities may charge ten cents c?pies.
2 a folio for copies of official documents and orders relating to common p". s.'i99,'§24.
3 carriers. Other public officers required by law to furnish copies of records r.''l', 204', § 34.
4 or other papers shall receive fees for such copies at the same rate as is ^^^^' ''^' 5 '•
5 allowed to registers of deeds, unless otherwise provided.
1 Section 45. A page, when used as the measure of computation, "^^se"
2 shall mean two hundred and twenty-four words.
1795, 41, § 1. G. S. 157, § 15. 1.S93, 469, § 2.
R. S. 122, § 22. P. S. 199, § 25. R. L. 204, § 35.
1 Section 46. Each of the officers before mentioned shall always keep List ot fees to
2 posted in a conspicuous and convenient place in his office a printed or puiS^c offices.
3 written list of the fees prescribed in this chapter so far as they relate r.^!.' i22,\^i7.
4 to him. 0. s. 157, § is.
P. S. 199, § 26. 1893, 469, § 2. R. L. 204, § 36. 1913, 611, § 13.
1 Section 47. No fees shall be allowed upon the return of an officer Return of
2 upon a precept in a criminal case, in which expenses are charged, unless criminal cases
3 every item of expense incurred and the name of the person to whom "ge^ne, §§ 4,
4 each amount was paid is set forth under oath in the return; and no p. s^'igg, §§ 30,
5 item of expense which may be considered unreasonable shall be allowed ^'g^ ^^q ^ ^
6 by the court or trial justice without satisfactory proof that the expense R- l. 204, § 39.
7 was necessarily incurred and the amount reasonable. But the superior
8 court, with the written approval of the district attorney, or a district
9 court or a trial justice, may, upon the petition of an officer nauied in
10 sections fifty and fifty-one, allow extra compensation for any meritorious
11 service for which the fees allowed by law are manifestly inadequate.
2688 FEES OF CERTAIN OFFICERS. [ChaP. 262.
No allowance shall be made for aid in the service of a mittimus, unless 12
first authorized in writing by the court which issues it. Justices, clerks 13
and assistant clerks of courts shall administer the oath to officers upon 14
their returns, at their request; and no fee shall be allowed to an officer 15
for such oath, and no justice of the peace shall be entitled to a fee for 16
administering such oath. 17
for sem'ce, ete^ SECTION 48. If morc than onc criminal process is served upon the 1
8ame°ttoe^^ ""^ Same defendant on the same day, or if two or more prisoners are con- 2
^^i'lid'iii veyed at one time by the same officer, by virtue of a mittimus, habeas 3
R. L. 204, § 40. corpus or state prison warrant, either on one process or on several proc- 4
esses, one traveling fee and one service only shall be allowed in con- 5
^•eying such additional prisoner or prisoners, in addition to the actual 6
reasonable expense necessarily Incurred. 7
No fee for is-
suing or serving
Section 49. No fee shall be allowed to a trial justice for issuing 1
mrulmus^ete" morc than one mittimus, nor to an officer for the service of more than 2
^^i'lia'iii '^^^ mittimus, in cases in which two or more persons are jointly con- 3
R. L. 204, § -ii. victed and sentenced to the same place of imprisonment; and, if the 4
superior court is of opinion that a trial justice has improvidently issued 5
two or more warrants against the same defendants for similar offences, 6
no fees shall be allowed to the justice upon any of said warrants. 7
no"<fbe°pa^"^ SECTION 50. No officer in attendance on any court, sheriff, deputy 1
fees, except, gheriff , jailer, constable, city marshal or other police officer who receives 2
sf^fo^i's' ^ salary or an allowance by the day or hour from the commonwealth 3
zir^'/i^' °'" ^""^^ ^ county, city or town shall, except as otherwise hereinafter 4
p.s. 199, provided, be paid any fee or extra compensation for official services 5
18S9,'469. performed by him in any criminal case; or for aid rendered to another 6
§§ i.'g, 12. officer; or for testifying as a witness in a criminal case during the time 7
it^L. 204, 1 42. for which he receives such salary or allowance; or for services or as a 8
i*op^A^G^594 witness at an autopsy or inquest; or in proceedings for commitment of 9
2o' A G 209 iiisane persons; but his expenses, necessarily and actually incurred, and 10
Op.A.G.(igis) actually di.sbursed by him in a criminal case tried in the superior court, 11
shall, except as provided in section fifty-two, be paid by the county 12
where the trial is held, or in a criminal case tried in a district court 13
or before a trial justice, by the town where the crime was committed. 14
Whoever receives extra compensation or a witness fee in \iolation of 15
this section shall be punished by a fine of not more than one hundred 16
dollars. 17
expen^sMof SECTION 51. The fccs and expenses of officers, other than those 1
officers in named in the preceding section, in a criminal case tried in the superior 2
criminal cases. ^ ^ .ii'ici,. » i ■, i
1890, 440, §2. court, shall, except as provided in the following section, be paid by 3
r.l'. 204', § 43. the county where the trial is held, and in a criminal case tried in a 4
district court or before a trial justice, by the town where the crime 5
was committed. 6
^esTnd*°' Section 52. Except in Suffolk county, the fees and expenses of 1
i9io°248 officers in the apprehension, trial or commitment of a person arrested 2
or tried as a tramp or vagrant shall be paid by the county where the 3
offence was committed. 4
Chap. 262.] fees of certain officers. 2689
1 Section 53. Any officer named in section fifty who attends as a Certain officers.
2 witness at a place other than his residence shall, instead of his expenses, rx! 204, §44.
3 be allowed the witness fee in the court or before the trial justice where ^°^ ^^"^"^ '^°'
4 he testifies. A police officer on duty at night who attends the superior
5 court as a witness for the commonwealth shall be paid the same fees
6 as any other witness. A police officer who is a witness for the common-
7 wealth, and who under the direction of the district attorney aids in
8 securing the attendance of other witnesses, may receive, instead of his
9 expenses, witness fees for one day's attendance. Police officers shall-
10 serve subpoenas upon witnesses when requested by the district attorney,
11 and their returns of service shall have the same force and effect as the
12 return of a deputy sheriff or constable.
1 Section 54. A deputy sheriff or other officer attending the superior Compensation
i-._Li>''ll_' 1 u 'l-i of officers for
2 court tor crimmal busmess, who serves any subpoena or capias between attending su-
3 the daily sessions of said court, may receive such extra compensation crim°ina°case's°
4 as the district attorney may allow. The officers shall make return, on r^lIIw', §45.
5 oath, of the time actually occupied and of all expenses actually in-
6 curred and paid in performing such extra service.
1 Section 55. Railroad police shall not be entitled to any fees for Railroad police.
2 attendance upon a trial as witnesses for the commonwealth, but they rT.'204,'§46.
3 may be allowed their necessary expenses therefor.
1 Section 56. A state police officer or an officer of the common- Certain public
2 wealth whose salary is fixed by law, or any employee of the common- entitTed'to
3 wealth receiving regular compensation therefrom, shall not be entitled ^^^"^^ "''"'
4 to a witness fee before any court or trial justice in a cause in which the 11%] HI] 5 ^
5 commonwealth is a party. An officer whose compensation is derived p^^'frl^fj gg
6 solely from fees shall not be entitled to receive more than one fee as a R- Jj- ioi. § 47.
7 witness for a day's attendance on coiu-t under one or more summonses iop!a. g. 404.
8 in behalf of the commonwealth, and the said fee shall be apportioned
9 by the clerk among the cases in which he is so summoned.
1 Section 57. If it appears on oath that a salaried officer of the officers may
2 commonwealth has attended court as a witness in behalf of the ei^^en°rs^
3 commonwealth, at a place other than his residence, and that his neces- Rs*'m'§ 3^7.
4 sary expenses have been increased by such attendance, the court or ^' ^- ^°'^' ^ *^-
5 trial justice may allow such increased necessary expenses, not exceeding
6 one dollar and fifty cents a day in all, for such actual and necessary
7 attendance.
1 Section 58. Whoever receives a witness fee or allowance for in- Penalty.
2 creased necessary expenses in violation of any provision of the three p. s.' 199'' § 3s.
3 preceding sections shall be punished by a fine of not more than one r^^l. 204, 1 49!
4 hundred dollars. Every clerk of a court and trial justice shall report
5 forthwith to the district attorney for his county every violation of
6 said sections which comes to his knowledge, and said district attorneys
7 shall institute prosecutions therefor.
1 Section 59. If witnesses are in attendance in two or more criminal ^por'tTowi'^^f
2 cases pending at the same time before the same court, they shall not be 585'5'"8o'l*2
2690 FEES OF CERTAIN OFFICERS. [ChAP. 262.
G. s. 157, § 20. allowed full travel and attendance in each case, but the justice or clerk 3
p. s.'i99.'§ 39. of the court or trial justice may reduce and apportion the same, allowing 4
■ ■ ^°'*' ^ ^°' at least one t^a^'el and attendance. 5
to'be^refused7n SECTION 60. If, on the trial of a criminal case, it appears that a wit- 1
isM.'ss'g*^'''*' ness has induced the defendant to commit the crime with which he is 2
p.'l.'mMo.' charged with intent to appear as a witness against him, the court or 3
R. L. 204, § 51. magistrate may in his discretion refuse to allow him his fees. 4
p,Schase°*'° Section 61. A sheriff, deputy sherifP or other officer who takes the 1
issirisa § 3. certificates of witnesses in criminal cases shall not purchase or discount 2
p' I' 199 'I If' ^^ have any interest in orders drawn or demands upon the treasury by 3
R. L. 204. § 52. such witnesscs. 4
fals^certm- SECTION 62. Whocver, with intent to defraud, signs or procures to 1
nesses?etc'.' bc signcd a Certificate of attendance or travel as a witness before a 2
cf^s'fl7§ 23 court, trial justice or refererice founded upon a rule of court, in any case 3
R L ^204 \^53 '" which the witness did not so attend, or for a greater niunber of days 4
' than he actually attended, or for a greater number of miles than he 5
actually traveled, upon which certificate the attendance or travel so 6
claimed is allowed as a part of the expenses of prosecution, shall forfeit 7
thirty dollars for each offence, to be recovered on complaint or indict- 8
ment to the use of the county, or by action of tort to the use of any 9
person against whom such excessive costs were taxed, with four times 10
the whole amount taxed for attendance or travel on such false certifi- 11
cate, and double costs in the action of tort. Such complaint, indict- 12
ment or action shall be commenced within two years after the offence 13
is committed. 14
to'^ddrnquenr SECTION 63. If the administration of justice or the progress of 1
^||'^lso"§ 1. business in criminal proceedings is delayed, obstructed or prevented 2
p' I' 199' 1 43' '^y ^^® negligence of a magistrate in certifying and retiu-ning recogni- 3
R. L. 204. § 54. zances, records or other official papers which it is his duty to transmit to 4
a higher court, or in omitting the formalities required by law, the dis- 5
trict attorney, with the approval of the court, may refuse to allow the 6
fees, either in whole or in part, to which such magistrate would other- 7
wise be entitled. 8
to^compiainanl SECTION 64. If the court fiuds that a complaint in a criminal case 1
R^^L. 204, 1 55! is unfounded, frivolous or malicious, it may refuse to allow any fees to 2
the complainant. 3
REFERENCES.
As to who shall pay fees of officers in connection with arrest for trespassing, etc.,
on railroad property, Chap. 160, § 221.
Fees of jurors and officers, in connection with determining insanity of a person by
a jury. Chap. 123, § 61.
Fees of judges, physicians, etc., in connection with commitment, etc., of insane
persons, Chap. 123, § 73.
§ 14. The fees for commitment upon surrender by baU are the same as under
this section, Chap. 226, § 22.
§ 29. Witness fees before board of parole, when acting as advisory board of par-
dons, Chap. 127, § 154.
CiLiP. 263.1
EIGHTS OF PERSONS ACCUSED OF CKIME.
2691
PART IV.
CRIMES, PUNISHMENTS AND PROCEEDINGS IN CRDIINAL
CASES.
TITLE I.
CRIMES AND PUNISmiENTS.
Chapter 263. Rights of Persons accused of Crime.
Chapter 264. Crimes against Governments.
Chapter 265. Crimes against the Person.
Chapter 266. Crimes against Property.
Chapter 267. Forgery and Crimes against the Currency.
Chapter 26S. Crimes against Public Justice.
Chapter 269. Crimes against Pubhc Peace.
Chapter 270. Crimes against Public Health.
Chapter 271. Crimes against Pubhc Pohcy.
Chapter 272. Crimes against Chastity, Morality, Decency and Good Order.
Chapter 273. Desertion, Non-Support and Bastardy.
Chapter 274. Felonies, Accessories and Attempts to commit Crimes.
CHAPTER 263.
RIGHTS OF PERSONS ACCUSED OF CRIME.
Sect.
1. Person arrested to be informed of
charge.
2. Penalty for arrest on false pretence.
3. Action for false imprisonment limited.
4. Prosecution of crimes.
5. Accused entitled to counsel, etc.
Sect.
6. Persons indicted, how convicted.
7. When former acquittal a bar.
8. When former acquittal not a bar.
9. No person to be punished imtil con-
victed.
1 Section 1. \Mioever is arrested by virtue of process, or whoever is
2 taken into custody by an officer, has a riglit to know from the officer
3 who arrests or claims to detain him the true ground on wliich tlte arrest
4 is made; and an officer who refuses to answer a question relative to the
5 reason for such arrest, or answers such question untruly, or assigns to
6 the person arrested an untrue reason for the arrest, or neglects upon
7 request to exltibit to the person arrested, or to any other person acting
8 in his behalf, the precept by virtue of which such arrest has been made,
9 shall be punished by a fine of not more than one thousand dollars or by
10 imprisonment for not more than one year.
Person
arrested to be
informed of
charge.
lS.i2, 224, § 1.
G. S. 158, § 1.
P. S. 200. § 1.
R. L. 205, § 1.
2692
EIGHTS OF PERSONS ACCUSED OF CRIME.
[CH-VP. 263.
Penalty for
arrest on false
pretence.
1852, 224, § 2.
G. S. 15S, § 2.
P. S. 200, § 2.
R. L. 205, § 2.
Section 2. An officer who arrests or takes into or detains in custody
a person, pretending to have a process if he has none, or pretending to
have a different process from that which he has, shall be punished by a
fine of not more than one thousand dollars or by imprisonment for not
more than one year.
Action for
false imprison-
ment limited.
1914, 126.
Section 3. No action, except for use of excessive force, shall lie
against any officer other than the arresting officer, by reason of the fact
that, in good faith and in the performance of his duties, he participates
in the arrest or imprisonment of any person believed to be guilty of a
crime unless it can be shown that such other officer in the performance
of his duties took an active part in the arrest or imprisonment as aforesaid,
either by ordering or directing that said arrest or imprisonment take
place or be made, or by actually initiating the making and carrying out
of said arrest and imprisonment. No action, except for use of excessive
force, shall lie against any bystander assisting an officer in making an
arrest, at the request of the officer.
Section 4. No person shall be held to answer in any court for an
Prosecution
of crimes.
Rfgh'ts!'art. 12. alleged crime, except upon an indictment by a grand jury or upon a
a?t°'i2 )^*^' "Complaint before a district court or trial justice or in proceedings before 3
R. S.T23. § 1. a court-martial. 4
G. S. 158, § 3.
P. S. 200, § 3.
R. L. 205, § 3.
Section 5. A person accused of crime shall at his trial be allowed to
Accused en-
titled to
De"iti lughts, ^^ heard by counsel, to defend himself, to produce witnesses and proofs
art. 12. in jjis favor and to meet the witnesses produced against him face to face.
(Const. Rev. art. 12.) G. S. 158, § 4. R. L. 205, | 4.
R. S. 123, § 2. P. S. 200, § 4.
Persons
indicted, how
con\'icted.
R. S. 123, I 3.
G. S. 158, § 5.
P. S. 200, § 5.
R. L. 205, § 5.
Section 6. A person indicted for a crime shall not be convicted thereof 1
except by confessing his guilt in open court, by admitting the truth of 2
the charge against him by his plea or demurrer or by the verdict of a 3
jury accepted and recorded by the court. i op. a. g. 499. 4
when former
acquittal
a bar.
R. S. 123, 5 4.
G. S. 158, § 6.
P. S. 200, § 6.
R. L. 205, § 6.
12 Gray, 171.
Ill Mass. 404.
113 Mass. 200.
100 Mass. 276.
Section 7. A person shall not be held to answer on a second indict-
ment or complaint for a crime of which he has been acquitted upon the
facts and merits; but he may plead such acquittal in bar of any sub-
sequent prosecution for the same crime, notwithstanding any defect in
the form or substance of the indictment or complaint on which he was
acquitted. 220 Mass. 142.
When former
acquittal not
a bar.
R. S. 123, § 5.
C;. S. 158, § 7.
P. S. 200, § 7.
R. L. 205. § 7.
12 Pick. 496.
13 Allen, 554.
Section 8. If a person has been acquitted by reason of a variance
between the indictment or complaint and the proof, or by reason of a
defect of form or substance in the indictment or complaint, he may be
again arraigned, tried and convicted for the same crime on a new indict-
ment or complaint, notwithstanding such former acquittal.
105 Mass. 189.
220 Mass. 142.
No person to
be punished
Section 9. A person shall not be punished for a crime unless he has 1
i°s' m't^e^*^' been legally convicted thereof by a court having competent jurisdiction 2
G. s. 158, § 8. of the cause and of the person. 3
p. S. 200, § 8. R. L. 205, § 8.
Ch.u>. 264.]
CRIMES AG.AJNST GOVERNltENTS.
2693
CHAPTER 264.
CRIMES AGAINST GOVERNMENTS.
Sect.
1. Treason defined.
2. Penalty.
3. Misprision of treason. Penalty.
4. Proof of treason.
5. Penalty for misuse of flag, etc.
6. Exceptions to section five.
7. Misuse of foreign flags, etc.
8. Display of foreign flag.
Sect.
9. Manner of playing, etc., national
anthem.
10. Discrimination against persons wearing
uniform of United States army, etc.,
prohibited in places of amusement,
etc.
11. Promotion of anarchy prohibited.
12. Arrest 'vv-ithout warrant.
1 Section 1. Treason against the commonwealth shall consist only in Treason
2 levying war against it, or in adhering to the enemies thereof, giving them Ded.^of Rights,
3 aid and comfort; it shall not be bailable.
i2. 3.
~ " , §1; 212, §72.
art. 25
(Const. Rev. art. 25.)
C. L. 15, § 12; 263, § 2.
1696, 255, § 1.
1744-5, 6, § 1.
1776-7, 32. I
R. s. 124, § i:
1852,259, §4.
G. S. 159, § 1; 170. §54.
1871,61.
P. S. 201,
R. L. 206, § 1.
1 Section 2. Whoever commits treason against the commonwealth Penalty.
2 shall be punished by imprisonment in the state prison for life. c. h. 263, § 2.
1696, 255, I 1. 1776-7, 32, § 2. 1852, 259, § 1. P. S. 201, 5 2.
1744-5, 6, § 1. R. S. 124, § 2. G. S. 159, § 2. R. L. 206, § 2.
1 Section 3. Whoever, having knowledge of the commission of treason, Misprision of
2 conceals the same and does not as soon as may be disclose and make known PenaUy.
3 such treason to the governor, or to a justice of the supreme judicial or i^''^^'32,
§§4,5.
4 superior court, shall be guilty of misprision of treason, and shall be§|;}?g;||;
5 punished by a fine of not more than one thousand dollars or by imprison- P- |- |oi,' § 3^
6 ment in the state prison for not more than five years, or in jail for not
7 more than two years.
1 Section 4. No person shall be convicted of treason except by the Proof of
2 testimony of two witnesses to the same overt act of treason whereof he 1776^7,' 32,
3 stands indicted, unless he confesses the same in open court.
R. S. 124, § 4. G. S. 159, § 4. P. S. 201, § 4. R. L. 206, § 4.
§11.
Section 5. Wlioever publicly mutilates, tramples upon, defaces or penalty for
treats contemptuously the flag of the United States or of INIassachusetts, "tc"^" "' ^^^'
whether such flag is public or private property, or whoever displays such Jfgf ; 1I3;
flag or any representation thereof upon which are words, figures, adver- f^^-^ ^06, § 5.
tisements or designs, or whoever exposes to public view, manufactures, lao^; 232, §2^
sells, exposes for sale, gives away or has in possession for sale or to give 1914] 570!
awav or for use for any purpose, any article or substance, being an article 191s', 257', § 1.
- - ... - 1919,5.
8 of merchandise or a receptacle of merchandise or articles upon which is 1920,' 2.
9 attached, through a wrapping or otherwise, engraved or printed in any |op^a'g.^470.
10 manner, a representation of the United States flag, or whoever uses any 205U.S.34.
11 representation of the arms or the great seal of the commonwealth for any
12 advertising or commercial purpose, shall be punisJied by a fine of not less
13 than ten nor more than one hundred dollars or by imprisonment for
14 not more than one year, or both; but a flag belonging to a grand army
2694
CRIMES AGAINST GOVERNMENTS.
[Chap. 264.
post, to a camp of the United Spanish War Veterans, or belonging to or 15
used in the service of the United States or the commonwealth, may have 16
the names of battles and the name and number of the organization to 17
which such flag belongs inscribed thereon. Words, figures, advertise- 18
ments or designs attached to, or directly or indirectly connected with, 19
the flag or any representation thereof in such manner that the flag or its 20
representation is used to attract attention to or advertise such words, 21
figures, advertisements or designs, shall for the purposes of this section 22
be deemed to be upon the flag. 23
Exceptions
to section 5.
1916, 36.
1917, 289.
Section 6. The preceding section shall not apply to publications
issued solely for the purpose of giving information in relation to the flag,
or of promoting patriotism or of encom-aging the study of American
history, or to any newspaper, periodical, book, pamphlet, certificate,
diploma, warrant, or commission of appointment to office, ornamental
picture, article of jewelry, or stationery for use in correspondence, on
which is printed, painted, or placed the flag of the United States not con-
nected with any advertisement and not used for advertising purposes;
but no words, figures, designs or other marks of any kind shall be placed
upon the flag or representation thereof.
Misuse of
foreign Sags,
1912, 197.
Section 7. ^Mioever publicly mutilates, tramples upon, defaces or
treats contemptuously the flag or emblem of a foreign country at peace
with the United States, whether such flag or emblem is public or pri-
vate property, or whoever displays such flag or emblem or any repre-
sentation thereof upon which are words, figiues, advertisements or designs,
shall be punished by a fine of not less than five nor more than fifty dollars.
Display of
foreign fiag.
1895, 115.
R. L. 206, § 6.
Section 8. Whoever displays the flag or emblem of a foreign country
upon the outside of a state, county, city or town building or public school-
house shall be punished by a fine of not more than twenty dollars; but,
except as to public schoolhouses, this section shall not apply when a
citizen of such foreign country becomes the guest of the United States
or of the commonwealth, if the governor by proclamation authorizes the
flag of the country of which such guest is a citizen to be displayed upon
public buildings.
Manner of play-
ing, etc..
national
anthem.
1917,311,
§U,2.
Section 9. Whoever plays, sings or renders the "Star Spangled 1
Banner" in any public place, theatre, motion picture hall, restaurant 2
or cafe, or at any public entertainment, other than as a whole and sepa- 3
rate composition or number, without embellishment or addition in the 4
way of national or other melodies, or whoever plays, sings or renders the 5
"Star Spangled Banner", or any part thereof, as dance music, as an exit 6
march or as a part of a medley of any kind, shall be punished by a fine 7
of not more than one hundred dollars. 8
Discrimination
against persons
wearing uni-
form of United
States army,
etc., prohiliited
in places of
amusement,
1911, 460.
Section 10. No proprietor, manager or employee of a theatre or
other public place of entertainment or amusement shall make, or cause
to be made, any discrimination against any person lawfully wearing the
uniform of the army, navy, revenue cutter service or marine corps of the
United States because of that uniform, and whoever makes or causes to
be made such discrimination shall be punished by a fine of not more than
five hundred dollars.
Chap. 265.]
CRIMES AGAINST THE PERSON.
2695
1 Section 11. ^Mioever by speech or by exhibition, distribution or Promotion of
2 promulgation of any written or printed document, paper or pictorial hibUe/ ^''°'
3 representation advocates, advises, counsels or incites assault upon any ^®^®' ^®^' ^ ^"
4 public official, or the killing of any person, or the unlawful destruc-
5 tion of real or personal property, or the o\'ertlu-ow by force or violence
6 of the government of the commonwealth, shall be pimished by a fine of
7 not more than one thousand dollars or by imprisonment for not more
S than three years, or both; provided, that this section shall not be con-
9 strued as reducing the penalty now imposed for the violation of any law.
1 Section 12. Any person found in the act of violating any provision Arrest with-
2 of the preceding section may be arrested without a warrant. igio^IgM 2.
CHAPTER 265
CRIMES AGAINST THE PERSON.
Sect.
1. Murder defined.
2. Punishment for murder.
3. Murder in a duel out of commonwealth.
4. Accessory in duel.
5. Former conviction, etc., out of com-
monwealth a bar, when.
6. Engaging in duel, challenging, etc.
7. Accepting or carrying challenge and
abetting a duel.
8. Posting another for not fighting duel.
9. Prize fighting.
10. Aiding, advasing, etc., prize fight.
11. Leaving commonwealth to fight.
12. Boxing matches for reward.
13. Manslaughter.
14. Mayhem.
15. Assault with intent to murder, maim,
etc.
16. Attempt to murder by poisoning, etc.
17. Punishment of robbery in certain cases.
18. Assault with intent to rob, etc., being
armed.
21.
22.
23.
Sect.
19. Robbery, not being armed.
20. Assault with intent to rob, etc., not
being armed.
Confining or putting in fear a person
for the purpose of stealing, etc.
Rape.
Rape of child.
24. Assault with intent to commit rape.
25. Attempt to extort money, etc., by
threat.
26. Kidnapping, etc.
27. Venue.
28. Poisoning food, medicine, spring, etc.
29. Assaults not before mentioned.
30. Negligence, etc., of person having care
of public conveyance.
31. Driver of stage coach, etc., leaving
horses without charge, etc.
32. Penalty for throwing, etc., of glass in
public streets, etc.
33. Wearing of hat-pins regulated.
1 Section 1. Murder committed with deliberately premeditated malice Mmder
2 aforethought, or with extreme atrocity or cruelty, or in the commission i784,'^69.
3 or attempted commission of a crime punishable with death or imprison- {gjg- \^' ^ ^^■
4 ment for life, is murder in the first degree. Murder which does not appear ^ I'I^q
5 to be in the first degree is murder in the second degree. Petit treason PJ"^.?!
6 shall be prosecuted and punished as murder. The degree of murder shall §§ 1-3. 7'.
7 be found by the jury.
R. L. 207, § 1.
16 Gray, 1.
9 Allen, 585.
12 Allen, 1.55.
118 Masa. 36.
126 Mass. 253.
165 Mass. 45.
174 Mass. 245.
184 Mass. 255.
189 Mass. 457.
219 Mass. 1.
235 Mass. 562.
1 Section 2. Whoever is guilty of murder in the first degree shall j^-,""^'uJde?*
2 suffer the punishment of death, and whoever is guilty of murder in the b- i- 94,
3 second degree shall be punished by imprisonment in the state prison for c. l. u,
4 life. 1697, 17. 17S4, 44, § 1.
1804, 123, § 1.
1858, 154, §§ 4, 5.
P. S. 202, §§ 4, 5.
R. S. 125, § 1.
G. S. 160, 5§ 4, 5.
R. L. 207, § 2.
2696
CRIMES AGAINST THE PERSON.
[Ch.\p. 265.
SlTuVSf* Section 3. An inhabitant or resident of this commonwealth who, 1
commonweaUh. \yy previous appointment or engagement made within the same, fights a 2
G. |._iTO.'|9. duel outside its jurisdiction, and in so doing inflicts a mortal wound upon 3
R. L.'aoT, § 3. a person whereof he dies within the commonwealth shall be guilty of 4
murder within this commonwealth, and may be indicted, tried and con- 5
victed in the county where the death occurs. 6
Accrasory Section 4. An inhabitant or resident of this commonwealth who, by
olii?o'li*d previous appointment or engagement made within the same, becomes
R L fo7 1 4°" ^^^^ second of either party in such duel and is present as a second when
a mortal wound is inflicted upon a person whereof he dies within this
commonwealth shall be an accessory before the fact to murder in this
commonwealth, and may be indicted, tried and convicted in the county
where the death occurs.
Former con-
viction, etc,
out of com-
monwealth a
bar, when.
R. S. 125, § 5.
G. S. 160. § 11.
P. S. 202, § 11.
R. L. 207, § 6.
Section 5. A person indicted under either of the two preceding sec- 1
tions may plead a former conviction or accjuittal of the same crime in 2
any other state or country; and if his plea is admitted or established, 3
it shall be a bar to all further proceedings against him for the same crime 4
within this commonwealth. 5
Engaging in
duel, challeng-
ing, etc.
1719-20, 1.
1728-9. 1.5. § 1.
17S4, 9, §§ 1, 2.
1804, 123, § 6.
R. S. 125, §6.
G. S. IBO, § 12.
P. S. 202, § 12.
R. L. 207, § 6.
1914. 635.
1918, 257,
§464.
1919, 5.
1920, 2.
Section 6. ^Mioever engages in a duel with a deadly weapon, al- 1
though no homicide ensues, or challenges another to fight such duel, or 2
sends or delivers a written or verbal message purporting or intended to 3
be such challenge, although no duel ensues, sliall be punished by imprison- 4
ment in the state prison for not more than twenty years or by a fine of 5
not more than one thousand dollars and imprisonment in jail for not more 6
than two and one half years; and shall be incapable of holding or of 7
being elected or appointed to any place of honor, profit or trust under 8
the constitution or laws of the commonwealth for twenty years after 9
such conviction. 10
Accepting or
carrying chal-
lenge and abet-
ting a duel.
1804, 123, § 7.
R. S. 125, § 7.
G. S. 100, § 13.
P. S. 202, § 13.
R, L. 207, § 7.
Section 7. Whoever accepts or knowingly carries or delivers any
such challenge or message, whether a duel ensues or not, and whoever is
present at the fighting of a duel with deadly weapons as an aid, second or
surgeon, or advises, encourages or promotes such duel, shall be punished
by imprisonment for not more than one year or by a fine of not more than
five hundred dollars; and shall be incapable, as provided in the preceding
section, for five years after such conviction.
ro°r^not^fightiig' Section 8. Whoever posts another, or in writing or print uses any
11%' 125 ? s reproachful or contemptuous language to or concerning another, for not
p' I' ■'0°' 1 14 ' fighting a duel or for not sending or accepting a challenge shall be punished
R. L. 207, § s. by imprisonment for not more than sLx months or by a fine of not more
than one hundred dollars.
Prize fighting.
1849,49. § 1.
G. a. 160, § 1.5.
P. S. 202, § 15.
R. L. 207, § 9.
7 Gray, 324.
1 Op. A. G.
240.
Section 9. WTioever, except as provided in sections thirty-two to 1
fifty, inclusive, of chapter one hundred and forty-seven, by pre\ious 2
appointment or arrangement, engages in a fight with another person 3
shall be punished by imprisonment in the state prison for not more 4
than ten years or by a fine of not more than five thousand dollars. 5
Aiding, advis-
ing, etc., prize
light
Section 10. Wlioever, except as provided in sections tliirty-two to 1
1849; 49, §2. fifty, inclusive, of chapter one hundred and forty-seven, is present at 2
Caxp. 265.] CRIMES against the person. 2697
.3 such fight as an aid, second or surgeon, or advises, encourages or promotes g. s. loo, § 16.
4 such fight, shall be punished by imprisonment in the state prison for not r. l.^207,'§\o.
5 more than five years or by a fine of not more than one thousand dollars i9}s;257,'§464
6 and by imprisonment in jail for not more than two and one half years. ]flf,' ^
7 Gray, 324, ' "
1 Section 11. An inhabitant or resident of this commonwealth who, Lea^-ing oom-
2 by previous appointment or engagement made in the same, leaves the tS^fighT'"'
3 same and engages in a fight with another person outside the limits thereof ^**|' f^^ i^j,
4 shall be punished by imprisonment in the state prison for not more S- l l^' V/i
5 than five years or by a fine of not more than five thousand dollars. los Mass'. 302,'
1 Section 12. ^Mioever, except as provided in sections thirty-two to Boxing matches
2 fifty, inclusive, of chapter one hundred and forty-seven, engages in or 5896?422!''
3 gives or promotes a public boxing match or sparring exliibition, or en- fgy^jfa^j l^f ■
4 gages in a private boxing match or sparring exliibition, for which the
5 contestants have received or have been promised any pecuniary reward,
6 remuneration or consideration whatsoever, directly or indirectly, shall be
7 punished by a fine of not more than two hundred dollars or by imprison-
S ment for not more than three months, or both.
1 Section 13. ^\nioever commits manslaughter shall be punished by Manslaughter.
2 imprisonment in the state prison for not more than twenty years or by isw! 123,^^3.
3 a fine of not more than one thousand dollars and imprisonment in jail r'I'iIs'II'
4 for not more than two and one half years. G. s, 160, § is.
p. S. 202, § IS. I91S. 257, § 464. 102 Mass, 153:
R. L. 207, § 13. 1919, 5. 131 Mass. 423.
1914, 035. 1920, 2. 13S Mass. 165.
1 Section 14. Whoever, with malicious intent to maim or disfigure, Mayhem.
2 cuts out or maims the tongue, puts out or destroys an eye, cuts or tears i8o'i, 123, §4.
3 off an ear, cuts, slits or mutilates the nose or lip, or cuts off or disables a §■ f \j^[ | Jg-
4 limb or member, of another person, and whoever is privy to such intent, S'l^jot Vu
5 or is present and aids in the commission of such crime, shall be punished ioi4, ess!
0 by imprisonment in the state prison for not more than twenty years 1919,5.
7 or by a fine of not more than one thousand dollars and imprisonment 133 Mass. 571.
8 in jail for not more than two and one half years.
1 Section 15. \Mioever assaults another with intent to commit mur- Assault with
2 der, or to maim or disfigure his person in any way described in the pre- JTer"! m.arm™etc.
3 ceding section, shall be punished by imprisonment in the state prison Jgot' 123^5^5
4 for not more than ten years or by a fine of not more than one thousand i8i|. ^.f^l ■*■
5 dollars and imprisonment in jail for not more than two and one half g! s! loo! 1 20!
„ p. s. 202, § 20.
6 years. R. l. 207, § 15.
1914, 6.33. 1919. 5. 10 Gray, H.
1918, 257, § 464. 1920, 2. 162 Mass. 495.
1 Section 16. ^Vhoever attempts to commit murder by poisoning. Attempt to
2 drowning or strangling another person, or by any means not consti- po'Json[ngfetc.
3 tuting an assault with intent to commit murder, shall be punished by R^^l.'fls, §12.
4 imprisonment in the state prison for not more than twenty years or by p|'2o?'l2i'
5 a fine of not more than one thousand dollars and imprisonment in jail ^- L- 207, § 10.
„ J. , ^, ^ , , ,(. ^ •* 1914,633,
b tor not more than two and one halt years.
1918, 237, § 464. 1919,5. 1920,2. 170 Mass. IS.
1 Section 17. ^^^loever, being armed with a dangerous weapon. Punishment of
2 assaults another and robs, steals and takes from his person money or J!;
robber.v in cer-
tain cases.
2698
CRnrES AGAINST THE PERSON.
[Ch-\p. 265.
ISIS, 124. i 1. other property which mav be the siibiect of larcenv, with intent if re- 3
R S 125 5 13 ..'■ . * .*■
1839, 127. ■ sisted to kill or maim the person robbed, or, bemg so armed, wounds 4
p.' I.' 202,' I If.' or strikes the person robbed, shall be punished by imprisonment in the 5
wii] S4^' ^ ^^' state prison for life or for any term of years.
17 Mass. 359. 6 Met. 565. 11 Allen, 20. 165 Mass. 133.
6
Assault with
intent to rob,
etc., being
armed.
1761-2, 21, § 1.
Section IS. ^Mioever, being armed with a dangerous weapon, 1
assaults another with intent to rob or murder shall be punished by 2
imprisonment in the state prison for not more than twenty years. 3
1784,52, §2. 1818, 124, §3. G. S. IRO, § 23. R. L. 207, J IS.
1804, 143, § 9.
R. S. 125, § 14.
P. S. 202, § 23.
S Gray, 387.
Robberj', not
being armed.
C. L. 12. §4.
1692-3,
18, § 4.
1711-12, 2, § 1.
1761-2, 21, § 1.
1784, 52, § 2.
1804, 143, § 7.
Section 19. ^Mioever, not being armed with a dangerous weapon,
by force and violence, or by assault and putting in fear, robs, steals
and takes from the person of another money or other property M'hich
may be the subject of larceny, shall be punished by imprisonment in
the state prison for life or for any term of years.
R. S. 125, I 15.
G. S. 160, I 24.
p. S. 202, !
R. L. 207,
24.
il9.
7 Mass. 242.
S Gush. 215.
12 .\llen, 540.
126 Mass. 252.
Assault with
intent to rob,
etc., not being
armed.
1804, 143, 5 9.
R. S. 125, § 16.
G. S. 160, § 25.
Section 20. \\'hoever, not being armed with a dangerous weapon, 1
assaults another with force and violence and with intent to rob or steal 2
shall be punished by imprisonment in the state prison for not more than 3
ten years. p. s. 202, 1 2s. 4
R. L. 207, § 20. 12 Gush. 270. 14 Gray, 393. 167 Mass. 434.
Confining or
putting in fear
a person for
the purpose of
stealing, etc.
1876, 202.
P. S. 202, § 26.
R. L. 207, §21.
1918, 257,
§446.
1919, 5.
1920, 2.
165 Mass. 457.
167 Mass. 434.
168 Mass. 222.
Section 21. ^Mioever, with intent to commit larceny or any felony, 1
confines, maims, injures or wounds, or attempts or threatens to kill, 2
confine, maim, injure or wound, or puts any person in fear, for the 3
purpose of stealing from a building, bank, safe, vault or other depository 4
of money, bonds or other valuables, or by intimidation, force or threats 5
compels or attempts to compel any person to disclose or surrender the 6
means of opening any building, bank, safe, vault or other depository 7
of money, bonds or other valuables, or attempts to or does break, burn, 8
blow up or otherwise injure or destroy a safe, vault or other depository 9
of money, bonds or other valuables in any building or place, shall, 10
whether he succeeds or fails in the perpetration of such larceny or felony, 11
be punished by imprisonment in the state prison for life or for any term 12
of vears. 13
Rape
C.t.
15,
§15.
1697,
18.
1784,
68.
1805,
97,
§1.
Section 22. '\^^loever ^a^^shes and carnally knows a female by 1
force and against her will shall be punished by imprisonment in the 2
state prison for life or for any term of years. 3
R. S. 125, § 18. P. S. 202, § 27. R. L. 207, § 22.
1852, 259, § 2. 1886, 305. 19 Pick. 479.
G. S. 160,§26. 1888,391. 4 Met. 354.
1871, 55. 1893, 466, § 1. 4 Gray, 7.
8 Gray, 489.
105 Ma.ss. 376.
110 Mass. 405.
Rape of child.
C. L. 15, § 17.
1697, IS.
1784, 68.
1805,97, § 1.
R. S. 12,5, 5 IS.
1852, 259, § 2.
G. S. 160, § 26.
1871, 55.
Section 23. ^Mioever unlawfully and carnally knows and abuses 1
a female child under sLxteen shall be punished by imprisonment in 2
the state prison for life or for any term of years, or, except as other- 3
wise provided, for any term in any other penal institution in the 4
commonwealth. 5
§23,
P. S. 202, § 27.
1.S86, 305.
1888, 391.
1893, 466, § 2.
R. L. 207
4 Gray, 7
165 Mass. 66.
170 Mass. 194.
hitenftJ'^"' Section 24. Whoever assaults a female with intent to commit a 1
i784™iiV§^3' ^^P^ shall be punished by imprisonment in the state prison for life or 2
Chap. 265.] ceimes ag.unst the person. 2699
3 for any term of years or by a fine of not more than one thousand dollars isos, 97, § 3.
4 and imprisonment in jail for not more than two and one half years. it's.' 125, § 19.
G. S. 160, I 27. 1918, 257, § 464. 143 Mass. 32.
P. S. 202, § 28. 1919, 5. 162 Mass. 466.
R. L. 207, § 24. 1920, 2. 163 Mass. 66.
1914, G35. 116 Mass. 346.
1 Section 25. WTioever, verbally or by a written or printed communi- Attempt to
2 cation, maliciously threatens to accuse another of a crime or offence, or ltc%y°threat.
3 by such communication maliciously threatens an injury to the person or fs.53,«2'.^ ^^'
4 property of another, with intent thereby to extort money or any pecuniary p. |; 202,' | If.'
5 advantage, or with intent to compel the person so threatened to do any f^^- If.' ^ ^^■
6 act against his ^N-ill, shall be punished by imprisonment in the state prison Jg}!!"'^*®^-
7 for not more than fifteen years, or in the house of correction for not more 1920! 2.
8 than two and one half years, or by a fine of not more than five thousand 12 auL', 449.
9 dollars, or both. loi Mass. 27.
106 Mass. 1. 122 Mass. 19. 145 Mass. 181.
108 Mass. 15, 307, 488. 128 Mass. 55. 148 Mass. 27
121 Mass. 57. 130 Mass. 59. 163 Mass. 291.
1 Section 26. Whoever, \\-ithout lawful authority, forcibly or secretly Kidnapping,
2 confines or imprisons another person within this commonwealth against b.'^l. 94, § 10.
3 his will, or forcibly carries or sends such person out of this commonwealth, ^j^ 1| | Jo-
4 or forcibly seizes and confines or inveigles or kidnaps another person, with ^^^'' *|^ § ',i
5 intent either to cause him to be secretly confined or imprisoned in this g s! leb! § so.
6 commonwealth against his Mill, or to cause him to be sent out of this 1901, 42"8.
7 commonwealth against his will or in any way held to service against his 12 Me^t^sV, '
8 will, and whoever sells or in any manner transfers for any term the service ^ ^^'^' ^'*'
9 or labor of a negro, mulatto or other person of color who has been unlaw-
10 fully seized, taken, inveigled or kidnapped from this commonwealth to
1 1 any other state, place or country, shall be punished by imprisonment in
12 the state prison for not more than ten years or by a fine of not more than
13 one thousand dollars and imprisonment in jail for not more than two
14 years. Whoever commits any offence described in this section with the
15 intent to extort money or other valuable thing thereby shall be punished
16 by imprisonment in the state prison for not more than twenty-five years.
1 Section 27. A crime described in the preceding section may be tried ^*?;"*j2s « ,,
2 in the county where committed or in any county in or to which the person g- §• leo! § su
3 so seized, taken, inveigled, kidnapped or sold, or whose services are so r'.l. 207, §27.
4 sold or transferred, is taken, confined, held, carried or brought; and
5 upon the trial of any such crime, the consent thereto of the person so
6 taken, inveigled, kidnapped or confined shall not be a defence unless the
7 jury finds that such consent was not obtained by fraud or extorted by
8 duress or threats.
1 Section 28. Whoever mingles poison with food, drink or medicine Poisoning food,
2 with intent to kill or injure another person, or wilfully poisons any spring, ^ring',°e^tc.
3 well or reservoir of water with such intent, shall be punished by imprison- §: 1: leo] I if.
4 ment in the state prison for life or for any term of years. ^- ^- ^°^' ^ ^^•
R. L. 207, § 28. 9 Allen, 271. 108 Mass. 487. 140 Mass. 443.
1 Section 29. Whoever assaults another with intent to commit a felony Assaults not
2 shall, if the punishment of such assault is not hereinbefore provided, be nfentfoned.
3 punished by imprisonment in the state prison for not more than ten §; |; joo] I tfi.
4 years or by a fine of not more than one thousand dollars and imprison- r |;.2(?7,V2'J.
5 ment in jail for not more than two and one half years.
1914, 635. 1918, 257, § 464. 1919, 5. 1920, 2.
2700
CRIMES AGAINST PROPERTY.
[Chap. 266.
Negligence,
etc., of per-
son having care
of public
conveyance.
1853, 418.
G. S. 160, 5 35.
P. S. 202, § 34.
R. L. 207, § 30.
1914, 035.
1918,257,5464.
1919, S.
1920, 2.
Driver of stage
coach, etc..
leaving horses
without
charge, etc.
1.826, 140.
R. S. 51, §4.
G. S. IfiO. § 3(i.
P. S. 202, § 35.
R. L. 207, I 31.
Section 30. Whoever, having the management or control of or over
a steamboat or other pubHc conveyance used for the common carriage
of persons, is guilty of gross neghgence in or relative to the management
or control of such steamboat or other public conveyance, while being so
used for the common carriage of persons, shall be punished by a fine of
not more than five thousand dollars or by imprisonment in jail for not
more than two and one half years.
Section 31. A driver of a vehicle for the conveyance of passengers
for hire, who, when a passenger is within or upon such vehicle, leaves the
horses thereof without a suitable person to take the charge and guidance
of them, or without fastening them in a safe and prudent manner, shall
be punished by imprisonment for not more than two months or by a fine
of not more than fifty dollars.
Penalty for
throwing, etc.,
of glass in
public streets,
etc.
1913, 214.
1914, 76.
Section 32. Whoever throws or drops glass on a public way, or on or
near a bathing beach, or on a public way, sidewalk or reservation in the
immediate neighborhood of a bathing beach, shall be punished by a fine of
not more than fifty dollars, or by imprisonment for not more than one
month.
Wearing of
hat-pins
regulated.
1913, 256.
Section 33. Whoever wears in public a hat-pin protruding more than 1
one half inch beyond the crown of the hat, unless the point thereof is 2
so protected as to be incapable of causing injury to others, shall be 3
punished by a fine of not more than one hundred dollars.
REFERENCE.
Throwing rubbish, etc., in public way. Chap. 272, § 60.
CHAPTER 266.
CRIMES AGAINST PROPERTY.
Sect.
Sect
1.
Burning dwelling house, etc.
13.
2.
Burning in night time.
14.
3.
Burning in day time.
4.
Burning of building of le.?.? value than
15.
one thousand dollars, etc., or bridge,
16.
ship, etc.
17.
5.
Burning of wood, fence, corn, grain.
tree, soil, etc.
IS.
6.
Wife liable for burning property of
husband.
4 .
Wanton or reckless injury or destruc-
tion of woods by fire.
19.
8.
Negligence in cases of fires.
20.
9.
Same subject.
21.
U).
Burning Insured property.
22.
11.
Injury, etc., to fire alarm, apparatus,
etc., before fire.
12.
Injury, etc., to fire alarm, apparatus,
etc., preventing alarm or extinction
23.
of fire during fire.
24.
Injuring fire engines.
Burglary, being armed or making an
assault.
Burglary, not being armed, etc.
Breaking, in night, building or ship.
Entering, in night, without breaking,
or breaking, etc., in day time.
Entering dwelling house in night or
breaking, etc., without putting in
fear, in day time.
Breaking and entering railroad car,
etc.
Stealing in building, ship, etc.
Refusal to deliver stolen property, etc.
Detention of persons unlawfully en-
tering places where poultry is kept.
Penalty.
Embezzling, etc., of property at a fire
to be deemed larceny.
SteaUng at a fire.
Caxp. 266.
CRIMES AGAINST PROPERTY.
2701
Sect.
25. Larceny from the person.
26. Subjects of larceny.
27. Penalty for stealing tools of contrac-
tors, builders, etc.
28. Theft or concealment of motor vehi-
cles, etc. Penalty.
29. Disposition of prosecutions under sec-
tion 28.
30. Larceny, etc.
31. Fraudulently obtaining signature.
32. Fraudulent conversion of property by
captain of vessel.
33. False pretences to constitute larceny
in certain cases.
34. Same subject.
35. Limitation of sections 30, 31 and 34.
36. Persons obtaining credit by false pre-
tences to be guilty of larceny.
37. Drawing and uttering fraudulent
checks, drafts and orders.
38. Wrongful detention of money by car-
riers and their employees.
39. Larceny and destruction of wills.
40. Common and notorious thief.
41. Second conviction of larceny of a bi-
cycle.
42. Larceny of paper designed for bank
bills, etc.
43. Printer, etc., retaining such paper,
etc., with intent to pass, etc.
44. Larceny of things annexed to the realty.
45. Same subject.
46. Larceny of beast or bird.
47. Penalty for wrongfully removing collar
from or stealing or poisoning a dog.
48. Officer making arrest to secure, etc.,
goods stolen.
49. Making, holding, using, etc., burgla-
rious instrument.
50. Fraud or embezzlement by employee
in treasury.
51. Fraud or embezzlement by city, town
or county officer.
52. Fraud or embezzlement by bank officer
or employee.
53. E\'idence in fraud or embezzlement by
accomplice of officer or employee of
bank, etc.
54. Penalty for receiving deposits by in-
solvent banks, etc.
55. Embezzlement by receiver, etc.
56. Embezzlement by broker, etc.
57. Embezzlement by trustee, etc.
58. Embezzlement from voluntary associa-
tion.
59. Same subject.
60. Buying or receiving stolen goods.
61. Effect of restitution of stolen property
bought, etc.
62. Common receiver of stolen goods.
63. Unlawful taking of animal, etc.
64. Fraudulent luring of horses, carriages,
automobiles, etc.
65. Unauthorized issue of stock.
66. Fraudulent issue of stock, etc.
Sect.
67. False entry, etc., in book of corpora-
tion.
68. Books of corporation as evidence.
69. Unlawful use of insignia.
70. Same subject.
71. Fraudulent use of names, etc.
72. Certain publications forbidden, etc.
73. Obtaining goods under false pretence
of carrying on business.
74. Fraudulent use of credit of corpora-
tion.
75. Obtaining property by trick, etc.
76. Gross fraud, etc., at common law.
77. Sale of certain articles as sterUng and
coin silver.
78. False marking of articles made of
gold, etc., prohibited.
79. False representation of imitations of
fur prohibited.
SO. Conveying encumbered land without
notice.
81. Selling attached land without notice.
82. Concealing mortgaged personal prop-
erty, etc.
83. Sale by mortgagor without consent of
mortgagee.
84. Sale by hirer, etc., of personalty witli-
out consent.
85. Sale, etc., of collateral security before
debt due, etc.
86. Buying, etc., hired property, etc.
87. Sale, etc., of personalty held on con-
ditional sale.
88. Consignee, etc., fraudulently deposit-
ing or pledging property, etc.
89. Falsely pretending to hold a degree,
etc., or granting degrees without
authority. Use of word "univer-
sity" or "college."
90. Falsely claiming endorsement, etc.
91. Untrue and misleading advertisements
prohibited.
92. Publishing of false or exaggerated
statements prohibited, etc.
93. Obtaining or giving false pedigree of
animals.
94. Malicious destruction of boundary
monument, milestone, etc.
95. Malicious destruction of historical
monument.
96. Defacing, etc., building of the com-
monwealth.
97. Defacing building of county.
98. Wilful injury, etc., to schoolhouse,
church, etc., or furniture, etc.
99. Defacement of books, etc., of libraries.
100. Detention of books of libraries.
101. Maliciou.s explosion.
102. Throwing explosives into buildings or
placing on railways, etc.
103. Throwing oil of vitriol, coal tar, etc.
104. Injury to building.
105. Pulling down stone walls or fences.
106. Injury, etc., to ico taken as merchan-
dise.
2702
CRIMES AGAINST PROPERTY.
[Ch.\p. 266.
Sect.
107. Injury, etc., to bridge, etc.
108. Destroying vessel to defraud owner or
insurer.
109. Fitting out vessel with intent to de-
stroy it, etc.
110. False invoice, etc., of cargo to defraud
insurer, etc.
111. False protest, etc.
112. Malicious killing, etc., of cattle.
113. Cutting timber, wood, shrubs, etc.,
on land of another.
114. Malicious injuries to trees, fences, etc.
115. Trespass in orchard, garden, etc.
116. Picking of berries, etc., by unnatural-
ized foreign born persons in Barn-
stable and Plymouth counties re-
stricted.
117. Entering orchard, etc., with intent, etc.
118. Suffering animals to trespass on land.
119. Transportation of injurious insects.
120. Trespass on improved or enclosed
land.
121. Entry on land with firearms.
122. Defacement of notice against tres-
passers.
Sect.
123. Trespassing upon land of certain insti-
tutions.
124. Malicious injury to legal notice.
125. Malicious injury to show bill, etc.
126. Defacing natural scenery.
127. Malicious or wanton injuries to per-
sonal property.
128. Defacing milk cans.
129. Injury to property at state prison.
130. Injury to property at other penal in-
stitutions.
131. Arrest and detention without warrant
of trespasser on Sunday.
132. Killing or frightening pigeons.
133. Injury, etc., to property of Humane
Society.
134. Setting fire to coal pit. etc., on wood-
land in New Bedford, etc., between
March and October.
Mooring vessel, etc., to a buoy, etc.
Injury, etc., to baggage by hackman,
etc.
Raising water so as to injure mill.
Injury to dam, reservoir, etc.
135.
136.
137.
138.
Burning dwell-
ing house, etc.
C. L. 52, § 1.
1705-6, 9.
1784, 58,
§§ 1.2.
1804, 131,
§§ 1, 2.
1830, 72, § 1.
Section 1. Whoever wilfully and maliciously burns the dwelling 1
house of another or a building adjoining such dwelling house, or wilfully 2
and maliciously sets fire to a building by the burning whereof such 3
dwelling house is burned, shall be punished by imprisonment in the state 4
prison for life or for any term of years. 5
R.S. 126. §§1,2.
1852, 259, § 3.
G.S. 101, § 1.
1871, 76.
P. S, 203, § 1.
R. L. 208, § 1.
3 Cush. 525.
10 Cush. 478.
110 Mass. 403.
131 Mass. 421.
150 Mass. 332.
151 Mass. 491.
Burning in
night time.
C. L. 52, § 1.
1705-6. 9.
1784,58, § 2.
1804. 131, § 2.
R. S. 126. § 3.
G. S. 161, § 2.
1371,76.
P. S. 203, § 2.
R. L. 208, § 2.
10 Cush. 480.
2 Allen. 159.
134 Mass. 527.
172 Mass. 187.
Section 2. Whoever wilfully and maliciously burns in the night 1
time a meeting house, church, court house, town house, college, academy, 2
jail or other building, which has been erected for public use, or a banking 3
house, warehouse, store, manufactory or mill of another being with the 4
property therein of the value of one thousand dollars, or a barn, stable, 5
shop or office of another within the curtilage of a dwelling house, or any 6
other building by the burning whereof any building mentioned in this 7
section is burned in the night time, shall be punished by imprisonment S
in the state prison for life or for any term of years. 9
Burning in
day time.
C. L. 52, § 1.
1705-6, 9.
1784, 58. § 2.
1S04, 131, § 3.
R. S. 126, § 4.
Section 3. Whoever wilfully and maliciously burns in the day time 1
a building, the burning of which in the night time might be pimished under 2
the preceding section, shall be punished by imprisonment in the state 3
prison for not more than ten years. 4
G. S. 161, § 3. P. S. 203, § 3. R. L. 208, § 3.
Section 4. Whoever wilfully and maliciously burns a banking house, 1
Burning of
building of less . , i » i ^y»
value than one warcliouse, store, manufactory, mill, barn, stable, shop, office, outhouse
thousand i -i i- i. i i • i ■ .1 m 1 •
dollars, etc.. _ or Other Duilding or another, which is not described m section two, or a
etc. " ®'^' ^ ^' bridge, lock, dam, flume, ship or vessel of another, shall be punished by
ms^tfg; ^' imprisonment in the state prison for not more than ten years.
1784, 58, § 2. G. S. 161, § 4. 1 Met. 258. 1.W Mass. 332.
1804, 131. § 3. P. S. 203, § 4. 1 Gray, 493. 151 Mass. 491.
R.S. 126, §5. R. L. 208, §4. 15 Gray, 480. 167 Mass. 420.
CH-VP. 266.] CRIMES AGAINST PROPERTi'. 2703
1 Section 5. WTioever wilfully and maliciously burns or otherwise de- Burning of
2 stroys or injures a pile or parcel of wood, boards, timber or other lumber, com'!'g'ra'in!'
3 or any fence, bars or gate, or a stack of grain, hay or other vegetable c.^l. 5i!'§'2';'
4 product, or any vegetable product severed from the soil and not stacked, fyo.i-e 9
5 or any standing tree, grain, grass or other standing product of the soil, H®,^'/^'
6 or the soil itself, of another, shall be punished by imprisonment in the 1804, 131. § 4.
7 state prison for not more than five years or by a fine of not more than five g. s! lai! § 5!
8 hundred dollars and imprisonment in jail for not more than one year. r. l.2c?s,\^5.
1 Section 6. The preceding sections shall apply to a married woman wife iiabie for
2 who commits any of the crimes therein described, although the property ert^y°oThS-'^
3 burned or set fire to belongs partly or wholly to her husband. ^'"^^'
R. S. 126, I 7. G. S. 161, § 6. P. S. 203, § G. R. L. 208. § G.
1 Section 7. Wlioever by wantonly or recklessly setting fire to any wanton or
2 material, or by increasing a fire already set, causes injury to, or the de- ordestruction
3 struction of, any growing or standing wood of another shall be punished fi'e"""'^^ ^^
4 by a fine of not more than one hundred dollars or by imprisonment for ^^l- ^gg j ,
5 not more than six months. 1912,419, § 1.
1 Section 8. Whoever wilfully or without reasonable care sets or Negligence
2 increases a fire upon land of another whereby the property of another is Se'iJ"'" °^
3 injured, or whoever negligently or wilfully suffers any fire upon his own ^^l' los! 1 1'.
4 land to extend beyond the limits thereof, whereby the woods or property ^^^-- *^^' ^ ^■
5 of another are injured, shall be punished by a fine of not more than two
6 hundred and fifty dollars.
1 Section 9. Whoever, in a town which accepts this section or has same subject.
2 accepted corresponding provisions of earlier laws, sets a fire on land §§^1%. '
3 which is not owned or controlled by him and before leaving the same ^- ^- ^°*' ^ ®'
4 neglects to entirely extinguish such fire, or whoever wilfully or negli-
5 gently sets a fire on land which is not o\\Tied or controlled by him whereby
6 property is endangered or injured, or whoever wilfully or negligently
7 suffers a fire upon his own land to escape beyond the limits thereof to
8 the injury of another, shall be punished by a fine of not more than one
9 hundred dollars or by imprisonment in jail for not more than one month,
10 or both, and shall also be liable for all damages caused thereby. Such
11 fine shall be equally divided between the complainant and the town.
12 This section shall not apply to cities.
1 Section 10. Wlioever, with intent to injure the insurer, burns a Burning in-
2 building or any goods, wares, merchandise or other chattels belonging to r/^ is?""!"'^
3 himself or another, and which are at the time insured against loss or p.I.^os.'It.'
4 damage by fire, shall be punished by imprisonment in the state prison fi^'jiagg' 272°
5 for not more than twenty years. i3i Mass. 421.
155 Mass. 68. 177 Mass. 267. 184 Mass. 484. 196 Mass. 342
1 Section 11. Wlioever, \nthin twenty-four hours prior to the burn- injury, etc..
2 ing of a building or other property, wilfully, intentionally and without f.pp.l'rau^c^c.,
3 right cuts or removes a bell rope or a wire or conduit connected with a iJj",'''!!^,';''-^ j
4 fire alarm signal system or injures or disables any fire alarm signal box g.s.'wi,'|s.
5 or any part of such svstem in the vicinitv of such building or propertv, r'. l.*'26s,'§ ii
■^ ^ - ' o J- 1 . I i9i8_257,§447
2704
CRIMES AGAINST PROPERTY.
[ClLU>. 266.
1919, 5.
1920, 2.
or cuts, injures or destroys an engine, hose or other fire apparatus in 6
said Ancinity shall be punished by a fine of not more than five hundred 7
dollars or by imprisonment for not more than two years. 8
Injury, etc.,
to fire alarm,
apparatus, etc.,
preventing
alarm or ex-
tinction of fire
during fire,
1855, 446, § 2.
G. S. IGl, § 9.
P. S. 203. § 9.
R. L. 208, § 12.
1918.257, §448.
1919, 5.
1920, 2.
Section 12. Whoever, during the burning of a building or other 1
property, wilfully and maliciously cuts or removes a bell rope or a wire 2
or conduit connected with a fire alarm signal system or injures or disables 3
any fire alarm signal box or any part of such system in the vicinity of 4
such building or property, or otherwise prevents an alarm being givep, 5
or whoever cuts, injures or destroys an engine, hose or other fire appara- 6
tus, in said Ancinity, or otherwise wilfully and maliciously prevents or 7
obstructs the extinction of a fire shall be punished by imprisoimient in 8
the state prison for not more than seven years or in jail for not more 9
than two and one half years or by a fine of not more than one thousand 10
dollars. 11
eng?ne°^ ^"^^ SECTION 13. Whocvcr waiitouly or maliciously iujurcs E firo eiigiue or
r's'iI'5 23 other fire apparatus shall be punished by a fine of not more than five
p' I' Is' 1 26' liundred dollars or by imprisonment for not more than two years, and
R^ L. 208, § is. shall be further ordered to recognize with sufficient surety or sureties
for his good behavior during such term as the court shall order.
1918, 257,
§449.
1919, 5.
1920, 2.
Burglary,
being armed
or making
an assault.
C.L. 13, § 1.
1692-3, 18, § 4.
1715-16. 1.
1769-70,
16, § 2.
1784, 48.
1805. 101, § 1.
R. S. 126, § 9.
1839. 127.
G. S. 161, § 10.
1871, 76.
Section 14. Whoever breaks and enters a dwelling house in the 1
night time, with intent to commit a felony, or whoever, after haA-ing 2
entered with such intent, breaks such dwelling house in the night time, 3
any person being then lawfully therein, and the ofl^ender being armed 4
with a dangerous weapon at the time of such breaking or entry, or so 5
arming himself in such house, or making an actual assault on a person 6
lawfully therein, shall be punished by imprisonment in the state prison 7
for life or for any term of not less than ten years. 8
p. S. 203, § 10.
1888, 135. § 1.
R. L. 208. § 14.
1 Mass. 47B.
22 Pick. 1.
105 Mass. 588.
Burglary, not
being armed,
etc.
C. L. 13, § 1.
1692-3, 18, § 4.
1715-16, 1.
1769-70,
16. §3.
1784. 48.
1805, 101. § 2.
1830, 72, § 2.
R. S. 126, § 10.
G. S. 161, I 11.
P. S. 203, § 1 1.
1888, 135, § 2.
R. L. 208, § 15.
4 Met. 357.
Section 15. Whoever breaks and enters a dwelling house in the 1
night time, with the intent mentioned in the preceding section, or, hav- 2
ing entered with such intent, breaks such dwelling house in the night 3
time, the offender not being armed, nor arming himself in such house, 4
with a dangerous weapon, nor making an assault upon a person lawfully 5
therein, shall be punished by imprisonment in the state prison for not 6
more than twenty years and, if he shall have been preAnously convicted 7
of any crime named in this or the preceding section, for not less than five 8
years. 9
Breaking, in
night, building
or ship.
C. L. 204, § 3.
1692-3, 18, § 4.
Section 16. Whoever, in the night time, breaks and enters a build- 1
ing, ship or vessel, with intent to commit a felony, shall be punished by 2
imprisonment in the state prison for not more than twenty years. 3
1804, 143, § 4.
R. S. 126 § 11.
1839,31.
1851, 156. I 1.
G. S. 161, § 12.
P. S. 203. § 12.
R. L. 20S, § 16.
20 Pick. 356.
3 Met. 316.
6 Met. 236.
12 Met. 240.
108 Mass. 1.
130 Mass. 45.
135 ilas3. 540.
Sght? without Section 17. Whoever, in the night time, enters ■nnthout breaking, 1
bfeakmg'etc ^^ brcaks and enters in the day time, a building, ship or vessel, with 2
in day time. ' intent to commit a felony, the owner or any other person lawfully therein 3
Cn.iP. 266.] CRIMES against property. 2705
4 being put in fear, shall be punished by imprisonment in the state prison c. l. 204. § 3.
5 for not more than ten years. i784, 66, § s. 1692-3, is, § 4.
1804, 143, § 5. 1851.156, §2. P. S. 203, § 13.
R. .S. 126, § 12. G. S. 161, § 13. R. L. 208, § 17.
1 Section 18. Wlioever, in the night time, enters a dwelling house Entering
2 without breaking, or breaks and enters in the day time a building, ship fiTnlghf or°'^°
3 or vessel, with intent to commit a felony, no person lawfully therein ^."houTpuuii^
4 being put in fear, shall be punished by imprisonment in the state prison jfa'''timi°
5 for not more than ten years or by a fine of not more than five hundred i784,66, §8.
6 dollars and imprisonment in jail for not more than two years.
R. S.126,§13. 1869,386. 122 Mass. 454.
1851, 156, § 3. P. S. 203, | 15. 210 Mass. 443.
G. S. 161, § 14. R. L. 208, § 18.
1 Section 19. Wlioever breaks and enters, or enters in the night time Breaking and
2 without breaking, a railroad car, with intent to commit a felony, shall be road"car,'^etc.
3 punished by imprisonment in the state prison for not more than ten years §*i"58.™' ^'^'
4 or by a fine of not more than five hundred dollars and imprisonment in |- 1; |°^g' i i*-
5 the house of correction for not more than two years.
1 Section 20. Wlioever steals in a building, ship, vessel or railroad ,st«a]ing in
r» Till '111* * •! • p building, ship,
2 car shall be punished by imprisonment m the state prison tor not more etc.
3 than five years or by a fine of not more than five hundred dollars or by i83o! 72, '§ 3. '
4 imprisonment in jail for not more than two years. ^' ^'^ ^^""^ ^ '■*'
1843,1,5 1. 1896,389. 8 Gray. 469.
1845,28. R.L.20S, §20. Ill Mass. 429.
1851, 156, § 4. 2 Gush. 582. 129 Mass. 101.
G. S. 161, § 15. 3 Gray, 450. 135 Mass. 269.
P. S. 203, § 16.
1 Section 21. Wlioever, having been convicted, either as principal or Refusaito
2 accessory, of burglary or robbery, or of any of the crimes described in property!°etc'.
3 sections seventeen to twenty, inclusive, of chapter two hundred and ^/i.'ioi.'f, n.
4 sixty-five, or of breaking and entering or of entering a building with ^- ^- ^o*' 5 21.
5 intent to commit robbery or larceny, has in his possession or control
6 money, goods, bonds or bank notes, or any paper of value, or any prop-
7 erty of another, which was obtained or taken by means of such crime,
8 and, upon being requested by the lawful owner thereof to deliver the
9 same to him, refuses or fails so to do while having power to deliver the
10 same, shall be punished by imprisonment in the state prison for not
11 more than five years or in jail or house of correction for not more than
12 two years.
1 Section 22. Whoever, with intent to commit larceny, breaks or Detention of
2 enters or enters in the night without breaking any building or enclosure Juily^nteri'nr
3 wherein is kept or confined any kind of poultry, may be detained or kept Eoua^y^uTept.
4 in custody in a convenient place by the owner of the poultry, or by his ;9i'4'''5^4
5 agent or employee, for not more than twenty-four hours, Sunday excepted, §§ i.'z.
6 until a complaint can be made against him for the offence and he be taken
7 upon a warrant issued upon such complaint, and, upon conviction of such
8 trespassing or breaking or entering, shall be punished by a fine of not
9 more than five hundred dollars or by imprisonment in the house of correc-
10 tion for not more than two years.
1 Section 23. Whoever steals, conveys away or conceals any furniture, Embezzling,
2 goods, chattels, merchandise or effects of persons whose houses or build- property at a
2706
CHUIES AGAINST PROPERTY.
[Ch.\p. 266.
fire to be
deemed
larcenv.
1711-12, 5, §4.
1744-5, 30, § 4.
1798, 88, § 4.
R. S. 18, § 8.
Stealing
at a fire.
R. S. 126,
G. S. 161,
P. S. 203,
R. L. 208,
§ 15.
1 16.
§ 18.
,§23.
Larceny from
the person.
1784, 60, § 2.
1S04, 143. § 8.
R. S. 126, § 16.
ings are on fire or are endangered thereby, and does not, within two days 3
thereafter, restore the same or give notice of his possession thereof to the 4
owner, if known, or, if unknown, to the mayor or one of the aldermen, 5
selectmen or firewards of the place, shall be guilty of larceny. 6
G. S. 24, § 8. P. S. 35, § 8. R. L. 208, § 22.
Section 24. AVhoever steals in a building which is on fire, or steals 1
property which has been removed in consequence of an alarm caused by 2
fire, shall be punished by imprisonment in the state prison for not more 3
than five years or by a fine of not more than five hundred dollars and 4
imprisonment in jail for not more than two years. 5
Section 25. AMioever commits larceny by stealing from the person 1
of another shall be punished by imprisonment in the state prison for not 2
more than five years or in jail for not more than two years. 3
G. S. Ifil, § 17.
P. S. 20.1, § 19.
R. L. 208, § 24.
3 Gush. 235.
12 Allen, 182.
99 Moss. 431.
105 Mass. 169.
138 Mass. 483.
188 Mass. 330.
203 Mass. 598.
213 Mass. 225.
215 Mass. 209.
235 Mass. 357.
Subjects of
larceny.
1784, 66, § 1.
1804,143, § 1.
R. S. 126, § 17.
G. S. Ifil, I 18.
P. S. 203, § 20.
1898, 562,
§ 111.
R. L. 208, § 25.
7 Met. 475.
9 Met. 273.
4 Grav, 416.
8 Grav. 492.
100 iiass. 206.
Penalty for
stealing tools
of contractors,
builders, etc.
1907, 500, § 1.
Section 26. Larceny may be committed of a bank note, bond, 1
promissory note, bill of exchange or other bill, order or certificate, or of 2
a book of accounts for or concerning money or goods due or to become 3
due or to be delivered, or of a deed or writing containing a conveyance 4
of land, or of any valuable contract in force, or of a receipt, release or 5
defeasance, or of a writ, process, certificate of title or duplicate certifi- 6
cate issued under chapter one hundred and eighty-five, or of a public 7
record. 103 Mass. 425. 8
Section 27. Wlioever steals any tool belonging to any contractor, 1
builder or mechanic from any building during the course of its con- 2
struction, completion, alteration or repair, shall, for a first offence be 3
punished by a fine of not more than one hundred dollars or by imprison- 4
ment for not more than six months, or both, and for a subsequent offence 5
by a fine of one hundred dollars or by imprisonment for six months, or 6
both. 7
Theft or con-
cealment of
motor vehicles,
etc. Penalty.
1919,249, § 1.
1920, 322.
Section 28. Whoever steals an automobile or motor cycle, or re- 1
ceives or buys an automobile or motor cycle knowing the same to have 2
been stolen, or conceals any automobile or motor cycle thief knowing 3
him to be such, or conceals any automobile or motor cycle knowing the 4
same to have been stolen, shall be punished by imprisonment in the state 5
prison for not more than five jears or imprisonment in jail or house of 6
correction for not less than one year. 7
Disposition of
prosecutions
under section
28.
1919, 249, § 2.
Section 29. A complaint or indictment for the \iolation of any 1
pro\-ision of the preceding section shall not, unless the purposes of justice 2
require such disposition, be placed on file or disposed of except by trial 3
and judgment according to the regular course of criminal proceedings. 4
It shall be otherwise disposed of only upon motion in WTiting, stating 5
specifically the reasons therefor and verified by affidavit if facts are 6
relied on. If the court or justice certifies in writing that he is satisfied 7
that the cause relied on exists and that the interests of public justice 8
require the allowance thereof, such motion shall be allowed, and said 9
certificate shall be filed in the case. 10
Ch.\P. 266.] CRIMES AGAINST PROPERTY. 2707
1 Section 30. Whoever steals, or with intent to defraud, obtains by Larceny, etc.
2 a false pretence, or whoever unlawfully and, with intent to steal or em- « o, 3.^'
3 bezzle, converts or secretes, with intent to convert, the money or personal Irel'lfe^f'/ ^'
4 chattel of another, whether such money or personal chattel is or is not \l°f \*l' | i-
5 in his possession at the time of such conversion or secreting, shall be is34! ise,'
6 guilty of larceny, and shall, if the value of the property stolen exceeds one r. sl^iie,
7 hundred dollars, be punished by imprisonment in the state prison for il5V,'233T^^'
8 not more than five years or by a fine of not more than six hundred dollars °§ fkUl'. ss,
9 and imprisonment in jail for not more than two years; or, if the value "'g^^aos*'
10 of the property stolen does not exceed one hundred dollars, shall be |i ^^^ ^^^ *"•
11 punished by imprisonment in jail for not more than one year or by a fine issoi^iss.'
12 of not more than tlu-ee hundred dollars; or, if the property was stolen r. l'. 208. § 26.
13 from the conveyance of a common carrier or of a person carrjdng on an 1914'; ess'
14 express business, shall be punished for the first offence by imprisonment Jglg; s^'^' ^ *^'
15 for not less than six months nor more than two and one half years, or by g^^^^ss' 14
16 a fine of not less than fifty nor more than six hundred dollars, or both, ? Mass 72.
17 and for a subsequent offence by imprisonment for not less than eighteen is Pjeic. 179.
18 months nor more than two and one half years, or by a fine of not less than 2 Met. 343!''
19 one hundred and fifty dollars nor more than six hundred dollars, or both. lo^Met.'lli.
11 Met. 64. 107 Mass. 486. 141 Mass. 423, 571.
12 Met. 446. 108 Mass. 309. 149 Mass. 179.
BGray, 434, 461. Ill Mass. 432. 155 Mass. 523.
6 Gray, 15. 115 Mass. 481. 160 Mass. 319, 551.
8 Gray, 492. 116 Mass. 1. 40, 42. 165 Mass. 526.
9 Gray, 5. 7. 114, 125. 121 Mass. 354. 166 Mass. 513.
10 Gray, 173. 124 Mass. 325. 449. 169 Mass. 89.
1 Allen, 590. 125 Mass. 390. 187 Mass. 581.
5 Allen, 502. 126 Mass. 467. 188 Mass. 308.
7 Allen, 548. 127 Mass. 20, 446. 201 Mass. 564.
11 Allen, 233, 266. 128 Mass. 79. 202 Mass. 379.
12 Allen, 145, 181. 129 Mass. 104. 207 Mass. 32. 563.
97 Mass. 584. 130 Mass. 285. 224 Mass. 42.
99 Mass. 428. 132 Mass. 16. 231 Mass. 449.
100 Mass. 206. 137 Mass. 98. 232 Mass. 285.
104 Mass. 548. 549. 140 Mass. 279.
1 Section 31. Whoever by a false pretence, with intent to defraud, Fraudulently
r»i"i» p ' • ii>i !• Obtaining
2 obtains the signature of a person to a written instrument, the false making signature.
3 whereof would be a forgery, shall be punished by imprisonment in the g. s.'i6i,'|54!
4 state prison for not more than ten years, or by a fine of not more than r'. l. 208, § 27.
5 five hundred dollars and imprisoiunent in the jail for not more than two \\1 l\^l] 3I5,
6 years.
1 Section 32. Whoever, being a captain of a vessel, embezzles or Fraudulent
2 fraudulently converts or appropriates money, goods or property, held or p^SpertyTiy
3 possessed by or delivered to him, which belong wholly or in part to the vess'ei'." °'
4 crew of such vessel, the owners of the vessel, or to those who have fur- i^o?, 389.
5 nished supplies to the vessel, although he is a joint charterer or co-
6 partner with the members of the crew or with the owners of the vessel,
7 or with the person who furnished the supplies, shall be guilty of larceny.
1 Section 33. Whoever, with intent to defraud, obtains by a false False pre-
2 pretence the making, acceptance or endorsement of a bill of exchange sj,"u'ie'arceny
3 or promissory note, the release or substitution of collateral or other J," g™""'"
4 security, an extension of time for the paj-ment of an obligation, or the '^'o, 378, § 1.
5 release or alteration of the obligation of a written contract, shall be
6 guilty of larceny.
1 Section 34. Whoever, with intent to defraud and by a false pretence, same subject.
2 induces another to part with property of any kind or with any of the ill'AfoM. 42^'
3 benefits described in the preceding section shall be guilty of larceny.
2708
CRIMES AGAINST PROPERTY.
[Chap. 266.
Limitation of
sections 30, 31
and 34.
1854, 12.
G. S. 161, § 54.
P. S. 203, § 59.
1899, 316, § 2.
R. L. 208, § 28.
1919, 333,
§§ 37, 38.
1920, 2.
Section 35. Sections thirty, thirty-one and thirty-four shall not
apply to a purchase of property by means of a false pretence relative
to the purchaser's means or ability to pay, if, by the terms of the pur-
chase, payment therefor is not to be made upon or before the delivery
of the property purchased, unless such pretence is made in writing and is
signed by the person to be charged. 222 Mass. 504.
Persons ob-
taining credit
by false pre-
tences to be
guilty of
larceny.
1913,312.
Section 36. Wlioever, with intent to defraud, by a false statement
in wTiting respecting the financial condition, or means or ability to pay,
of himself or of any other person, obtains credit from any bank or trust
company or any banking institution accustomed to give credit in any
form whatsoever, shall be guilty of larceny.
Drawing and
uttering fraud-
ulent checks,
drafts and
orders.
1919, 141.
Section 37. Whoever, with intent to defraud, makes, draws, utters
or delivers any check, draft or order for the payment of money upon any
bank or other depositary, with knowledge that the maker or drawer has
not sufficient funds or credit at such bank or other depositary for the
payment of such instrument, although no express representation is made
in reference thereto, shall be guilty of attempted larceny, and if money
or property is obtained thereby shall be guilty of larceny. As against
the maker or drawer thereof, the making, drawing, uttering or delivery of
such a check, draft or order, payment of which is refused by the drawee, 9
shall be prima facie evidence of intent to defraud and of knowledge of 10
insufficient funds in, or credit with, such bank or other depositary, unless 11
the maker or drawer shall have paid the holder thereof the amount due 12
thereon, together with all costs and protest fees, within ten days after 13
receiving notice that such check, draft or order has not been paid by the 14
drawee. The word "credit", as used herein, shall be construed to mean 15
an arrangement or understanding with the bank or depositary for the 16
payment of such check, draft or order. 17
Wrongful de-
tention of
money by car-
riers and their
employees.
1919, 188.
Section 38. Whoever, being engaged in the business of transport- 1
ing merchandise, parcels or other property for hire, accepts from a con- 2
signor or his agent or from a connecting carrier any merchandise, parcel 3
or other property for delivery to a consignee upon payment by the con- 4
signee of an amount of money for said merchandise, parcel or other 5
property, and embezzles or fraudulently converts to his own use, or with 6
intent to use or embezzle, takes, secretes or otherwise disposes of, or 7
fraudulently withholds, appropriates, lends, invests or otherwise uses or 8
applies such money in whole or in part or any substitute therefor received 9
by him from such consignee, contrary to the instructions or without the 10
consent of the consignor, shall be deemed guilty of larceny. A member or 1 1
employee of a co-partnership, or an officer or employee of a corporation, 12
engaged in said business of transporting merchandise, parcels or other 13
property for hire who so disposes of such money in whole or in part or 14
any substitute therefor for his own use or for the use of said co-partner- 15
ship or corporation, contrary to the instructions or without the consent 16
of the consignor, shall be guilty of larceny. 17
Section 39.
Whoever steals or for any fraudulent purpose destroys, 1
codicil or other testamentary instrument 2
3
Larceny and
destruction
of wills. mutilates or conceals a \vi
§§ 19. 20! shall be punished by imprisonment in the state prison for not more than
CH-\P. 266.] CRIMES AGAINST PROPERTY. 2709
4 five years or in the house of correction for not more than two years. An p. s. 203,
5 indictment for a violation of this section need not contain any allegation ilgoVsiT.
6 of value or ownership; and in the trial of such an indictment, no dis- ^' ^- ^°*' ^ '^■
7 closure made by any person under section fourteen of chapter one hun-
8 dred and ninety-one shall be used in evidence against him.
1 Section 40. Whoever, having been convicted, upon indictment, of Common and
... Y IP 1 ft f 1 notorious thief.
2 larceny or 01 bemg accessory to larceny before the fact, afterward com- l!^'^'''
3 mits a larceny or is accessory thereto before the fact, and is convicted 1804', us, § 3.
4 thereof upon indictment, and whoever is convicted at the same sitting of g.' s.' lei.' § 22.'
5 the court, as principal or accessory before the fact, of three distinct lar- r. L.^^os.Vsi-
6 cenies, shall be adjudged a common and notorious thief, and shall be J9{g;257;
7 punished by imprisonment in the state prison for not more than twenty Ig^g-^
8 years or in jail for not more than two and one half years. 1920, 2.
22 Pick. 1. 4Met 3G0. 12 Met. 246.
3 Met. 457. 11 Met. 575, 5S1. 175 Mass. 202.
1 Section 41. Whoever is convicted of a second offence of the larceny Second con-
2 of a bicycle shall, if the value of the bicycle stolen exceeds ten dollars, rarcenyof a
3 be punished by imprisonment in the state prison for not more than five iggT^'jog.
4 years or by a fine of not more than two hundred dollars or by imprison- ^- ^- ^°*' ^ ^^•
5 ment in jail for not more than two years.
1 Section 42. \Mioever commits larceny of a printed piece of paper or Larceny of
2 blank designed for issue by any incorporated bank or banking company FoTbank bUb,
3 in the United States as a bank bill, certificate or promissory note, or fsss, 67, § i.
4 printed by means of an engraved plate designed for printing such pieces p; |; 203,' lis'
5 of paper or blanks, with intent to injure or defraud either by uttering or ^^- ^- 20s, § 33.
6 passing the same, or causing or allowing the same to be uttered or passed
7 as true, either with or without alteration or addition, shall be punished
8 by imprisonment in the state prison for life or for any terra of years.
1 Section 43. \Mioever, ha\-ing been employed to print or ha\nng Printer, etc.,
2 assisted in printing a printed piece of paper or blank describetl in the "a'per.'etc^,"'^
3 preceding section, or having been intrusted with the care or custody pasg/etc™"°
4 thereof, retains it in his possession without the knowledge and consent ^ *|' ^l\ ^^^4
5 of the corporation for which it was printed, with intent to injure or defraud ^ s. 2a3 § 26^
6 either by uttering or pas.sing it or causing or allowing it to be uttered or '
7 passed as true, either with or without alteration or addition, shall be
8 punished by imprisonment in the state prison for life or for any term of
9 years.
1 Section 44. WTioever by a trespass, with intent to steal, takes and f ""■«">■ of ,
.... I 1? 1 1 • 11 things annexed
2 carries away anything which is parcel or the realty or is annexed thereto, to the realty.
3 the property of another and of value, against his will, shall be guilty of §§"'1-3.
4 such simple or aggravated larceny as he would be guilty of if such proj)- §§ 25-27.'
5 erty were personal property. Any person may become an accessory to §'§l7-29:
6 such larceny before or after the fact, or may become a receiver of the ^^- ^- ^°^- ' ^^•
7 property stolen, in like manner as if the property stolen were personal,
8 and shall be punished accordingly. The same courts and justices as would
9 have jurisdiction if the property stolen were personal property shall have
10 jurisdiction of such crimes.
2710
CRIMES AGAINST PROPERTY.
[Chap. 266.
Same subject.
1851, 151,
§§ 4, 5.
G. S. 161,
§§ 28, 29.
P. S. 203,
§§ 30, 31.
R. L. 208, § 36.
Section 45. The stealing of such real property may be a larceny 1
from one or more tenants, sole, joint or in common, in fee, for life or 2
years, at will or sufferance, mortgagors or mortgagees, in possession of the 3
same, or who may have an action of tort against the offender for trespass 4
upon the property, but not from one having only the use or custody 5
thereof. The larceny may be from a wife in possession, if she is authorized 6
by law to hold such property as if sole, otherwise her occupation may 7
be the possession of the husband. If such property which was of a per- 8
son deceased is stolen, it may be a larceny from any one or more heirs, 9
devisees, reversioners, remaindermen or others, who have a right upon 10
such decease to take possession, but not ha\nng entered, as it would be 11
after entry. The larceny may be from a person whose name is unknown, 12
if it would be such if the property stolen were personal, and may be 13
committed by those who have only the use or custody of the property, 14
but not by a person against whom no action of tort could be maintained 15
for acts like those constituting the larceny. 16
Larceny of
beast or bird.
1850, 303.
R L^2oiVl7 ^^ ordinarily kept in confinement and is not the subject of larceny at
1906,181.' ' common law, shall be guilty of larceny. 4
Section 46. Whoever, without the consent of the owner and with a 1
felonious intent, takes any domesticated animal, or a beast or bird which 2
3
Penalty for
wrongfully
removing collar
from or steal-
ing or poison-
ing a (fog.
1858, 139, § 2.
1859, 225,
§§4,S.
G. S. 88, § 57.
P. S. 102, § 88.
R. L. 208, § 38.
1913, 551.
Section 47. Whoever wrongfully removes the collar from or steals
a dog which is licensed and collared as provided in chapter one hundred
and forty shall be punished by a fine of not more than one hundred
dollars, or by six months' imprisonment, or both. Whoever di.stributes
or exposes a poisonous substance, with intent that it shall be eaten by
a dog, shall be punished by a fine of not less than twenty nor more than
one hundred dollars.
SfarreTt^to SECTION 48. An officer who arrests a person charged as principal
goods'st^oien. ^^ acccssory in a robbery or larceny shall secure the property which is
R*s'i26'l25^' ^.lleged to have been stolen, annex a schedule thereof to his return and
g! si 161,' 1 3L be answerable for the same; and, upon con\'iction of the offender, it shall
P S 203 § 33 f ' t '
R. L. 208, § 39. be restored to the owner.
21 Pick, 156.
4 Gray, 418.
6 Allen, 298.
187 Mass. 581.
Making, hold-
ing, using,
etc., burgla-
rious instru-
ment.
1853, 194.
G. S. 161, § 34.
P. S. 203, § 36.
R. L. 208, § 41.
1914, 635.
1918, 257,
§ 464.
1919, 5.
1920, 2.
8 Gray, 375.
138 Mass. 186.
188 Mass. 282.
199 Mass. 55.
Section 49. Whoever makes or mends, or begins to make or mend, 1
or knowingly has in his possession, an engine, machine, tool or implement 2
adapted and designed for cutting through, forcing or breaking open a 3
building, room, vault, safe or other depository, in order to steal therefrom 4
money or other property, or to commit any other crime, knowing the 5
same to be adapted and designed for the purpose aforesaid, with intent 6
to use or employ or allow the same to be used or employed for such pur- 7
pose, shall be punished by imprisonment in the state prison for not more 8
than ten years or by a fine of not more than one thousand dollars and 9
imprisonment in jail for not more than two and one half years. 10
Fraud or em-
bezzlement by
employee in
treasury.
1791, 59, § S.
R. S. 13, § 23;
126, § 28.
Section 50. A person employed in the treasury of the common-
wealth who commits a fraud or embezzlement therein shall be punished
by a fine of not more than two thousand dollars or by imprisonment in
the state prison for life or for any term of years.
G. S. 161, § 36. P. S. 203, § 38. R. L. 208, § 42.
Chap. 266.] crimes against property. 2711
1 Section 51. A county, citv or to-nii officer who embezzles or fraud- Fraud or em-
rvTi ij"*!!!! •!. Dezziement by
2 ulently converts, or who iraudulently takes or secretes with intent so <^'ty. town or
3 to do, effects or property which belong to or are in possession of said isss, 487.
4 county, city or town, shall be punished by imprisonment in the state p.' 1; 203,' §39.'
5 prison for not more than ten years or by a fine of not more than one ^' ^' ^°^' ^ *^'
6 thousand dollars and imprisonment in jail for not more than two years.
1 Section 52. An officer of an incorporated bank, or a person in the Fraud or em-
2 empIojTnent of such bank, who fraudulently converts, or fraudulently bank^S'r ot
3 takes and secretes with intent so to do, any bullion, money, note, bill n83',°53f'§ 1.
4 or other security for money which belongs to and is in possession of such }|||; |J; 5 26
5 bank, or which belongs to any person and is deposited therein, shall, fgj' jf^i' | ^''•
6 whether intrusted with the custody thereof or not, be guilty of larceny g.s.'i6i,'§39.
7 in said bank, and shall be punished by imprisonment in the state prison r'. L.'ios, § 44.
8 for not more than fifteen years or by a fine of not more than two thousand w\\'. 635.
9 dollars and imprisonment in jail for not more than two and one half years, igll; s**^' ^*^*'
1920, 2. 1 Allen, 575. 101 Mass. 204. 137 Mass 98.
8 Met. 247. 97 Mass. 50. 116 Mass. 1. 173 Mass. 541.
1 Section 53. In prosecutions for such crimes, the fraudulent taking Evidence in
2 or recei\-ing by any person of bullion, money, notes, bills or other security be^zlfemenTby
3 for money which belongs to such bank, by reason of an unlawful con- oifi™ or'a^nT-
4 federacy or agreement between him and an officer of said bank or any jJaX^etc
5 person in the emploj-ment thereof, with intent to defraud the same, shall r^|'i||'| ^5
6 be deemed to be a fraudulent taking by such officer or person in the em- 1845, 215'.
7 ployment of the bank to his own use, within the meaning of the preceding §§ 2,'3. '
8 section; and it shall not be necessary, upon the trial, to identify the §§'46,^42.'
, 9 particular bullion, money, note, bill or security for money which is so p*s\'2ra!'
10 taken or received. Upon the trial of the crime of embezzling, fraudu- ^ l^'2os § 45
11 lently converting or fraudulently taking and secreting, with intent so to lis Mass. 443.
12 embezzle or convert, the bullion, money, notes, bank notes, checks,
13 drafts, bills of exchange, obligations or other securities for money of any
14 person, bank, corporation, partnership, county, city or town by a cashier
15 or other officer, clerk, agent or servant of such person, bank, corporation,
10 partnership, county, city or town, evidence may be given of any such
17 embezzlement, fraudulent conversion or taking ^\^th such intent com-
18 mitted within six months after the time stated in the indictment.
1 Section 54. Any officer of any trust company, savings or co-opera- Penalty for
2 tive bank or institution for savings, or any individual banker who re- dep'osi'tfby
3 ceives or permits the receipt of, and any employee who receives, any banUsfetc
4 deposit knowing that such company, bank, institution or banker is in- l^H' I57 • '^^^■
5 solvent, shall be punished by imprisonment for not more than two and \gl^-^
6 one half years or by a fine of not more than five thousand dollars, or 1020! 2.
7 both.
1 Section 55. A receiver or other officer appointed by a court of Embezzlement
2 record who embezzles or fraudulently converts, or fraudulently takes etc.
3 or secretes with intent so to do, effects or property in his possession by p. s.'20.i. § 45.
4 virtue of such appointment, shall be guilty of larceny and shall be pun- • ' ' ■
5 ished by imprisonment in the state prison for not more than ten years
6 or by a fine of not more than one thousand dollars and imprisonment in
7 jail for not more than two years.
2712
CRIMES AGAINST PROPERTY.
[Chap. 266.
Embezzlement
by broker, etc.
1892, 138.
R. L. 208, § 47.
1914, 635,
1918, 257,
§464.
1919, 5.
1920, 2.
202 Mass. 379.
Section 56. A broker, or officer, manager or agent of a corporation
doing the business of brokers, who, having been intrusted, solely or
jointly, with money, stock or security for the pajTnent of money, with
any direction in wi-iting to invest, di.spose of, apply, pay or deliver such
money, stock or security, or any part thereof, or the proceeds or any
part of the proceeds thereof, in any manner, for any purpose or to any
person mentioned or specified in such direction, in violation of good faith
and contrary to the terms of such direction, embezzles or fraudulently 8
converts such money, stock or security, or any part thereof, or the pro- 9
ceeds or any part of the proceeds thereof, shall be punished by imprison- 10
ment in the state prison for not more than five years or in jail for not 11
more than two and one half years or by a fine of not more than five hun- 12
dred dollars. 13
Embezzlement
by trustee,
etc.
1877, 231.
P. S. 203, § 46.
R. L. 208, § 48.
1915, 23.
184 Mass. 320.
202 Mass. 379.
Section 57. A trustee under an express trust created by a deed, 1
^\ill or other instrument in ■WTiting, or a guardian, conservator, executor 2
or administrator, or any person upon or to whom such a trust has de- 3
volved or come, who embezzles or fraudulently converts or appropriates 4
money, goods or property held or possessed by him for the use or benefit, 5
either wholly or partially, of some other person or for a public or chari- 6
table purpose, to or for his own use or benefit or to or for the use or benefit 7
of any person other than such person as aforesaid, or for any purpose other 8
than such public or charitable purpose as aforesaid, or who otherwise 9
fraudulently disposes of or destroys such property, shall be punished by 10
imprisonment in the state prison for not more than ten years or by a 11
fine of not more than two thousand dollars and imprisonment in jail 12
for not more than two years. 13
Embezzlement
from voluntary
association.
1884, 174.
R. L. 208. § 49.
Section 58. Whoever, being an officer, agent, clerk or servant of a 1
voluntary association or society, embezzles or fraudulently converts, or 2
fraudulently takes or secretes with intent so to do, effects or property 3
which belong to such association or society, or which have come to his 4
possession or are under his care by virtue of his office or employment, 5
shall be guilty of larceny. 6
Same subject.
1886, 328.
R. L. 208, § 50.
Section 59. Whoever embezzles or fraudulently converts, or se- 1
cretes with intent to embezzle or fraudulently convert, money, goods or 2
property or any part thereof which has been delivered to him, which 3
may be the subject of larceny and which belong to any organization of 4
the volunteer militia, post of the Grand Army of the Republic, or other 5
voluntary association, shall be guilty of simple larceny, although he is a 6
member of such organization or voluntary association and, as such, en- 7
titled to an interest in the property thereof. In a prosecution under 8
this section, it shall be sufficient to describe such organization or associa- 9
tion by the name by which it is generally known and as a voluntary 10
association. 1 1
Buying or re-
ceiving stolen
goods.
1C98, 8.
1723-4, 9.
1784, 66, § 9.
1804, 143, § 10.
R. S. 126, § 20.
1853, 184, § 1.
Section 60. Whoever buys, receives or aids in the concealment of 1
stolen or embezzled property, knowing it to have been stolen or em- 2
bezzled, or whoever with intent to defraud buys, receives or aids in the 3
concealment of property, knowing it to have been obtained from a person 4
by a false pretence of carrying on business and dealing in the ordinary 5
Chap. 266.] crimes against property. 2713
6 course of trade, shall be punished by imprisonment in the state prison g. s. lei.
7 for not more than five years or by a fine of not more than five hundred iles^wl, § 3.
8 dollars and imprisonment in jail for not more than two years. m.'cl''^' ^^*^'
R. L. 208, §51. 117 Mass. 141. 140 Mass. 473.
6 Met. 241. 120 Mass. 198. 196 Mass. 286.
7 Met. 460. 121 Mass. 373. 207 Mass. 25.
S' Gray, 82. 136 Mass. 170. 232 Mass. 588.
1 Section 61. If, upon a first conviction under the preceding section. Effect of
stitutior
olen property
2 it is shown that the act of stealing the property was a simple larceny, stol'*"''"" "'
3 and if the person convicted makes restitution to the person injured to ig^f.^'i^''^ 13
4 the full value of the property stolen and not restored, he shall not be im- R- i }-r?'| tl-
_ . , . , r- r- ./ > G. S. lbl,§44.
5 prisoned in the state prison. p. s. 203, § 49. r. l. 208, § 52.
1 Section 62. Whoever is convicted of buying, receiving or aiding in Common re-
2 the concealment of stolen or embezzled property, knowing it to have been lto\el glods.
3 stolen or embezzled, having been before convicted of the like offence, and Jf^; j",' 1 22.'
4 whoever is convicted at the same sitting of the court of three or more Jfif'iifMI?
5 distinct acts of buying, receiving or aiding in the concealment of money, p. s. 203,' § 52.
6 goods or property stolen or embezzled as aforesaid, shall be adjudged a 226 Mass'. 409.'
7 common receiver of stolen or embezzled goods and shall be punished
8 by imprisonment in the state prison for not more than ten years.
1 Section 63. Whoever wilfully, mischievously and without right unlawful
2 takes or uses a boat or vehicle, or takes, drives, rides or uses any draught animal, etc.
3 animal which is the property of another, without the consent of the 1854, 295.
4 owner or other person who has the legal custody, care or control thereof, cf.*!.' ?6i,V48.
5 shall be punished by a fine of not more than three hundred dollars or by r.l.Ios.Isi.
6 imprisonment for not more than six months; but this section shall not
7 apply to the property of another taken with intent to steal it, or under
8 a claim of right, or with the presumed consent of the owner or other
9 person who has the legal control, care or custody thereof.
1 Section 64. Whoever hires a horse, carriage or other vehicle, and, ^^in'^o'f''"'
2 with intent to cheat or defraud the owner thereof, makes to him or to horses, car-
3 his agent at the time of such hiring a false statement of the distance which bi'ies, etc.
4 he proposes to travel with such horse, carriage or other vehicle, or who- r. l.' 20s,' § 55.
5 ever, with such intent, makes to the owner or his agent, after the use of 205°Mass'. 400.
6 a horse, carriage or other vehicle, a false statement of the distance which
7 he has actually traveled with such horse, carriage or other vehicle, and
8 whoever, with such intent, refuses to pay for the use of a horse, carriage
9 or other vehicle the lawful fare established therefor by any town, shall
10 be punished by a fine of not more than twenty dollars or by imprison-
11 ment for not more than two months, or both.
1 Section 65. An officer, agent, clerk or servant of a corporation, or Unauthorized
2 any other person, who issues or signs with intent to issue a certificate of is5i!.°i2'3,"§ 1'.
3 stock in a corporation, or who issues, signs or endorses with intent to cj^^I.'im.mo.
4 issue, a bond, note, bill or other obligation or security in the name of such r. l. 208.\ sg.
5 corporation, beyond the amount authorized by law or limited by the
6 legal votes of such corporation or its proper officers, or negotiates, trans-
7 fers or disposes of such certificate with intent to defraud, shall be punished
8 by imprisonment in the state prison for not more than ten years or in the
9 house of correction for not more than one year.
2714
CRIMES AGAINST PROPERTY.
[CHA.P. 266.
Fraudulent
issue of stock,
etc.
1856, 123, § 2.
G.S. 161, § SO.
P. S. 20.3, § 65.
R. L. 208, § 57.
False entry,
etc., in book of
corporation.
1856, 123, § 3.
G.S. 161, § 51.
P. S. 203, § 56.
1885, 223.
R. L. 208, § 58.
190 Mass. 293.
Section 66. An oflScer, agent, clerk or servant of a corporation, or 1
any other person, who fraudulently issues or transfers a certificate of the 2
stock of a corporation to a person who is not entitled thereto, or who 3
fraudulently signs such certificate, in blank or otherwise, with the intent 4
that it shall be so issued or transferred by himself or any other person, 5
shall be punished by imprisonment in the state prison for not more than 6
ten years or in the house of correction for not more than one year. 7
Section 67. An officer of a corporation or an agent, clerk or servant 1
of a person, firm or corporation who makes a false entry or omits to make 2
a true entry in any book of such person, firm or corporation, with intent 3
to defraud, and any person whose duty it is to make a record or entry of 4
the transfer of stock, or of the issuing or cancelling of certificates thereof, 5
or of the amount of stock issued by a corporation, in any book thereof, 6
who, with intent to defraud, omits to make a true record or entry thereof, 7
shall be punished by imprisonment in the state prison for not more than 8
ten years or in the house of correction for not more than one year. 9
Books of cor-
poration as
evidence.
1856, 123, § 4.
G.S. 161, §52
Section 68. Upon the trial of a person for a crime under the three 1
preceding sections, the books of any person, firm or corporation to which 2
he had access or the right of access shall be admissible in evidence. 3
p. S. 203, § 57. R. L. 208, § 59. 190 Mass. 293.
Unlawful use
of insignia.
1902, 430.
1904, 335,
§§ 2, 3.
1909, 514,
§§ 32, 115.
Section 69. \^^loever, not being a member of a society, association
or labor union, for the purpose of representing that he is a member
thereof, wilfully wears or uses the insignia, ribbon, badge, rosette, button
or emblem thereof, if it has been registered in the office of the state
secretary, shall be punished by a fine of not more than twenty dollars or
by imprisonment for not more than one month, or both.
Same subject.
1887, 67.
1891,15.
1894, 27; 117.
1901, 151.
R. L. 208, § 60.
1907. 232, § 3.
1920, 367.
Section 70. WTioever, not being a member of the Military Order 1
of the Loyal Legion of the United States, the Grand Army of the Re- 2
public, the Sons of Veterans, the Woman's Relief Corps, the Union 3
Veterans' Union, the Union Veteran Legion, the Military and Naval 4
Order of the Spanish-American War, the LTnited Spanish War Veterans, 5
the American Officers of the Great War, the Veterans of Foreign Wars 6
of the United States, the Military Order of Foreign Wars of the United 7
States or the American Legion, wilfully wears or uses the insignia, dis- 8
tinctive ribbons or membership rosette or button thereof for the purpose 9
of representing that he is a member thereof shall be punished by a fine 10
of not more than twenty dollars or by imprisonment for not more than 11
one month, or both. 12
Fraudulent use
of names, etc.
1908, 280, § 1.
Section 71. 'WTioever wilfully, by color or aid of any false token 1
or writing, or other false pretence or false statement, verbal or MTitten, 2
or without authority of the grand or supreme governing lodge, council, 3
union or other governing body hereinafter mentioned, obtains the signa- 4
ture of any person to any written application, or obtains any money or 5
property for any alleged or pretended degree, or for any alleged or pre- 6
tended membership in any fraternity, association, society, order, organi- 7
zation or union having a grand or supreme governing lodge, council, union 8
or other governing body in the commonwealth, or in any subordinate 9
lodge or body thereof, shall be punished by imprisonment for not more 10
than one year or by a fine of not more than five hundred dollars, or both. 11
Ch,\P. 266.] CRIMES AGAINST PROPERTY. 2715
1 Section 72. Whoever, in a newspaper or other publication, or in any Certain pubu-
2 written or printed letter, notice, matter or device, without authority of bkilfen^. e°tc"
3 the grand or supreme governing lodge, council, imion or other governing '®°*' ^*°' ^ ^'
4 body, fraudulentl.y uses or aids in any way in the use of the name, title or
5 common designation of any fraternity, association, society, order, organi-
6 zation or union which has such a governing body, having priority in such
7 use in the commonwealth, or any name, title or designation so nearly
8 resembling the same as to be calculated or likely to deceive; and who-
9 ever, without such authority, fraudulently publishes, sells, circulates or
10 distributes any written or printed letter, notice, matter or device, in any
11 way soliciting members of such fraternity, association, society, order, or-
12 ganization or union, or for any alleged or pretended fraternity, associa-
13 tion, society, order, organization or union, using any such name, title,
14 designation, or near resemblance thereto; and whoever therein or thereby
15 in any way, without such authority, fraudulently offers to sell, confer,
16 communicate or gi\'e information where, of whom or by what means
17 any degree or work, in whole or in part, of such fraternity, association,
18 society, order, organization or union, or of any alleged or pretended
19 fraternity, association, society, order, organization or union using any
20 such name, title or designation or near resemblance thereto, can or may
21 be obtained, conferred or communicated, shall be punished by imprison-
22 ment for not more than one year or by a fine of not more than five hun-
23 dred dollars, or both.
1 Section 73. Whoever, with intent to defraud, by a false pretence of ^nderw!!""''"
2 carrying on business and dealing in the ordinary course of trade, obtains P^rrv"ngon
3 from any person goods or chattels shall be punished by imprisonment 5'^|^'"^2« , ^
4 in the state prison for not more than five years or by. a fine of not more p. s.'203.'§ eo.
5 than five hundred dollars and imprisorunent in jail for not more tlian two 1902,' 544,' § 29!
6 years.
108 Masa. 309. 153 Mass. 5SS. 157 Mass. 1S8. 182 Mass. 142.
1 Section 74. An officer, agent, clerk or servant of a corporation Fraudulent
2 organized or doing business in the commonwealth, who wilfully uses of^corpo'ration.
3 the name of such corporation, or his own name as such officer, agent, i?'&?'2rat§ 62.
4 clerk or servant, to obtain money upon the credit of such corporation J^^^jj^os, §^62.
5 for his own use or benefit, without authority from such corporation, or
6 who fraudulently lends, invests or appropriates the money or disposes
7 of the property of such corporation, or fraudulently converts it, shall
8 be punished by imprisonment in the state prison for not more than ten
9 years.
1 Section 75. Whoever, by a game, device, sleight of hand, pretended °^'p^°ty^by
2 fortune telling or by any trick or other means by the use of cards or J's'^j'Jll § i
3 other implements or instruments, fraudulently obtains from another per- pl^'os'lcl'
4 son property of any description shall be punished as in the case of larceny r'. l. 208, § r3.
5 of property of like value. 125 Mass. 3S4. ISS Mass. 484.
1 Section 76. Whoever is convicted of any gross fraud or cheat at Gross fraud,
2 common law shall be punished by imprisonment in the state prison tor n.oniaw.
3 not more than ten jears or in jail for not more than two years or by a fine isis, iso, § 2.
4 of not more than four hundred dollars.
R. S. 120, § 33. G. S. 101, § 58. P. S. 203, § GO. R. L. 208, § 04.
2716
CRIMES AGAINST PROPERTY.
[Chap. 266.
Pale of certain
articles as
sterling and
coin silver.
1894, 292.
R. L. 208, § 65.
Section 77. Whoever makes or sells, or offers to sell or dispose of,
or has in his possession with intent so to do, any article of merchandise
marked, stamped or branded with the words "sterling", "sterling silver",
"coin" or "coin silver", or encased or enclosed in any box, package,
cover or %\Tapper or other thing in or by which the said article is packed,
enclosed or otherwise prepared for sale or disposition, having thereon any
engraving or printed label, stamp, imprint, mark or trade mark, indicat-
ing or denoting by such marking, stamping, branding, engraving or 8
printing, that such article is silver, sterling silver, solid silver, coin or 9
coin silver, shall, unless nine hundred and twenty-five one-thousandths 10
of the component parts of the metal of which the said article so marked, 11
stamped or branded with the words "sterling" or "sterling silver" is 12
manufactured are pure silver, or unless nine hundred one-thousandths 13
of the component parts of the metal of which the article so marked, 14
stamped or branded with the words "coin" or "coin silver" is manu- 15
factured, are pure silver, be punished by a fine of not more than one 16
hundred dollars. 17
False marking
of articles
made of gold,
etc.. prohibited.
1907. 4G0,
§§ 1-3.
Section 78. ^Vlioever makes or sells, or offers for sale or disposes of, 1
or has in his possession with intent so to do, any article constructed in 2
whole or in part of gold or alloy of gold, or of any metal resembling gold, 3
having marked thereon or upon any tag or label attached thereto, or upon 4
any package, cover or wrapper in which such article is enclosed or 5
wrapped, any word or mark indicating or designed or intended to indicate 6
that the gold or alloy of gold in said article, or in the plating, surface or 7
any other part of said article is of a greater degree or carat of fineness by 8
more than one carat than the actual quality or fineness of such gold or 9
alloy of gold, or any so-called gold filled, rolled gold plated or electro 10
gold plated article having marked thereon, or upon any tag or label at- 11
tached thereto, or upon any package, cover or wrapper in which such 12
article is enclosed or WTapped, any word or mark indicating or designed 13
or intended to indicate that the gold or alloy of gold upon such article 14
is of a greater percentage of weight of the article by more than one per 15
cent than the actual percentage of gold or alloy of gold, shall be punished 16
by a fine of not more than five hundred dollars. The word or mark upon 17
the article or upon the tag or label attached thereto, or upon the package, 18
cover or wrapper in which such article is enclosed, shall be held to apply 19
to the whole article, all the gold, alloys, solder and base metals being 20
assayed as one piece, unless the word or mark plainly indicates that it 21
applies to the plating, surface or other particular part of such article. 22
False repre-
sentation of
imitations
of fur
prohibited.
1919, 134.
Section 79. Whoever, himself, or by his agent or servant, or as the
agent or servant of another person, sells or exchanges, or has in his
custody or possession with intent so to do, or exposes for sale or ex-
change, any manufactured imitations of furs of fur-bearing animals,
representing the same to be the genuine fur of certain animals, shall be
punished by a fine of not less than two hundred nor more than five
hundred dollars.
Section 80.
Conveying
encumbered
Mtfce!'"^""' exists thereon, without informing the grantee, before the consideration is
G^l'iei'lfg P^i<i' of the existence and nature of such encumbrance, so far as he has 3
^Mioever conveys land, knowing that an encumbrance 1
9
Chap. 266.] crimes ag.\inst property. 2717
4 knowledge thereof, shall be punished by imprisonment for not more than p. s. 203. § 67.
5 one year or by a fine of not more than one thousand dollars. ^^' ^' ^°*' ^ ®'''
15 Gray. 189. 127 Mass. 285, 287. 136 Mass. 438.
1 Section 81. Whoever, knowing that his land is attached on mesne Seiiingat-
2 process, sells and conveys it without giving notice of the attachment to without Ifotice.
3 the grantee, and with intent to defraud, shall be punished by imprison- §; |; \lf] | lo.
4 ment in the state prison for not more than tliree years or in jail for not ^ f; ^2°os Vli
5 more than one year.
1 Section 82. Whoever, with a fraudulent intent to place personal ^ort'a''ed
2 property which is subject to a mortgage beyond the control of the mort- personal prop-
3 gagee, removes or conceals or aids or abets in ^emo^"ing or concealing the issq, 246.
4 same, and a mortgagor of such property who assents to such removal p.' s.' 203,' §69.'
5 or concealment, shall be punished by a fine of not more than one thousand fds^iiass.' 1^2^*'
6 dollars or by imprisonment for not more than one year. 112 Mass. 239.
1 Section 83. A mortgagor of personal property who sells or conveys saie by mort-
2 the same or any part thereof without the written consent of the mort- fonsmrof"""'
3 gagee, and without informing the vendee or grantee that the same is j^so^Hr'
4 mortgaged, shall be punished by a fine of not more than one hundred pfjos'lfo'
5 dollars or by imprisonment for not more than one year. R. l- 208, § 69.
•^ 8 Allen, 618. 10 Allen, 81. 105 Mass. 580. 153 Mass. 252.
1 Section 84. A hirer or lessee of personal property who sells or con- s.aie by hirer.
2 veys the same or any part thereof without the written consent of the l\ty wufiout""'
3 owner or lessor, and \\'ithout informing the vendee or grantee that it is issI^im.
4 so hired or leased, shall be punished by a fine of not more than one pfioi'lyf'
5 hundred dollars or by imprisonment for not more than one year. ^- ^- 20s, § to,
1 Section 85. Whoever, holding collateral security deposited with Saie, etc., of
2 him for the paj-ment of a debt which may be due to him, sells, pledges, rity''b"foreXbt
3 lends or in any way disposes of the same before such debt becomes due and 1815,^213.
4 payable, without the authority of the depositor thereof, shall be pun- p■|•^f'3l•|^'|•
5 ished by a fine of not more than five hundred dollars or by imprisonment f-^- 20s, § "i.
6 in jail for not more than two years.
100 Mass. 1. 124 Mass. 185. 203 Mass. 108.
118Mas.s. 427. 137 Mass. 315. 207 Mass. 32.
1 Section 86. Whoever, with intent to defraud, buys, receives or Buying, etc.,
2 aids in concealing personal property, knowing it to be hired or leased or etc!''^ p™perty.
3 held as collateral security, shall be punished by a fine of not more than ^^i'iol'iri.
4 one hundred dollars or by imprisonment for not more than one year. ^- ^- ^°*' ^ '^■
1 Section 87. Whoever, being in possession of personal property Saie, etc.. of
2 received upon a written and conditional contract of sale, with intent to KiTon con-
3 defraud, sells, conveys, conceals or aids in concealing the same before is7o°26r''''
4 performance of the conditions precedent to acquiring the title thereto, r lTosVts
5 shall be punished by a fine of not more than one hundred dollars or by '^o ^lass. dr.
6 imprisonment for not more tlian one year.
1 Section 88. A consignee or factor who, in violation of good faith Consignee, etc.,
2 and with intent to defraud the owners thereof, deposits or pledges, as de''p"olumgOT
3 security for money borrowed by him, a negotiable instrument received eJtyfetl"™"'
2718
CRIMES AGAINST PROPERTY.
[ClL\P. 266.
1849,216, § 6.
G. S. 161, I 65.
P. S. 203 § 75.
R. L. 208, § 74.
by him, merchandise consigned or intrusted to him, or a bill of lading, 4
certificate or order for the delivery of merchandise; or who, in like 5
\'iolation and \\'ith like intent, disposes of or applies such property or 6
evidence of property to his own use; or who, in like violation and Anth 7
like intent, disposes of or applies to his own use money which has been 8
raised or a negotiable instrument which has been acquired by the sale 9
or other disposition of such property or evidence of property, shall be 10
punished by a fine of not more than five thousand dollars and imprison- 1 1
ment for not more than five years. 12
Falsely pre-
tending to
hold a degree,
etc., or grant-
ing degrees
without
authority. Use
of word "uni-
versity" or
"college."
1893,355. § 1.
R. L. 208, § 75.
1919, 293. § 4.
221 Mass. 190.
Op. A. G. (1919)
28.
Section 89. Whoever, in a book, pamphlet, circular, advertisement
or advertising sign, or by a pretended written certificate or diploma, or
otherwise in writing, knowingly and falsely pretends to have been an
officer or teacher, or to be a graduate or to hold any degree, of a college
or other educational institution of this commonwealth or elsewhere,
which is authorized to grant degrees, or of a public school of this com-
monwealth, and whoever, without the authority of a special act of the
general court granting the power to give degrees, offers or grants degrees
as a school, college or as a private indi^-idual, alone or associated with 9
others, shall be punished by a fine of not more than one thousand dollars 10
or by imprisonment for not more than one year, or both. Any indi- 11
vidual, school, association, corporation or institution of learning, not 12
ha^^ng power to confer degrees under a special act of the general court, 1.3
using the designation of "university" or "college" shall be punished 14
by a fine of one thousand dollars; but this shall not apply to any educa- 15
tional institution whose name on July ninth, nineteen hundred and nine- 16
teen, included the word "university" or "college". 17
^g^lldoJs™' Section 90. Whoever, in a book, pamphlet, circular, advertisement
ism.'iss. 5 2. or advertising sign, or otherwise in writing, makes any false and fraudu-
R. L. 208, § 76. jgj.|^ statement or assertion of endorsement, authority, approval or sanc-
tion of an incorporates! college, university or professional school in this
commonwealth or elsewhere, or of officers or instructors thereof, as a
commendation or advertisement of a person or of his services, or of
goods, wares, commodities, processes or treatment, shall be punished
by a fine of not more than one thousand dollars or by imprisonment for
not more than one year, or both.
Untrue and
misleading ad-
vertisementa
prohibited.
1902, 397.
1912, 489.
1914, 288.
1916, 149.
Section 91 . Any person who, -nith intent to sell or in any way dis-
pose of merchandise, securities, service, or anything offered by such per-
son, directly or indirectly, to the public for sale or distribution, or who,
with intent to increase the consumption of or demand for such merchan-
dise, securities, service or other thing, or to induce the public in any
manner to enter into any obligation relating thereto, or to acquire title
thereto, or an interest therein, makes, publishes, disseminates, circulates
or places before the public, or causes, directly or indirectly, to be made,
published, disseminated, circulated or placed before the public within 9
the commonwealth, in a newspaper or other publication, or in the form 10
of a book, notice, handbill, poster, bill, circular, pamphlet or letter, or 11
in any other way, an advertisement of any sort regartling merchandise, 12
securities, service or anything so offered to the public, which ad\'ertise- 13
ment contains any assertion, representation or statement of fact which 14
is untrue, deceptive or misleading, and which such person knew, or 15
Chap. 266.] crimes against property. 2719
16 might on reasonable investigation have ascertained to be untrue, decep-
17 tive or misleading, shall be punished by a fine of not less than ten nor
18 more than five hundred dollars; provided, that this section shall not
19 apply to any o'WTier, publisher, printer, agent or employee of a newspaper
20 or other publication, periodical or circular, or to any agent of the adver-
21 tiser who in good faith and without knowledge of the falsity or deceptive
22 character thereof publishes, causes to be published, or participates in the
23 publication of such advertisement.
1 Section 92. Whoever wilfully and with intent to defraud makes or Publishing
2 publishes, or causes or permits to be made or published in any way what- exaggcra'ted
3 ever, any book, prospectus, notice, report, statement, exhibit, adver- prohKed'^ etc.
4 tisement or other publication of or concerning the affairs, financial con- j^J' ^
5 dition, property or assets of any corporation, joint stock association,
6 partnership or indi\'idual, which said book, prospectus, notice, report,
7 statement, exhibit, advertisement or other publication contains any
8 statement which is false or wilfully exaggerated and which shall have a
9 tendency to give a less or greater apparent value to the shares, bonds,
10 property or assets of such corporation, joint stock association, partner-
11 ship or individual, or any part of said shares, bonds, property or assets,
12 than said shares, bonds, property or assets or any part thereof shall really
13 and in fact possess, shall be punished by a fine of not more than five
14 thousand dollars or by imprisonment for not more than ten years, or
15 both.
1 Section 93. Whoever, by a false pretence, obtains from any club, obtaining or
2 association, society or company for improving the breed of cattle, horses, pedigree oF
3 sheep, swine or other domestic animals, the registration, or a certificate igg^ns.
4 thereof, of any animal in the herd register, or any other register of such ^^l' l^-_ 1 1^_
5 club, association, society or company, or a transfer of such registration,
6 or whoever knowingly makes, exhibits or gives a false pedigree in writing
7 of any animal, shall be punished by imprisonment for not more than
8 two years or by a fine of not more than five hundred dollars, or both.
1 Section 94. Whoever wilfully, intentionally and without right gt'^u'ction'ol"^
2 breaks down, injures, removes or destroys a monument erected for the boundary
(.,••11 1' i» j?j_j- Ij-i; nionument,
3 purpose of designatmg tlie boimdaries ot a town or or a tract or lot or milestone, etc.
4 land, or a tree which has been marked for that purpose, or so breaks 1823; 113, § i.
5 down, injiu-es, removes or destroys a milestone, mileboard or guideboard §: 1: m] | m.
6 erected upon a public way or railroad, or wilfully, intentionally and fgo^i.llis.V
7 without right defaces or alters the inscription on any such stone or board, J'gg'inTss.
8 or wilfully, intentionally and without right mars or defaces a building
9 or signboard, or extinguishes a light, or breaks, destroys or removes a
10 lamp, lamp post, railing or post erected on a bridge, sidewalk, public way,
11 court or passage, shall be punished by imprisonment for not more than
12 six months or by a fine of not more tlian fifty dollars.
1 Section 95. Whoever wilfully or maliciously removes, displaces. Malicious de-
2 destroys, defaces, mars or injures any monument, tablet or other device historirai"
3 erected to mark an historic place or to commemorate an historic event yggg^S''
4 shall be punished by a fine of not more than one hundred dollars or by ^^- ^- ^°*' ^ "''•
5 imprisonment for not more than one year.
76.
2.
"S.
473.
2720
CRIMES AGAINST PKOPERTY.
[ClL\P. 266.
bmidiig^of'the Section 96. Whoever -n-ilfully, intentionally and without right de- 1
iss^ns^"'*'"' f^'^^s, mars or injures the -n'alls, wainscoting or any other part of any 2
Rs.'ii §8. building belonging to the commonwealth, or the appurtenances thereof, 3
p.' s. 203, § 77. by cutting, writing or otherwise, shall be punished by a fine of not less 4
R. L. 208, § 80. than five nor more than one hundred dollars. 5
Defacing
building of
county.
1899, 196, § 1.
R. L. 208, § 81.
Section 97. Whoever wilfully mars or injures the walls, wainscoting 1
or any other part of a court house, or of any other building or room used 2
for county business, or the appurtenances thereof, by cutting, writing or 3
otherwise, shall be punished by imprisonment for not more than two 4
months or by a fine of not more than fifty dollars. 5
wilful injury,
etc., to school-
house, church,
etc., or furni-
ture, etc.
1857, 222.
G. S. 161, § 67.
P. S. 203, § 78.
1901, 208, § 4.
R. L. 208. § 82.
2 Allen, 159.
Section 98. Wlioever wilfully, intentionally and without right, or 1
wantonly and without cause, destroys, defaces, mars or injures a school- 2
house, church or other building erected or used for purposes of education 3
or religious instruction, or for the general diffusion of knowledge, or an 4
outbuilding, fence, well or appurtenance of such schoolhouse, church 5
or other building, or furniture, apparatus or other property belonging 6
thereto or connected therewith, shall be punished by a fine of not more 7
than five hundred dollars or by imprisonment for not more than one 8
year. 9
Defacement of
books, etc., of
libraries.
1867, 69.
1872, 42.
P. S. 203, § 79.
1883,81.
1901, 268, § 4.
R. L. 208, § 83.
Section 99. Whoever wilfully, intentionally and without right, or 1
wantonly and without cause, 'WTites upon, injures, defaces, tears or 2
destroys a book, plate, picture, engraving, map, newspaper, magazine, 3
pamphlet, manuscript or statue wliich belongs to a law, city, town or 4
other public or incorporated library shall be punished by a fine of not 5
less than five nor more than fifty dollars or by imprisonment for not 6
more than six months. 7
Detention of
books of
libraries.
1SS3, 77.
1901, 268, § 4.
R. L. 208, § 84.
Section 100. Whoever wilfully, intentionally and without right, 1
or wantonly and without cause, detains a book, newspaper, magazine, 2
pamphlet or manuscript which belongs to a law, city, town or other 3
public or incorporated library for thirty days after a written notice from 4
the librarian thereof, containing a copy of this section and given after 5
the expiration of the time during which, by the regulations of such library, 6
such book, newspaper, magazine, pamphlet or manuscript may be kept, 7
shall be punished by a fine of not less than one nor more than twenty-five 8
dollars or by imprisonment for not more than sbc months. 9
Malicious
explosion.
1851, 129, § 1.
G. S. 161, § 68.
P. S. 203, § SO.
1901,268,14
R. L. 208, § 85.
1914, 635.
1918, 257, §464.
1919, 5.
1920, 2.
Section 101. Whoever wilfully, intentionally and without right, by 1
the explosion of gunpowder or of any other explosive, unlawfully destroys 2
or injures a dwelling house, office, shop or other building, or a ship or 3
vessel, shall be punished by imprisonment in the state prison for not more 4
than tn-enty years or in jail for not more than two and one half years or 5
by a fine of not more than one thousand dollars. 6
Throwing ex-
plosives into
buildings or
placing on
railways, etc.
1851, 129, § 2.
G. S. 161, § 69.
P. S. 203, § 81.
1901, 268, § 4.
R. L. 208, § 86.
1904, 396.
Section 102. Whoever wilfully, intentionally and without right 1
throws into, against or upon, or puts, places or explodes, or causes to be 2
exploded in, upon or near a dwelling house, office, shop, building, street 3
railway, street railway car, or vessel, gunpowder or other explosive, or a 4
bombshell, torpedo or other instrument filled or loaded with an explosive, 5
with intent unlawfully to destroy or injure such dwelling house, office, 6
Ch.\P. 266.] CRIMES AGAINST PROPERTY. 2721
7 shop, building, street railway, street railway car, or vessel, or any person isoe, 463,
8 or property therein or thereon, shall be punished by imprisonment in the 1914. 635°' ' '
9 state prison for not more than ten years or in jail for not more than two igJI; 5^^' ^^^^^
10 and one half years or by a fine of not more than five hundred dollars. |?7 Mass iss
1 Section 103. Whoever wilfully, intentionally and without right Throwing oil
2 throws into, against or upon a dwelling house, office, shop or other build- tarVetc"
3 ing, or vessel, or puts or places therein or thereon oil of vitriol, coal tar c^s. Hi', I lo.
4 or other noxious or filthy substance, with intent unlawfully to injure, fgo^i.afs',^?'
5 deface or defile such dwelling house, office, shop, building or vessel, or ^gj^- Hf ^ ^^■
6 any property therein, shall be punished by imprisonment in the state L^.^g*--
7 prison for not more than five years or in jail for not more than two and laaoi 2!
8 one half years or by a fine of not more than three hundred dollars.
1 Section 104. Whoever wilfully, intentionally and without right ini"jy to
2 destroys, injures, defaces or mars a dwelling house or other building, 1862, leb.
3 whether upon the inside or outside, shall be punished by imprisonment 1901. 2fi8, § 5.'
4 for not more than two months or by a fine of not more than fifty dollars, uo'iust'. lo^i*'
1 Section 105. Whoever wilfully and without right pulls down or re- PuiHng down
2 moves any portion of a stone wall or fence which is erected or maintained fences""
3 for the purpose of enclosing land shall be punished by a fine of not more r°l'. 208] § 91.
4 than ten dollars. The director of the division of fisheries and game of jgjgj 350 § 40
5 the department of conservation, fish and game wardens and deputy fish
6 and game wardens may arrest without a warrant any person found vio-
7 lating this section.
1 Section 106. Whoever wilfully, intentionally and without right or injury, etc.,
2 1' i • • il ' J 1 X • to ice taken as
license, cuts, mjures, mars or otherwise damages or destroys ice upon merchandise.
3 waters from which ice is or may be taken as an article of merchandise, g!^s ; id*; § 73.
4 whereby the taking thereof is hindered or the value thereof diminished fg(5i_|eg \^e;
5 for that purpose, shall be punished by a fine of not more than one hundred R- l. 20s, § 92.
6 dollars.
1 Section 107. Whoever wilfully, intentionally and without right l^'^^^ f'^-^^
2 breaks down, injures, removes or destroys a public bridge, or a lock, cul- R. s. i26,' § 41.
3 vert or embankment of a canal, or wilfully, intentionally and without p.' s.' 203.' § s?.'
4 right makes an aperture or breach in such embankment with intent to r.°l. lot, § 93.
5 destroy or injure the same, shall be punished by imprisonment in the
6 state prison for not more than five years or by a fine of not more than
7 five hundred dollars and imprisonment in jail for not more than two
8 years.
1 Section 108. Whoever casts away, burns, sinks or otherwise destroys Destroying
2 a ship or vessel, with intent to injure or defraud an owner thereof, or of frTud owner
3 any property laden on board the same, or an insurer of such ship, vessel isoSi'is"'! i.
4 or property, or of any part thereof, shall be punished by imprisonment e*^s.' ile,' 1 35.
5 in the state prison for not more than ten years.
G. S. 161, § 76. P. S. 203, § 89. R. L. 208, § 94.
1 Section 109. Wlioever lades, equips or fits out, or assists in lading. Fitting out
2 equipping or fitting out, a ship or vessel, with intent that it shall be wil- i^ntent to'
3 fully cast away, burnt, sunk or otherwise destroyed, and with intent to i802.°i3fi,'f 2'.'
4 injure or defraud an owner or insurer of such ship or vessel, or of any R^s'ilgjlfe.
2722
CRIMES AGAINST PROPERTY.
[Ch.\p. 266.
property laden on board the same, shall be punished by imprisonment
two and one half years.
Section 110. An owner of a ship or vessel, or of property laden or
pretended to be laden on board the same, or any other person concerned
in the lading or fitting out of a ship or vessel, who makes out or exhibits,
or causes to be made out or e>diibited, a false or fraudulent invoice, bill
False invoice,
etc., of cargo
to defraud in-
surer, etc.
1802, 136, § 3.
R. S. 126, § 37.
G. S. 161, § 78.
R. L. 208, § 96. of lading, bill of parcels or other false estimates of any goods or property
laden or pretended to be laden on board such ship or vessel, with intent
to injure or defraud an insurer of such ship, vessel or property or of any
part thereof, shall be punished by imprisonment in the state prison for
not more than ten years or by a fine of not more than five thousand doUars
and imprisonment in jail for not more than two years.
G. S. 161, 5 77.
p ^ on^ & on
r' l. 208, §'95. in the state prison for not more than twenty years or by a fine of not more
1918! 257% 464. than five thousand dollars and imprisonment in jail for not more than 7
1919! 5. '
1920, 2.
1
2
3
4
5
6
7
8
9
10
False protest, SECTION 111. A mastcr, ofSccr or mariner of a ship or vessel who
R°i' ill' I Is Drakes or causes to be made or swears to a false affidavit or protest, or an
p' I' 203' 1 9?' o^'ii^i" of oi" other person concerned in such ship or vessel, or the owner of
R. L. 208, i 97. or the person concerned in the goods or property laden on board the
same, who procures such false affidavit or protest to be made, or exliibits
the same, with intent to injure, deceive or defraud an insurer of such ship
or vessel, or of anj' goods or property laden on board the same, shall be
punished by imprisonment in the state prison for not more than ten years
or by a fine of not more than five thousand dollars and imprisonment in
jail for not more than two years.
Malicious
killing, etc.,
of cattle.
1804, 131, § 4.
R. S. 126, § 39.
G. S. 161, § 80.
P. S. 203, § 93.
R. L. 208. § 98.
1 Mass. 59.
3 Gush. 558.
9 Gray, 299,
304,
lOSMass. 460.
Cutting timber,
wood, shrubs,
etc., on land
of another.
1698, 7, |§ 1, 2.
1723^, 10,
«1.2.
1726-7, 3.
I§ 1. 2.
1727, S.
1785, 28, I 1.
1818,3, §§2.4.
R. S. 126,
IH't.4S.
G. S. 161,
§181,84.
1868, 321:
P. S. 203,
§§94,97.
R. L. 208, § 99.
1904. 444, § 1.
141 Mass. 238.
Section 112. ^^^loeve^ wilfully and maliciously kills, maims or dis-
figures any horse, cattle or other beast of another person, or wilfully
and maliciously administers or exposes poison with intent that it shall
be taken or swallowed by any such beast, shall be punished by imprison-
ment in the state prisQn for not more than five years or by a fine of not
more than one thousand dollars and imprisonment in jail for not more
than one year. 213 Mass. 135.
Malicious
injuries to
trees, fences,
1698. 7, § 1.
1785, 28, § 1
1829, 63.
R. S. 126, § 42.
1
2
3
4
5
6
7
8
9
10
1
2
3
4
5
6
7
Section 113. AMioever wilfully cuts down or destroys timber or wood 1
standing or growing on the land of another, or carries away any kind of 2
timber or wood cut down or lying on such land, or digs up or carries away 3
stone, ore, gravel, clay, sand, turf or mould from such land, or roots, nuts, 4
berries, grapes or fruit of any kind or any plant there being, or cuts down 5
or carries away sedge, grass, hay or any kind of corn, standing, growing 6
or being on such land, or cuts or takes therefrom any ferns, flowers or 7
shrubs, or carries away from a wharf or landing place any goods in which 8
he has no interest or property, without the license of the owner thereof, 9
shall be punished by imprisonment for not more than six months or by a 10
fine of not more than five hundred dollars; and if the offence is committed 11
on Sunday, or in disguise, or secretly in the night time, the imprisonment 12
shall not be for less than five days nor the fine less than five dollars. 13
Section 114. ^^'hoever wilfully and maliciously or wantonly breaks
glass in a building which is not his own, or whoe^'er wilfully and ma-
liciously breaks down, injures, mars or defaces a fence belonging to or
enclosing land which is not his own, or wilfully and maliciously throws
G. s. iei! i 82. down or opens a gate, bars or fence, and leaves the same down or open,
ClL\P. 266.] CRIMES AGAINST PROPERTY. 2723
6 or maliciously and injuriously severs from the freehold of another any ises, 321.
7 produce thereof or anything attached thereto, shall be punished by im- r.l.Ios.^^^'
8 prisonment for not more than six months or by a fine of not more than Iq^^'su, § 30.
9 five hundred dollars. ll Cush. 414. 127 Mass. 1. 200 Mass. 175.
1 Section 115. Whoever wilfully and maliciously enters an orchard, J/ctfrT '°r.
2 nursery, garden or cranberry meadow, and takes away, mutilates or den etc".
3 destroys a tree, shrub or vine, or steals, takes and carries away any fruit ims, 7.'§ i.'
4 or flower, without the consent of the owner thereof, shall be punished by g.^s! tfi. § 83.
5 a fine of not more than five hundred dollars or by imprisonment for not i?s*'2ra!'§ 96.
6 more than six months. R. L. 20s, § 105. 6 Gray, 349. 228 Mass. 308.
1 Section 116. Whoever, being an unnaturalized, foreign born person, picking of
2 picks wild berries or flowers, or camps or picnics upon any land of which by'unnatu^rai-
3 he is not the owner, within the counties of Barnstable or Plymouth, bOTn'°ereon3
4 between April first and December first, without first obtaining a written iuBamstabie
5 permit so to do from the owner or owners of the land, shall be punished counties
6 by a fine of not more than fifty dollars or by imprisonment for not ifiS^s,'
7 more than one month, or both. The said written permit shall not be ^^ ^' ^'
8 transferable, and shall be exhibited upon demand to the forest warden,
9 or his deputies, of the town wherein the land is located, or upon demand
10 of any sherift", constable, police or other officer authorized to arrest for
11 crime. Failure or refusal to produce said permit upon such demand
12 shall be prima facie evidence of a violation of this section, and any
13 forest warden or any duly authorized deputy forest warden, sherift',
14 police or other officer authorized to arrest for crime, may arrest witliout
15 warrant any person who fails or refuses to display for inspection the said
16 permit upon the demand of any of the officials named in this section.
1 Section 117. Whoever wilfully, intentionally and without right enters Entering
2 upon the orchard, garden or other improved land of another, with intent vMi^inie'at."
3 to cut, take, carry away, destroy or injure the trees, grain, grass, hay, r°s. 126, § 45.
4 fruit or vegetables there growing or being, sliall be punished by imprison- ^gg| ^^j'j' ^ ^*-
5 ment for not more than six months or by a fine of not more than five hun- ?• s- 203. § 97.
6 dred dollars; and if the ofi'ence is committed on Sunday, or in disjruise, § lois.
7 or secretly in the night time, the imprisonment shall not be for less than 22s Masai sos.'
8 five days nor the fine less than five dollars.
1 Section 118. Whoever, having the charge or custody of sheep. Suffering ani-
2 goats, cattle, horses, swine or fowl, wilfully suffers or permits them to "a'^s^oniand.
3 enter or remain on or pass over any orchard, garden, mowing land or isyi;™*''
4 other improved or enclosed land of another, after being forbidden so to ]^- *]; ^^^^ ^ ^^■
5 do in writing or by notice posted thereon by the owner or occupant thereof, 5 107.
6 or by the authorized agent of such owner or occupant, shall be punished
7 by a fine of not more than ten dollars.
1 Section 119. Whoever knowingly brings the insects which are Transportation
2 known as the ocneria dispar or gj^psy moth or as the brown tail moth, "nse"!""""^
3 or their nests or eggs, into the commonwealth, or whoever knowingly is"?; 210^/7.
4 transports said insects or their eggs or nests from one town to another J^^f,; Iqs! ^ ^'
5 in the commonwealth, except when engagi^d in, and for the purpose of, ^ ^°*-
6 destroying them, shall be punished by a fine of not more than two hundred
7 dollars or by imprisonment for not more than two months, or both.
2724
CRIMES AGAINST PROPERTY.
[CH.1P. 266.
Trespass on
improved or
enclosed land.
1862, S9.
1876, 181.
P. S. 203,
§§ 99, 100.
1890, 410.
R. L. 208,
§ 109.
162 Mass. SS2.
164 Mass. 495.
Section 120. Whoever, without right, enters or remains in or upon 1
tlie dwelling house, buildings or improved or enclosed land of another, 2
after having been forbidden so to do by the person who has the lawful 3
control of said premises, either directly or by notice posted thereon, shall 4
be punished by a fine of not more than twenty dollars. A person who is 5
found committing such trespass may be arrested by a sheriff, deputy 6
sheriff, constable, watchman or police officer and kept in custody in a 7
convenient place, not more than twenty-four hours, Sunday excepted, 8
until a complaint can be made against him for the offence, and he be taken 9
upon a warrant issued upon such complaint. 10
Entry on land
with firearms.
1890, 403, § 1.
R. L. 208,
§ 110.
Section 121. Whoever, without right, enters upon the land of another 1
with firearms, with intent to fire or discharge them thereon, and, having 2
been requested by the owner or occupant of such land or by his agent 3
to leave such land, remains thereon, shall be punished by a fine of not 4
more than two hundred dollars or by imprisonment for not more than 5
two mouths, or both. 6
Defacement of
notice against
trespassers.
1890, 403, § 2.
R. L. 208,
§ 111.
Section 122. Whoever wilfully tears down, removes or defaces any 1
notice posted on land by the owner, lessee or custodian thereof, warning 2
persons not to trespass thereon, shall be pimished by a fine of not more 3
than twentv-five dollars. 4
Trespassing
upon land of
certain insti-
tutions.
1885, 303.
R. L. 208,
§112.
1903, 434.
1906, 243.
1911, 104;
181; 194.
1913, 404.
1914, 358.
1918, 257,
§307.
1919, 5.
1920, 2.
Section 123. Wlioever wilfully trespasses upon land or premises 1
belonging to the commonwealth and appurtenant to the state prison, 2
Massachusetts reformatory, reformatory for women, the prison camp 3
and hospital, state infirmary, state farm, Norfolk state hospital, any 4
public institution for the care of insane, feeble minded or epileptic per- 5
sons, any Massachusetts training school, state charitable institution, or 6
upon land or premises belonging to any county and appurtenant to a 7
jail or house of correction, or, after notice from an officer of any of said 8
institutions to leave said land, remains thereon, shall be punished by 9
imprisonment for not more than tliree months or by a fine of not more 10
than fifty dollars. 11
Malicious
injury to legal
notice.
1883, 156.
R. L. 208,
§ 113.
Section 124. Whoever wilfully and maliciously, or wantonly and 1
without cause, tears down, removes or defaces a warrant for a town 2
meeting, list of jurors or other notice or paper which has been posted 3
in compliance witli law shall, except as otherwise provided, be punished 4
by a fine of not more than ten dollars. 5
Malicious
injury to show
bill, etc.
1870. 259.
P. S. 203,
§ 101.
R. L. 208,
§114.
Section 125. Wlaoever wilfully and maliciously removes, destroys 1
or mutilates a show bill, placard, program or other advertisement 2
posted upon a wall, fence, billboard or structure not lawfully under his 3
control, of an exhibition, show or amusement licensed under section one 4
hundred and eighty-one of chapter one hundred and forty, before such 5
exhibition, show or amusement has taken place, shall be punished by 6
a fine of not more than ten dollars. 7
Section 126. Whoever paints, or puts upon, or in any manner 1
affixes to, any fence, structure, pole, rock or other object which is the 2
3
4
Defacing
natural
scenery.
1873, 349.
P-|-203 §102. property of another, whether "VN^thin or without the Hmits of the high
R.L.'2os,'§ii5. way, any words, device, trade mark, advertisement or notice which is
CH.4.P. 266.] CRIMES AGAINST PROPERTY. 2725
5 not required by law to be posted thereon, without first obtaining the
6 WT-itten consent of the owner or tenant of such property, shall, upon
7 complaint of such owner, or of his tenant, or of any municipal or public
8 officer, be punished by a fine of not more than ten dollars. Any word,
9 device, trade mark, advertisement or notice which has been painted,
10 put up or affixed within the limits of a highway in violation of this
11 section shall be considered a public nuisance, and may be forthwith
12 removed or obliterated and abated by any person.
1 Section 127. 'Wlioever destroys or injures the personal property of J^.a^nio°"n°''
2 another in any manner or by any means not particularly described or '"■■''■s to
3 mentioned in this chapter shall, if such destruction or injury is wilful property.
4 and malicious, be punished by imprisonment in the state prison for not i846, 52,'§ i.
5 more than five years or by a fine of not more than one thousand dollars p.s.'203,'§ io.i
6 and imprisonment in jail for not more than one year, or, if such destruc- 1904'. lol'.^^^^'
7 tion or injury is wanton, shall be punished by a fine of not more than gcuJjj'jjg
8 five hundred dollars or by imprisonment for not more than one year; S^ff^'lty
9 but if the value of the property so destroyed or injurefl is not alleged to 107 Mass. 213.
10 exceed fifteen dollars, the punislunent shall be a fine of not more than 194 Mass! 97. '
1 1 fifteen dollars or imprisonment for not more than one month. ^^* *'^^^' ^°*'
1 Section 128. "Wlioever, without the consent of the owner thereof, ^uk rans.
2 knowingly and wilfully effaces, alters or covers over, or procures to be Jf^L'ios'
3 effaced, altered or covered over, the name, initial or device of any dealer § ii7.
4 in milk, marked or stamped upon a milk can, or whoever, with intent
5 to defraud and without such consent, detains or uses in his business any
6 such can having the name, initial or device of any dealer in milk so
7 marked or stamped thereon, shall be punished by a fine of not more than
8 ten dollars.
1 Section 129. Whoever, being a convict in the state prison, wilfully injurj-to
2 and maliciously destroys or injures the property of the commonwealth at stTt^"ri'son.
3 such prison or the property of any person who furnishes materials for the J|^J; |^|;
4 emplovTnent of the prisoners, may be punished by imprisonment in the ?iJ'9^°*'
5 state prison for not more than three years; or if serving a sentence of
6 imprisoimient for life, he may be punished by imprisonment at solitary
7 labor for not more than one year or by solitary imprisonment for not
8 more than five days, or both, and such punishment shall be inflicted at
9 such time as the court orders.
1 Section 130. Whoever, being a prisoner at the Massachusetts re- injury to
2 formatory, the reformatory for women, the state farm, the prison camp pfh?r pLti
3 and hospital, any jail or house of correction, wilfully and maliciously 'i"s9fi'"34™^'
4 injures or destroys any public property or any materials furnished for fgos; !«. ^ '"°'
5 the emplopnent of prisoners in any of said institutions, may be pun- jso^j 2«.
6 ished by imprisonment for not less than six months nor more than two mh', ess!
7 and one half years.
1913, 257, § 464. 1919, 5. 1920, 2.
1 Section 131. ^\^loever is discovered in the act of wilfully injuring a Arrest and
2 fruit or forest tree or of committing any kind of malicious mischief on outTa'r°rant
3 Sunday may be arrested without a warrant by a sheriff, deputy sheriff, on suTday?"'
4 constable, watchman, police officer or other person, and detained in jail \f.\'
246.
245.
2726
CRIMES AGAINST PROPERTY.
[CH-VP. 266.
G. S. 161, § 86.
P. S. 203. § 104.
R. L. 20S,
§ 121.
or otherwise until a complaint can be made against him for the offence, 5
and he be taken upon a warrant issued upon such complaint; but such 6
detention without warrant shall not continue beyond the following day. 7
Wghtfuing Section 132. Whoever wilfully kills pigeons upon, or frightens them
i84s?85 from, beds which have been made for the purpose of taking them in nets,
G*i' ill « 87 ^y ^^y method, within one hundred rods of the same, except on land
p.s.'203.'§ 105. lawfully occupied by himself, shall be punished by imprisonment for not
§ 122. ' more than one month or by a fine of not more than twenty dollars, and
shall also be liable for the actual damages to the owner or occupant of
such beds.
Injury, etc.
to property
of Humane
Society.
1854, 358.
G. S. 161, §
P. S. 203. §
1889, 399.
R. L. 208,
§ 123.
Section 13.3. Whoever unlawfully enters a house, boat house or hut 1
which is the property of the Humane Society of the Commonwealth of 2
Massachusetts and wilfully injures, removes or carries away any prop- 3
erty belonging to said society, or wilfully injures or unlawfully uses or 4
commits any trespass upon the property of said society which is intended 5
or kept for the purpose of saving or preserving human life, or commits 6
any trespass upon such house, hut or boat house, shall be punished by 7
a fine of not more than two hundred dollars or by imprisonment for not 8
more than six months; but the penalties of this section shall not apply 9
to persons for whose use said boats, houses and other property are intended 10
and kept. Pilots, sheriffs and their deputies, and constables shall make 11
complaint against all persons guilty of a violation of this section. One 12
half of any fine paid hereunder shall be paid to the person who gives 13
information upon which a conviction is obtained. 14
Setting fire to
coal pit, etc ,
on woodland in
New Bedford,
etc., between
March and
October.
1839, 148.
G. S. 161,
§§ 89-91.
p. S. 203,
§§ 107-109.
R. L. 208,
§ 124.
Section 1.34. Whoever, between April first and October first, sets 1
fire to a coal pit or pile of wood, for the purpose of charring the same, 2
on any woodland in the cities of New Bedford or Fall River or in the 3
towns of Dartmouth, Freetown, Fairhaven, Middleborough or Rochester, 4
shall forfeit one hundred dollars. Whoever, between the times aforesaid, 5
sets fire to any brush wood or bushes on any part of such woodland, or 6
on land adjoining thereto, so as to cause the burning of such brush wood 7
or bushes, shall forfeit fifty dollars. All forfeitures under this section 8
shall be equally divided between the city or town in which the offence 9
is committed and the person who sues therefor. 10
Mooring vessel,
etc., to a buoy,
1860, 53,
§§ 1,2.
P. S. 203,
§§ 110, 111.
R. L. 208,
§ 12S.
Section 135. Whoever moors or in any manner makes fast a vessel, 1
scow, boat or raft to a buoy, beacon or floating guide placed by the govern- 2
ment of the United States in the na\'igable waters of the commonwealth 3
shall be punished by a fine of not more than fifty dollars; and whoever 4
wilfully destroys, injures or removes any such beacon or guide shall be 5
punished by a fine of not more than one hundred dollars or by imprison- 6
ment for not more than three months. One third of all fines which accrue 7
under this section shall be paid to the complainant and two thirds to the 8
county. 9
Injury, etc., to
baggage by
hackman, etc.
1869, 307,
Section 136. Any person whose duty it is to handle, remo\-e or
take care of the baggage of passengers who wilfully or recklessly destroys
R L ^208 ^ ^'^' °'" injures a trunk, valise, box, package or parcel, wliile loading, transport-
§ 126. ' ing, unloading, delivering or storing the same, shall be punished by a fine
of not more than fifty dollars.
Chap. 267.]
FORGERY, CRISIES AG.\INST THE CrRRENCY.
2727
1 Section 137. Whoever, by erecting or maintaining a dam, either Raising water
2 within or without tlie commonwealth, knowingly causes the water of a mio^ omime
3 river or stream so to be raised as to flow upon or injure a mill lawfully a*l.'i'li. § 7i,
4 existing in the commonwealth and belonging to a citizen thereof, without ^; l.~208,\*89.
5 right as against the owner of such mill, shall be punished by a fine of
6 not more than one thousand dollars or by imprisonment for not more
7 than six months ; but this section shall not apply to cases in which the
8 courts of the commonwealth have jurisdiction to abate a dam so raised
9 or maintained.
1 Section 138. Whoever wilfully, intentionally and without right
2 breaks down, injures, removes or destroys a dam, reservoir, canal or
3 trench, or a gate, flume, flashboards or other appurtenances thereof, or a
4 wheel, or mill gear, or machinery of a water mill or steam mill, or wil-
5 fully or wantonly, without color of right, draws off the water contained
6 in a mill pond, reservoir, canal or trench, or obstructs such water from
7 flowing out of the same, shall be punished by imprisonment in the state
8 prison for not more than five years or by a fine of not more than five hun-
9 dred dollars and imprisonment in jail for not more than two years.
Injury to dam,
reservoir.
etc.
1727
-8.3
1S29
98.
E. S.
126,
§40.
1857
160
G. S.
161,
§72.
1875
101
P. S.
203,
§85.
1901
268
§4.
R. L
208
§90
REFERENCE.
Penalty for wantonly destroying a tree, etc., Chap. 87, §§ 10, 12.
CHAPTER 267.
FORGERY AND CRIME,S AGAINST THE CURRENCY.
Sect.
1. Forgery of records, certificates, etc.
2. Forgery of railroad ticket, etc.
3. Forgery of stamp or seal.
4. Forgery of railroad stamp, etc.
5. Uttering forged record or contract.
6. Uttering forged railroad ticket, etc.
7. Forging note of treasurer and receiver
general, etc.
8. Forging bank bill or note.
9. Possession of ten or more counterfeit
bills, with intent, etc.
10. Passing counterfeit bill or forged note.
11. Second con\dction, and three convic-
tions at same sitting.
12. Having counterfeit bill, with intent, etc.
13. Making or having tool, etc., for coun-
terfeiting, with intent, etc.
14. Testimony of president, etc., of bank,
dispensed with in certain cases.
15. Sworn certificates of certain officers
made evidence.
16. Affixing fictitious signature.
17. Counterfeiting coin, or having ten
counterfeit pieces, etc.
IS. Having less than ten pieces, with intent,
etc. Uttering counterfeit coin.
Sect.
19. Second conviction, and three convic-
tions at same sitting.
20. Making, mending or having tool for
coining, with intent, etc.
21. Issuing or passing note as currency,
etc., except, etc.
22. Issuing small note, etc., as currency,
except, etc.
23. Circulation of fractional bill.
24. Fraudulently connecting parts of hank
notes, etc.
25. Wilful and malicious injury to bank
bill.
26. Maliciously gathering up, etc., bills of
bank for purpose of injuring busi-
ness, etc. Penalty.
27. Possession of worthless bills, not cur-
rent, etc.
28. Uttering or passing such biU, etc.
29. Engraving, etc., shop bill, resembling
bank bills.
30. Sheriff, etc., to seize counterfeit bills,
etc.
31. Compensation to prosecutors, etc., of
forgers, etc.
2728
FORGERY, CRIMES AGAINST THE CURRENCY. [CH-U>. 267.
Forgery of
records, certifi-
cates, etc.
C. L. 54, § 3.
1692-3, 18, § 8.
1784, 67.
1786, 21. § 3.
1804, 120. § 1.
1805, SS, § 1.
R. S. 127, § 1.
G. S. 162, § 1.
1874, 78.
P. S. 204, § 1.
189S, 562,
§ 113.
1901.371. § 1.
R. L. 209. § 1.
1909, 155. I 1.
2 Mass. 397.
15 Mass. 526.
17 Mass. 46.
3 Gush. 150.
3 Gray. 441.
2 Allen, 161,
165.
101 Mass. 32.
209.
114 Mass. 278,
311.
118 Mass. 439.
120 Mass. 358.
124 Mass. 327.
129 Mass. 124.
Section 1. "V'VTioever, vnth intent to injure or defraud, falsely makes, 1
alters, forges or counterfeits a public record, or a certificate, return or 2
attestation of a clerk or register of a court, public register, notary public, 3
justice of the peace, special commissioner, town clerk or any other public 4
officer, in relation to a matter wherein such certificate, return or attesta- 5
tion may be received as legal proof; or a charter, deed, will, testament, 6
bond or ■WTiting obligatory, power of attorney, policy of insurance, bill 7
of lading, bill of exchange or promissory note; or an order, acquittance 8
or discharge for monej^ or other property; or an acceptance of a bill of 9
exchange, or an endorsement or assignment of a bill of exchange or prom- 10
issory note for the payment of money; or an accountable receipt for 11
money, goods or other property; or a stock certificate, or any exidence 12
or muniment of title to property; or a certificate of title, duplicate cer- 13
tificate of title, certificate issued in place of a duplicate certificate, the 14
registration book, entry book, or any indexes provided for by chapter one 1.5
hundred and eighty-five, or the docket of the recorder; shall be pun- 16
ished by imprisonment in the state prison for not more than ten years 17
or in jail for not more than two years. 18
137 Mass. 109.
145 Mass. 392.
148 Mass. 296.
157 Mass. 386.
218 Mass. 501.
231 Mass. 449.
Forgerj' of
railroad ticket,
etc.
1901,371. § 1.
R. L. 209, § 1.
1909, 155, § 1.
Section 2. 'Whoever, Mith intent to injure or defraud, falsely makes, 1
alters, forges or counterfeits a railroad ticket, railroad mileage book or 2
railroad pass, or a ticket, badge, pass or any ■wTitten or printed license 3
purporting to entitle the holder or owner thereof to admission to any 4
exhibition, entertainment, performance, match or contest of any kind, 5
shall be punished by imprisonment in the state prison for not more than 6
three years or in jail for not more than two years, or by a fine of not more 7
than five hundred dollars. 8
Forgery of
stamp or seal.
1898, 562,
§ 114.
R. L. 209, § 2.
1904, 448, § 1.
Section 3. Whoever forges, procures to be forged or assists in forg- 1
ing, the seal of the land court, or, without lawful authority, stamps or 2
procures to be stamped, or assists in stamping, any document with such 3
forged seal or with the genuine seal of said court, shall be punished by 4
imprisonment in the state prison for not more than ten years or in jail for 5
not more than two years. 6
Forgery of
railroad stamp,
1901,371, § 3.
R. L. 209. § 2.
Section 4. '\^^loever forges, procures to be forged or assists in forg- 1
ing, the stamp of any railroad company or of any railroad ticket agent, 2
or, ■^'ithout lawful authority, stamps or procures to be stamped, or assists 3
in stamping, any railroad ticket or railroad mileage book mth such forged 4
stamp, or with a genuine stamp of any railroad company or railroad ticket 5
agent, shall be punished by imprisonment in the state prison for not more 6
than three years or in jail for not more than two years, or by a fine of not 7
more than fi\-e hundred dollars. 8
Uttering
forged record
or contract.
1692-3, 18, § 8.
1784, 67.
1785,21. §3.
1804, 120, § 1.
1805, 88, I 1.
R. S. 127, 5 2.
G. S. 162, I 2.
P. S. 204, § 2.
Section 5. Whoever, with intent to injure or defraud, utters and
publishes as true a false, forged or altered record, deed, instrument or
other writing mentioned in the four preceding sections, knowing the
same to be false, forged or altered, shall be punished by imprisonment in
the state prison for not more than ten years or in jail for not more than
two years. woi, 37i, § 2.
R. L. 209, § 3.
1909, 155, § 2.
2 Gray, 70.
9 Gray, 123.
10 Gray, 477. 483.
11 Gray, 305.
2 Allen. 165.
188 Mass. 91.
I
Chap. 267.] forgery, crimes ag.\inst the currency. 2729
1 Section 6. Whoever, with intent to injure or defraud, utters and foTRed'fai]-
2 publishes as true a false, forged or altered railroad ticket, railroad mileage road ticket,
3 book or railroad pass, or a ticket, badge, pass or any written or printed isdi, 371, § 2.
4 license purporting to entitle the holder or owner thereof to admission 1909; iss! § 2.
5 to any exhibition, entertainment, performance, match or contest of any
C kind mentioned in section two, knowing the same to be false, altered or
7 forged, shall be puiiished by imprisonment in the state prison for not
8 more than three years or in jail for not more than two years, or by a fine of
9 not more than five hundred dollars.
1 Section 7. Whoever, with intent to injure or defraud, falsely makes, Forging note
2 alters, forges or counterfeits a note, certificate or other bill of credit and receiver
3 issued by the state treasurer, or by any commissioner or other officer f8o"'i2a § 2.
4 authorized to issue the same for a debt of this commonwealth, shall be §; |; \ll[ | 3;
5 punished by imprisonment in the state prison for life or for any term of r. i,.^209,\^4.
6 years.
1 Section 8. Whoever, ■with intent to injure or defraud, falsely makes, Forging bank
2 alters, forges or counterfeits a bank bill or promissory note payable to i7si° m° "'
3 the bearer thereof or to the order of any person, issued by any incor- \lll\ ii! 1 1
4 porated banking company, shall be punished by imprisonment in the R^s.'ii?;!!
5 state prison for life or for any term of years. g. s. 162, § 4.
p. S. 204, §4. E. L. 209, §5. 1 Mass. 62, 203. 11 Gray, 306.
1 Section 9. Whoever has in his possession at the same time ten or Possession of
2 more similar false, altered, forged or counterfeit notes, bills of credit, counTeHeT
3 bank bills or notes, such as are mentioned in any of the preceding sec- hueAtTeti.
4 tions, payable to the bearer thereof or to the order of any person, know- ^°^' J|^; 1 1
5 ing the same to be false, altered, forged or counterfeit, with intent to utter p- 1- 1«|' | s-
6 or pass the same as true, and thereby to injure or defraud, shall be pun- ^^l^j;°^^| ''•
7 ished by imprisonment in the state prison for life or for any term of iss.
8 years.
8 Mass. 59, 107. 4 Pick. 232. 19 Pick. 124. 97 Mass. 570.
1 Section 10. Whoever utters or passes or tenders in payment as true Passing
2 any such false, altered, forged or counterfeit note, certificate or bill of b™ "r^forged
3 credit for any debt of the commonwealth, or a bank bill or promissory no4-5, s. § i.
4 note payable to the bearer thereof or to the order of any person, issued Hf^l] H]
5 as aforesaid, kno-wing the same to be false, altered, forged or counterfeit, JJ^^g; %^^ ^■
6 with intent to injure or defraud, shall be punished by imprisonment in the flyi^l' ^^' ^^
7 state prison for not more than five years, or by a fine of not more than i"8-9; 25',
8 one thousand dollars and imprisonment in jail for not more than one irei, 34.
9 year. i783, ss, § 3. i785, 21, § 5.
1804, 120, § 3. p. S. 204, § 6. 11 Gray, 306.
R. S. 127, § 6. R. L. 209, § 7. 2 Allen, 165.
G. S. 162, I 6. 11 Mass. 136. 4 Allen. 305.
1 Section 11. Whoever, having been convicted of the crime mentioned vkSod, a°nd
2 in the preceding section, is again couA-icted of the like crime committed *'?'jfo™°;
3 after the former conviction, and whoever is at the same sitting of the same sitting.
4 court convicted upon three distinct charges of such crime, shall be ad- iso4; 120, § 3.
5 judged a common utterer of counterfeit bills, and be punished by imprison- a. s. 102; 1 7'.
6 ment in the state prison for not more than ten years.
p. S. 204, § 7. R. L. 209, § S.
2730
FORGERY, CRIMES AGAINST THE CURRENCY. [ChAP. 267.
Ha^'ing
counterfeit
bill, with
intent, etc.
1804, 120, § 4.
1833, 222. § 1.
R. S. 127, I 8.
1S36, 4.
§§ 15. 16.
G. S. 162. § 8.
P. S. 204. § 8.
R. L. 209, § 9.
2 Mass. 132,
138.
7 Pick. 137.
3 Met. 460.
8 Met. 235.
Section 12. Whoever brinjjs into this commonwealth or has in his 1
possession a false, forged or counterfeit bill or note, in the similitude of 2
the bills or notes, payable to the bearer thereof or to the order of any 3
person, issued by or for any bank or banking company, with intent to utter 4
or pass the same or to render the same current as true, knowing the same 5
to be false, forged or counterfeit, shall be punished by imprisonment in 6
the state prison for not more than five years, or bj-' a fine of not more 7
than one thousand dollars and imprisonment in jail for not more than 8
one Vear. lO Gray, 472. 10 Alien, 184. 9
1.
Making or
having tool,
etc., for
counterfeit-
ing, with
intent, etc.
1704-5, 8, §
1720-1, 10.
1735-6, 18.
1775-6, 18. § 1.
1776-7, 44, § 1.
1783, S3. § 4.
1804, 120, § 5.
1833, 222, § 2.
R. S. 127, § 9.
G. S. 162, § 9,
P. S. 204. I 9.
P. L. 209. § 10.
2 Mass. 128.
Section 13. Whoever engraves, makes or mends, or begins to engrave, 1
make or mend, a plate, block, press or other tool, instrument or imple- 2
ment, or makes or pro\ades paper or other material adapted to and 3
designed for the forging or making of a false and counterfeit note, certifi- 4
cate or other bill of credit, purporting to be issued by lawful authority 5
for a debt of the commonwealth, or a false and counterfeit note or bill 6
in the similitude of the notes or bills issued by any bank or banking com- 7
pany, and whocNer has in his possession such a plate or block engraved S
in any part, or a press or other tool, instrmnent or implement, or paper or 9
other material, adapted and designed as aforesaid, with intent to use the 10
same or to cause or permit the same to be used in forging or making 11
such false and counterfeit certificates, bills or notes, shall be punished 12
by imprisonment in the state prison for not more than ten years, or by 13
a fine of not more than one thousand dollars and imprisonment in jail 14
for not more than two vears. 15
Testimony of
president, etc.,
of bank, dis-
pensed with
in certain cases.
1818, 110.
1833, 222, § 3.
R. S. 127, § 10.
G. S. 162, § 10.
P. S. 204. § 10,
R. L. 209, § 11.
2 Pick. 47.
5 Gush, 605.
Section 14. In prosecutions for forging or counterfeiting notes or 1
bills of the banks before mentioned, or for uttering, publishing or tender- 2
ing in pajTnent as true forged or counterfeit bank bills or notes, or for 3
being possessed thereof with intent to utter and pass the same as true, 4
the testimony of the president and cashier of any such bank may be 5
dispensed with, if their place of residence is out of the commonwealth &
or more than forty miles from the place of trial; and the testimony of 7
any person acquainted with the signature of such president or cashier, 8
or who has knowledge of the difference in the appearance of the true and 9
the counterfeit bills or notes of such banks, may be admitted to prove 10
tliat such bills or notes are counterfeit. 11
Section 15. In prosecutions for forging or counterfeiting a note,
Sworn certifi-
cates of cer-
madefvidence. Certificate, bill of credit or other security issued on behalf of the United
iZsl'm. §11. States, or on behalf of any state or territory, or for uttering, publishing
G- s.^162. § 11. or tendering in pajmient as true such forged or counterfeit note, certifi-
r'. l. 209, § 12. cate, bill of credit or security, or for being possessed thereof with intent
to utter or pass the same as true, the certificate under oath of the secre-
tary of the treasm-y, or of the treasurer of the United States, or of the
secretary or treasurer of any state or territory, on whose behalf such
note, certificate, bill of credit or security purports to have been issue*!,
shall be admitted as evidence for the purpose of proving the same to be 10
forged or counterfeit. 11
Section 16. If a fictitious or pretended signature, purporting to be 1
Affixing
fictitious
R^s!*]'27, § 13 the signature of an officer or agent of a corporation, is fraudulently 2
G. s. 162, § 12. affixed to an instrument or writing purporting to be a note, draft or 3
Ch.\P. 267.] FOKGEKY, CRIMES AGAINST THE CUKEENCY. 2731
4 other evidence of debt issued by such corporation, with intent to pass p. s. 204, § 12
5 the same as true, it shall be a forgery, although no such person may ever 2 Mass. 77.
6 have been an officer or agent of such corporation, or ever have existed.
1 Section 17. Wtoever counterfeits any gold or silver coin current by Counterfeiting
2 law or usage within the commonwealth, or has in his possession at the ten counter-
3 same time ten or more pieces of false money, or coin counterfeited in i"702-'3,''2!'
4 the similitude of any gold or silver coin current as aforesaid, knowing |74g_|o,
5 the same to be false and counterfeit, and with intent to utter or pass the j^gl^'go.
6 same as true, shall be punished by imprisonment in the state prison for ^oi. 120, |fi.^
7 life or for any term of years.
G. S. 162, § 14. R. L. 209. § 14. 8 Met. 313. 13 Met. 514.
P. S. 204, § 14. 21 Pick. 523. 10 Met. 256. 1 Gray, 564.
1 Section 18. WTioever has in his possession less than ten pieces of J^tn tmi'p'iecea,
2 the counterfeit coin mentioned in the preceding section, knowing the ^^'^ utSng
3 same to be counterfeit, with intent to utter or pass the same as true, counterfeit
4 or utters, passes or tenders in payment as true any such counterfeit 1804. 120, 5 7.
5 coin, knowing the same to be false and counterfeit, shall be punished by g'. s. w2, § is!
6 imprisonment in the state prison for not more than ten years or by a r. l.^2°o1). \ W
7 fine of not more than one thousand dollars and imprisonment in jail ^J Met.' III.'
8 for not more than two years. is Met. 514. 1 Gray, 564.
1 Section 19. Whoever, having been convicted of any of the crimes second convic-
2 mentioned in the preceding section, is again convicted of the same crimes co°nvictions at
3 committed after the former conviction, and whoever is at the same ilo4',*i2o."f'7.
4 sitting of the court convicted upon tliree distinct charges of said crimes, g; | [jj^^ | H
5 shall be adjudged a common utterer of counterfeit coin, and punished by ^ l.^209.\^i6.
6 imprisonment in the state prison for not more than twenty years. "' Met. 5U.
1 Section 20. Whoever casts, stamps, engraves, makes or mends, or Making, mend-
2 knowingly has in his possession a mould, pattern, die, puncheon, engine, tool for coin-
3 press or other tool or instrument, adapted to and designed for coining or lenl'^e'ti^. '""
4 making counterfeit coin, in the similitude of any gold or silver coin current ^°^[ Jl?; | \g
5 by law or usage in the commonwealth, with intent to use or employ the pIzM^u?^'
6 same or to cause or permit the same to be used or employed in coining or f jJ^^^^Pvi^ ^^■
7 making any such false and counterfeit coin as aforesaid, shall be punished
8 by imprisonment in the state prison for not more than ten years or by
9 a fine of not more than one thousand dollars and imprisonment in jail
10 for not more than two years.
1 Section 21. 'Whoever issues or passes a note, bill, order or check, issuing or
2 other than foreign bills of exchange, the notes or bills of a bank incor- as currency.
3 porated by the laws of this commonwealth, of the United States, of some etc"^"*''''
4 one of the United States or of anv of the British provinces of North R^|'|tfj7o.
------ G. S. 162, § IS
P. S. 204, § IS.
5 America, with the intent that the same shall be cu-culated as currency, p.l.'aa"'-^ '^
I
6 shall be punished by a fine of fifty dollars. R. l. 209, § is.
1 Section 22. ^\Tioever issues or passes a note, bill, order or check, issuing small
2 other than the notes or bills of a bank incorporated under the authority currency.'
3 of this commonwealth, of the United States or of some one of the United isw'^ss';''''
4 States, for an amount less than five dollars, or whereon a less amount lli;^{,
5 than five dollars is due at the time of such issuing or passing thereof,_with g- f; \li,^^-^c,^
G intent that the same shall be circulated as currency, shall be punished p s- 204,'§ lu.
7 by a fine of fifty dollars. R- L- 209, j 19.
2732
FORGERY, CRIMES AGAINST THE CURRENCY. [ChAP. 267.
&ct'Jona?buf. Section 23. \\Tioever receives or puts in circulation as currency a
cf^s'iel'llo ^^^^ note or bill which is, or a part of which is, for any fractional part
p. s. 204, 1 20. of a dollar shall be punished by a fine of twenty-five dollars.
R. L. 209, § 20.
rjnneclmg"'' Section 24. '\\Tioever fraudulently connects different parts of sev-
Ea^ notes ^^^^ bank notes or other genuine instruments in such manner as to
R°s 127 5 12 produce one additional note or instrument, with intent to pass all of
g! s. 162; § 2r them as genuine, shall be guilty of forgery, in like manner as if each of
R. L. 2a9,"§ 2i. them had been falsely made or forged. lo Mass. 34.
m^idous^ Section 25. ^^^loever wilfully and maliciously tears, cuts or in any
mjurytobank manner damages and impairs the usefulness for circulation of a bank
1852.64 bill or note of a bank in this commonwealth shall be punished by a fine
p.'s'204,'§ 22.' of not more than ten dollars; but the possession or uttering of a bill so
■ ■ ' "■ injured shall not be evidence against a party charged, unless connected
with other circumstances tending to prove that the bill or note was
injured by him.
Malicioiisly
gathering up,
etc.. bills of
bank for
purpose of
injuring busi-
ness, etc.
Penalty.
1859. 116,
5§3.4.
G. S. 162,
P. S. 204
§23.
23.
R. L. 209, i 23.
Section 26. \Mioever maliciously gathers up or retains or maliciously 1
aids in gathering up or retaining bills or notes of a bank or banking com- 2
pany, current by law or usage in the commonwealth, for the purpose of 3
injuring or impeding the circulation or business of such bank or banking 4
company, or of compelling it to do any act out of the usual course of its 5
business, shall be punished by a fine of not more than five hundred dol- 6
lars or by imprisonment for not more than two years; and in the prose- 7
cution of any such crime it shall not be necessary to set out and describe 8
each bill, but it shall be sufficient to aver and prove any amount of the 9
bills of any bank which have been so gathered up or retained. 10
Possession of
worthless bills,
not current,
1857, 231, I 1.
G. S. 162. § 24.
P. S. 204. 5 24.
R. L. 209, § 24.
1914, 635.
1918, 257,
§464.
1919, 5.
1920, 2.
Section 27. WTioever has in his possession at the same time five or 1
more bank bills or notes not current which are worthless as bank bills or 2
notes, knowing the same to be worthless as aforesaid, or has papers not 3
bank bills or notes, but made in the similitude thereof, or papers pur- 4
porting to be the bills or notes of a bank which has never existed, knowing 5
the character of such papers, with intent to pass, utter or circulate the 6
same, or to procure any other person so to do, for the purpose of injuring 7
or defrauding, shall be punished by imprisonment in the state prison for 8
not more than five years, or by a fine of not more than five hundred 9
dollars and imprisonment in the house of correction for not more than two 10
and one half years. 11
uttering or
gassing such
ill, etc.
1857, 231, § 2.
G. S. 162. § 25.
P. S. 204. § 25
R. L. 209, § 25.
1914, 635.
1918, 257,
§464.
1919, 5.
1920, 2.
7 Allen, 537.
Section 28. ^^^loe^•e^ utters or passes or tenders in pajTnent as true 1
any such worthless bank bill or note not current, or any paper not a 2
bank bill or note but made in the similitude thereof, or any paper pur- 3
porting to be the bill or note of a bank which has never existed, knowing 4
the same to be worthless and not current, as aforesaid, with intent to 5
injure and defraud, shall be punished by imprisonment in the state 6
prison for not more than five years, or by a fine of not more than five 7
hundred dollars and imprisonment in the house of correction for not 8
more than two and one half years. 9
Engra^nng,
etc., shop bil],
resembling
bank bills.
Section 29. ^^Tioever engraves, prints, issues, utters or circulates a 1
shop bill or advertisement, in similitude, form and appearance like a bank 2
Chap. 268.]
CRIMES AGAINST PUBLIC JUSTICE.
2733
3 bill, on paper similar to paper used for bank bills, and with vignettes, is49. s.
4 figures or decorations used on bank bills, or having the general appear- isel', gsT'
5 ance of a bank bill, or in similitude, form and appearance, like a treas- R.L.Iog.lle.
6 ury note, note, certificate, bill of credit or other security issued by or
7 on behalf of the United States, on paper similar to paper used for the
8 same, respectively, and with vignettes, figiu-es or decorations used thereon,
9 or having the general appearance of a treasury note, note, certificate,
10 bill of credit or other security issued by or on behalf of tlie United States,
11 shall be punished by a fine of not more than fifty dollars or by impris-
12 onment in jail for not more than three montlis.
1 Section 30. When false, forged or coimterfeit bank bills or notes, sheriff, etc.,
2 or forged or counterfeit notes or bonds of any state or corporation, or counterfeit
3 plates, dies or other tools, instruments or implements used by counter- isss.'ibs, § i.
4 feiters, or designed for the forging or making of false or counterfeit notes, ^^^- ^^|' | .^^
5 coin or bills, or worthless bank bills or notes not current described in i^g^'^^j ^v
6 sections twenty-seven and twenty-eight, come to the knowledge of a R. l. 209, § 27.
7 sheriff, constable, police officer or other officer of justice, he shall im-
8 mediately seize and take possession of and deliver them into the custody
9 of the superior court, which shall cause them to be destroyed by an
10 officer of the court, who shall make return to the court of his doings in
11 the premises.
1 Section 31.
Upon a conviction of any crime mentioned in sections compensation
2 seven, eight, seventeen, eighteen, twenty or twenty-eight or upon for- llJ^^lt"""^"^^'
3 feiture by persons prosecuted for any such crime of any recognizance for ^iji^l^^^'^'
4 their appearance to answer to the same, the superior court may order }7i|_jg jg
5 compensation to the prosecutor and to the officer who has secured and 'J-'^-so.
6 kept the e\'idence of the crime, not exceeding their actual expenses, with iso4, 120, § e.
7 a reasonable allowance for their time and trouble, which shall be paid by r. s.' 127, § 19.
8 the county.
G. S. 162
i2S.
1S45, 153; 248.
1860, 191, § 10.
184C, 142.
R. L. 209, § 28.
CHAPTER 268.
CRIMES AGAINST PUBLIC JUSTICE.
Sect.
1. Perjury.
2. Subornation of perjury.
3. Inciting to perjury.
4. Commitment on presumption of per-
jury.
5. Papers, etc., may be detained.
6. Penalties for making false report, etc.,
to department of public utilities, etc.
7. Bribe to officer.
8. Acceptance of bribe by officer.
Taking bonus, etc., by public officer.
Taking bonus, etc., by member of legis-
lature, city council, etc.
Taking bonus by county officer.
Bribery of officer of public institution.
9.
10.
11.
12.
Sect.
13. Corrupting juror, arbitrator, etc.
14. Acceptance of bribe by juror, arbi-
trator, etc.
15. Aiding escape from prison, and rescu-
ing prisoner.
16. Penalty for escapes or attempted es-
capes from penal institutions.
17. Aiding escape from an officer.
18. Officer suffering escape.
19. Suffering or consenting to escape from
state prison.
20. Negligently suffering escape, or refus-
ing to receive prisoner.
21. Leaving pri-soner at large.
22. Delay of service of warrant.
2734
CRIMES AGAINST PUBLIC JUSTICE.
[Ch.\p. 268.
Se
23
24
25,
:CT.
28.
29.
30.
. Refusal to arrest, and suffering escape.
:. Refusal to aid officer.
Refusal to arrest upon order of a justice
of the peace.
Furnishing liquor to prisoner.
Penalty for furnishing intoxicating
liquors to patients of public institu-
tions.
Penalty for giving articles to prisoners
without permission.
Same subject.
Penalty for disturbing penal institu-
tions.
Sect.
31. Illicit conveyance of articles to or from
prisons.
32. Interference with police signal systems.
33. Falsely assuming to be a justice of the
peace, etc.
34. Disguising to resist execution of the law.
35. Unauthorized use of seal of city or
town, or of badge of officer.
36. Concealing and compounding felony.
37. Officer taking bribe for neglecting his
duty.
38. Extortion of illegal fees.
Perjury.
B. L. 94, § 11.
C. L. IS, § 11.
1692-3, 18. § 9.
1784, 51, § 1.
1797, 35, § 10.
1812, 144, § 1.
1824, 91, § 2.
1829. 56.
R. S. 94, § 12;
128, §§ 1, 2.
G. S. 163,
§§ 1, 2.
P. S. 205,
§§ 1. 2.
1892, 123.
1898, 562,
§112.
R. L. 210, § 1.
1912,719, § 9.
1914, B.fS.
1917, 16.5, § 2.
1918, 257,
§ 464.
Subornation
of perjury.
1692-3,
18, § 9.
Section 1. Whoever, being lawfully required to depose the truth 1
in a judicial proceeding or in a proceeding in a course of justice, wilfully 2
swears or aiSrins falsely in a matter material to the issue or point in 3
question, or whoever, being required by law to take an oath or affirma- 4
tion, wilfully swears or affirms falsely in a matter relative to which such 5
oath or affirmation is required, shall be guilty of perjiu-y. Whoever 6
commits perjury on the trial of an indictment for a capital crime shall 7
be punished by imprisonment in the state prison for life or for any term 8
of years, and whoever commits perjury in any other case shall be punished 9
by imprisonment in the state prison for not more than twenty years or 10
by a fine of not more than one thousand dollars or by imprisonment in 11
jail for not more than two and one half years, or by both such fine and 12
imprisonment in jail. 1919,5. 1920,2. 13
12 Mass. 273.
15 Gray, 43S.
5 Allen. 499.
108 Mass. 473.
116 Mass. 17.
129 Mass. lis.
150 Mass. 160.
166 Mass. 174.
— ^.-„.. _. Whoever is guilty of subornation of perjury, by procuring
another person to commit perjury, shall be punished as for perjury.
"" '' R. S. 128, I 3. P. S. 205, §3. 11 Allen, 243.
Section 2
1784, 51, § 2.
1812, 144, § 2.
R. S. 128, i
G. S. 163,
jr. o. ^yjo, so. XL Alien, ^to.
R. L. 210, § 2. 152 Mass. 498.
Inciting to
perjury.
1784, 51. § 3.
1812, 144, § 3.
R. S. 128, § 4.
G. S. 163, § 4.
P. S. 205, § 4.
Section 3. Wlioever attempts to incite or procure another person
to commit perjury, although no perjury is committed, shall be punished
by imprisonment in the state prison for not more than five years or in
jail for not more than one year. R. l. 210, § 3. 161 Mass. 120.
G. S. 163, § 5.
p. S. 205, I 7.
R. L. 210, § 4
on^JSSip'tion Section 4. If it appears to a court of record that a party or a witness 1
R ^^"i'28''i 6 ^^^° ^^^ been legally sworn and examined, or has made an affidavit, in any 2
proceeding in a court or course of justice has so testified as to create a 3
reasonable presumption that he has committed perjury therein, the court 4
may forthwith commit him or may require him to recognize with sureties 5
for his appearance to answer to an indictment for perjury; and thereupon 6
the witnesses to establish such perjury may, if present, be bound over to 7
the superior court, and notice of the proceedings shall forthwith be given 8
to the district attorney. 9
Section 5. If perjury is reasonably presumed, as aforesaid, papers,
Papers, etc.,
may be de- _ , _ , , _ _
R."s.''i2s, § 7. books or documents wliich have been produced and are considered neces-
p's'2oi'is' ^'^^ *° ^^ used on a prosecution for such perjiu-y may by order of the
R. L. 210, § 5. court be detained from the person who produces them so long as may
be necessary for their use in such prosecution.
CbAP. 268.] CRIMES AGAINST PUBLIC JUSTICE. 2735
1 Section 6. Except as provided in sections forty-eight and forty-nine Penalties for
2 of chapter one hiuidred and fifty-five, whoever shall wilfully make false Pepon^etcrto
3 report to the department of public utilities, the department of public pSic'utiiities,
4 works, the department of banking and insurance', or the commissioner *J,1j jg^
5 of corporations and taxation, or who, before any such department or l?\%"'*i^^9
6 commissioner, shall testify or affirm falsely to any material fact in any
7 matter wherein an oath or affirmation is required or authorized, or who
8 shall make any false entry or memorandum upon any book, report, paper
9 or statement of any company making report to any of the said depart-
10 ments or commissioners, with intent to deceive the department or com-
11 missioner, or any agent appointed to examine the affairs of any such
12 company, or to deceive the stockholders or any officer of any such com-
13 pany, or to injure or defraud any such company, and any person who
14 with like intent aids or abets another in any violation of this section
15 shall be punished by a fine of not more than one thousand dollars or by
16 imprisonment for not more than one year, or both.
1 Section 7. ^\^loever corruptly gives, offers or promises to a legis- Bribe to officer.
2 lative, executive, judicial, county or municipal officer, after his election g'. s. li.s.' § j'.
3 or appointment, either before or after he has qualified or has taken his isq^i, m9',\^i.
4 seat, any gift or gratuity whatever, with intent to influence his act, ^ss^Mas^' Iso.
5 vote or opinion, decision or judgment upon any matter, ciuestion, cause JyoMassPs'
6 or proceeding which may be then pending, or which may by law come 216 Mass. 121;.
7 or be brought before him in his official capacity, or as a consideration
8 for any speech, work or service in connection therewith, shall be pun-
9 ished by imprisonment in the state prison for not more than five years
10 or by a fine of not more than three thousand dollars and imprisonment
11 in jail for not more than one year.
1 Section 8. A legislative, executive, judicial, county or municipal bribe''by°offi°er
2 officer who corruptly requests or accepts a gift or gratuity or a promise to g- 1- 128, § ».
3 make a gift or to do an act beneficial to him, under an agreement or with p.s.'205,'§ ia
4 an understanding that his vote, opinion or judgment shall be given in r. l'. 210, §7.
5 any particular manner, or upon a particular side of any question, cause ^''^ *'"'"'■ *''
6 or proceeding, which is or may be by law brought before him in his
7 official capacity or as a consideration for any speech, work or service
8 in connection therewith, or that, in such capacity, he shall make any
9 particular nomination or appointment, shall forfeit his office, be forever
10 disqualified to hold any public office, trust or appointment under the
11 constitution or laws of the commonwealth, and be punished by impris-
12 onment in the state prison for not more than ten years or by a fine of
13 not more than five thousand dollars and imprisonment in jail for not
14 more than two years.
1 Section 9. An officer or agent of, or a person employed by, the Taking bonus.
2 commonwealth, or by a county, city, town or by any public institution omcer.^ ''"
3 not mentioned in section twelve who, being authorized to procure ma- §§'^f;2°''
4 terials, supplies or other articles either by purchase or contract, or to fjg^an'.W.'
5 employ service or labor, receives, directly or indirectly, for himself or R- l. 216, § 8.
6 for another, a commission, discount, bonus, present or reward from the
7 person who makes such contract, furnishes such materials, supplies or
8 other articles, or from a person who renders service or labor under such
9 contract, and a person who gives or offers such commission, discount.
2736
CRIMES AGAINST PUBLIC JUSTICE.
[Chap. 268.
Taking bonus,
etc., by mem-
ber of legisla-
ture, city
council, etc.
1872, 274.
1875, 232.
P. S. 205, § 12.
R. L. 210, § 9.
122 IVlass. 629.
195 Mass. 173.
lOp A. G.
502.
bonus, present or reward, shall be punished by a fine of not less than 10
ten nor more than five hundred dollars or by such fine and imprisonment 1 1
for not more than one year. 12
Section 10. A member of the general court, or of the executive 1
council, or of a state department or commission, who is personally 2
interested, directly or indirectly, in a contract made by the general court 3
or by either branch thereof or by such department or commission or by 4
its authority, in which the commonwealth is an interested party; or a 5
person, so interested, who alone or with others represents the common- 6
wealth in making such contract; or such member or person who receives 7
a commission, discount, bonus, present or reward from a person or persons 8
making or performing such contract; or a member of a city council or 9
any branch thereof or of a municipal board of a city who is personally 10
interested, directly or indirectlj', in a contract made by the city council 11
or by any branch thereof, or by such board or by authority derived 12
therefrom, in which the city is an interested party; or a person, so 13
interested, who alone or with others represents a city in making such 14
contract; or such member or person who, directly or indirectly, for him- 15
self or for another receives a commission, discount, bonus, present or 16
reward from any person or persons making or performing such contract, 17
shall be punished by a fine of not less than fifty nor more than one thou- 18
sand dollars or by such fine and imprisonment for not more than one 19
year. 20
by^'ounty""" SECTION 11. A couuty officcr who is personally interested, directly 1
1S93T271 § 2 °r indirectly, in a contract made by the county treasurer, county commis- 2
R. L. 210, § 10. sioners, or by their authority, in which the county is an interested party 3
or a person who alone or with others represents a county in making such 4
contract, who is so interested, or such officer or person who, directly or 5
indirectly, for himself or for another, receives a commission, discount, 6
bonus, present or reward from a person making or performing such 7
contract, shall be punished as provided in the preceding section. 8
Section 12. An officer connected with a prison, house of correction,
state hospital or other public charitable institution who is personally
Bribery of
officer of
public institu-
187^2.282. interested, directly or indirectly, in a contract, purchase or sale made
R. ^"216, § ii. on account of such institution, or who corruptly accepts a bribe, present
or gratuity from any person interested in such contract and a person
interested, directly or indirectly, in a contract connected with any such
institution who corruptly gives, offers or promises to an officer of such
institution a bribe, gift or gratuity, shall be punished by imprisonment
in the state prison for not more than three years or by a fine of not more
than one thousand dollars or by imprisonment in jail for not more than
two years or by both such fine and imprisonment in jail.
Section 13. Whoever corrupts or attempts to corrupt a master in
10. chancery, master, auditor, juror, arbitrator, umpire or referee by giving.
Corrupting
juror, arbi-
trator, etc.
R. S. 128, I .
ps'2(w '§ 14 offering or promising any gift or gratuity whatever, with intent to in-
R. L. 210, § 12. fluence his opinion or decision, relative to a cause or matter pending in
a court, or before an inquest, or for the decision of which he has been
chosen or appointed, shall be punished by imprisonment in the state
prison for not more than five years or by a fine of not more than one
thousand dollars and imprisonment in jail for not more than one year.
1
2
3
4
5
6
7
8
9
10
11
1
2
3
4
5
6
7
8
Chap. 268.] crimes against public justice. 2737
1 Section 14. Whoever, being summoned as a juror or chosen or Acceptance of
2 appointed as an arbitrator, umpire or referee, or, being a master in afbi?rafor,"etc.'
3 chancery, master or auditor, corruptly takes anything to give his verdict, §; §; }o|; | }J;
4 award or report, or corruptly receives any gift or gratuity from a party ^- 1; ^^^^ ^^ ^j
5 to a suit, cause or proceeding for the trial or decision of which such juror i74 Mass.' 79.
6 has been summoned, or for the hearing or determination of which such
7 master in chancery, master, auditor, arbitrator, umpire or referee has
8 been chosen or appointed, shall be punished by imprisonment in the
9 state prison for not more than five years or by a fine of not more than
10 one thousand dollars and imprisonment in jail for not more than one
11 year.
1 Section 15. Whoever conveys into the state prison, the Massa- Aiding escape
2 chusetts reformatory or reformatory for women, or into a jail, house of inTres"u'iSg
3 correction, house of reformation or like place of confinement, a disguise, g''L"i27 § 4
4 instrument, tool, weapon or other thing which is adapted or useful to n°3%^'^'
5 aid a prisoner in making his escape, with intent to aid the escape of a i'S*. 4i. § 2.
6 prisoner, or whoever, by any means, aids or assists such prisoner in §§ o.'s
7 endeavoring to escape therefrom, whether such escape is effected or isi?! us! §24.
8 attempted or not, and whoever forcibly or fraudulently rescues or at- f44^§'4f.' ^ '^'
9 tempts to rescue a prisoner held in custody upon a conviction or charge ^_,gS- 1|3, § ii;
10 of crime, shall, if the person whose escape or rescue was effected or in- 2oAmo' ^ ''''
1 1 tended is a convict under sentence in the state prison or is charged r" l 210, § 14.
12 with a felony, be punished by a fine of not more than five hundred
13 dollars or by imprisonment in the state prison for not more than ten
14 years; but if he is a convict under sentence in any other of said institu-
15 tions, by imprisonment in the state prison for not more than seven years;
16 and if he is charged with a misdemeanor, then by a fine of not more
17 than five hundred dollars or by imprisonment in jail for not more than
18 two years.
1 Section 16. A prisoner who escapes or attempts to escape from any Penalty for
2 penal institution, or from land appurtenant thereto, or from the custody Attempted
3 of any officer thereof or wliile being conveyed to or from any such institu- peMUnsutlj-
4 tion, may be pursued and recaptured and shall be punished by imprison- I'goj- jjg
5 ment in the institution to which he was originally sentenced, for a term ||.*1' '9,
6 not exceeding five years. If the prisoner has escaped or attempted to §§y,'io.'
7 escape from the prison camp and hospital, the expense of supporting him 1827! ua,
8 shall be paid by the institution to which he is sentenced and the expense i834l'i5f, § 14.
9 of committing him shall be paid by the prison camp and hospital. In f^ |(,i|f: 144^
10 imposing sentence under this section the court shall observe the pro- flj^'g^*-
1 1 visions of law regarding sentences and commitments to the various penal g. s.'ns § 46;
-,0 . .., ,. 1/9, |§ 53, 5-1.
12 institutions.
1866.198,5 5. 1885, 94, §§2, 3. 1918, 257, § 464.
1870, 288, § 3. R. L. 85, § 33; 1919, 5.
1873, 73, § 1. 210, §§ 15-18. 1920, 2; 380.
1880, 257, § 8. 1903, ISS. 4 Met. 360.
P. S. 88, § 8; 220, § 50; 1904, 243, § 2. 5 Met. 555.
221, §§ 36, 37. 1905, 355, § 3. 5 .yien, 130.
1882, 198. 1916, 187. Op. A. G. (1920) 95.
1 Section 17. Whoever aids or assists a prisoner in escaping or attempt- Aiding escape
2 ing to escape from an officer or person who has the lawful custody of such officer!"
3 prisoner shall be punished by a fine of not more than five hundred dollars [HI] us, fk.
4 or by imprisonment for not more than two years. R. s. i28, § i3,
G.S. 163, §12. P. S. 205, §17. R. L. 210, § 21. 119 jlass. 297.
2738
CRIMES AGAINST PUBLIC JUSTICE.
[Chap. 268.
Officer suffering
escape-
1700-1, 2, § 6.
1784.41. § 3.
R. S. 128. § 14.
G. S. 163, I 13.
P. S. 205. § 18.
R. L. 210, § 25.
Section 18. A jailer or officer who, except as provided in the follow- 1
ing section, voluntarily suffers a prisoner in his custody upon conviction 2
or upon a charge of crime to escape shall suffer the punishment and 3
penalties to which the prisoner whom he suffered to escape was sentenced 4
or would be liable to suffer upon conviction of the crime where^nth he 5
stood charged. 6
Suffering or
consenting to
escape from
state prison.
1805, 113, § 6.
1827, 118, §22.
R. S. 144, 5 39.
Section 19. An officer or other person, who, being employed in the 1
state prison, voluntarily suffers a convict confined therein to escape, or 2
in any way consents to such escape, shall be punished by imprisonment 3
in said prison for not more than twenty j'ears. 4
G. S. 179, I 55. P. S. 221, § 38. R. L. 210, J 26.
Section 20. A jailer or officer who, tlirough negligence, suffers a
Negligently
suffering
fusiTg^to receive prisoner in his custody upon conviction or upon a charge of crime to
^"lT28 5 2 escape, or wilfully refuses to receive into his custody a prisoner lawfully
directed to be committed thereto upon conviction, upon a charge of
crime, or upon a lawful process, shall be punished by a fine of not more
than five hundred dollars or by imprisonment for not more than two years.
R. L. 210, § 27.
1700-1, 2, § 7.
1784, 41, § 3.
R. S. 128, I 15.
G. S. 163, § 14.
P. S. 205, § 19.
Leaving pris-
oner at large.
1805, 113, § 7.
1811,32, § 7.
1827, 118. §23.
G. S. 179. § 56.
P. S. 221, § 39.
R, L. 210, § 28.
Section 21. An officer or person who, being employed in the state 1
prison, suffers a con\'ict under sentence of solitary imprisonment to be 2
at large or out of the cell assigned to him, or suffers any convict confined 3
in the prison to be at large out of the prison, or to be visited, conversed 4
with or in any way relieved or comforted, contrary to the regulations of 5
the prison, shall be punished by a fine of not more than five hundred 6
dollars. 7
Section 22. An officer who wilfully delays service of a warrant of 1
arrest or a search warrant committed to him for service shall be pun- 2
3
Delay of
service of
warrant.
1899 389
R. l! 2io! § 29. ished by a fine of not more than fifty dollars
Refusal to
arrest, and
suffering
escape.
R. S. 128, § 16.
G. S. 163. § 15.
P. S. 205, § 20.
R. L. 210, § 30.
Refusal to aid
officer.
1795, 68, § 1.
R. S. 128, § 17.
1855. 45.
G. S. 163, § 16.
P. S. 205, § 21.
R. L. 210, §31.
Refusal to
arrest upon
order of a
justice of
tlie peace.
1795, 6S, § 3.
R. S. 128, § 18.
G. S. 163, § 17.
P. S. 205, § 22.
R. L. 210, § 32.
Section 23. An officer who, being authorized to serve process, wilfully 1
and corruptly refuses to execute a lawful process directed to him and 2
requiring him to apprehend or confine a person convicted of or charged 3
with crime, or wilfully and corruptly omits or delays to execute such 4
process, whereby such person escapes, shall be punished by a fine of not 5
more than five hundred dollars or by imprisonment for not more than 6
one year. 7
Section 24. \Mioever, being required in the name of the common- 1
wealth by a sheriff, deputy sheriff, constable, police officer or watchman, 2
neglects or refuses to assist him in the execution of his office in a criminal 3
case, in the preservation of the peace or in the apprehension or securing 4
of a person for a breach of the peace, or in a case of escape or rescue of 5
persons arrested upon civil process, shall be punished by a fine of not 6
more than fifty dollars or by imprisonment for not more than one month. 7
Section 25. Whoever, being required by a justice of tlie peace, 1
upon view of a breach of the peace or of any other offence proper for his 2
cognizance, to apprehend the offender, refuses or neglects to obey such 3
justice, shall be punished as provided in the preceding section; and no 4
person to whom such justice is known or declares himself to be a justice 5
of the peace shall plead any excuse on pretence of ignorance of his office. 6
Chap. 268.] crimes against public justice. 2739
1 Section 26. Whoever gives, sells or delivers spirituous or intoxicat- Furnishing
2 ing liquor to a person confined in any prison or other place of confine- pnsone"
3 ment, or to a person in the custody of a sheriff, constable, police officer, ^^^] J^J; | ll\
4 warden of a prison, or other master or keeper of a place of confinement, Jf^il' j'yg 5 43
5 or has in his possession, within the precincts of any prison or other place ?■ ^ 2|2, § 2.^
6 of confinement, any such liquor, with intent to convey or deliver it to any
7 person confined therein, except under the direction of the physician ap-
8 pointed to attend such prisoner, shall be punished by a fine of not more
9 than fifty dollars or by imprisonment for not more than two months.
2
1 Section 27. Whoever gives, sells or delivers any spirituous or in- Penalty for
toxicating liquor to any patient or inmate of any public institution, or to tox"catin| '"'
3 any patient or inmate under the control of any such institution, except patients of
4 under the direction of a physician authorized so to do, and whoever has fut'ions'."^"'
5 in his possession within the precincts of any such institution any such J^os, «o. ^^
6 liquor with intent to consume the same or to convey, give, sell or deliver isis. 63.
7 the same to any patient or inmate thereof, except under direction as afore-
8 said, shall be punished by a fine of not more than fifty dollars or by im-
9 prisonment for not more than two months.
1 Section 28. Whoever gives or delivers to a prisoner in the state Penalty for
2 farm, in the prison camp and hospital, or in any jail or house of correc- to prisoners
3 tion, any drug or article whatever, or has in his possession within the miLion* ''^'^'
4 precincts of any prison herein named with intent to give or to deliver to [HI] l^l; 5 1
5 any prisoner any such drug or article without the permission of the super-
6 intendent, master or keeper, shall be punished by a fine of not more than
7 fifty dollars or by imprisonment in a jail or house of correction for not
8 more than two months.
1 Section 29. A sheriff, jailer, master of a house of correction or officer Same subject.
• • 1S171 4Q
2 of a prison who, under any pretence, gives, sells or delivers or knowmgly §§ 3,'4. '
3 permits to be given, sold or delivered to a prisoner in his custody any spir- §§'2^;i.^*'
4 ituous liquor, or mixed liquor a part of which is spirituous, or wine, cider §f^2*o/|/;
5 or strong beer, unless the physician of the prison certifies in writing that j'jfg^gl'
6 the health of the prisoner requires it; or such sheriff, jailer, master of a |v|i 'J^'
7 house of correction or officer of a prison who willingly or negligently p. s'mo,'
8 suffers such prisoner to have or drink any spirituous, fermented or other r. L.210. § 20.
9 strong or mixed liquor, or who places or keeps together prisoners in his
10 custody of different sexes or classes, contrary to section twenty-two of
1 1 chapter one hundred and twenty-seven, shall forfeit twenty-five dollars
12 for the first offence and fifty dollars for any offence committed subsequent
13 to the first conviction, and, upon such second conviction, shall be re-
14 moved from office, and be ineligible to hold the office of sheriff, deputy
15 sheriff, jailer, master or keeper of any prison for five years thereafter.
16 If the physician certifies that the health of the prisoner requires such
17 liquor, the prisoner shall be allowed the quantity prescribed and no more.
1 Section 30. Whoever wilfully disturbs the state prison, Massa- ponaity for dis-
2 chusetts reformatory, reformatory for women, state farm, Lyman school, StuUonr'
3 industrial school for boys, industrial school for girls, prison camp and h^'^l! Ilo. § 22.
4 hospital, or a jail or house of correction, or in any manner seeks to attract J^OO' 255-
5 the attention of, or without the permission of the officer in charge has com- i9i8;257, §307.
6 munication with, an inmate thereof, shall be punished by a fine of not 1920'. 2.
2740
CRIMES AGAINST PUBLIC JUSTICE.
[Chap. 268.
more than fifty dollars or by imprisonment for not more than three 7
months. 8
Illicit convey-
ance of articles
to or from
prisons.
1805, 113, § 8.
1825, 84, § 4.
R. S. 144, § 42.
1838, 152, § 1.
G. S. 179, § 58.
1878. 133.
1879, 294, § 34.
P. S. 221, § 41.
1887, 339.
R. L. 210, § 23.
19U, 181.
1914, 635.
1918, 257,
§ 464.
1919, 5; 350,
§83.
1920, 2.
Interference
with police
eignal systems.
1888.291.
1901, 527.
R. h. 210, § 24.
Section 31. Whoever delivers or procures to be delivered, or has in 1
his possession w-ith intent to deliver, to a con\'ict confined in the state 2
prison, the Massachusetts reformatory or the reformatory for women, 3
or whoever deposits or conceals in or about the prison or either reforma- 4
tory, or the dependencies thereof, or upon any land appurtenant thereto, 5
or in any boat or vehicle goinj; into the premises belonging to the prison or 6
either reformatory, any article, with intent that a convict shall obtain or 7
receive it, and whoever receives from a convict any article with intent to 8
convey it out of the prison or reformatory, contrary to the rules and 9
regulations thereof, and without the knowledge and permission of the 10
commissioner of correction, of the warden of the state prison or the super- 1 1
intendent of either reformatory, respectively, shall be punished by a fine 12
of not more than five hundred dollars or by imprisonment in the state 13
prison for not more than three years or in jail for not more than two and 14
one half years. 15
Section 32. WhocA-er opens a signal box connected with a police 1
signal system for the purpose of giving or causing to be given a false 2
alarm, or interferes in any way with such box by breaking, cutting, in- 3
juring or defacing the same; or, without authority, opens, tampers or 4
meddles with such box, or with any part or parts thereof, or with the 5
police signal wires, or with anything connected thercAnth, or, with such 6
purpose, wantonly and without cause tampers or meddles with a signal 7
box connected with a fire signal system or with any part or thing con- 8
nected therewith, shall be punished by a fine of not more than five hun- 9
dred dollars or by imprisonment for not more than two years, or both. 10
Falsely
assuming to
be a justice
of the peace,
etc.
1795, 68, § 2.
R. S. 128, § 19.
G. S. 163, § 18.
1877, 200, § 24.
P. S. 205. § 23.
1898, 318.
1899, 178, § 7.
R. L. 210, § 33.
Section 33. Whoever falsely assumes or pretends to be a justice of
the peace, special commissioner, sheriff, deputy sheriff", medical examiner,
associate medical examiner, constable, police officer, or watchman, and
acts as such or requires a person to aid or assist him in a matter pertain-
ing to the duty of such officer, shall be punished by a fine of not more
than foul- hundred dollars or by imprisonment for not more than one
year. lo Cush. 6i.
J^Sel-^'" Section 34. Whoever disguises himself with intent to obstruct the
th"'i'°w°^ due execution of the law, or to intimidate, hinder or interrupt an officer
1809, 123. § 2. or other person in the lawful performance of his duty, or in the exercise of
G. s. 163; § 19! his rights under the constitution or laws of the commonwealth, whether
R.L. 210, S35. such intent is effected or not, shall be punished by a fine of not more
than five hundred dollars or by imprisonment for not more than one year
and may if imprisoned also be bound to good behavior for one year after
the expiration of such imprisonment.
Unauthorized SECTION 35. Whoever, without being dulv authorized thereto, prints,
use oi seaj ol i '• i l l
rity or town, stamps, engraves or affixes, or causes to be printed, stamped, engraved or
of officer. affixed to any paper or other article a representation of the seal of a town
p. s.'265, § 26. in the commonwealth, with intent to give to such paper or article an
R. L. 210, § 36. pf}5^,igj character which it does not possess, or, without being duly au-
thorized thereto, and with intent to assume an official character which
lie does not possess, casts, stamps, engraves, makes or has in his posses-
Ch-vp. 269.]
CRIMES AGAINST PUBLIC PEACE.
2741
8 sion a badge or thing in the likeness of an official badge of a police
9 officer, member of a fire department, or other officer appointed by a
10 town in the commonwealth, or by any department of such town, shall
1 1 be punished by a fine of not more than fifty dollars.
1 Section 36. WTioever, having knowledge of the commission of a Concealing
2 felony, takes money, or a gratuity or reward, or an engagement therefor, ™und°mg
3 upon an agreement or understanding, express or implied, to compound R''s.''i28, § 21.
4 or conceal such felony, or not to prosecute therefor, or not to give evidence PI 2o?'/27?'
5 thereof, shall, if such crime is punishable with death or imprisonment '^^ ^i^l°gi ^''
6 in the state prison for life, be punished by imprisonment in the state * Alien, 534.
T • f r +1 e • • -1 i- ,. ^1 12 Allen. 557.
I prison lor not more than n^-e years or in jail for not more than one year; 225 Mass. so.
8 and if such crime is punishable in any other manner, by a fine of not more
9 than five hundred dollars or by imprisonment in jail for not more than
10 two years.
1 Section 37. A sheriff, constable or other officer who, being authorized bni)'e'"fo*r*'''°^
2 to serve legal process, recei\es from a defendant or from any other person neglecting his
3 any money or other valuable thing as a consideration, reward or induce- R s.128, 1 22.
4 ment for omitting or delaving to arrest a defendant, or to carry him before p.' s.' 205.' § 28.'
*• • •RI2105 38
5 a magistrate, or for delaying to take a person to prison, or for postponing • ■ •
6 the sale of property under an execution, or for omitting or delaying to
7 perform any duty appertaining to his office, shall be punished by a fine of
8 not more than three hundred dollars or by imprisonment for not more
9 than three months.
1 Section 38. A recording officer who wilfully and corruptly demands Extortion of
2 and receives more than the legal fee for an official duty or service shall ic9^2-3.''37; § 2.
3 forfeit fifty dollars; and any other person who wilfully and corruptly de- r.^s.' 122,^19:
4 mands and receives for the performance of an official duty or service, for Jsfs.^sn', § 2.
5 which a fee or compensation is allowed by law, more than the legal fee pf' 205' III'
6 shall forfeit thirty dollars. Such penalties may be recovered by com- Pv^''^,!^^'
7 plaint or indictment to the use of the county, or in tort to the use of any 2 .Mak: 523!
8 person who sues therefor; but such prosecution or action shall be com- 17 Mass! 410!
9 menced within one year after the offence was committed.
1 Pick. 171. 7 Pick. 279. 201 Mass. 261.
REFERENCE.
§ 6. False reports, etc., concerning corporations, see Chap. 15.5, §§ 4S, 49.
CHAPTER 269.
CRIMES AGAINST PUBLIC PEACE.
Sect.
1. Suppression of unlawful assembly.
2. Penalty for refusal to assist.
3. Neglect of mayor or other officer to
suppress, etc.
4. Officers may quell unlawful assembly
by force, etc.
5. Armed force, if called out, to obey or-
ders of governor, et<;.
6. Officers, etc., guiltless if death ensues.
Sect.
7. Riotously destroying dwelling house,
etc.
8. Liability of cities and towns, etc., for
property destroyed.
9. Carrying slung shot, etc.
10. Penalty for carrjdng concealed weapon.
11. Posters on earrj-ing concealed weapons.
12. Manufacturing, etc., slung shot, etc.
13. False alarm of fire.
2742
CRIMES AG.'VINST PUBLIC PEACE.
[Chap. 269.
Suppression of
unlawful
assembly.
1750-1, 17. 5 1.
1786, 38, § 1.
1833. 140, § 1.
R. S. 129, § 1.
G. S. 164, § 1.
P. S. 206, § 1.
R. L. 211, § 1.
10 Mass. 518.
235 Mass. 449.
3 Op. A. G, 488,
815.
Section 1. If twelve or more persons, being armed with clubs or 1
other dangerous weapons, or if thirty or more persons, whether armed 2
or not, are unlawfully, riotously or tumultuously assembled in a city or 3
town, the mayor and each of the aldermen of such city, each of the select- 4
men of such town, every justice of the peace living in any such city or 5
town and the sheriff of the county and his deputies shall go among the 6
persons so assembled, or as near to them as may be with safety, and 7
in the name of the commonwealth command all persons so assembled 8
immediately and peaceably to disperse; and if they do not thereupon 9
immediately and peaceably disperse, each of said magistrates and officers 10
shall command the assistance of all persons there present in suppressing 11
such riot or unlawful assembly and arresting such persons. 12
Penalty for re-
fusal to assist.
1786, 38. § 2.
1835, 140, § 1.
R. S. 129. § 2.
G. S. 164, § 2.
P. S. 206, 5 2.
R. L. 211, § 2.
Neglect of
mayor or other
officer to sup-
press, etc.
1835, 140, § 2.
R. S. 129. § 3.-
G. S. 164. § 3.
P. S. 206, § 3.
R. L. 211, § 3.
Officers may
quell unlawful
assembly by
force, etc.
1750-1. 17. § 2.
1786. 38. I 3.
1835, 140, I 3.
R. S. 129. § 4.
G. S. 164. §4.
P. S. 206. § 4.
E. L. 211, § 4.
Section 2. '\Mioever, being present and being so commanded to 1
assist in arresting such rioters or persons so unlawfully assembled, or in 2
suppressing such riot or unlawful assembly, refuses or neglects to obey 3
such command, or, if required by such magistrate or officer to depart 4
from the place, refuses or neglects so to do, shall be considered one of 5
the rioters or persons unlawfully assembled, and may be prosecuted and 6
punished accordingly. 7
Section 3. A mayor, alderman, selectman, justice of the peace, 1
sheriff or deputy sheriff who, having notice of any such riotous or tu- 2
multuous and unlawful assembly in the city or town where he lives, 3
neglects or refuses immediately to proceed to the place of such assem- 4
bly, or as near thereto as he can with safety, or omits or neglects to 5
exercise the authority conferred upon him by this chapter for suppress- 6
ing such assembly and for arresting the oft'enders, shall be punished 7
by a fine of not more than three hundred dollars. 8
Section 4. If any persons who are so riotously or unlawfully as- 1
sembled, and who have been commanded to disperse, as before pro- 2
vided, refuse or neglect to disperse without unnecessary delay, any two 3
of the magistrates or officers before mentioned may require the aid of a 4
sufficient number of persons, in arms or otherwise as may be necessary, 5
and shall proceed, in such manner as they deem expedient, forthwith 6
to disperse and suppress such assembly, and seize and secure the persons 7
composing the same, so that they may be proceeded with according to 8
law. 9
Armed force,
if called out,
etc.
R. S. 129, § 5.
G. S. 164, § 5.
P. S. 206, § 5.
R. L. 211, 5 5.
Section 5. AMien an armed force, called out under chapter thirty- 1
of "overnOT"" three to suppress a tumult or riot, or to disperse a body of men acting 2
together by force and with intent to commit a felony, or to offer violence 3
to persons or property, or with intent by force or violence to resist or 4
oppose the execution of the laws of the commonwealth, arrives at the 5
place of such unlawful, riotous or tumultuous assembly, its members shall 6
obey such orders for suppressing the riot or tumult, and for dispersing 7
and arresting all persons who are committing any of said offences, as 8
they have received from the governor, or a judge of a coiu-t of record, 9
or the sheriff of the county, and also such orders as they there receive 10
from any two of the magistrates or officers before mentioned. 11
^iXif/"" Section 6. If, by reason of the efforts made by any two or more 1
i75a^i'°i7"1'i °^ ^'^'•^ magistrates or officers or by their direction to disperse such as- 2
Chap. 269.] crimes against public peace. 2743
3 sembly, or to seize and secure the persons composing the same who have i786, 38. § i.
4 refused to disperse, though the number remaining may be less than R^i; 129,' § 6.'
5 twelve, any such person or any other person then present is killed or g.^I; fli.Ve.
6 wounded, the magistrates and officers, and all persons acting by their rl 2°n\6
7 order or under their direction, and all persons acting under the two pre- <" ^Uen, 541.
8 ceding sections, shall be held guiltless, and fully justified in law; and if
9 any of said magistrates or officers, or any person acting under or by the
10 direction of any of the officers before mentioned, is killed or wounded,
11 all persons so assembled, and all other persons who, when commanded
12 or required, refused to aid and assist said magistrates or officers, shall
13 be held answerable therefor.
1 Section 7. If any of the persons so unlawfully assembled demolishes, Riotously de-
2 pulls down or destroys, or begins to demolish, pull down or destroy, a fngTome.ltc."
3 dwelling house or other building, or a ship or vessel, he shall be punished iTse^a's,'^'!^'
4 by imprisonment in the state prison for not more than five years or by a §■ |- J^s. § 7.
5 fine of not more than one thousand dollars and imprisonment in jail for Kf; 2°n|7
6 not more than two years, and shall also be liable in tort to any person
7 for all damages sustained by him thereby.
1 Section 8. If property of the value of fifty dollars or more is de- Liability of
2 stroyed or if property is injured to that amount by twelve or more per- towns?etc ,
3 sons who are riotously or tumultuously assembled, the town within which d^troye".'^
4 the property was situated shall, if the owner of such property uses all JP|'|'''
5 reasonable diligence to prevent its destruction or injury, and to procure P.fi^'''
6 the conviction of the offenders, be liable to indemnify the owner thereof in !». s.' 206,
7 tort to the amount of three fourths of the value of the property destroyed e. l. 211, § s.
8 or of the amount of such injury thereto, and may recover the same ^°^ ass. 2-46.
9 against any or all of the persons who destroyed or injured such property.
1 Section 9. Whoever, when arrested upon a warrant for an alleged ^^J^g^^j gj^
2 crime, and whoever, when arrested while committing a crime or a breach jsso. i94, § 1.
3 or disturbance of the public peace, is armed with or has on his person isso; 199!
4 any slung shot, metallic knuckles, billy, revolver or pistol, loaded or p.' s.' 206.' § lo.'
5 unloaded, or other dangerous weapon, shall be punislied by a fine of ignisls', p;
6 not less than one hundred nor more than five hundred dollars or by 7^Au'en°583.^'
7 imprisonment for not less than six months nor more than two and one half 1°^ ^"^^^ '^*^-
8 years in a jail or house of correction or for not less than two and one half
9 years nor more than five years in the state prison, or by both such fine
10 and imprisonment.
1 Section 10. Whoever, except as provided by law, carries on his per- Penalty for
2 son a pistol or revolver, without permission under section one hundred ceaied weapon.
3 and thirty-one of chapter one hundred and forty, or whoever carries any Jgos! 350';
4 stiletto, dagger, dirk knife, slung shot or metallic knuckles, shall be fgji 543 5 2.
5 punished by a fine of not less than one hundred nor more than five hun- 35o;'§§ 99, iolj.
6 dred dollars, or by imprisonment for not less than six months nor more
7 than two and one half years in a jail or house of correction or for not less
8 than two and one half years nor more than five years in the state prison,
9 or by both such fine and unprisonment, and upon conx-iction the pistol
10 or other article shall be confiscated by the commonwealth. The pistol or
1 1 article so confiscated shall, by the authority of the written order of the
12 court or trial justice, be forwarded by common carrier to the commis-
2744
CRDIES AGAINST PUBLIC HEALTH.
[Ch.U'. 270.
sioner of public safety, who, upon receipt of the same, shall notify said 13
court or justice thereof. Said officer may sell or destroy the same, and, 14
in case of a sale, after paying the cost of forwarding the article, shall pay 15
over the net proceeds to the commonwealth. 16
Posters on
carrying
concealed
weapoQs.
1912, 391.
Section' 11. The state secretary shall, frqm time to time, cause to be 1
printed, in English and in such other languages as he may deem neces- 2
sary and in large letters so as to be easily read, for use as a poster, section 3
one hundred and tliirty-one of chapter one hundred and forty and sec- 4
tion ten of this chapter. Sufficient copies of the said poster shall be sent 5
to the clerks of all towns, for their use as herein provided, and shall be 6
posted under the direction of the to^-n clerks in such places as they may 7
select, and in such numbers, according to the population of the town, as 8
its clerk may deem expedient. The cost of preparing and printing the 9
posters and of distributing them to the various towns shall be paid by 10
the commonwealth, and the cost of placing and affixing them in each 11
town shall be paid by that town. 12
Manufacturing,
etc., slung
shot, etc.
1850. 194, § 2.
G. S. 164, § 11.
P. S. 206. § 11.
R. L.211, §10.
Section 12. 'WTioever manufactures or causes to be manufactured, 1
or sells or exposes for sale, an instrument or M-eapon of the kind usu- 2
allj- known as slung shot, or metallic knuckles, shall be punished by 3
a fine of not less than fifty nor more than two hundred dollars or by 4
imprisonment for not more than six months. 5
False alarm
of fire.
1S37, 177, § 2.
G. S. 164. § 13.
P. S. 206, § 13.
1897, 385.
R. L. 211, 1 12.
Section 13. ^Mioever, without reasonable cause, by outcry or the 1
ringing of bells, or otherwise, makes or circidates or causes to be made 2
or circulated a false alarm of fire shall be punished by a fine of not more 3
than one hundred dollars or by imprisonment for not more than six 4
months. 5
CHAPTER 270.
CRIMES AGMXST PUBLIC HK^LTH.
Sect.
1. Adulteration of liquor used for drink.
2. Sale of poison.
3. Distribution, etc., of harmful or inju-
rious medicines, etc., prohibited.
4. Ha%-ing irith intent to sell and selling,
etc., food or drink containing wood
alcohol, etc.
5. Sale or delivery of liquor, etc., to pa-
tients in certain hospitals forbidden,
etc.
6. Sale of cigarettes, etc., to certain mi-
nors prohibited, etc.
Sect.
7. Posting of notice as to sale of ciga-
rettes, etc., to minors, and unlawful
removal thereof.
8. Sale of candy containing alcohol.
9. Feeding of garbage to animals.
10. Sale of articles containing arsenic.
11. Samples for analysis.
12. Sale of textiles containing arsenic.
1.3. Refusal of water supply.
14. Expectoration in certain public places.
15. Arrest without warrant.
Section 1. ^^^loever, for the
of sale, adulterates any
of'^i^uofi Section 1. \Mioever, tor tne purpose
'j°r.drmk. liquor used or intended for drink with Indian cockle, vitriol, grains of
G.s.'i66,'|4. paradise, opium, alum, cochineal, capsicum, copperas, laurel water,
e'. l. 213, § 1. logwood, Brazil wood, sugar of lead or any other substance poisonous
CH-VP. 270.] CRIJIES AGAINST PUBLIC HEALTH. 2745
5 or injurious to health, and whoever knowingly sells any such liquor so
6 adulterated, shall be punished by imprisonment in the state prison for
7 not more than tliree years; and the articles so adulterated shall be
8 forfeited.
1 Section 2. Whoever sells arsenic (arsenious acid), atropia or any Saieof
2 of its salts, chloral hydrate, chloroform, cotton root or its fluid extract, i857','2so.
3 corrosive sublimate, cyanide of potassium, Donovan's solution, ergot p.s.los.'ie.'
4 or its fluid extract. Fowler's solution, oil of pennyroyal, oil of savin, Jsssilog.
5 oil of tansy, Paris green. Parson's vermin exterminator, phosphorus, Jfgg'jga ^"°'
6 prussic acid, "rough on rats", strychnia or any of its salts, tarter emetic, J'gjVIgg' ^ ^•
7 tincture of aconite, tincture of belladonna, tincture of digitalis, tine- igisisss!
8 ture of nux vomica, tincture of veratrum viride, compounds of fluorine,
9 or carbolic acid, without the written prescription of a physician, shall
10 affix to the bottle, box or wrapper containing the article sold a label
1 1 of red paper upon which shall be printed in large black letters the name
12 and place of business of the vendor and the words "POISON" and
13 "ANTIDOTE ", and the label shall also contain the name of an antidote,
14 if any, for the poison sold. He shall also keep a record of the name and
15 quantity of the article sold and of the name and residence of the person
16 or persons to whom it was deli\-ered, which shall be made before the
17 article is delivered, and shall be open to inspection by the ofiicers of
18 the state police and by the police authorities and oflficers of towns.
19 Whoever neglects to affix such label to such bottle, box or wrapper be-
20 fore delivery thereof to the purchaser, or whoever neglects to keep or
21 refuses to show to said officers such record, or whoever purchases any
22 of said poisons and gives a false or fictitious name to the vendor shall
23 be punished by a fine of not more than fifty dollars. This section shall
24 not apply to sales made by wholesale dealers or manufacturing chemists
25 to retail dealers; or to a general merchant who sells Paris green, London
26 purple or other arsenical poisons in unbroken packages containing not
27 less than one quarter of a pound, for the sole purpose of destroying po-
28 tato bugs or other insects upon plants, vines or trees, except that he shall
29 record each sale and label each package sold as above provided; or to
30 sales of compounds containing not more than fifty per cent of sodium
31 fluoride intended solely for the destruction of roaches, ants or other
32 household insects, when sold in sealed metal packages containing not
33 less than one fourth of a pound, plainly labelled in such a manner as to
34 show the purposes for which the preparation was intended.
1 Section 3. Wlioever distributes, delivers or gives away in any Distribution
2 public way or from house to house or place to place, any bottle, box, or^injuriou™ "
3 envelope or package containing any liquid, medicine, pill, powder, tablet p'r^hrbiied.^'"'
4 or other article composed of any drug, poison or other ingredient or ^"•>°''- 1*°-
5 substance which may be in any way injurious or harmful to any person
6 who may taste, eat, drink or otherwise use the same, shall be punished
7 by a fine of not less than fifty nor more than one hundred dollars.
1 Section 4. ^^^loeve^, himself, or by his servant or agent, or as the Having with
2 servant or agent of another, sells, exchanges, delivers, or has in his pos- STnd'seiii'ng,
3 session with intent to sell, exchange or deliver, any article of food SHnkron-"""
4 or drink, or any drug intended for internal use, containing any wood ^t™^;\X^
5 alcohol, otherwise known as methyl alcohol, either crude or refined, Jms. gW, § 2.
§§2,'3.
2746
CRIMES AGAINST PUBLIC HEALTH.
[Ch.^. 270.
under or by whatever name or trade mark the same may be called or 6
known, shall be punished by a fine of not less than two hundred dollars 7
or by imprisonment for not more than one month, or both. 8
Sale or
deliverj' of
liquor, etc..
to patients in
certain
hospitals for-
bidden, etc.
1911,30.
Section 5. ^^^loeve^, except under the direction of a physician, 1
gives, sells or delivers spirituous or intoxicating liquor or a narcotic drug 2
to a patient in any hospital who is suffering from inebriety or from the 3
effect of inebriety, or from excessive use of narcotic drugs or from the 4
effect of such use, and whoever has in his possession within the pre- 5
cincts of any hospital any such liquor or drug with intent to convey or 6
deliver it to any such patient, except under direction as aforesaid, shall 7
be punished by a fine of not more than fifty dollars or by imprisonment 8
for not more than two months. 9
Sale of
cigarettes,
etc., to cer-
tain minors
prohibited, etc.
1886, 72.
1901.373.
R. L. 213, § 3.
1909, 346,
§§1.3.
Section 6. \^^^oever sells a cigarette to a person under eighteen, or 1
whoever sells snufi" or tobacco in any of its forms to any person under 2
sixteen, or, not being his parent or guardian, gives a cigarette to a person 3
under eighteen, or gives snuff or tobacco in any of its forms to any 4
person under sixteen, shall be punished by a fine of not more than fifty 5
dollars. A copy of this section printed in letters not less in size than 6
eighteen point capitals, boldface, shall be prepared by the department 7
of public health and delivered without charge to towns applying 8
therefor. 9
Posting of
notice as to
sale of ciga-
rettes, etc., to
minors, and
unlawful re-
moval thereof.
1909, 346,
§§ 1. 2.
Section 7. A copy of the preceding section printed as therein 1
specified shall be posted conspicuously by the owner or person in charge 2
thereof in the shop or other place used to sell cigarettes at retail, and 3
whoever violates this provision shall be punished by a fine of not more 4
than fifty dollars. Any person unlawfully removing a copy so posted 5
while said premises are used for the sale of cigarettes shall be punished 6
by a fine of ten dollars. 7
Sale of candy
containing
alcohol.
1891,333.
R. L. 213. § 4.
Section 8. Whoever sells to a person any candy enclosing or con- 1
taining liquid or syrup having more than one per cent of alcohol shall 2
be punished by a fine of not more than one hundred dollars. 3
1913, 647.
Feeding of
garbage to
animals,
1889, 326.
1895, 385.
R. L. 213, § 5.
Section 9. ^Yhoeve^ knowingly feeds or has in his possession with 1
intent to feed to a milch cow any garbage, refuse or offal collected by a 2
town, or by any person having authority therefrom, shall be punished 3
by a fine of not more than one hundred dollars or by imprisonment for 4
not more than two months; and whoever knowingly feeds or has in his 5
possession with intent to feed to any food animal, except swine, any 6
garbage, refuse or ofl'al collected by a city of more than thirty thousand 7
inliabitants shall be punished by a fine of not more than fifty dollars or 8
by imprisonment for not more than one month. 9
Sale of
articles con-
taining arsenic.
1891, 374, § 1.
R. L. 213, § 6.
Section 10. WTioever, himself, or by his agent or servant, or as the 1
agent or servant of another, manufactures, sells or exchanges, or 2
has in his custody or possession with intent to sell or exchange, or 3
exposes or offers for sale or exchange, any toys or confectionery, con- 4
taining or coated wholly or in part with arsenic, shall be punished by 5
a fine of not less than fifty nor more than one hundred dollars. 6
Chap. 270.] crimes against public health. 2747
1 Section 11. WTioever offers or exposes for sale or exchange any Samples for
2 paper, fabric or other article shall furnish a sample thereof sufficient isgi^sri, § 3.
3 to ascertain by analysis the existence of arsenic therein, if such sample fgj^; 7^^; | j-
4 can be obtained without damage to the remaining portion, to any in- is^^' ^sol I o"-
5 spector, chemist or other agent or officer of the department of public
6 health who applies therefor and tenders the value thereof; and for a
7 violation of this section shall be punished as provided in the preceding
8 section.
1 Section 12. Whoever, himself, or by his agent or servant, manu- Saie of tex-
2 factures, sells or exchanges, or has in his custody or possession with araenlc""'"""^
3 intent to sell or exchange, any woven fabric or paper containing arsenic \Iq°-^ HI
4 in any form, or any article of dress or household use composed M'holly ^Ji4' y.'o' I f
5 or in part of such woven fabric or paper, shall be pimished by a fine of i9i9^ sso', § 96.
6 not less than fifty nor more than two hundred dollars; but this section
7 shall not apply to articles intended for the destruction of insects, having
8 the word "POISON" plainly printed in uncondensed gothic letters not
9 less than one inch long on both sides of each sheet and square foot of
10 the fabric, or to dress goods or articles of dress containing not more than
11 one one-hundredth grain, or to other materials or articles containing not
12 more than one tenth grain of arsenic for each square yard of the material.
13 The department of public health shall make all necessary investiga-
14 tions as to the existence of arsenic in the aforesaid articles and materials,
15 employ inspectors and chemists, and adopt such measures as are necessary
16 to enforce this section.
1 Section 13. A corporation engaged in selling or distributing water, Refusal of
2 which refuses or neglects to furnish or supply water to or for any build- Tss^rcs.''^'
3 ing or premises for the reason that a water bill remains unpaid by a pre- ni^Mas^s. 329.'
4 vious owner or occupant of said building or premises shall, unless the
5 person applying for water is in arrears to such corporation for water
6 previously furnished to or for any building or premises, be punished by
7 a fine of not less than ten nor more than twenty dollars.
1 Section 14. Whoever expectorates or spits upon any public side- Expectoration
2 walk, or upon any place used exclusively or principally by pedestrians, p°wic places.
3 or, except in receptacles provided for the purpose, in or upon any part Jgo?; ]io;
4 of any city or town hall, any court house or court room, any public isos. iso.
5 library or museum, any church or theatre, any lecture or music hall,
6 any mill or factory, any hall of any tenement building occupied by five
7 or more families, any school building, any ferry boat or steamboat,
8 any railroad car or elevated railroad car, except a smoking car, any
9 street railway car, any railroad or railway station or waiting room, or
10 on any track, platform or sidewalk connected therewith, and included
11 within the limits thereof, shall be punished by a fine of not more than
12 twenty dollars.
1 Section 15. Any person detected in the act of violating the Arrest with-
2 preceding section may, if his name is unknown to the officer, be ar- iso7T4i'o,°i'2.
3 rested without a warrant by any officer authorized to serve criminal
4 process in the place where the offence is committed and kept in custody
5 until he can be taken before a court having jurisdiction of such offence.
2748
CHIMES AGAINST PUBLIC POLICY.
[Chat. 271.
REFERENCES.
Regulation of sale of unwholesome food and penalty, Chap. 94, § 150.
Penalty for manufacture, sale, etc., of confectionery detrimental to public health,
Chap. 94, § 190.
Regulation of sale and distribution of narcotic drugs, Chap. 94, §§ 19S-206, 211
and 213.
Restriction of use of common drinking cups. Chap. Ill, § 8.
Regulations as to milk containers. Chap. 94, §§46 and 47.
CHAPTER 271.
CRIMES AGAINST PUBLIC POLICY.
Sect.
1. Penalty for vrinning, etc., money by
gaming.
2. Gaming in public conveyance, etc.
3. Penalty on innholders, etc., for keeping,
etc., implements for gaming.
4. Gaming in such places, and in places
licensed for bowling alleys, etc.
5. Keeping common gaming house, etc.
6. Gaming at cattle shows, musters, etc.
7. Setting up or promoting lottery, gift, etc.
8. Permitting lotterj', etc., to be set up,
etc., in a house, etc.
9. Selling lottery ticket, share, etc., or
aiding therein.
10. Second conviction.
11. Advertising lottery ticket.
12. Making or selling ticket in a fictitious
lottery.
13. Tickets, etc., sold or offered prima facie
false, etc.
14. Prizes, etc., forfeited.
15. Aiding in setting up foreign lotterj'.
16. Selling ticket in such lottery, etc.
17. Penalty for buying and selling pools
or registering bets.
18. Policy lotteries and shops prohibited.
19. Printing, etc., of tickets prima facie
evidence.
20. Lotterj', etc., tickets nuisances. Pos-
session prima facie evidence.
21. Prima facie evidence of race, etc.
22. Penalty for delivery, etc., of letters,
etc.
Sect.
23. Common gaming houses, etc., to be
entered and certain persons arrested.
24. Exemption from penalties of chapter.
25. Obstructions in gaming houses.
26. Penalty for subsequent obstruction.
27. Judicial notice of lotteries, and prima
facie evidence.
28. Plea of misnomer, how received.
29. Gift enterprises prohibited.
30. Sale, etc., of trading stamps, etc.,
prohibited.
31. Racing, etc., for wager, etc.
32. Horses driven for a premium or purse.
Disguise.
33. Location and regulation of trotting
parks.
34. Unlawful race ground deemed nuisance.
Penalty.
35. Certain words and phrases defined as
applied to bucket shops.
36. Penalty for keeping a bucket shop, and
jurisdiction to dissolve such corpo-
ration.
37. Penalty for communicating, etc., to
make prohibited contracts.
38. Written statement to be furnished in
certain cases.
39. Illegal gratuity, etc., and penalty.
40. Employment, discharge, etc., by pub-
lic service corporations restricted.
41. Certain offices excepted from the pre-
ceding section.
42. Betting, etc., on boxing match, etc.
Penalty for
winning, etc.,
money by
gamine.
C. L. 57, § 2;
58, § 1.
1785, 58, § 3.
R. S. 50, § 14.
G, S. 85, § 3.
P. S. 99, § 3.
R. L. 214, § 1.
Gaming in
public con-
veyance, etc.
1869, 382.
Section 1. Whoever, on a prosecution commenced ■within eighteen 1
months after the commission of the crime, is convicted of winning at 2
one time or sitting, by gaming or betting on the sides or hands of those 3
gaming, money or goods to the value of five dollars or more, and of receiv- 4
ing the same or security therefor, shall forfeit double the value of such 5
money or goods. 6
Section 2. \Mioever, in a public conveyance or public place, or in 1
a private place upon which he is trespassing, plays at cards, dice or any 2
ClL\P. 271.] CRIMES AGAINST PUBLIC POLICY. 2749
3 other game for money or other property, or bets on the sides or hands of j!- 1 19' § f
R. L. 2U, § 2.
SCO.
370.
4 those playing, shall forfeit not more than fifty dollars or be imprisoned i9'o7,
5 for not more than three months; and Tshoever sets up or permits such loisjas?!
6 a game shall be punished by a fine of not less tlmn fifty nor more than 1919, 5.
7 one hundred dollars or by imprisonment for not less than three nor more ^®^°' ^'
8 than twelve months. If discovered in the act, he may be arrested without
9 a warrant by a sheriff, deputy sheriff, constable or any officer qualified to
10 serve criminal process, and held in custody, in jail or otherwise, for not
1 1 more than twenty-four hours, Sunday and legal holidays excepted, until
12 complaint may be made against him for such offence.
1 Section 3. Every innliolder, common victualler or person keeping Penalty on
2 or suffering to be kept in any place occupied by him implements such e'tc.'for"^'
3 as are used in gaming, in order that the same may for hire, gain or reward fm^lmenta"
4 be used for amusement, who sufl'ers implements of such kind to be used c'^l^st'."! 2
5 upon any part of such premises for gaming for money or other property, Jfgg'gj^j'J ^•
6 or who suffers a person to play at an unlawful game or sport therein, shall iras! 20]
7 for the first offence forfeit not more than one hundred dollars or be im- 1832', lee, § 11.
8 prisoned for not more than three months; and for a subsequent offence 50, « ib, ii.
9 shall be imprisoned for not more than one year. In either case he shall J^; III]
10 further recognize with sufficient sureties in a reasonable sum for his ^^^l; l^^j 5
1 1 good behavior, and especially that he will not be guilty of any offence ?■ |^ sy ^^
12 against any of the provisions of sections one to six, inclusive, for three sMet. is'o.
13 years from the date of the recognizance.
9 Met. 572. 3 Gush. 279. 12 Cush. 501.
1 Section 4. Whoever, in any place mentioned in the preceding Gaming in
2 section, for the purpose of gaming for money or other property, uses or ™d iS'jjUces
3 takes part in using a billiard table, bowling alley or other implement of bowu^f IfLys,
4 gaming, or there plays at an unlawful game or sport, or, for the purpose ^"-^ ^^ ^ ,
5 of such gaming, uses or takes part in using a billiard table or bowling alley }S||"|'g20-| 3.
6 kept by a person licensed under chapter one hundred and forty, shall for- iras', 20! 1 3.
7 feit not more than fifty dollars. 1832, lee, §11.
R. S. 47. § 10; G. S. 85, § 6. R. L. 214, § 4.
50, § 18. P. S. 99, § 7.
1 Section 5. Whoever keeps or assists in keeping a common gaming Keeping com-
2 house, or building or place occupied, used or kept for the purposes Ke^e™!*^
3 described in section twenty-three, or is found playing or present as Jsai; i66,^hi.
4 provided in said section, or commonly keeps or suffers to be kept, in a fs4| l^^f "■
5 building or place actually used and occupied by him, tables or other Ifi'^^*-
6 apparatus for the purpose of playing at an unlawful game or sport for g.s'.|5,
7 money or any other valuable thing, shall be punished by a fine of not isog, 304, § 1.
8 more than fifty dollars or by imprisonment for not more than three §§ 9', 10'.
9 months. i887, 44s, §2.
1895, 419, §9. 141 Mass. lOfi. 165 Mass. 40.
H. L. 214. I 5. 160 Mass. 310. 166 Mass. 370.
7 AUen, 304. 161 Mass. 281. 193 Mass. 383.
1 Section 6. WTioever, during or within twelve hours of the time of ^I'JtihliSla,
2 holding a cattle show, military muster or public gathering, within one ™'^^t«™-; "'•'••'
3 mile of the place thereof, practices or engages in any gambling or un- ^'gg^' *j|j§ ^^'.j
4 lawful game, shall forfeit not more than twenty dollars. If discovered in p. .s.'go. § ii.'
5 the act, he may be arrested without a warrant by any sheriff", deputy ^^ ^' ^"' ^ ^"
6 sheriff, constable or any officer qualified to serve criminal process, and
2750
CRIMES AGAINST PUBLIC POLICY.
[Ch.\p. 271.
held in custody, in jail or otherwise, for not more than twenty-four hours, 7
Sunday and legal holidays excepted, until a complaint may be made 8
against him for such offence. 9
Setting up
or promoting
lottery, gift,
1719-20, 8,
l§ 1, 2,
1732-3. 14, § 1.
1785, 24,
§§1.2.
1800, 57, § 1.
1817, 191, § 1.
1822, 90.
1825, IM, § 1.
1833, 148, I 1.
R. S. 132, § 1.
1856, 121, § 1.
G. S. 167, I 1.
P. S. 209, § 1.
1895,419, § 13.
R. L. 214. § 7.
1918, 257,
§457.
1919, 5.
1920, 2.
Section 7. Whoever sets up or promotes a lottery for money or 1
other property of value, or by way of lottery disposes of any property 2
of value, or under the pretext of a sale, gift or delivery of other property 3
or of any right, privilege or thing whatever disposes of or offers or 4
attempts to dispose of any property, with intent to make the disposal 5
thereof dependent upon or connected with chance by lot, dice, num- 6
bers, game, hazard or other gambling device, whereby such chance or 7
device is made an additional inducement to the disposal or sale of said 8
property, and whoeA'er aids either by printing or writing, or is in any 9
way concerned, in the setting up, managing or drawing of such lottery, 10
or in such disposal or offer or attempt to dispose of property by such 11
chance or device, shall be punished by a fine of not more than two thou- 12
sand dollars or by imprisonment for not more than one year. 13
13 Allen, 534.
97 Mass. 583.
137 Mass. 250.
146 Mass. 142.
150 Mass. 322.
159 Mass. 55.
177 Mass. 345.
184 Mass. 198.
233 Mass. 154.
3 Op. A. G. 582.
Permitting
lottery, etc.,
to be set up.
etc., in a
house, etc.
1800, 57. § 1.
1817, 191, § 1.
1822, 90.
1825, 184, § 1.
1833, 148, § 1.
R. S. 132, § 1.
1856, 121, § 1.
G. S. 167, § 2.
P. S. 209, § 2.
1895,419, § 13.
R. L. 214. §S.
2 Gray, 69.
184 Mass. 198.
Section 8. \Mioever, in a house, shop or building owned or occupied 1
by him or under his control, knowingly permits the setting up, managing 2
or drawing of such lottery, or such disposal or attempt to dispose of 3
property, or the sale of a lottery ticket or share of a ticket, or any other 4
^\Titing, certificate, bill, token or other device purporting or intended 5
to entitle the holder, bearer or any other person to a prize or to a share of 6
or interest in a prize to be drawn in a lottery, or in such disposal of prop- 7
erty, and whoever knowingly suffers money or other property to be rafHed 8
for in such house, shop or building, or to be won there by throwing or 9
using dice or by any other game of chance, shall be punished by a fine 10
of not more than two thousand dollars or by imprisonment for not more 11
than one year. 12
Selling lottery
ticket, share,
etc., or aiding
therein.
1732-3. 14, § 3.
1785, 24, § 3.
1800, 57. § 2.
1817, 191, § 1.
1822. 90.
1825, 184, § 1.
1833, 148, § 1.
R. S. 132, § 2.
1856, 121, § 1.
G. S. 167, § 3.
P. S. 209, § 3.
Section 9. \Mioever, for himself or for another, sells or offers for 1
sale or has in his possession with intent to sell or offer for sale, or to ex- 2
change or negotiate, or aids or assists in the selling, exchanging, negotiat- 3
ing or disposing of a ticket in such lottery, or a share of a ticket, or any 4
such writing, certificate, bill, token or other device, or a share or right 5
in such disposal or offer, as is mentioned in section seven, shall be punished 6
by a fine of not more than two thousand dollars or by imprisonment for 7
not more than one year. 8
1895, 419, § 13. R. L. 214, § 9. 2 Met. 329. 13 .Ulen, 534.
Second
conviction.
1833, 148, § 1.
R. S. 132, § 3.
1856, 121, § 1.
G.S. 167. § 4.
P. S. 209, § 4.
R. L. 214, § 10.
Section 10. Whoever, after being convicted of any offence men- 1
tioned in the three preceding sections, commits the like offence, or anj' 2
other of the offences therein mentioned, shall, in addition to the fine 3
therein provided, be punished by imprisonment for not more than one 4
^■ear. 5
Advertising
lottery ticket.
1732-3. 14, § 2.
1785, 24, § 2.
1800, 57. § 1.
1817, 191, § 1.
1822, 90.
Section 11. ^\'hoever. himself or by another, advertises a lottery 1
ticket or a share in such ticket for sale, or sets up or exliibits, or devises 2
or makes for the purpose of being set up or exliibited, any sign, symbol 3
or emblematic or other representation of a lottery or the drawing thereof, 4
Chap. 271.] crimes against public policy. 2751
5 in any way indicating where a lottery ticket or a share thereof or such i82s, i84. § i.
6 writing, certificate, bill, token or other device before mentioned may be isssi ut] § 2!
7 obtained, or in any way invites or entices, or attempts to invite or entice, §; 1; \f3'. 1 1'.
8 any other person to piu-chase or receive the same, shall be punished by fgg^^ fjg Ws
9 a fine of not more than two thousand dollars or by imprisonment for ?- l-.^i^. 1 11.
, ^ ^ 5 Pick. 41, 42.
10 not more than one year.
1 Section 12. Whoever makes or sells, or has in his possession with Making or
2 intent to sell, exchange or negotiate, or by printing, writing or other- tn aTcu'tious
3 wise assists in making or selling, or in attempting to sell, exchange or is"" us, § 3.
4 negotiate, a false or fictitious lottery ticket, or any share thereof, or any §• |- \lf 1 1
5 WTiting, certificate, bill, token or other device before mentioned, or any Rf;"2°4\%
6 ticket or share thereof in a fictitious or pretended lottery, knowing the 13 Aiien, 534.
7 same to be false or fictitious, or receives any money or other thing of value
8 for such ticket or share of a ticket, writing, certificate, bill, token or
9 other device purporting that the owner, bearer or holder thereof shall
10 be entitled to receive any prize, or share of a prize, or other thing of value,
11 that may be drawn in a lottery, knowing the same to be false or fictitious,
12 shall be punished by imprisonment in the state prison for not more than
13 three years.
1 Section 13. Upon the trial of a person charged with any of the Tickets, etc,
2 crimes mentioned in the preceding section, a ticket or share of a ticket, pHmrfaclr^'^
3 or other writing or thing before mentioned, which the defendant has sold ^g'sl; ^48^ § 3.
4 or ofi"ered for sale, or for which he has received a valuable consideration, JJ- i- J^a, § e.
f^. o. 111/, § 7.
5 shall be deemed false, spurious or fictitious, unless the defendant proves p. s. 209, § 7.
6 that the same was true and genuine, duly issued by the authority of 13 Aiien, 534. '
7 some legislature within the United States, that such lottery was existing
8 and undrawn and that such ticket or share thereof, or other WTiting or
9 thing before mentioned, was issued by lawful authority and is binding
10 upon the person who issued the same.
1 Section 14. Money or other thing of value dra'mi as a prize or share Prizes, etc.,
2 thereof in a lottery, and all property disposed of or offered to be disposed mrl'igi, § 2.
3 of by chance or device under the pretext mentioned in section seven, by r^'s.' 1 32.' 1 1.'
4 an inhabitant of or a resident within the commonwealth, and all money g^s'iw'II'
5 or other thing of value received by such person by reason of his being the P- s. 209, §8.
6 owner or holder of a ticket or share of a ticket in a lottery or pretended
7 lottery, or of a share or right in any such scheme of chance or such device,
8 contrary to this chapter, shall be forfeited, and may be recovered by an
9 information filed or by an action for money had and received brought by
10 the attorney general or a district attorney in the name and on behalf of
1 1 the commonwealth.
1 Section 15. Whoever aids, either by printing or writing, or is in .hiding in set-
2 any way concerned in setting up, promoting, managing or drawing a litfeo? °'^'"^°
3 lottery for money, set up, promoted, managed or drawn out of this ^.'s.'ioi'ii.'
4 commonwealth, shall be punished by a fine of not more than two thou- js^s, 419, § 1.3.
5 sand dollars or by imprisonment for not more than one year.
R. L. 214,
1 Section 16. Whoever sells, for himself or another, or offers for sale Selling ticket
2 or has in his possession with intent so to do or to exchange or negotiate, teryl'etc'."''
2752
CRIMES AGAINST PUBLIC POLICY.
[CuAP. 271.
1869, 112, I 2.
P. S. 209, § 10.
1895,419, § 13.
E. L. 214, § 16.
or aids or assists in selling, negotiating, exchanging or disposing of a 3
ticket, or a share of a ticket, in a lottery described in the preceding sec- 4
tion, shall be punished by a fine of not more than two thousand dollars 5
or by imprisonment for not more than one year. 6
Penalty for
buying and
selling pools
or registering
bets.
1878, 165.
P. S. 99, § 8.
1885, 342, § 1.
1895,419, § 13.
R. L. 214, § 17.
143 Mass. 177.
146 Mass. 203.
154 Mass. 12S,
135.
157 Mass. 455.
160 Mass. 354.
218 Mass. 281.
226 Mass. 409.
Section 17. Whoever keeps a building or room or any part thereof 1
or occupies any place •nnth apparatus, books or any device, for registering 2
bets, or buying or selling pools, upon the result of a trial or contest of skill, 3
speed or endurance of man, beast, bird or machine, or upon the result of 4
a game, competition, political nomination, appointment or election, or 5
whoever is present in such place engaged in such business or employ- 6
ment; or, being such keeper, occupant or person present, as aforesaid, 7
registers such bets, or buys or sells such pools, or is concerned in bu\ing 8
or selling the same; or, being the owner, lessee or occupant of a building 9
or room, or part thereof, or private grounds, knowingly permits the same 10
to be used or occupied for any such purpose, or therein keeps, exliibits, 11
uses or employs, or knowingly permits to be therein kept, exliibited, 12
used or employed, any device or apparatus for registering such bets, or 13
for buying or selling such pools, or whoever becomes the custodian or 14
depositary for hire, reward, commission or compensation in any man- 15
ner, of any pools, money, property or thing of value, in any manner 16
staked or bet upon such result, shall be punished by a fine of not more 17
than two thousand dollars or by imprisonment for not more than one 18
year. 19
teriM^and' SECTION 18. Whocvcr kceps, scts up, promotes or is concerned as 1
WbSef ° owner, agent, clerk or in any other manner, in managing a policy lottery 2
1895' 419' 1 7 ^^ policy shop, or "WTites, prints, sells, transfers or delivers a ticket, cer- 3
R. l! 2i4i § 18. tificate, slip, bill, token or other de\'ice, purporting or designed to guar- 4
antee or assure to a person, or to entitle him to a chance of drawing or 5
obtaining a prize or thing of value in a lottery or in the game or de\'ice 6
commonly known as policy lottery or policy, whether drawn or deter- 7
mined, or remaining to be drawn or determined, or who receives from a 8
person any money or other thing of value for such article or chance; or 9
for himself or another MTites, prints, sells, transfers or delivers or has 10
in his possession for the purpose of sale, transfer or delivery, or in any 11
way aids in selling, exchanging, negotiating, transferring or delivering a 12
chance or ticket in a lottery, or in the game or device commonly known 13
as policy lottery or policy, whether drawn or to be drawn, or any such 14
bill, slip, certificate, token or other device, shall be punished by a fine of 15
not more than five hundred dollars or by imprisonment for not more 16
than one vear. 17
o^tickets^*"" Section 19. The printing, writing, advertising, issuing or delivery 1
evidence"^ of auv ticket, paper, document or other article or material representing 2
1895' 419' I 8 °^ purporting to represent the existence of or any chance or interest in any 3
E. L. 214, § 19. lottery, policy lottery or policy game, pool or pools, registered or other 4
bet or other game or hazard, whether drawn or determined, or remaining 5
to be drawn or determined, or the receiving of money or other thing of 6
value for such article or chance, shall be prima facie e\'idence of the 7
existence, location and d^a^\■ing of such lottery, policy lottery or policy 8
game, and of the act or event upon wliich such pool or pools, bet, game 9
or hazard depends or may depend, and of the unlawful character of such 10
Chap. 271.] crimes against public policy. 2753
11 lottery, policy lottery, pool, bet, game or hazard, and the issuing or
12 delivery of such ticket, paper, document or other article or material
13 shall be prima facie evidence of value ^ecei^■ed therefor by the person,
14 company or corporation issuing or delivering the same, or aiding or
15 abetting therein, and that such person, company or corporation is con-
16 cerned in keeping, managing or promoting such lottery, pool, bet, game
17 or hazard.
1 Section 20. All lottery, policy or pool tickets, slips or checks. Lottery, etc,
2 memoranda of any combination or other bet, manifold or other policy or nuisances.
3 pool books or sheets, are hereby declared a common nuisance and the primrf!i°de
4 possession thereof unlawful; and the possession of any such article, or igg'^j^^g 53
5 of any other implements, apparatus or materials of any other form of PgAi"''*' IIS'
6 gaming, shall be prima facie evidence of their use, by the person having
7 them in possession, in the form of gaming in which like articles are com-
8 monly used. Any such article found upon the person of one lawfully
9 arrested for violation of any law relative to lotteries, policy lotteries
10 or policy, the buying or selling of pools or registering of bets or other
11 form of gaming shall be competent evidence upon the trial of a com-
12 plaint or indictment to which it may be relevant. If a person so arrested
13 in a building or structure or part thereof conceals or attempts to conceal
14 such articles upon his person or elsewhere, the possession and concealment
15 or attempt at concealment thereof shall be prima facie evidence that
16 the place in which the same occurs is kept, maintained, used or occu-
17 pied for the form of gaming in which like articles are commonly used.
1 Section 21. In a prosecution or proceeding relative to lotteries. Prima facie
2 policy lotteries or policy, buying and selling pools or registered bets, raJe^etc."^
3 any words, figures or characters, written, printed or exposed upon a r.^l! 214! 1 21.
4 blackboard, placard or otherwise, in a place alleged to be used or occupied 226 Mass. 409.
5 for such business, purporting or appearing to be a name of a horse or
6 jockey, or a description of or reference to a trial or contest of skill, speed
7 or endurance of man, beast, bird or machine, or game, competition,
8 political nomination, appointment or election, or other act or event, or
9 any odds, bet, combination bet or other stake or wager, or any code,
10 cipher or substitute therefor, shall be prima facie evidence of the exist-
11 ence of the race, game, contest or other act or event so purporting or
12 appearing to be referred to, and that such place is kept or occupied for
13, gaming; and in all cases the same may be proved by a copy or by oral
14 description thereof.
1 Section 22. Whoever receives a letter, package or parcel for de- Penaityfor
2 livery to or transportation from a person, or delivers or transports the onJt'tS^s,''etc.
3 same to or from a person, having reasonable cause to believe that such jj*''£' *\f 1 1;,
4 person is engaged or in any way concerned in the management or pro-
5 motion of or agency for a lottery, or the game known as policy lottery or
6 policy, or the buying or selling of pools or registering of bets, or other
7 form of gaming, and that such letter, package or parcel has relation to
8 such business, shall be punished by a fine of not less than fifty nor more
9 than five hundred dollars; but this section shall not apply to the receipt,
10 carriage or delivery of United States mail matter by an officer or em-
11 ployee thereof.
2754
CRIMES AG.UNST PUBLIC POLICY.
[CiLU'. 271.
Common
gaming houses,
etc, to be
entered and
certain persons
arrested.
1834, 172.
R. S. 50, § 19.
1857, 194, § 4.
G. S. 85, § 8.
1869, 364. § 1.
P. S. 99. § 10.
1883, 120.
1887. 448, § 2.
1895, 419. § 9.
R. L. 214, § 23.
11 Met. 79.
141 Mass. 106.
165 Mass. 40.
166 Mass. 370.
Section 23. If a per.son makes oath before a district court or a trial 1
justice that he suspects or has probable cause to suspect that a house or 2
other building, room or place is used as and for a common gaming house, 3
for gaming for money or other property, or is occupied, used or kept for 4
promoting a lottery, or for the sale of lottery tickets, or for promoting 5
the game known as policy lottery or policy, or for the buying or selling 6
of pools or registering of bets upon any race, game, contest, act or event, 7
and that persons resort thereto for any such purpose, such court or trial 8
justice, whether the names of the persons last mentioned are known to the 9
complainant or not, shall, if satisfactory evidence is presented, issue a 10
warrant commanding the sheriff or his deputy or any constable or police 11
officer to enter such house, building, room or place, and to arrest the 12
keepers thereof, all persons in any way assisting in keeping the same, 13
whether as janitor, doorkeeper, watchman or otherwise, all persons who 14
are there found participating in any form of gaming and all persons 15
present whether so participating or not, if any lottery, policy or pool 16
tickets, slips, checks, manifold books or sheets, memoranda of any bet, 17
or other implements, apparatus or materials of any form of gaming are 18
found in said place, and to take into their custody all the implements, 19
apparatus or materials of gaming, as aforesaid, and all the personal 20
property, furniture and fixtures there found, and to keep said persons, 21
implements, apparatus or materials, property, furniture and fixtures so 22
that they may be forthcoming before some court or magistrate to be 23
dealt with according to law. The provisions of chapter two hundred 24
and seventy-six relative to disposal of gaming articles seized upon search 25
warrants shall apply to all articles and property seized as herein pro- 26
vided for. 27
fronrpeJmities SECTION 24. This chapter shall not authorize the arrest or convic- 1
isgs'Tirs 9 ^''^'^ '^^ ^^^ owner or proprietor of a race track or trotting course for the 2
R. l! 2w; § 24. reason that another person has without his knowledge or consent violated 3
any of its provisions relative to the buying and selling of pools or the 4
registering or making of bets or to any offence mentioned in the preced- 5
ing section; nor the arrest or conviction of a person for being present 6
on a race track or trotting course where pools are sold or bets registered 7
or made on trials of speed or endurance between horses or other animals; 8
but this exception shall not apply to a person in any way participating or 9
assisting in the buying or selling of pools or registering of bets. 10
Obstructions
in gaming
houses.
1887, 448, 5 1
1892, 388, I 1
R. L. 214, §:
Section 25. If a captain of police in Boston or marshal or chief of 1
police in any other city or town in the commonwealth finds that access 2
to any building, apartment or place which he has reasonable cause to 3
believe is resorted to for the purpose of unlawful gaming is barred by 4
any obstruction, such as a door, window, shutter, screen, bar or grat- 5
ing of unusual strength, other than what is usual in ordinary places of 6
business, or any unnecessary number of doors, windows or obstructions, 7
he shall order the same removed by the owner or agent of the building 8
where such obstruction exists, and if any of said officers cannot find 9
either of the persons mentioned, so as to make personal service, said 10
notice shall be posted upon the outside of the apartments and on the 11
outside of said building, and upon the neglect to remove such obstruc- 12
tion for se\en days from the date of said order or posting of said notices, 13
any of said officers shall cause such obstruction to be removed from such 14
ClL\P. 271.] CRIMES AGAINST PUBLIC POLICY. 2755
15 building, and the expense of such removal shall be a lien on said building
16 and be collected by the officer removing such obstruction, in the manner
17 in wliich a mechanic's lien is collected.
1 Section 26. If, within one year after removal of said obstruction, Penalty for
2 the premises are again obstructed as above defined, the captain of police obstruction.
3 or marshal or chief of police shall have the same power of removal as ^^l[ Hf | |g
4 provided in the preceding section, and in addition the owner or agent
5 when such second order of removal is given, either by personal service
6 or by posting on the building, shall be punished by a fine of not less than
7 two hundred and fifty nor more than five hundred dollars, and the amount
8 of said fine shall be a lien upon said building and be collected in like
9 manner as provided in the preceding section. And for every subsequent
10 obstruction as abo\'e defined, at any time within two years of the giving
11 of the second notice, as above provided, said officers shall have the same
12 powers as provided in the preceding section for removing the obstruc-
13 tions, and the owner or agent at the time such third or subsequent order
14 of remo\'al is given, either by personal service or by posting on the build-
15 ing, shall be punished bj' a fine of not less than five hundred nor more
16 than one thousand dollars or may be punished by imprisonment for one
17 year, and the amount of said fine shall be a lien upon the said building,
18 and shall be collected in like manner as above provided. Obstructions
19 as above defined, erected more than two years after the giving of the
20 notice of the third ofi'ence, shall be construed to be a first offence under
21 this section.
1 Section 27. Any court or magistrate having criminal jurisdiction Judicial
2 may take judicial notice of the general methods and character of lotteries, rouerle", and
3 policy lotteries or the game called policy, pools or combination bets, and evidence!^"'
4 the buying and selling of pools and registering of bets. In the trial of a ^^^' |J^' | ^j
5 complaint or indictment to which it may be relevant, any lottery, policy
6 or pool ticket, certificate, slip or check, manifold or other policy or pool
7 book or sheet, or memorandum of any pool or sale of pools, or of a bet
8 or odds, or combination bet, or any other implement, apparatus, ma-
9 terials or articles of a character commonly emploj'ed in or in connection
10 with lotteries, policy lotteries or policy, the buying or selling of pools or
1 1 registering of bets, or other form of gaming, shall be prima facie evidence
12 of the existence and unlawful character of a lottery, policy lottery or
13 game, pool or pools, bet, game or hazard, or other form of gaming in
14 which like articles are commonly used, and that such article has relation
15 thereto.
1 Section 28. No plea of misnomer shall be received to a complaint or Piea of mis-
2 indictment for violation of any law relative to lotteries, policy lotteries ?e°cdved.''"'
3 or policy, the selling of pools or registering of bets, or any form of gam- ^^l[ IJ4; 1 2k.
4 ing; but the defendant may be arraigned, tried, sentenced and punished ^^^ ^^^- 1^®-
5 under any name by which he is complained of or indicted. No such
6 complaint or indictment shall be abated, quashed or held insufficient
7 by reason of any alleged defect, either of form or substance, if the same
8 is sufficient to enable the defendant to understand the charge and to
9 prepare his defence. No variance between such complaint or indict-
10 ment and the evidence shall be deemed material, unless in some matter
1 1 of substance essential to the charge under the rule above prescribed.
2756
CRIMES AGAINST PUBLIC POLICY.
[ClL\P. 271.
Gift enter-
g rises pro-
ibited.
1884, 277.
1898, 576.
R. L. 214,
165 Mass.
178 Mass.
190 Mass.
208 Mass.
§29.
146.
578.
110.
607.
Section 29. Whoever sells, exchanges or disposes of any property, 1
or offers or attempts so to do, upon a representation, advertisement, 2
notice or inducement that anything other than what is specifically 3
stated to be the subject of the sale or exchange is or is to be delivered 4
or received, or is in any way connected with or is a part of the transaction, 5
or whoever gives a stamp, coupon or other device which entitles a pur- 6
chaser to demand or receive from a person or company other than the 7
merchant dealing in the goods purchased or the manufacturer thereof, 8
any other property than that actually sold or exchanged, or whoever 9
delivers by any person or company other than the merchant dealing in 10
the goods purchased, or the manufacturer thereof, goods, wares or mer- 11
chandise upon the presentation of such stamp, coupon or other device, 12
shall be punished by a fine of not less than ten nor more than five hundred 13
dollars. 14
Sale, etc., of
trading stamps,
etc., pro-
hibited.
1903, 386.
Racing, etc.,
for wager, etc.
1846, 200.
G.S. 167, § 9.
1865, 67.
P. S. 209. § 11.
1900, 409.
R. L. 214, § 30.
6 Gray. 505.
102 Mass. 401.
195 Mass. 116.
Horses driven
for a premium
or purse. Dis-
guise.
1892, 167.
R. L. 214, 5 31.
Section 30. ^Vhoever, in connection with the sale of any article or 1
any merchandise whatsoever, sells, gives or delivers any trading stamps, 2
checks, coupons or similar devices to be exchanged for, or to be redeemed 3
by the giving of, any indefinite or undescribed article, the nature and 4
value of which are not stated, or to be exchanged for, or to be redeemed 5
by the giving of, any article not distinctly bargained for at the time when 6
such trading stamps or other devices as aforesaid were sold, given or 7
delivered, shall be punished by a fine of not less than ten nor more than 8
fifty dollars. 9
Section 31. Wlioever, except in trials of speed of horses for premiums 1
offered by legally constituted agricultural societies, or by corporations au- 2
thorized thereto by section fourteen of chapter one hundred and eighty, 3
engages in racing, running, trotting or pacing a horse or other animal 4
of the horse kind for a bet, wager of money or other thing of value or 5
a purse or stake made within the commonwealth, or whoever aids or 6
abets therein, shall be punished by a fine of not more than one thousand 7
dollars or by imprisonment for not more than one year, or both. 8
Section 32. Whoever, for the purpose of competing for a purse or 1
premiiun offered by an agricultural society, or by a person or associa- 2
tion in the commonwealth, knowingly and designedly enters or drives a 3
horse that is painted or disguised, or is a different horse from the one 4
that purports to be entered or driven, or knowingly and designedly, for 5
the purpose of competing for a premium or purse, enters or drives a 6
horse in a class to which it does not belong, shall be punished by a fine 7
of not more than five hundred dollars or by imprisonment for not more 8
than six months. 9
Location and
regulation of
trotting parks.
1856, 102, § 1.
G. S. 167, § 10.
1864, 63.
P. S. 209. § 12.
R. L. 214, § 32.
Section 33. No land within a town shall be laid out or used as a 1
race ground or trotting park without the previous consent of and location 2
by the mayor and aUlermen or selectmen, who may regulate and alter 3
the terms and conditions under which the same shall be laid out, used or 4
continued in use and may discontinue the same when in their judgment 5
the public good so requires; and no land shall be used for any of the 6
purposes declared unlawful in section thirty-one. 7
ground'deemld SECTION 34. Every racc ground or trotting park establish etl, laid 1
Penalty!' out, used or coiitiuued in use contrary to this chapter is declared a com- 2
Chap 271.] crimes against public policy. 2757
3 mon nuisance and may be abated as such; and all persons owning, keep- isse, 102,
4 ing, using or permitting to be used such race ground or trotting park, o. I'.i'e?, § n.
5 or aiding or abetting therein, shall be punished by a fine of not more r.l.Ih'.Vss.
6 than one thousand dollars or by imprisonment for not more than one
7 year, or both.
1 Section 35. The following words and phrases used in this and the certain words
2 tlu-ee following sections of this chapter shall, unless a different meaning defined'^ar^
3 is required by the context, have the following meanings: bS?ketsh°ops.
4 "Person", an individual, partnership, corporation or association, 1907,414, §i.
5 whether acting in his or their own right or as the officer, agent, serv-
6 ant, correspondent or representative of another.
7 "Contract", any agreement, trade or transaction.
8 "Securities", all exidences of debt or property and options for the
9 purchase and sale thereof, shares in any corporation, joint stock com-
10 pany or association, bonds, coupons, scrip, rights, choses in action and
11 other evidences of debt or property and options for the purchase or sale
12 thereof.
13 "Commodities", anything movable that is bought and sold.
14 "Bucket shop", any room, office, store, building or other place where
15 any contract prohibited by the following section is made or offered to be
16 made.
17 "Keeper", any person owning, keeping, managing, operating or pro-
18 moting a bucket shop, or assisting to keep, manage, operate or promote
19 a bucket shop.
20 "Bucketing" or "Bucket-shopping",
21 (a) The making of, or offering to make, any contract respecting the
22 purchase or sale, either upon credit or upon margin, of any securities
23 or commodities, wl»erein both parties thereto intend, or such keeper
24 intends, that such contract shall be, or may be, terminated, closed or
25 settled according to, or upon the basis of, the public market quotations
26 of prices made on any board of trade or exchange upon which said securi-
27 ties or commodities are dealt in, and without a bona fide purchase or sale
28 of the same; or
29 (6) The making of, or offering to make, any contract respecting the
30 purchase or sale, either upon credit or upon margin, of any securities or
31 commodities, wherein both parties intend, or such keeper intends, that
32 such contract shall be, or may be, deemed terminated, closed or settled,
33 when such public market quotations of prices for the securities or com-
34 modifies named in such contract shall reach a certain figure without a
35 bona fide purchase or sale of the same; or
36 (c) The making of, or offering to make, any contract respecting the
37 purchase or sale, either upon credit or upon margin, of any securities or
38 commodities, wherein both parties do not intend, or such keeper does not
39 intend, the actual or bona fiile receipt or delivery of such securities or
40 commodities, but do intend, or such keeper does intend, a settlement of
41 such contract based upon the differences in such public market quotations
42 of prices at which said securities or commodities are, or are asserted to be,
43 bought and sold.
1 Section 36. Whoever makes, or offers to make, any contract of Penalty for
2 bucketing or bucket-shopping, or who is the keeper of any bucket shop, buctefshop,
3 shall be punished by a fine of not more than one thousand dollars or thm'todts-'
2758
CRIMES AGAINST PUBLIC POLICY.
[CH.A.P. 271.
solve such
corporation.
1907, 414, § 2.
by imprisonment for not more than one year. ^Vhoeve^ shall be con- 4
victed of a second offence shall be punished by imprisonment for not 5
more than five years. The continuing of the keeping of a bucket shop, 6
by any person, after the first conviction therefor, shall be deemed a 7
second offence hereunder. If a domestic corporation shall be con\-icted 8
of a second offence, the supreme judicial court may, upon an informa- 9
tion in equity in the name of the attorney general, at the relation of 10
the commissioner of corporations and ta.xation, dissolve the corporation; 11
and if a foreign corporation shall be convicted of a second offence, the 12
supreme judicial court may, in the same manner, restrain it from doing 13
business in this commonwealth. 14
Penalty for
communicat-
ing, etc., to
niake pro-
hibited con-
tracts.
1907,414, §3.
Section 37. Wlioever shall communicate, receive, exliibit or display 1
in any manner any statement of quotations of prices of any securities or 2
commodities with an intent to make, or offer to make, or to aid in making, 3
or offering to make, any contract prohibited by the preceding section 4
shall be punished as provided therein. 5
Written
statement to
be furnished
in certain
cases.
1907,414. § 4.
Section 38. Everj' person shall furnish, upon demand, to any cus- 1
tomer or principal for whom such person has executed any order for 2
the actual piu-chase or sale of any securities or commodities, either for 3
immediate or future delivery, a written statement containing the names 4
of the persons from whom such property was bought, or to whom it has 5
been sold, as the fact may be, the time when, place where and the price 6
at which the same was either bought or sold; and if such person refuses 7
or neglects to furnish such statement within twenty-four hours after 8
such demand, such refusal or neglect shall be prima facie evidence that 9
such purchase or sale was bucketing or bucket-shopping. 10
Illegal
gratuity,
etc., and
penalty.
1904, 343.
1909, 514,
§§ 28, 29,
1912, 495.
Section 39. ^Mioever corruptly gives, offers or promises to an agent, 1
employee or servant any gift or gratuity whatever, with intent to in- 2
fluence his action in relation to the business of his principal, employer 3
145. or master; or an agent, employee or servant who corruptly requests or 4
accepts a gift or gratuity or a promise to make a gift or to do an act 5
beneficial to himself, under an agreement or with an understanding that 6
he shall act in any particular manner in relation to the business of his 7
principal, employer or master; or an agent, employee or servant who, 8
being authorized to procure materials, supplies or other articles either 9
by purchase or contract for his principal, employer or master, or to 10
employ service or labor for his principal, employer or master, receives 11
directly or indirectly, for himself or for another, a commission, discount 12
or bonus from the person who makes such sale or contract, or furnishes 13
such materials, supplies or other articles, or from a person who renders 14
such service or labor; and any person who gives or offers such an agent, 15
employee or servant such commission, discount or bonus, shall be punished 16
by a fine of not less than ten nor more than five hundred dollars or by 17
such fine and by imprisonment for not more than one year; except that 18
if the person who commits the said offence acts as agent or officer of any 19
person, to employ persons as clerks, laborers or otherwise, the offence 20
shall be punished by a fine of not less than twenty-five nor more than 21
five hundred dollars or by imprisonment in the state prison for not more 22
than three years. The district attorneys in their respective districts 23
shall prosecute all violations of this section. No person shall be excused 24
CH-^P. 271.] CREVIES AGAINST PUBLIC POLICY. 2759
25 from attending, testifying or producing books, papers, contracts, agree-
26 ments and documents before any court or in obedience to the subpcena
27 of any court having jurisdiction of the offence described herein on the
28 ground or for the reason that the testimony or evidence, documentary
29 or otherwise, required of him may tend to criminate him or subject him
30 to a penalty or forfeiture. But no person shall be liable to any suit or
31 prosecution, civil or criminal, for or on account of any transaction, matter
32 or thing concerning which he may testify or produce evidence, documen-
33 tary or otherwise, before said court or in obedience to its subpoena or in
34 any such case or proceeding.
1 Section 40. No railroad, street railway, electric light, gas, tele- Employment.
2 graph, teleplione, water or steamboat company shall appoint, promote, by pubfic" '^'°"
3 reinstate, suspend or discharge any person employed or seeking em- poVa'tionr"
4 ployment by any such company at the request of the governor, lieu- i|o'3"32o'
5 tenant governor, or any member or member elect of the council or of fl^g' gj^ .js
6 the general court, or candidate therefor, justice of the supreme judicial loio', os, '§ 2.
7 court, justice of the superior court, judge of probate, judge of the land
8 court, justice of a district court, district attorney, member or member
9 elect of a board of county commissioners, or candidate for county com-
10 missioner, mayor or maj'or elect of a city, or candidate therefor, mem-
11 ber or member elect of a board of aldermen, or selectmen, or city council,
12 or any executi\'e, administrati\-e or judicial officer, clerk or employee
13 of any branch of the government of the commonwealth or of any county,
14 city or town; nor shall any such public officer or body, or any mem-
15 ber or member elect thereof or candidate therefor, directly or indirectly
16 advocate, oppose, or other\\ise interfere in, or make any request, recom-
17 mendation, endorsement, requirement or certificate relative to, and the
18 same, if made, shall not be required as a condition precedent to, or be in
19 any way regarded or permitted to influence or control, the appointment,
20 promotion, reinstatement or retention of any person employed or seeking
21 emplo^anent by any such corporation, and no such person shall solicit,
22 obtain, exliibit, or otherwise make use of any such official request, recom-
23 mendation, certificate or endorsement in connection with any existing
24 or desired emplojTuent by a public ser\ice corporation. Any person or
25 corporation violating any pro\'ision of tliis section shall be punished by
26 a fine of not less than fifty nor more than one hundred dollars.'
1 Section 41. The offices of probation officer, notary public, justice Cenain offices
2 of the peace, prison officer, agent of the commissioner of correction and Se'^preceding'
3 agent of the department of public welfare shall not be considered public igos^soo, § 2.
4 oifices within the meaning of the preceding section. isos, 228.
1909, 514. §§ 26, 145. 1016, 241, §1.
I'JIO, 03, § 2. 1919, 350, §§ S2, 83, 87.
1 Section 42. Whoever bets or wagers or sells pools on any boxing Bettine, etc.,
2 or sparring match or exliibition shall be punished by imprisonment for match, etc.
3 not less than tliree months or by a fine of not less than fifty dollars, or ^°"°' ^^
4 both.
/
REFERENCES.
Penalty for pledging, etc., or tran.sferring pensions, Chap. 32, § 92.
Abatement of gambling booths, etc., near public gatherings, Chap. 139, § IS.
2760
CRIMES AGAINST CH.\STITT, ETC., AXD GOOD ORDER. [Ch.1P. 272.
CHAPTER 272.
CRIMES AGAINST CHASTITY, MORALITY, DECENCY AND GOOD
ORDER.
Sect.
1. Abduction of an unmarried female
under sixteen for the purpose of
marriage.
2. Abduction of women or girls, etc.
3. Administering drug.
4. Enticing to unlawful intercourse.
5. Penalty for carnal knowledge of idiot,
etc.
6. Penalty on owner of premises, etc.
7. Penalty for deriving support from an
inmate of a house of ill fame, etc.
8. Penalty for soliciting, etc.
9. Court may authorize entry of house,
etc.
10. Arrest without warrant.
11. Evidence and limitation.
12. Penalty for sending a female to a
house of ill fame, etc.
13. Detaining a female in house of ill fame.
14. Adultery.
15. Polygamy.
16. Lasci\'ious cohabitation and lewdness.
17. Incest.
18. Fornication.
19. Unlawful attempt, etc., to procure mis-
carriage.
20. Penalty for advertising, etc., notice,
etc., of means to procure abortion.
21. Other offences against decency.
22. Concealment by mother of death of
bastard.
23. Joinder of murder and concealment.
24. Keeping house of ill fame.
25. Use of certain enclosures in restau-
rants, etc., prohibited.
26. Penalty for resorting to cafe, etc., for
immoral purposes.
27. Copy of record of conviction to be
sent to licensing officer, etc.
28. Penalty for possession or sale, etc., of
obscene literature.
29. Dissemination by advertisement, etc.,
of information concerning certain
diseases prohibited.
30. Dissemination of criminal literature.
31. Inmioral entertainments.
32. Penalty for giving, etc., immoral en-
tertainments.
33. Exhibition of deformities.
34. Sodomy and buggery.
35. Unnatural and lascivious acts.
30. Blasphemy.
37. Profane cursing and swearing.
38. Disturbing religious worship.
39. Peddling, gaming, etc., near camp
meeting.
Sect.
40. Disturbance of school or public meet-
ing.
41. Disturbance of public libraries.
42. Disturbance of funeral.
43. Disorderly conduct in public convey-
ances.
44. Arrest for drunkenness.
45. Persons arrested for drunkenness may
be released in certain cases, etc.
46. Persons arrested for drunkenness to
be informed of their right to make
statement, etc.
47. Record of persons released.
48. Penalties for drunkenness.
49. Duties of probation officers.
50. Records open to inspection.
51. Opium resorts.
52. Search of suspected opium resorts.
53. Rogues, vagabonds, etc.
54. Arrest of disorderly person in streets,
highways, etc.
55. Master of workhouse, etc., to receive
persons conmiitted.
56. Repetition of offence a breach of recog-
nizance.
57. Discharge of defendant on recogni-
zance.
5S. Begging by children.
59. Arrest without a warrant for viola-
tions of ordinances, etc.
60. Certain persons may be arrested and
detained for the purpose of ascer-
taining their identity, etc.
61. Conviction after discharge on former
con\-iction.
62. Nightwalking. Third conriction.
63. Tramps.
64. Punishment of tramps.
65. Arrest of tramps.
66. Vagrants.
67. Arrest of vagrants.
68. Certain persons to be deemed vaga-
bonds.
69. Arrest of vagabonds.
70. Attachment of dead body.
71. Violation of sepulture.
72. BujTng or selling dead body.
73. Injuring or defacing tombs, etc.
74. Desecration of burial ground.
75. Removal of flowers, etc., from grave.
76. Making road, etc., through burial
ground.
77. Cruelty to animals.
78. Buying, selling, etc., leading, driving,
etc., disabled horses. Penalty.
79. Corporations liable.
.] CRIMES AGAINST CH.\STI'ri', ETC., AND GOOD ORDER.
2761
Sect.
80. Mutilation of horses.
81. Rest for animals transported.
82. Arrest for cruelty to animals.
83. Search warrant.
84. Officers to prosecute. Disposition of
fines.
85. Same subject.
86. Stabling horse, etc., above first floor,
except, etc.
87. Pigeon shooting, etc.
88. Search warrant for fighting birds,
etc.
89. Entry without a warrant, etc.
90. Persons arrested to be taken before
court, etc.
Sect.
91. Judgment of forfeiture, etc. Proceed-
ings thereon.
92. Appeal.
93. Expenses of care, etc., of birds, etc.
94. Penalty on owner, etc.
95. Penalty for being present at exhibi-
tion, etc.
False notice of birth, etc.
Costumed debt collectors.
Color or race discrimination.
Eavesdropping.
Accessory to same.
101. Prima facie evidence.
102. To whom sections 99 to 101 not ap-
plicable.
96.
97
99.
100.
1 Section 1. Wlioever fraudulently and deceitfully entices or takes Abduction of
2 away an unmarried female under sixteen from her father's house or else- tana"e"under
3 where, without the consent of the parent or guardian, if any, under purpose of* °
4 whose care and custody she is livint;, for the purpose of effecting a clandes- ^^52' Im.
5 tine marriage of such female without such consent, shall be punished by pf^of'li'
6 imprisonment for not more than one year or by a fine of not more than R- l. 212, § 1.
7 one thousand dollars, or both. 7 Gray, 479. 152 Mass. 1.
1 Section 2. Whoever fraudulently and deceitfully entices or takes Abduction of
2 away a woman or girl from her father's house or elsewhere, for the pur- etc""*" °'^ ^" ^'
3 pose of prostitution or for the purpose of unlawful sexual intercourse, a^l.' fef,' 1 2.'
4 and whoever aids and assists in such abduction for such purpose, shall ^gs^gl^g^l^i',
5 be punished by imprisonment in the state prison for not more than three J^gg, 444. 1 1.
6 years or in jail for not more than one year or by a fine of not more than isio. 424! § 1.
7 one thousand dollars, or by both such fine and imprisonment in jail. 131 Mass. 224.
211 Mass. 50.
1 Section 3. Whoever applies, administers to or causes to be taken Administering
2 by a woman or girl any drug, matter or thing with intent to stupefy or igsi; 329, § 2.
3 overpower her so as thereby to enable any person to have unlawful sexual fgjg- 35!; ^ ^'
4 intercourse with her shall be punished by imprisonment in the state fg^'Ji'-g
5 prison for not more than three years or in jail or the house of correction 1926, 2.
6 for not more than two and one half years or by a fine of not more than one
7 thousand dollars, or by both such fine and imprisonment in jail or the
8 house of correction.
1 Section 4. Whoever induces any person under eighteen of chaste life Enticing to
2 to have unlawful sexual intercourse shall be punished as provided in the te"rcTur3e.'°'
3 preceding section.
1886, 329, § 3.
1898, 444, § 2.
R. L. 212, § 4.
1 Section 5. Wlioever has unlawful sexual intercourse with a female Penalty for
2 who is feeble minded, an idiot or imbecile, under circumstances which edge'^of iS,"
3 do not constitute rape, shall, if he had reasonable cause to believe that ^sse, 329, § 4.
4 she was feeble minded, an idiot or imbecile, be punished as provided in fg^_ Hf ^ ^•
5 section three.
1 Section 6. Whoever, being the owner of a place or having or assist- Penalty on
2 ing in the management or control thereof, induces or knowingly suffers a premises, etc
2762
CRIMES AGAINST CHASTITY, ETC., AND GOOD ORDER. [CfiLiP. 272.
R^t. 212! I u! female to resort to or be in or upon such place, for the purpose of unlaw- .3
1910. 424, § 2. fully having sexual intercourse, shall be punished as provided in section 4
three. 5
Penalty for
deriving sup-
port from an
inmate of a
bouse of ill
fame, etc.
1910, 424, § 5.
1914. 621.
212 Mass. 253.
Section 7. Wlioever, knowing a female to be a prostitute, shall live 1
or derive support or maintenance, in whole or in part, from the earnings 2
or proceeds of her prostitution, from moneys loaned, advanced to or 3
charged against her by any keeper or manager or inmate of a house 4
or other place where prostitution is practiced or allowed, or shall share 5
in such earnings, proceeds or moneys, shall be punished by imprisonment 6
in the state prison for not more than three years or in the house of correc- 7
tion for not more than one year or by a fine of not more than one thou- 8
sand dollars, or both. 9
Penalty for
soliciting, etc.
1910, 424, § 6.
Section 8. Whoever shall solicit or receive compensation for solicit- 1
ing for a prostitute shall be punished by imprisonment in the house of 2
correction for not more than one year or by a fine of not more than five 3
hundred dollars, or both. 4
Court may
authorize entry
of house, etc.
1910, 424, § 7.
Section 9. If a person makes oath before a district court or trial 1
justice that he has probable cause to suspect that a house, building, 2
room or place is kept or resorted to for prostitution and that a certain 3
person owning, or having or assisting in the management or control of 4
such house, building, room or place knowingly suffers a certain female 5
to be in or upon such place for the purpose of unlawfully having sexual 6
intercoiu-se, said court or trial justice shall, if satisfied that there is 7
probable cause therefor, issue a warrant commanding the sheriff or his 8
deputy, or any constable or police officer, to enter such house, buOding, 9
room or place and search for such person, and take into custody such 10
person and such female. Said person shall be detained for not more than 11
twenty-four hours until complaint may be made against him, and said 12
female for a reasonable time until she may be brought before said court 13
or trial justice to be recognized with or without sureties at the discretion 14
of said court or trial justice to appear as witnesses before the next or 15
any succeeding sitting of said court or trial justice. This section shall 16
be in addition to and not in derogation of the common law. 17
Arrest without
warrant.
1910, 424, § 8.
Section 10. Nothing in the preceding section shall prevent the arrest
and detention without a warrant of any person who, the officer serving
said process may have reasonable cause to believe, is violating any pro-
vision of this chapter, or is keeping a house, room or place resorted to for
prostitution or lewdness, and said officer may upon such search arrest
without a w-arrant any such person, and detain him until complaint may
be made against him.
Evidence and
limitation.
1886, 329,
§§6,7.
R. L. 212. § 7.
Section 11. A person shall not be convicted under sections two to
six, inclusive, upon the evidence of one witness only, unless his testimony
is corroborated in a material particular, and prosecution for a violation
of any of said sections shall not be commenced more than one year after
the commission of the crime.
Penalty for
sending a
female to a
house of ill
fame, etc.
Section 12. Whoever knowingly procures, entices, sends, or aids or 1
abets in procuring, enticing or sending, a woman or girl to practice pros- 2
titution, or to enter as an inmate or a servant a house of ill fame or other 3
Ch.\P. 272.] CRIMES AGAINST CHASTITY, ETC., AND GOOD ORDER. 2763
4 place resorted to for prostitution, whether within or without the com- iggg, 311, 5 1.
5 monwealth, shall be punished by a fine of not less than one hundred nor fg^' HI] | f
6 more than five hundred dollars or by imprisonment for not less than three
7 months nor more than two years. Whoever as proprietor or keeper of an
8 intelligence or employment office, either personally or through an agent
9 or employee, procures or sends a woman or girl to enter as aforesaid a
10 house of ill fame or other place resorted to for prostitution, the char-
11 acter of which on reasonable inquiry could have been ascertained by
12 him, shall be punished by a fine of not less than fifty nor more than two
13 hundred dollars.
1 Section 13. Whoever, for any length of time, unlawfully detains or Detaining a
2 attempts to detain, or aids or abets in unlawfully detaining or attempt- hTilTeVnii
3 ing to detain, or provides or administers or aids or abets in providing or 'is™!; 3n^ § 2.
4 administering any drug or liquor for the purpose of detaining, a woman or f^^- ^^f | ^•
5 girl in a house of ill fame or other place where prostitution is practiced
6 or allowed, shall be punished by imprisonment in the state prison for not
7 more than five years or in the house of correction for not less than one
8 nor more than two and one half years or by a fine of not less than one
9 hundred nor more than five hundred dollars.
1 Section 14. A married man who has sexual intercourse with a woman Adultery.
2 not his wife, an unmarried man who has sexual intercourse with a married c' l.' is.' § t'.
3 woman or a married woman who has sexual intercourse with a man not §§^*~2.' ^"
4 her husband shall be guilty of adultery and shall be punished by impris- {yg^"!;,^?' j
5 onment 'in the state prison for not more than three years or in jail g- 1' jso. 1 1.
6 for not more than two years, or by a fine of not more than five hundred p.'s.'207,'§ 3.'
7 dollars. R. l. 212, § 10.
21 Pick. 509. 2 Gush. 551. 11 Allen, 23. 157 Mass. 415.
2 Met. 190. 6 Gush. 78. 97 Mass. 59. 163 Mass. 499.
5 Met. 635. 6 Allen, 591. 131 Mass. 577. 211 Mass. 50.
1 Section 15. Whoever, having a former husband or wife living, mar- Polygamy.
2 ries another person or continues to cohabit with a second husband or §§^3-5^.'^"
3 wife in the commonwealth shall be guilty of polygamy, and be punished by \%f_ ll\ § 2.
4 imprisonment in the state prison for not more than five years or in jail P,- fg^^"'
5 for not more than two and one half years or by a fine of not more than g. s. I'es,
6 five hundred dollars; but this section shall not apply to a person whose p. s.'267.
7 husband or wife has continually remained beyond sea, or has voluntarily r. l. 212, § 11.
8 withdrawn from the other and remained absent, for seven consecutive §'464.^^^'
9 years, the party marrying again not knowing the other to be living \IIq |;
10 within that time, nor to a person who has been legally divorced from the 7 Met '472'
11 bonds of matrimony and who is not the guilty cause of such divorce, |(<"4?g^'
12 nor to any person who has been legally divorced after the expiration of 6 Alien, 591.
13 two years from the time of the entry of the absolute decree of divorce. 11 aii™! 23. '
105 Mass. 404. 121 Mass. 47. 140 Mass. 296. 153 Mass. 81.
113 Mass. 458. 12ti Mass. 34. 147 Mass. 294. 163 Mass, 453.
1 Section 16. A man and woman who, not being married to each Lascivious
2 other, lewdly and lasciviously associate and cohabit together, or a man or and lewdness.
3 woman, married or unmarried, who is guilty of open and gross lewdness r s.'iso, §4.
4 and lascivious behavior, shall be punished by imprisonment in the state p.' I.' 207,' fa
5 prison for not more than three years or in jail for not more than two f Mass.'l: ^ '^'
6 years or by a fine of not more than three hundred dollars. 1° ^i'»^^- i^^-
4 Gush. 49. 127 Mass. 459. 128 Mass. 52. 159 Mass. 61.
2764
CRIMES AGAINST CHASTITY, ETC., AND GOOD ORDER. [ChAP. 272.
Incest.
1695-6. 2, § 2.
R. S. 130. § 13.
G. S. 165. § 7.
P. S. 207, § 7.
R. L. 212, § 13.
1918. 257,
§ 464.
1919, 5.
Section 17. Persons within the degrees of consanguinity within 1
which marriages are prohibited or declared by law to be incestuous and 2
void, who intermarry or have sexual intercourse with each other, shall 3
be punished by imprisonment in the state prison for not more than 4
twenty years or in jail for not more than two and one half years. 5
1920, 2. 10 Met. 451.
Fornication.
C. L. 54.
§§ 4, 5.
1692-3. 18. §
1785, 66, § 1.
Section 18. ^Mioever commits fornication shall be punished by im-
5 prisonment for not more than three months or by a fine of not more than
thirty dollars.
R. S. 130. § 5.
G. S. 165, § 8.
P. S. 207, § 8,
R. L. 212. 5 14.
Unlawful
attempt.
etc.. to procure
miscarriage.
1845, 27.
G. S. 165, 5 9.
P. S. 207. § 9.
R. L. 212. § 15.
11 Grav. 85.
14 Grav. 419.
15 Gray. 187.
16 Gray, 224.
13 Allen, 554.
108 Mass. 401.'
116 Mass. 47,
343
12l'Mass. 69.
132 Mass. 261.
Section 19. AMioever, with intent to procure the miscarriage of a 1
woman, unlawfully administers to her, or advises or prescribes for her, 2
or causes any poison, drug, medicine or other noxious thing to be taken 3
by her or, with the like intent, unlawfully uses any instrument or other 4
means whatever, or, with like intent, aids or assists therein, shall, if she 5
dies in consequence thereof, be punished by imprisonment in the state 6
prison for not less than five nor more than twenty years; and, if she does 7
not die in consequence thereof, by imprisonment in the state prison for 8
not more than seven years and by a fine of not more than two thousand 9
dollars. 136 Mass. 429. 10
155 Mass. 274.
156 Mass. 99.
157 Mass. 519.
159 Mass. 56.
165 Mass. 13.59.
195 Mass. 100.
213 Mass. 563.
231 Mass. 265.
Penalty for
advertising,
etc., notice,
etc., of means
to procure
abortion.
1847, 83.
G. S. 165. § 10.
P. S. 207, § 10.
R. L. 212, § 16.
1905, 316.
1918. 257,
§464.
1919. 5.
1920. 2.
193 Mass. 464.
227 Mass. 57.
Section 20. Whoever knowingly advertises, prints, publishes, dis- 1
tributes or circulates, or knowingly causes to be advertised, printed, 2
published, distributed or circulated, any pamphlet, printed paper, book, 3
newspaper, notice, advertisement or reference, containing words or Ian- 4
guage giving or conveying any notice, hint or reference to any person, 5
or to the name of any person, real or fictitious, from whom, or to any 6
place, house, shop or office where, any poison, drug, mixture, preparation, 7
medicine or noxious thing, or any instrument or means whatever, or any 8
advice, direction, information or knowledge, may be obtained for the 9
purpose of causing or procuring the miscarriage of a woman pregnant 10
with chUd or of preventing, or which is represented as intended to prevent, 11
pregnancy, shall be punished by imprisonment in the state prison for 12
not more than three years or in jail for not more than two and one half 13
years or by a fine of not more than one thousand dollars. 14
?g'ainst°^^°'^^ Section 21. \\'hoever sells, lends, gives away, exliibits, or offers to 1
is79?i5'9, § 1. sell, lend or give away an instrument or other article intended to be used 2
R L li2 \^26 ^or self-abuse, or any drug, medicine, instrument or article whatever 3
i9i8|5'.'§-i64. for the prevention of conception or for causing unlawful abortion, or 4
i92o! 2. advertises the same, or writes, prints or causes to be ■^Titten or printed 5
' ' a card, circular, book, pamphlet, advertisement or notice of any kind 6
stating when, where, how, of whom or by what means such article can 7
I be purchased or obtained, or manufactures or makes any such article, 8
shall be punished by imprisonment in the state prison for not more than 9
five years or in jail or the house of correction for not more than two and 10
one half years or by a fine of not less than one hundred nor more than 11
one thousand dollars. 12
by mSh?r of Section 22. A woman who conceals the death of issue of her body, 1
bastard' which if bom aiWe would be a bastard, so that it cannot be ascertained 2
Chap. 272.] crimes against chastity, etc., .ujd good order. 2765
3 whether it was born alive or, if born ahve, whether it was murdered, ]^^f |i- ^
4 shall be punished by a fine of not more than one hundred dollars or by R- s' isb, § c.
5 imprisonment for not more than one year.
p. S. 207, §11. R. L. 212, §17.
1 Section 23. A woman indicted for the murder of her infant bastard Joinder of
.11 111 1*1 .. . . murder and
2 child may also be charged in the same indictment with the crime de- 57gr4?'|"o-
3 scribed in the preceding section ; and if she is acquitted of murder, she R- s.' 136, § 7.
4 may be convicted of the concealment.
G. S. 165. § 12. P. S. 207. § 12, R. L. 212, § 18.
1 Section 24. Whoever keeps a house of ill fame which is resorted to Keeping house
2 for prostitution or lewdness shall be punished by imprisonment for not c.l. 2°'o8r§ 2.
3 more than two years. 1720-1, 7. § 3. 1793, 59, § s.
R. S. 130, § 8. P. S. 207. § 13. 2 Gray. 356. 124 Mass. 26.
1849,84. R. L 212. § 19. 11 Gray. 48. 132 Mass. 1.
1855. 405. 3 Pick. 26. 1 Allen, 7. 150 Mass. 314.
G. S. 165, § 13. 1 Met. 151. 12 Allen, 177. 165 Mass. 588.
1 Section 2.5. Any person owning, managing or controlling a cafe, res- Use of certain
2 taurant, saloon or other place in any town, where food or drink is sold rrsirumnts."
3 to the public to be consumed upon the premises, and any employee of hlbi'tld.""
4 such person who provides, maintains, uses or permits the use of a booth, l^'i^'*"'
5 stall or enclosure of any description whatever which is so closed by cur-
6 tains, screens or other devices that the persons within cannot at any
7 time plainly be seen by other persons in such cafe, restaurant, saloon or
8 other place, or in any division thereof, unless the enclosure is approved
9 by the licensing authorities, shall be punished by a fine of not less than
10 fifty nor more than five hundred dollars or by imprisonment for not
11 more than two months, or both.
1 Section 26. Whoever, for the purpose of immoral solicitation or Penalty for
2 immoral bargaining, shall resort to any cafe, restaurant, saloon or other S^Tc^.'ifor
3 place where food or drink is sold or served to be consumed upon the p""e°."'' '""^
4 premises, and whoever shall resort to any such place for the purpose of, ^^'^* ^*°' ^ ^•
5 in any manner, inducing another person to engage in immoral conduct,
6 and whoever, being in or about any such place, shall engage in any such
7 acts, shall be punished by a fine of not less than twenty-five nor more
8 than five hundred dollars or by imprisonment for not more than one
9 year, or both.
1 Section 27. The clerk of the court in which any person is convicted Copy of
n p .1. p ' ^ PI !• •iiici'i 1 record ofcon-
2 or a violation oi either or the two preceding sections shall forthwith send viction to
3 a copy of the record of such conviction to the officer or board issuing any Ucensing
4 license or licenses under which the place where the offence was com- igis^isa § 4.
5 mitted is conducted.
1 Section 28. Whoever imports, prints, publishes, sells or distributes a Penalty for
2 book, pamphlet, ballad, printed paper or other thing containing obscene, lS\e^ltc°M'
3 indecent or impure language, or manifestly tending to corrupt the morals iitlr™ure.
4 of youth, or an obscene, indecent or impure print, picture, figure, im- g^g"'"' "'
5 age or description, manifestly tending to corrupt the morals of youth, or ^^ ^q^^°'
6 introduces into a family, school or place of education, or buys, procures, g. s. 'i65',
7 receives or has in his possession any such book, pamphlet, ballad, printed i862','i68,
8 paper, obscene, indecent or impure print, picture, figure, image or other issd, 97.
2766
CRIMES AGAINST CHASTITY, ETC., .AND GOOD ORDER. [ClL^P. 272.
P. S. 207,
§§ 15. 16.
1890, 70.
1894, 433.
1895. 162.
R. L. 212,
§20.
thing, either for the purpose of sale, exhibition, loan or circulation or -with 9
intent to introduce the same into a family, school or place of education, 10
shall be punished by imprisonment for not more than two years and by 11
a fine of not less than one hundred nor more than one thousand dollars. 12
1904, 120.
1913. 259.
1918, 257, § 450.
1919, 5.
1920, 2.
17 Mass. 366.
1 Gush. 66.
126 Mass. 46.
139 Mass. 382.
164 Mass. 162.
200 Mass. 346.
227 Mass. 57.
Dissemination
by advertise-
ment, etc., of
information
concerning
certain diseases
proliibited.
1908, 386.
1918, 237.
Violation of
this section
cause for revo-
cation, etc.,
of physician's
registration,
See Chap. 112,
§2.
Section 29. Whoever publishes, delivers, distributes, or causes to 1
be published, delivered or distributed, an advertisement, statement or 2
notice, other than a label which is attached to a bottle or package of 3
medicine, or which is contained in a sealed package of medicine, describ- 4
ing the causes, symptoms, details or effects of a venereal disease, or of a 5
disease, infirmity or condition of the sexual organs, for the purpose of 6
calling attention to or advertising a person from whom, or an office or 7
place at which, information, treatment or advice may be obtained con- 8
cerning such diseases or conditions, shall be punished by imprisonment 9
for not more than six months or by a fine of not less than fifty nor more 10
than five hundred dollars, or both. This section shall not apply to the 11
printing or delivering in sealed packages outside this commonwealth of 12
books, pamphlets or circulars containing such advertisements, nor to 1.3
newspapers printed outside this commonwealth, nor to the printing, 14
publishing or distribution of any matter pertaining to venereal diseases 15
by state or municipal health authorities. 16
S'triSind'"" Section 30. Whoever sells, lends, gives away or has in his possession
isI^mI; '"'ith intent to sell, lend, give away or distribute, or offers to sell, lend,
R. L. 212, 1 21. gjyg away or distribute to a minor a book, pamphlet, magazine, news-
paper or other printed paper devoted to the publication or principally
made up of criminal news, police reports or accounts of criminal deeds,
or pictures and stories of lust or crime; or exhibits upon a public way or
in any other place ■within the view, or which may be M'ithin the view, of a
minor, or employs a minor, or having the custody or control of a minor
permits him, to sell, lend, give away or distribute any such book, pam-
phlet, magazine, newspaper or printed paper, shall be punished by im- 10
prisonment for not more than two years or by a fine of not less than 11
one hundred nor more than one thousand dollars. 12
Immoral
entertainments.
1896, 339, § 1.
R. L. 212, I 22.
Section 31. \Mioever, as owner, manager, director, agent or in any 1
other capacity, uses or causes or permits to be used, in connection with 2
any show or entertainment, public or private, a phonograph or other 3
contrivance, instrument or device, which utters or gives forth any pro- 4
fane, obscene or impure language, shall be punished by imprisonment for 5
not more than one year or by a fine of not more than five hundred dollars, 6
or both. 7
Penalty for
gi^nng, etc.,
immoral en-
tertainments.
R. L. 212, § 23.
1910, 367.
Section 32. ^^^loeve^, as owner, manager, director, agent or in any 1
other capacity, prepares, advertises, gives, presents or participates in 2
any lewd, obscene, indecent, immoral or impure show or entertainment, 3
or in any show or entertainment suggestive of lewdness, obscenity, 4
indecency, immorality or impurity, or in any show or entertainment 5
manifestly tending to corrupt the morals of youth, shall be punished by 6
imprisonment for not more than one year or by a fine of not more than 7
five hundred dollars, or both. 8
Ch.\P. 272.] CRIMES AGAINST CHASTITY, ETC., .•USTD GOOD ORDER. 2767
1 Section 33. WTioever exliibits for hire a minor or insane person who Exhibition of
2 is deformed or a person who has an appearance of deformity produced by iss°™9."'^'
3 artificial means shall be punished by a fine of not more than five hun- ^' ^' ^^^' ^ "*"
4 dred dollars.
1 Section 34. Wlioever commits the abominable and detestable crime Sodomy and
2 against nature, either with mankind or with a beast, shall be punished B"1f.''9i',
3 by imprisonment in the state prison for not more than twenty years. ' '
C. L. 14. §§ 7, 8.
1784, 46, § 1.
R. .S. 130, 1 14.
P. S. 207, § 18.
1697. 19.
1804, 133.
G. S. 1()5, I IS.
R. L. 212, § 25
• 1 Section 35. Wlioever commits any unnatural and lascivious act with u°°aturai and
^ lascivious acts.
2 another person shall be punished by a fine of not less than one hundred jss^, 430. § l_
3 nor more than one thousand dollars or by imprisonment in the state 1918,257,'
4 prison for not more than five years or in jail or the house of correction 1919, 's.
5 for not more than two and one half years.
1920, 2. 160 Mass. 536. 197 Mass, 106.
1 Section 36. \Vlioever wilfully blasphemes the holy name of God by Blasphemy.
2 denying, cursing or contumeliously reproaching God, his creation, govern- c. l.' 14,' § 3.'
3 ment or final judging of the world, or by cursing or contumeliously re- 1782! 8.'
4 preaching Jesus Christ or the Holy Ghost, or by cursing or contumeliously §; |; lis^ivl'
5 reproaching or exposing to contempt and ridicule, the holy word of God r l^?/2V28
6 contained in the holy scriptures shall be punished by imprisonment in 2dPick. 206.
7 jail for not more than one year or by a fine of not more than three hun-
8 dred dollars, and may also be bound to good behavior.
1 Section 37. Whoever, having arrived at the age of discretion, pro- Profane cursing
2 fanely curses or swears, shall be punished by a fine of not more than five c° l^ ^45^°^
3 dollars nor less than one dollar; but no prosecution hereunder shall be 1692-3, is, § 1.
4 commenced after twenty days from the commission of the offence. 1733-4' 13
1746-7,17,5 1. R. S. 130. I 16. P. S. 207. § 20.
1798, 33, §§ 1,3. G. S. 105, § 20. R. L. 212, § 29.
1 Section 38. Whoever wilfully interrupts or disturbs an assembly of Disturbing re-
^ .,,,, I, Hgious worship.
2 people met for worship of God shall be punished by imprisonment for c l. 250 § 2.
3 not more than one month or by a fine of not more than fifty dollars. r. s.' isb, i'l"-
G. S. 165, § 21. P. S. 207, § 21. R. L. 212, § 30. 2 Mass. 163.
1 Section 39. Whoever, during the time of holding a camp or field ''^^,','"^;t„
2 meeting for religious purposes, and within one mile of the place thereof, near camp
3 hawks or peddles goods, wares or merchandise, or establishes or main- 1838, i43.
4 tains a tent, booth or building for vending provisions or refreshments, 1867] 59. '
5 or furnishes shelter and food for or has the care of horses for pay, without Jl?!; H
6 permission from the authorities or officers having the charge or direction r. l.Ti^.Vsi.
7 of such meeting, or engages in gaming or horse racing, or exhibits or 1^2 Mass. 542.
8 offers to exliibit any show or play, shall forfeit not more than twenty
9 dollars; provided, that the time of holding such meeting shall not exceed
10 thirty consecutive days in any one year; and that a person having a
11 regular, usual and established place of business within such limits need
12 not suspend his business.
1 Section 40. 'Whoever wilfully interrupts or disturbs a school or other Disturbance
2 assembly of people met for a lawful purpose shall be punished by im- puWic°me"Jting.
3 prisonment for not more than one month or by a fine of not more than q ''I; %'^_ 5 23.
4 fifty dollars. p. S. 207, § 23. R. L. 212, § 32. 1 Gray. 476.
2768 CRIMES AG.UNST CH.\STITY, ETC., ANT> GOOD ORDER. [CiLVP. 272.
S'^*ilbu?°™ Section 41. "\Mioever wilfully disturbs persons assembled in a pub- 1
i885"22'5 l''^ library, or a reading room connected therewith, by making a noise 2
R. L. 212, 1 33. or in any other manner during the time when such hbrary or reading 3
room is open to tlie public shall be punished as provided in the preceding 4
section. 5
?nu"erar^ Section 42. Whoever A^-ilfully interrupts or by fast driving or other- 1
G ^s 165 5 24 '^'s® ^^1 ^^y "^'^y disturbs a funeral assembly or procession shall be pun- 2
p.'s.'207;i 24.' ished as provided in section forty. r.l. 212, §34. 1 Gray, 476. 3
SictlrTpublfo'' Section 43. \^'hoe^■er, in or upon a railroad carriage, steamboat or I
isss^io"'"^' other public conveyance, is disorderly, or disturbs or annoys travelers 2
R. l'. 212, § 3s. in or upon the same by profane, obscene or indecent language, or by in- 3
§ 87.' ' ' decent behavior, shall be punished as provided in section forty. 4
drunk'enMss. Section 44. Wliocvcr is found In a state of intoxication in a public 1
G ^1' 86^1^0^' pl^ce, or is found in any place in a state of intoxication committing a 2
^i^- *i^- 5 *2. breach of the peace or disturbing others by noise, may be arrested with- 3
p. s.'207, 5 25. out a warrant by a sheriff, deputy sheriff, constable or police officer, and 4
R. L. 2I2', § 36. kept in custody in a suitable place until he has recovered from his 5
W0°S3!'316. intoxication. 123 Mass. 436. 6
125 Mass. 19S. 144 Mass. 294. 173 Mass. 52.
141 Mass. 102. 150 Mass. 243. 298. 3 Op. A. G. 96.
a^?sted for SECTION 4.5. Whoe\'er arrests a person for drunkenness shall make a 1
may beTi?* complaiut agaiust him therefor at the next session of the court or of the 2
tatn^ca'sesretc trial justicc having jurisdiction of the case; and such court or trial justice 3
st^'i's^'^' ^^^y proceed to hear and to dispose of the same according to due course 4
1893,414. of law; and may, if the accused has been released under this section, 5
1905,' 384.' order the issuance of a warrant for the arrest, or a summons for the ap- 6
157 Mass'. 556. pcaraucc, of the accused for trial, or if the court is satisfied by the report 7
208 Mass. 287. ^^ j^^ probation officer, or otherwise, or if the trial justice is satisfied upon 8
inquiry that the accused has not four times before been arrested for 9
drunkenness ■n-ithin a year, and that his written statement hereinafter 10
mentioned is true, the court or trial justice may thereupon direct that 11
the accused, if still in custody, be released without arraignment; and if 12
not in custody, that further proceedings in the case be suspended or that 13
the complaint be dismissed. 14
a"e3°ted may A pcrsou SO arrestcd may, after he has recovered from his intoxication, 15
Sentin wnUng make a WTittcn statement, addressed to the court or trial justice having 16
tobe'reieaMd jurisdiction of liis offcncc, giving his name and address, setting forth 17
from custody, w-hat persons, if any, are dependent upon him for support, his place of 18
emplojTnent, if any, and whether he has been arrested for drunkenness 19
within the twelve months next preceding, and requesting to be released 20
from custody; and may deliver said statement to the officer in charge of 21
the place in which he is confined, who shall endorse thereon the name of 22
the arresting officer, and if the arrest is made within the jurisdiction of a 23
trial justice, his opinion of the probable truth of said statement for the 24
use of such trial justice, and shall transmit the same to such trial justice; 25
and if the arrest is made within the jurisdiction of a court having a pro- 26
bation officer, the officer in charge of the place in which he is confined 27
shall transmit such statement to said probation officer. Said probation 28
officer, or his assistants, shall forthwith inquire into the truth thereof 29
and shall investigate the record of said person as to pre\'ious similar 30
CeAF. 272.] CRIMES AGAINST CH.\STITY, ETC., .\ND GOOD ORDER. 2769
31 offences, and, for the use of the court having jurisdiction of the case, shall
32 endorse on such statement, with his signatiu-e, the result of his investiga-
33 tion. The officer for the time being in charge of the place of custody
34 in a town where no probation officer resides forthwith may release, and
35 elsewhere the probation officer or assistant probation officer of the coiu-t
36 hai-ing jurisdiction of the offence may direct the officer in charge of the
37 place of custody forth\\'ith to release, and such officer so in charge shall
38 thereupon release, such arrested person pursuant to his request; pro-
39 \aded, that the officer so releasing or directing the release believes that
40 the person arrested has given his true name and address, that he will
41 appear upon a summons, and that he has not four times before been
42 arrested for drunkenness within the preceding twelve months.
1 Section 46. The officer in charge of the place of custody in which a Persons
2 person arrested for drunkenness is confined shall inform him, when he has for drunken-
3 recovered from his intoxication, of his right to make a WTitten statement fn/ormed°of
4 and request for release under the preceding section, and an officer making ^l^e^fat'e-*"
5 an arrest under the authority of said section shall not be liable for illegal J^™5''3''g4 s g
6 arrest or imprisonment, if the person arrested is so released at his request. 208 Mass'. 2S7.
1 Section 47. A full record shall be kept by every court or trial justice Record of
2 of each case in which a person is released, as aforesaid, with the statement E^^S!^ '^^
3 made by him. isoi, 427, § 4.
R. L. 212, § 38. 1918, 257, § 451. 1919, 5. 1920, 2.
1 Section 48. If a person is convicted of drunkenness by the volun- Penalties for
2 tary use of intoxicating liquor, he may be punished by imprisonment in aT. so'm.
3 jail or in any place pro\ided by law for common drunkards, or, if a male, legi'l; ^^' ^ ^'
4 in the Massachusetts reformatory, or, if a female, in the reformatory for r ^|"t'3o^§ i8
5 women, for not more than one year; or by a fine of not more than fifteen ^^°- 1|| ^_
6 dollars, or the court may place the case on file or place the defendant 1869,452.'
7 on probation and prescribe the terms thereof.
1879, 229, § 1. 1885, 365, § 2; 375. 116 Mass. 340.
1880, 221, §§ 1, 1886, 323, § 1. 133 Mass. 496.
2; 247, § 1. R. L. 212, § 39. 157 Mass. 471.
1881, 276. 1913, 620. • 184 Mass. 195.
P. S. 207, §§ 26-28. . 8 Gray, 484. 1 Op. A. G. 219.
1 Section 49. Probation officers shall assist the courts appointing Duties of pro-
2 them by obtaining and furnishing information relative to pre'vious i89i°'42^°''""
3 arrests, convictions and imprisonments for drunkenness, and such other |j^ l,^212, § 40.
4 facts as the court orders relative to persons accused of drunkenness. P4|;^^"'
5 They shall keep a full record, well indexed, of each such case which they wis. s-
6 investigate, in such form as the court orders.
1 Section 50. Records and statements made under sections forty-five Records open
2 and forty-seven to forty-nine, inclusive, shall be at all times open to the is9i?427,'T7.
3 police officials of the towns of the commonwealth. The police commis- fgoe; 291! | la
4 sioner of Boston, city marshals and chiefs of police, keepers of jails and
5 masters of houses of correction shall on application furnish to each other
6 and to probation officers, and probation officers shall on application fur-
7 nish to each other, all information in their possession relative to persons
8 whose cases are under investigation.
1 Section 51. Whoever opens a place to be resorted to by other per- Opiuni resorts.
2 sons, in which opium or any of its derivatives or compounds is sold or r. l! 212, § 42.
2770
CRIMES AGAINST CILVSTITy, ETC., AND GOOD ORDER. [CiLVP. 272.
Search of sus-
pected opium
resorts.
1895, 194,
§§ 1, 2.
R. L. 212. § 43.
173 Mass. 477.
Rogues,
vagabonds,
etc.
C. L. 153. § 1.
1699-1700,
8, §2.
1769-70, 19.
1787, 54, § 2.
1834, 151,
§§2,3.
R. S. 143,
§§5,6.
1837, 157; 217.
1851,346.
1856, 186.
G. S. 165,
§§ 28, 29.
1866, 235.
1874, 385, § 21.
1876, 118.
1878, 270, § 2.
1880, 114: 257.
P. S. 207,
§§ 29, 30.
1884, 258, § 1.
1885, 365, § 1.
1886, 323, § 1.
1898, 443, § 1.
R. L. 85, § 30;
212, §§ 46,48.
1914, 743.
10 Met. 217.
11 Cu.ih. 477.
5 Gray, 85.
14 Gray, 397.
1 Allen, 6.
4 Allen, 313.
6 Allen, 511.
99 Mass. 497.
112 Mass. 285.
137 Mass. 24,5.
141 Mass. 78.
given away to be smoked at such place, and whoever visits or resorts to 3
any such place for the purpose of smoking opium or any of its derivatives 4
or compounds, shall be punished by a fine of not more than five hundred 5
dollars or by imprisonment for not more than six months, or both. 6
Section 52. If a person makes oath before a district court or trial 1
justice that he believes or has probable cause to believe that any place, 2
house, building or tenement within the jurisdiction of such court or justice 3
is used or resorted to for the purpose of smoking opium or any of its 4
derivatives or compounds, or for the purpose of selling or giving away 5
opium or any of its derivatives or compounds to be smoked at such place, 6
house, building or tenement, and that persons resort thereto for such 7
purposes, such court or justice, whether the names of the persons last 8
mentioned are known or unknown to the complainant, shall, if satis- 9
fied that there is probable cause therefor, issue a warrant commanding 10
the sheriff or his deputy or any constable or police officer to enter such 11
place, house, building or tenement and there to arrest the keepers thereof, 12
and all persons there present, whether smoking or not, if the implements 13
for smoking opium or any of its derivatives or compounds are there 14
found, and seize all the opium and derivatives or compounds thereof and 15
all the implements for smoking the same and all the furniture, fixtures 16
and other personal property there found, and to keep said persons, opium, 17
derivatives or compounds thereof, implements, furniture, fixtures and 18
property so that they may be produced before a court or magistrate, to 19
be dealt with according to law. Whoever is found so present or so 20
smoking shall be punished by a fine of not more than one hundred dollars. 21
The provisions of chapter two hundred and seventy-six relative to dis- 22
posal of gaming articles seized upon search warrants shall apply to all 23
articles seized as herein provided for. 24
Section 53. Rogues and vagabonds, persons who use any juggling 1
or unlawful games or plays, common pipers and fiddlers, stubborn chil- 2
dren, runaways, common drunkards, common nightwalkers, both male and 3
female, persons who with offensive or disorderly act or language accost 4
or annoy in public places persons of the opposite sex, pilferers, lewd, 5
wanton and lascivious persons in speech or behavior, common railers 6
and brawlers, persons who neglect their calling or employment or who 7
misspend what they earn and do not provide for themselves or for the 8
support of their families, and all other idle and disorderly persons in- 9
eluding therein those persons who neglect all lawful business and habitu- 10
ally misspend their time by frequenting houses of ill fame, gaming houses 11
or tippling shops, may be punished by imprisonment in the Massachu- 12
setts reformatory or at the state farm in the case of a male offender, or 13
in the reformatory for women or at the state farm in the case of a female 14
offender, or, for not more than six months, in the house of correction or 15
workliouse in the town where the offender is convicted, or in the work- 16
house, if any, in the town where the offender has a legal settlement, 17
if such town is in the county where the conviction was obtained, or by 18
a fine not exceeding two hundred dollars, either with or without a condi- 19
tion that, if it is not paid within a time specified, the person convicted 20
shall be punished by imprisonment under this section; and such con- 21
ditional sentence shall be executed according to section ten of chapter 22
two hundred and seventy-nine. i"0 Mass. 192. 23
179 Mass. 533. 207 Mass. 572. 1 Op. A. G. 219.
Chap. 272.] crimes against cil\stity, etc., akd good order. 2771
1 Section 54. Wlioever is found in a public way or other public place. Arrest of dis-
2 committing any offence or disorder mentioned in the preceding section, S street^r'*"''
3 may be apprehended by a sheriff, deputy sheriff, constable or police isMrisi! fs.
4 officer, or by any other person by the order of a magistrate or any of §; |- \jjl- 1 gj
5 said officers, without a warrant and be kept in custody for not more than P- |- ^ot, §3^1^
6 twenty-foiu" hours, Sundays and legal holidays excepted, until he can i9i+. bm
7 be taken before a court or trial justice having jurisdiction of such offence.
1 Section 55. The master, keeper, director or overseer of a workhouse Master of
2 to which a person has been committed under any provision of the two et'J.. to receive
3 preceding sections shall receive all persons so committed, set them to mTtted'""™'
4 work if they are able, and employ and go\-ern them in the mamier pro- l^^^g^^""'
5 vided by law and by the rules and orders established for that purpose; and J^sp s|.j§ 3^
6 the town where such house is situated may recover the balance of the R. s.'s7, §41-
7 expense of the support of any such person over and above the amount of o.'s. le's. § so.
8 his labor from the person thus committed, or from any kindred or town r'.l. 2i2,§49.
9 liable by law for his support, if he is a pauper, in like manner as if he
10 had been committed to the house of correction for the same offence.
1 Section 56. If a person convicted under section fifty-three appeals Repetition
2 from the sentence, the commission of any like offence by him before breacroF "
3 judgment on the appeal shall be a breach of the condition of the recog- iIm^'isiITs.
4 nizance, if any was taken upon allowing the appeal.
R. S. 143, § 8. G. S. 165, § 31. P. S. 207, § 32. R. L. 212, § 50.
1 Section 57. When a person is brought before a magistrate upon a Disdiarge of
2 charge of any offence mentioned in sections fifty-three, sixty-six and recognrzance.
3 sbcty-eight, such magistrate, or the court before which the case may be §: i: itf. 1 32.
4 carried on appeal, may at any stage of the proceedings direct the defend- ^'s'im.'iii.
5 ant or appellant to be discharged, upon his entering into a recognizance, n- ^- 212, § 51.
6 with sufficient sureties, in such sum as the magistrate or court orders,
7 for his good behavior for not less than six months nor more than two
8 years, and paying the expenses of prosecution or such part thereof as
9 the magistrate or court orders.
1 Section 58. A parent or other person who employs a minor under Begging by
2 fifteen in begging or who, having the care or custody of such minor, per- is87,l2i2.
3 mits him to engage in such employment shall be punished by a fine of ^' ^' ^^'' ^ ^'^'
4 not more than two hundred dollars or by imprisonment for not more
5 than six months.
1 Section 59. Whoever remains in a street or elsewhere in a town in .'^est without
2 wilful violation of an ordinance or by-law of such town or of any rule vidatiSra of "^
3 or regulation for the government or use of any public reservation, park- "stslTsT' ^^'^'
4 way or boulevard made under authority of law by any department, R.L.f/o.^jll'.
5 officer or board in charge thereof, and whoever in a street or other public I'Joo. ^3.
6 place accosts or addresses another person with profane or obscene lan-
7 guage, in wilful violation of an ordinance or by-law of such town, may
8 be arrested without a warrant by an officer authorized to serve criminal
9 process in the place where the offence is committed, if he is unknown to
10 such officer, and kept in custody until he can be taken before a court
11 having jurisdiction of the offence.
2772
CRIMES AGAINST CH.\STITY, ETC., AND GOOD ORDER. [CiLiP. 272.
Certain persona
may be ar-
rested and de-
tained for the
purpose of
ascertaining
their identity,
1910. 436, § 1.
Section 60. '\^lioever commits a misdemeanor, as defined by a by- 1
law, regulation or ordinance of a town or authority therein, in the pres- 2
ence of a police officer or an officer authorized to serve criminal process, 3
the substance of which misdemeanor is the placing on or in or tlirowing 4
into a public way, the sidewalk of a public way or a public alley, filth, 5
rubbish or other substance, and, being requested by such officer forthwith 6
to remove it, refuses or neglects so to do, and if the identity of such person 7
is unknown to the officer, may be arrested by such officer and detained 8
in a safe place without a warrant until his identity is ascertained. Rea- 9
sonable diligence shall be exercised by the arresting officer in ascertain- 10
ing the identity of the offender and when identified he shall be released 11
from arrest unless a warrant has issued against him. 12
Con'viction
after discharge
on former
con\'iction.
1834. 151, § 8.
R. S. 143, § 13.
G. S. 165. § 34.
P. S. 207, § 36.
R. L. 212, § 54.
Section 61. \^lioever, having been discharged under section one
hundred and forty of chapter one hundred and twenty-seven, is after-
ward convicted of any offence mentioned in section fifty-tliree com-
mitted after the former conviction, either in the same or a different
county, may be sentenced to hard labor in the house of correction or
workhouse for not more than one year.
Nightwalking.
Third con-
\nction.
1855, 69. § 1.
G. S. 165, § 35.
1866, 198, § 5.
1869, 258, § 1.
1870, 19;
288, § 1.
Section 62. If a complaint charges a person with being a common
nightwalker, and it is proved at the trial that such person has been twice
before convicted of the same offence, he may be sentenced to the house
of correction, state farm, or workliouse, if any, in the town, for not more
than two and one half vears.
p. S. 88. § 5; 207, § 37.
1897, 395, § 4.
1898, 443, § 1.
R. L. 85. § 30;
212, § 55.
1918, 257, § 464.
1919, S.
1920, 2.
Op. A. G. (1920) 39.
Tramps.
1880, 257,
§§ 2, 3, 7.
P. S. 207, § 38.
1896, 385.
R. L. 212, § 56.
Section 63. Whoever, not being under seventeen, a blind person or 1
a person asking charity within his own town, roves about from place to 2
place begging, or living without labor or visible means of support, shall 3
be deemed a tramp. An act of begging or soliciting alms, whether of 4
money, food, lodging or clothing, by a person having no residence in the 5
town within which the act is committed, or the riding upon a freight train 6
of a railroad, whether within or without any car or part thereof, without 7
a permit from the proper officers or employees of such railroad or train, 8
shall be prima facie evidence that such person is a tramp. 9
Punishmen
of tramps.
1880, 257,
§§ 1,4.
P. S. 207,
§§ .39, 40.
R. L. 212,
1918, 257,
§464.
1919, 5.
1920, 2.
§57.
Section 64. A tramp shall be punished by imprisonment in the 1
house of correction for not less than six months nor more than two 2
years, or by imprisonment at the state farm; and if he enters a dwelling 3
house or other building without the consent of the o^^■ner or occupant 4
thereof, or wilfully or maliciously injures or threatens to injure any person 5
therein, or threatens to do any injury to any person, or to the property of 6
another, or is found carrying a firearm or other dangerous weapon, he 7
shall be punished by imprisonment in the house of correction for not 8
less than one nor more than two and one half years, or at the state farm. 9
tram's"' Section 65. A sheriff, deputy sheriff, constable or police officer,
1880,257, upon view or information of an offence described in the two preceding
p. s.' 207, § 41. sections, may, without a warrant, arrest the ofl'ender, and make com-
plaint against him therefor; and the state police shall make such arrests
and complaints. Mayors and selectmen shall appoint special police
Ch.\P. 272.] CRUIES AGAINST CH.\STITY, ETC., .AND GOOD ORDER. 2773
6 officers, who shall also make such arrests and complaints in their re-
7 spective towns.
1 Section 66. Idle persons who, not having \-isible means of support, vagrants.
2 live without lawful employment; persons wandering abroad and visiting §§ i.'s.
3 tippling shops or houses of ill fame, or lodging in groceries, outhouses, issi, 25s. § i''
4 market places, sheds, barns or in the open air, and not giving a good \IIq\ I23; | {'.
5 account of themselves; persons wandering abroad and begging, or who r^lM^'Im
6 go about from door to door, or place themselves in public ways, passages Jos^i'/.^^g^ij-
7 or other public places to beg or receive alms, and who do not come within h7 jikss! 399.
8 the description of tramps, as contained in section sixty-three, shall be 459. '
9 deemed vagrants, and may be sentenced to the Massachusetts reformatory
10 or state farm or shall be punished by imprisonment for not more than
1 1 six months in the house of correction or workliouse.
1 Section. 67. Sheriffs, deputy sheriffs, constables and police officers, Arrest ot
2 acting on the request of any person or upon their own information or i866?235, § 2.
3 belief, shall without a warrant arrest and carry any vagrant before a R.L.^2'/2.\1fd.
4 district court or trial justice for the purpose of an examination, and
5 shall make complaint against him.
1 Section 68. A person known to be a pickpocket, thief or burglar, Certain persons
2 if acting in a suspicious manner around any steamboat landing, railroad vagabonds!'
3 depot, or any electric railway station, or place where electric railway cars ^!^s' 20?.' i *i.
4 stop to allow passengers to enter or leave the cars, banking institution, fg^- jj|' ^ ''^■
5 broker's office, place of public amusement, auction room, store, shop, 207 Mass. 572.
6 crowded thoroughfare, car or omnibus, or at any public gathering or
7 assembly, shall be deemed a vagabond, and shall be punished by impris-
8 onment in the house of correction for not less than four nor more than
9 twelve months.
1 Section 69. Sheriffs, deputy sheriffs, constables and police officers Arrest of
2 shall take any such vagabond into custody without a warrant and shall, i866,''2.?5.^§ 4.
3 within twenty-four hours after such arrest, Sundays and legal holidays r.i;.212,|62'.
4 excepted, take him before a district court or trial justice, and shall make
5 complaint against him.
1 Section 70. A sheriff, deputy sheriff or constable who takes the Attachment of
2 body of a deceased person on mesne process or execution shall be punished mi.'io'f § 2.
3 by a fine of not more than five hundred dollars or by imprisonment for §; |; i65,^§*36.
4 not more than six months. p. s. 207, § 46. r. l. 212. § 63.
1 Section 71. Whoever, not being authorized by the board of health, violation of
2 overseers of the poor, directors of a workliouse, or mayor and aldermen is'u.'nl'.
3 or selectmen, or by the penal institutions commissioner or overseers of §§^,'2.^'
4 the poor of Boston, wilfully digs up, disinters, removes or conveys away §• |- Hf | If
5 a human body, or the remains thereof, or knowingly aids in such disin- l.^^'^JV \ 47
6 terment, removal or conveying away, and whoever is accessory thereto isgT'.M.i § s.'
7 either before or after the fact, shall be punished by imprisonment in the lois.' 257,
8 state prison for not more than three years or in jail for not more than fglgt'a.
9 two and one half years or by a fine of not more than two thousand dollars, s^lfcif 370.
10 Pick, 37. 19 Pick. 304.
2774 CBIMES AGAINST CHASTITY, ETC., .ANT) GOOD ORDER. [ClIAP. 272.
SnTS^d^d Section 72. \Mioever buys or sells, or has in his possession for the 1
i853'323, purpose of buying, selling or trafficking in, the dead body of a human 2
G s ^165 5 38 "^^"^S shall be punished by a fine of not less than fifty nor more than five 3
p.'s.'207.'§48.' hundred dollars or by imprisonment for not less than three months nor 4
1918,' 2o7,'§ 464.' more than two and one half years. i9i9, s. 1920,2. 5
del^iSI tombs, Section 73. TMioever wilfully destroys, mutilates, defaces, injures 1
1^4, 1S7. § 2. 01" removes a tomb, moniunent, gravestone or other structure or thing 2
G I' 165' 1 39' ^'h'c-h is placed or designed for a memorial of the dead, or a fence, railing, 3
1879. 39. ' ciu-b or other thing which is intended for the protection or ornament of 4
r'. l. 212, § 66. a structm^e or thing before mentioned or of an enclosure for the burial of 5
§ 464. ' the dead, or wilfully destroys, mutilates, removes, cuts, breaks or injures 6
i92o; 2^ a tree, shrub or plant placed or being within such enclosure, or wantonly 7
100 Mass. 181. pj. maliciously disturbs the contents of a tomb or a grave, shall be punished 8
by a fine of not more than one thousand dollars or by imprisonment in 9
the jail or house of correction for not more than two and one half years. 10
of1buriai'°° SECTION 74. \Mioever ^^Tongfully, and by any act not included in 1
f84™ii4, § 6. the preceding section, destroys, injures or removes a building, fence, 2
a^a It!'/ 12. railing or other thing lawfully erected in or around a place of burial or 3
R L ^"r' Vet ^em^tery, or a tree, shrub or plant within its limits, or wTongfully injures 4
7 aH™' iqq' ^ '^alk or path, or places rubbish or offensive matter or commits a nuisance 5
100 Mass. 181. therein, or in any way desecrates or disfigures the same, shall forfeit not 6
less than five nor more than one hundred dollars. Upon the trial of a 7
complaint hereunder, use and occupation for the piu-poses of burial shall 8
be suflicient evidence of title. 9
floTere,\tc.. Section 75. "Whoever, without authority, removes flowers, flags or 1
1888, 395^^' memorial tokens from any grave, tomb, monument or burial lot in any 2
R. L. 212, § 68. cemetery or other place of burial shall be punished by a fine of not more 3
than one hundred dollars. 4
eta!"t^Ji?^h' Section 76. "V^Tioever lays out, opens, or makes a highway or town 1
issS'w.Ti'. ^ay, or constructs a railroad or canal, or any other thing in the nature 2
« 59 60- ^^ * public easement, over, tlu-ough, in or upon any part of an enclosure, 3
30, § 21." which is the property of a city, town, parish, religious society or of private 4
p.' s'. 207, 1 SI.' proprietors and is used or appropriated for the burial of the dead, unless 5
authority for that purpose is specially granted by law, or unless the 6
consent of such city, town, parish, religious society or proprietors, re- 7
spectively, is first obtained, shall be punished by a fine of not more than 8
two thousand dollars or by imprisonment for not more than one year. 9
a^ais. ° Section 77. ^Vhoever overdrives, overloads, drives when overloaded, 1
issl', 96°' ^ ^^' overworks, tortures, torments, deprives of necessary sustenance, cruelly 2
fggf 111; ^ *'■ beats, mutilates or kills an animal, or causes or procures an animal 3
iIg9"344 ^^ ^^ ^° overdriven, overloaded, driven when overloaded, overworked, 4
§§i.'|- ' tortured, tormented, deprived of necessary sustenance, cruelly beaten, 5
§§52,53. mutilated or killed, and whoever, ha\'ing the charge or custody of an 6
7Aii'en, 579. ' animal, either as owner or otherwise, inflicts unnecessary cruelty upon 7
111 Mass! 408. it) or unnecessarily fails to provide it ^ith proper food, drink, shelter or 8
118 Mai: 45s; protcctiou from the weather, and whoever, as owner, possessor or person 9
}37 Mass. 600. having the charge or custody of an animal, cruelly drives or works it 10
150 Mass. 509. whcii unut lor labor, or cruelly abandons it, or carries it or causes it to be 11
Chap. 272.] crimes against chastity, etc., and good order. 2775
12 carried in or upon a vehicle, or other«'ise, in an unnecessarily cruel or i62 Mass. si?.
13 inhuman manner, or knowin{,'ly and -wilfully authorizes or permits it to niMaSiu!
14 be subjected to unnecessary torture, suffering or cruelty of any kind, shall
15 be punished by imprisonment for not more than one year or by a fine
16 of not more than two hundred and fifty dollars, or both.
1 Section 78. No person holding an auctioneer's license shall receive Buying.
2 or offer for sale or sell at public auction, nor shall any person sell at private !eadmg,^*°"
3 sale, or lead, ride or drive on any public way, for any purpose except dSawld^*""
4 that of convejang the horse to a proper place for its himiane keeping Penffjy
5 or killing, or for medical or surgical treatment, any horse which, by rea- J^o^. iss.
6 son of debility, disease or lameness, or for other cause, could not be
7 worked in the commonwealth M-ithout violating the laws against cruelty
8 to animals. This section shall not prohibit the purchase of horses by
9 humane societies incorporated under the laws of the commonwealth for
10 the pm-pose of humanely killing the same. Violation of this section shall
11 be punished by a fine of not less than five nor more than one hundred
12 dollars or by imprisoimient for not more than six months. If a licensed
13 auctioneer violates this section, he shall also forfeit his license.
1 Section 79. A corporation violating either of the two preceding Corporations
2 sections shall be punished by a fine as therein provided, and shall be i808!'2i2, § ?.
3 responsible for the knowledge and acts of its agents and servants rela- p'^'s.'im.'iii.
4 tive to animals transported, owned or used by it or in its custody. ^- ^- ^^^' ^ ^'•
1 Section 80. Whoever cuts the bone of the tail of a horse for the pur- Mutilation
2 pose of docking the tail, or whoever causes or knowingly permits the issol'^ie?.
3 same to be done upon premises of which he is the owner, lessee, proprietor §§^^-3.^''
4 or user, or whoever assists in or is present at such cutting, shall be pun- ^- ^- ^^^' ^ ^^•
5 ished by imprisonment for not more than one year or by a fine of not
6 less than one hundred nor more than three hundred dollars. If a horse
7 is found with its tail so cut and with the wound resulting from such
8 cutting unhealed, upon the premises or in the charge and custody of any
9 person, such fact shall be prima facie evidence of a violation of this
10 section by the owner or user of such premises or the person having such
1 1 charge or custody, respectively.
1 Section 81. Railroad corporations shall not permit animals carried ^nfmifs""
2 or transported by them to be confined in cars longer than twenty-eight ig1-^'''2T''"| 5
3 consecutive hours without unloading them for at least five consecutive isss'. su. § 3.
4 hours for rest, water and feeding, unless prevented by storm or accident. § 142.
5 In estimating such confinement, the time during which the animals have r. l. 212, § 73.
6 been confined without such rest on connecting roads from which they are ^^^ ^''^^' *■*"
7 received shall be included. Animals so unloaded shall during such rest
8 be properly fed, watered and sheltered by the owner or person having the
9 custody of them, or, in case of his default, by the railroad corporation
10 transporting them, at the expense of said owner or person in custody
1 1 thereof. In such case the corporation shall ha^•e a lien upon such animals
12 for food, care and custody furnished, and shall not be liable for such
13 detention. A corporation, owner or custodian of such animals failing to
14 comply with this section shall be punished by a fine of not less than one
1.5 hundred nor more than five hundred dollars. This section shall not apply
16 to animals carried in cars in which they can and do have proper food,
17 water, space and opportunity for rest.
2776
CRIMES AG.traST CH.iSTITY, ETC., AND GOOD ORDER. [Ch.\P. 272.
^eftVto Section 82. A person found A-iolating any provision of section
isSTsw, § 4. seventy-seven or eighty-one may be arrested and held without a warrant
R 1^^2/2^74 ^^ provided in section fifty-four; the person making an arrest with or
without a warrant shall use reasonable diligence to give notice thereof to
the owner of animals found in the charge or custody of the person arrested,
shall properly care and provide for such animals until the owner thereof
takes charge of them, not, however, exceeding sixty days from the date
of said notice, and shall have a lien on said animals for the expense of
such care and provision.
w^rant. Section 83. If complaint is made to a court or magistrate authorized
p*s^'207t'/57' to issue warrants in criminal cases that the complainant has reasonable
R. L. 212, § 75. cause to believe that the laws relati\'e to cruelty to animals have been or
are violated in any particular building or place, such court or magistrate,
if satisfied that there is reasonable cause for such belief, shall issue a
search warrant authorizing any sheriff, deputy sheriff, constable or police
officer to search such building or place; but no such search shall be made
after sunset, unless specially authorized by the magistrate upon satisfac-
tory cause shown.
Officers to
prosecute.
Disposition
of fines-
1868, 212. §
1869, 344, §
P. S. 207. §
1S91, 304.
R. L. 212, S
2 Op. A. G.
292.
Op. A. G.
(1920) 277.
Section 84. Sheriffs, deputy sheriffs, constables and police officers
shall prosecute all violations of sections seventy-seven to eighty-one, in-
clusive, which come to their notice, and, upon all convictions for cruelty
5S- to animals, fines collected upon or resulting from the complaint or informa-
76. tion of an officer or agent of the INIassachusetts Society for the Preven-
tion of Cruelty to Animals shall, except as provided in the following
section, be paid to said society after deducting therefrom for the expense
of prosecution such amoimt as the court or trial justice shall order.
1
2
3
4
5
6
7
8
9
1
2
3
4
5
6
7
8
9
1
2
3
4
5
6
7
8
Same subject.
1894, 4f.l, § 4.
R. L. 212. § 77
Section 85. One half of all fines collected upon convictions under 1
section eighty upon or resulting from the complaint or information of any 2
officer or agent of the INIassachusetts Society for the Prevention of Cruelty 3
to Animals shall be paid to said society. 4
Stabling
horse, etc.
above first
floor, except,
1916, 158.
I§ 1-3.
Section 86. ^Mioever stables a horse or mule on the second or any 1
higher floor of any building, unless there are two means of exit therefrom, 2
at opposite ends of the building, to the main or street floor, unless such 3
building is equipped with an automatic sprinkler system, shall be punished 4
by a fine of not more than two hundred dollars. 5
Pigeon shoot-
ing, etc.
1879. 187.
P. S. 207, § 69.
R. L. 212, § 78.
Search warrant
for fighting
birds, etc.
1876, 85, § 1.
P. S. 207, § 60.
R. L. 212, § 79.
1918, 99. § 1.
Section 87. ^Mioever keeps or uses any live bird, to be shot at either 1
for amusement or as a test of skill in marksmanship, or shoots at a bird 2
kept or used as aforesaid, or is a party to such shooting, or lets any 3
building, room, field or premises, or knowingly permits the use thereof, 4
for the purpose of such shooting, shall be punished by a fine of not more 5
than fifty dollars or by imprisonment for not more than one month, or 6
both. Nothing herein contained shall apply to the shooting of wild 7
game. 8
Section 88. If complaint is made to a court or magistrate author- 1
ized to issue warrants in criminal cases that the complainant has reason- 2
able cause to believe that preparations are being made for an exhibition 3
of the fighting of birds, dogs or other animals, or that such exliibition is 4
in progress, or that birds, dogs or other animals are kept or trained for 5
CRIMES AGAINST CHASTITY, ETC., AND GOOD ORDER. 2777
6 fighting at any place or in any building or tenement, such court or magis-
7 trate, if satisfied that there is reasonable cause for such belief, shall issue
8 a search warrant authorizing any sheriff, deputy sheriff, constable or
9 police officer, or special police officer duly appointed by the governor at
10 the request of the Massachusetts Society for the Prevention of Cruelty
11 to Animals, to search such place, building or tenement at any hour of
12 the day or night and take possession of all such birds, dogs or other
13 animals there found, and arrest all persons there present at any such
14 exliibition or where preparations for such exliibition are being made, or
15 where birds, dogs or other animals are kept or trained for fighting.
1 Section 89. Any officer authorized to serve criminal process, or Entry without
2 special police officer duly appointed by the governor at the request of ?869"435''ri°.'
3 the Massachusetts Society for the Prevention of Cruelty to Animals, p^a'lo7,\l3i.
4 may, without a warrant, enter any place, building or tenement in which J^il'gg^i I*"'
5 there is an exliibition of the fighting of birds, dogs or other animals,
6 or in which preparations are being made for such an exhibition, and arrest
7 all persons there present and take possession of and remove from the
8 place of seiziu-e the birds, dogs or other animals engaged in fighting, or
9 there found and intended to be used or engaged in fighting, or kept or
10 trained for fighting, and hold the same in custody subject to the order
11 of court as hereinafter provided.
1 Section 90. Persons arrested under either of the two preceding sec- Persons
2 tions shall be kept in jail or other convenient place not more than twenty- tlken'before"
3 four hours, Sundays and legal holidays excepted, at or before the ex- ^sra^'^l.' § i.
4 piration of which time they shall be taken before a district court or a p*"!' 207^§g2
5 trial justice and proceeded against according to law. R. l. 212, § si.
1 Section 91. After such seizure and removal of such birds, dogs or judsmentof .
2 other animals, application shall be made to a district court or a trial proceedings'"'
3 justice for a decree of forfeiture of the same; and if, upon the hearing JseiT.Tss, § 2.
4 of such application, notice thereof having been previously given as the p* g^'lg^y \%j
5 justice or court orders, it shall be found that such birds, dogs or other R- l- 212, § 82.
6 animals, or any of them, at the time of such seizure were engaged in
7 fighting at an exhibition thereof, or were owned, kept, possessed or
8 trained by any person with the intent that they should be so engaged,
9 such birds, dogs or other animals shall be adjudged forfeited and such
10 justice or court shall thereupon, unless an appeal is taken as provided
11 in the following section, issue an order for killing them, which shall be
12 directed to any officer authorized to serve criminal process; and the
13 officer receiving said order shall cause such birds, dogs or other animals
14 to be killed within twenty-four hours thereafter. Birds,; dogs or other
15 animals seized as hereinbefore provided, which are not adjudged for-
16 feited, shall be delivered to the owner or person entitled to the posses-
17 sion thereof. Any person shall be allowed to appear as claimant in the
18 proceeding upon the application for a decree of forfeiture.
1 Section 92. An owner or claimant aggrieved by such judgment ■\pr''^'^,
2 may, within twenty-four hours after the entry thereof and before its istg! s.5, '§ 5. '
3 execution, appeal therefrom to the superior court; and all proceedings r. l! 212! I s's."
4 upon and after such appeal, including the right of exception, shall con-
5 form, so far as may be, to those in criminal cases, except that before
6 such appeal is allowed the appellant shall recognize to the commonwealth
2778
CRIMES AGAINST CHASTITY, ETC., AND GOOD ORDER. [Ch.\P. 272.
in the sum of two hundred dollars, with suiEcient sureties, to prosecute his 7
appeal and to pay such expenses of the prosecution as the court may 8
order and such expenses as may be thereafter incurred in the care and 9
keeping of tlie birds, dogs or other animals claimed by such appellant 10
if final judgment is rendered against them, and to abide the judgment 11
of the court thereon. Upon the final judgment, the birds, dogs or other 12
animals held in custody to abide such judgment shall be disposed of, 13
under the direction of the superior court, in like manner as the court or 14
justice might have disposed of them if no appeal had been taken. During 15
the pendency of the appeal, all birds, dogs or other animals adjudged 16
forfeited shall be kept in custody in a place other than that from which 17
they were taken. 18
ra^'refefc, o^f Section 93. The necessary expenses incurred in the care and de- 1
isra^'^s § 4 struction of such birds, dogs and other animals may be allowed and paid 2
1870, 85, 1 6. in the same manner as expenses in criminal prosecutions. 3
p. S. 207, § 65. R. L. 212. § 84.
Penalty on
owner, etc.
1859, 158. ? 1.
G. S. 88. § 79.
1869, 435. § 5.
1876, 85, § 7.
P. S. 207, § 66.
E. L. 212, § 85.
Penalty for
being present at
exhibition, etc.
1859, 158, § 2.
G. S. 88. § 79.
1869, 435, § 6.
1876, 85, § 8.
P. S. 207, § 67.
E. L. 212, § 86.
Op. A. G.
(1920) 277.
Section 94. Whoever owns, possesses, keeps or trains a bird, dog or 1
other animal, with intent that it shall be engaged in an exhibition of 2
fighting, or whoever establishes or promotes an exhibition of the fighting 3
of birds, dogs or other animals, shall be punished by a fine of not more 4
than two hundred dollars or by imprisonment for not more than one 5
year, or both. 6
Section 95. Whoever is present at any place, building or tenement 1
where preparations are being made for an exhibition of the fighting of 2
birds, dogs or other animals, with intent to be present at such exhibition, 3
or is present at, aids in or contributes to such exhibition, shall be punished 4
by a fine of not more than twenty-five dollars or by imprisonment for 5
not more than one month, or both. 6
ofb^th" etc. Section 96. Whoever wilfully sends to the publisher of a newspaper 1
p* s''2\k\i 68. for publication a false notice of a birth, marriage or death shall be pun- 2
E. L. 212, § 87. itilTfirl K-\r Q finf» r»f nr»t mnrA tlinn nnA Vinnrlrprl rlnllnrQ 3
ished by a fine of not more than one hundred dollars.
Costumed debt
collectors.
1899, 238.
E. L. 212, § 88.
1918, 257,
§464.
1919, 5.
1920, 2.
Section 97. A director or officer of a corporation engaged in the 1
business of a collection agency or in making collections from delinquent 2
debtors or any other person who employs persons, dressed in unusual 3
and striking costiunes intended to attract public attention to the occupa- 4
tion of the wearers, to call upon debtors for the purpose of demanding 5
paj^ments of debts alleged to be due, and whoever, being so employed, 6
calls at the house or place of business of an alleged debtor, wearing such 7
costume, or a costume having an inscription adapted to attract attention 8
to his occupation, shall be punished by a fine of not less than fifty nor 9
more than five hundred dollars or by imprisonment in jail for not less 10
than three months nor more than two and one half years. 11
Color or race
discrimination.
1865, 277.
1866, 252.
P. S. 207, § 03.
1885, 316.
1893, 436.
1895, 461.
E. L. 212, § 89.
13 Allen. 247.
216 Mass. 344.
Section 98. Whoever makes any distinction, discrimination or re- 1
striction on account of color or race, except for good cause applicable 2
alike to all persons of every color and race, relative to the admission of 3
any person to, or his treatment in, a theatre, skating rink or other public 4
place of amusement, licensed or unlicensed, or in a public con-\-eyance or 5
public meeting, or in an inn, barber shop or other public place kept for 6
CH.4.P. 272.] CRIilES AGAINST CHASTITY, ETC., AND GOOD ORDER. 2779
7 hire, gain or re-n-ard, licensed or unlicensed, or whoever aids or incites
8 such distinction, discrimination or restriction, shall be punished by a
9 fine of not more than three hundred dollars or by imprisonment for not
10 more than one year, or both, and shall forfeit to any person aggrieved
11 thereby not less than twenty-five nor more than three hundred dol-
12 lars; but such person so aggrieved shall not recover against more than
13 one person by reason of any one act of distinction, discrimination or
14 restriction.
1 Section 99. Whoever, except when authorized by written permis- Eavesdropping.
2 sion of the attorney general of the commonwealth, or of the district at- ^^'^°' ^^®' ^ ^'
3 torney for the district, secretly overhears, or attempts secretly to over-
4 hear, or to have any other person secretly overhear, any spoken words
5 in any building by using a device commonly known as a dictagraph or
6 dictaphone, or however otherwise described, or any similar device or
7 arrangement, or by tapping any wire, with intent to prociu-e information
8 concerning any official matter or to injure another, shall be guilty of the
9 crime of eavesdropping and shall be punished by imprisonment for not
10 more than two years or by a fine of not more than one thousand dollars,
11 or both.
1 Section 100. Whoever, except when authorized under the preced- Accessory to
Z mg section, either on his own account or as the servant or agent of an- 1920, sss, § 2.
3 other, permits or acquiesces in the installing of a device commonly known
4 as a dictagraph or dictaphone or any similar device or arrangement, or
5 the tapping of any wire, with intent to procure or knowing or intending
6 that it will be used to procure information concerning any official matter
7 or to injure another, shall be punished by imprisonment for not more
8 than two years or by a fine of not more than one thousand dollars, or
9 both.
1 Section 101. Proof of the installation in any building of any device Prjma facie
2 or arrangement which may be used for the purpose of violating the pro- iSoi'Ms, § 3.
3 visions of section ninety-nine by listening to any spoken words or proof
4 of the tapping of any wue, unless duly authorized and unless done with
5 the consent of the owner or person in control of the building, shall be
6 prima facie evidence of the commission of the crime of eavesdropping;
7 but nothing contained in this or the two preceding sections shall render it
8 unlawful for any person to install and use such a device on premises
9 under his exclusive control.
1 Section 102. The three preceding sections shall not apply to a cor- Towhomsec-
2 poration subject to the jurisdiction of the department of public utilities not'lppii'c°ab?i.
3 of the commonwealth or to the jurisdiction of the interstate commerce ^^'°- *^*' ^ ^'
4 commission, or to the employees of any such corporation while engaged
5 in the conduct of its business.
references.
Complaint for keeping or depositing opium and other drugs, Chap. 94, § 214.
Complaint for desertion, nou-support, etc., of wife or minor child, Chap. 273.
Arrest without warrant for misdemeanor committed in or on rivers, etc., Chap.
91, § 58.
Penalty for passing through cemeteries, etc., Chap. 114, § 42.
Penalty for discrimination at theatres, etc., against persons in United States uni-
forms. Chap. 264, § 10.
Throwing glass on a public way, etc., Chap. 265, § 32.
27S0
DESERTION, NON-SUPPORT .VNT) BAST.\RDY.
[ClL\P. 273.
CHAPTER 273
DESERTION, NON-SUPPORT AND BASTARDY.
Sect.
Wn'ES AND CHILDREN.
10.
Offences and punishment.
Jurisdiction and venue.
Fines may be used for support.
Orders pendente lite.
Orders for payment.
Recognizances. Forfeited bail, etc.,
may be used for support.
Evidence.
Want of custody of child no defence.
Pa>Tnent for labor of con'vict.
Uniformity of construction.
B.\STARDT.
11. Getting woman with child. Jurisdic-
tion and venue.
12. Adjudication of paternity. Appeal.
New trial.
Sect.
13. Adjournments. Confinement expenses.
14. Custody of child.
15. Non-support of child.
16. Penalties, orders and practice like those
prodded for cases of legitimate chil-
dren.
17. Dismissal, when allowed. Effect.
18. Forfeited bail may be used for support.
19. Cannot proceed after bastardy pro-
ceedings under former law.
DESTITUTE PARENTS.
20. Offence and punishment.
21. Jurisdiction and venue.
22. Orders and practice like those provided
for cases of wives and children.
Offences and
punishment.
18S2, 270, § 4.
1554, 210, § 1.
1555, 176, I 1.
1S93, 262.
1S99, 309. § 1.
R. L. 212, § 43.
190,5, 307.
1906, 501, § 1.
1907, 563, § 25.
190S, 104.
1909, 180.
1911,456, 5 1.
136 Mass. 435.
156 Mass. 4S5.
157 Mass. 73.
165 Mass. 356.
197 Mass. 91.
220 Mass. 336.
223 Mass. 62.
Jurisdiction
and venue.
1906, 501, § 5.
1911, 456, § 3.
197 Mass. 91.
Fines may
be used for
support.
1S84, 210, § 1.
1885, 176, § 1.
1893. 262.
R. L. 212, § 45.
1905, 307.
1906, 501, § 2.
1907, 563, 5 26.
1908, 104.
WR'ES AND CHILDREN.
Section 1. Any husband who without just cause deserts his wife 1
or minor child, whether by going into another town in tlie common- 2
wealth or into another state, and leaves them or any or either of them 3
without making reasonable provision for their support, and any husband 4
who unreasonably neglects or refuses to provide for the support and 5
maintenance of his wife or minor child, and any husband who abandons 6
or leaves his wife or minor child in danger of becoming a burden upon 7
the public, and any parent, whether father or mother, who deserts or wil- 8
fully neglects or refuses to provide for the support and maintenance of 9
his or her child under the age of sixteen, or whose minor child by reason 10
of the neglect, cruelty, drunkenness, habits of crime or other vice of such 11
parent is growing up without education, or without salutary control, 12
or without proper physical care or in circumstances exposing such child 13
to lead an idle and dissolute life, shall be punished by a fine of not more 14
than two hundred dollars or by imprisonment for not more than one 15
year, or both. 16
Section 2. Proceedings under the preceding section shall be begun, 1
if in the superior court, in the county in which is situated the place 2
where the husband and \nfe last li\'ed together or where the husband 3
or ^^^fe or parent of the child is li\ing, and, if begun in a district court 4
or before a trial justice, in the court or before the trial justice hanng 5
such place within its or his judicial district. 6
Section 3. The court imposing a fine under section one may at any 1
time order it paid in whole or in part to a probation officer, to be paid 2
by him to the wife or to the city, town, corporation, society or person 3
actually supporting the wife, child or children, or to the state treasurer 4
for the u.se of the department of public welfare if the child has been 5
committed to said department. i9ii, 456, § 2. loio, 350, 1 s7. 6
ClL^-P. 273.] DESERTION, NON-StTPPORT AND BASTARDY. 2781
1 Section 4. At any time before trial, upon motion of the complainant Orders
2 or district attorney and upon notice to the defendant, the court may i9u, 466, § 4.
3 enter such temporary order as may seem just, providing for the support
4 of the wife, or children, or both, pendente lite, and may punish any viola-
5 tion of such order as for contempt.
1 Section 5. Before trial, with the consent of the defendant, or after orders for
2 entry of a plea of guilty or nolo contendere, or after conviction, if the i905?307.
3 defendant is placed on probation, with or without suspension of the exe- §§°3;|°^"
4 cution of a sentence, the court, having regard to the circumstances and J^o^' J^s, 5 26.
5 to the financial ability or earning capacity of the defendant, may make isiiiwo,
6 an order, which shall be subject to change from time to time as circum- iqh', 520.
7 stances may recjuire, directing the defendant to pay certain sums periodi- §§ 453. 454.
8 cally, for a term not exceeding two years, to the probation officer, and may |®S7^; ^' ^"' '
9 release the defendant from custody on probation. The probation officer, ^^-°' ^•
10 subject to the direction of the court, shall pay over payments received
11 by him to the wife or guardian or custodian of the child, or to the city,
12 town, corporation, society or person supporting the wife or child, or to
13 the state treasurer for the use of the department of public welfare when
14 the payments are for the support of a child committed to it. If the court
15 be satisfied by due proof under oath that at any time the defendant has
16 violated the terms of the order for payments, it may proceed to try the
17 defendant upon the original charge, or sentence him under the origi-
18 nal plea or conviction, or enforce the suspended sentence, as the case
19 may be.
1 Section 6. The court, in releasing a defendant from custody on pro- Recognizances.
2 bation, may in its discretion require him to enter into a recognizance, et",maybe''
3 with or without surety, in such sum as the court may order. The con- "uppoH.
4 dition of the recognizance shall be, that if the defendant shall make his p'g''||'|4'
5 personal appearance in court, whenever ordered to do so, and shall comply R l. |2. § -i.
6 with the order for payments, and with any change therein, then the recog- woe, 601',
7 nizance shall be void, but otherwise shall be and remain of full force and 1907, sV.a, § 20.
8 effect. Suit may be brought upon such recognizance by the district 1911; 531*456,
9 attorney or any other person authorized by the coiu't. If the defendant His.srs, §9.
10 is admitted to bail pending trial, and the bail is forfeited, or if a recogni- J^m, 620. ^^^
11 zance under this section is forfeited, the court may order that the money ||*^^; *^''-
12 forfeited or recovered be paid in whole or in part to a probation officer, 1920; 2!
13 to be paid by him as provided in the preceding section.
1 Section 7. No other or greater evidence shall be required to prove Evidence.
2 the marriage of the husband and wife, or that the defendant is the parent u^l'.fii'JiL
3 of the child, than may be required to prove the same facts in a civil action. Jg^l; |oi; 5 ,
4 In any prosecution begun under section one, both husband and wife J^o^- ^Jj|' ^ ^^■
5 shall be competent witnesses to testify against each other to any relevant 1009'. iso.
6 matters, including the fact of their marriage and the parentage of the 219 Mass! 197.
7 child; provided, that neither shall be compelled to give evidence in-
8 criminating himself. Proof of the desertion of the wife or child, or of the
9 neglect or refusal to make reasonable provision for their support and
10 maintenance, shall be prima facie evidence that such desertion, neglect
11 or refusal is wilful and without just cause. In no prosecution under
12 sections one to ten, inclusive, shall any existing statute or rule of law
13 prohibiting the disclosure of confidential communications between hus-
14 band and wife apply.
2782
DESERTION, NON-SUPPORT .\NT) BASTARDY.
[ClLiP. 273.
Want of
custody of
child no
defence.
1917, 163.
1918,257.5455.
1919, 5; 148.
Section 8. In proceedings under section one against a parent, rela- 1
tive to any minor child, it shall not of itself be a defence that the de- 2
fendant has ceased to have custody or the right to custody of such child 3
on his own acquiescence or by judicial action. 1920,2. 4
Payment for
labor of con-
vict.
1911, 456, § 8.
1912, 264; 310.
Section 9. If the court imposing a sentence under section one, 1
finds the wife or child, as the case may be, of the defendant to be in des- 2
titute or needy circumstances, the superintendent, master or keeper of 3
the reformatory or penal institution where he is confined upon such sen- 4
tence shall pay over to the probation officer of such court at the end of 5
each week, out of the annual appropriation for the maintenance of such 6
reformatory or penal institution, a sum equal to fifty cents for each day's 7
hard labor performed by the person so confined, and shall state the name 8
of the person for whose labor the payment is made. The probation 9
officer shall pay over said sum in the manner pro\ided in section five for 10
the payments therein provided for. 11
Uniformity of Section 10. The niuc preceding sections shall be so interpreted and 1
construction. ^ , <=• .pii
1911, 456. § 9. construed as to effectuate their general purpose to make uniform the law 2
of those states enacting their provisions. 3
Getting
woman with
child. Juris-
diction and
venue.
C. L. 55, I 2.
1692-3, IS, § 5.
1785, 66, § 2.
R. S. 49, § 1.
1851, 96,
5« 1, 2.
1853, 57, I 11.
BAST.ARDT.
Section 11. Whoever, not being the husband of a woman, gets her 1
■^•ith child shall be guilty of a misdemeanor. Proceedings under this 2
section or any of the eight following sections shall be begun, if in the 3
superior court, in the county in which is situated the place where the 4
defendant or the mother of the illegitimate child lives, and, if begun 5
in a district court, in the court ha\'ing such place witliin its judicial 6
district. 7
1857, 300, § 1.
1859, 2.39, §§ 1. 2, 6.
G. S. 72, §§ 1, 3, 13.
1863. 127. § 5.
P. S. 85. §§ 1, 3, 22.
1885, 289.
E. L. 82, §§ 1, 3, 22.
1904, 159.
1913, 563. §§ 1, 9.
3 Met. 209.
13 Met. 372.
15 Gray, SO.
4 .\IIen, 365.
193 Mass. 528.
229 Mass. 157.
235 Mass. 383.
236 Mass. 362.
Adjudication
of paternity.
Appeal.
New trial.
C. L. 55, § 2.
1G92-3, 18, § 5.
1785, 66, § 2.
R. S. 49, § 4.
G. S. 72, § 7.
1863, 127, § 2.
P. S. 8.5.
§§ 7, 15.
1885, 384, § 5.
R. L. 82,
§1 7, 15.
1913. 563,
§§ 2, 9.
103 Mass. 50.
112 Mass. 60.
194 Mass. 291.
Section 12. If the defendant pleads guilty or nolo contendere, or is 1
found guilty, the court shall enter a judgment adjudging him the father 2
of the cliild; but such adjudication shall not be made after a plea of not 3
guilty, against the objection of the defendant, until the child is born 4
or the court finds that the mother is at least six months pregnant. At 5
the sitting when such adjudication is made by a district court, if made 6
after a plea of not guilty, the defendant may appeal therefrom to the 7
superior court as in other criminal cases. The adjudication, whether any 8
sentence be imposed or not, shall be final and conclusive unless an appeal 9
therefrom be taken as hereinbefore provided, or, if such adjudication 10
be made by the superior court, unless set aside upon an appeal taken 11
not later than three days thereafter under section twenty-eight of chap- 12
ter two hundred and seventy-eight or upon exceptions. Such adjudica- 13
tion may be entered by the superior court notwithstanding exceptions 14
have been alleged or an appeal has been taken. The court making the 15
adjudication may within one year thereafter grant a new trial for any 16
cause. 17
•Adjournments.
Confinement
Section 13. No law limiting adjournments or continuances shall 1
legl-iris, § 5. ^PP'y to any proceedings under sections eleven to nineteen, inclusive. 2
CbLVP. 273.] DESERTION, NON-SUPPORT AND BAST.VRDV. 2783
3 If the child has not been born at the time of the adjudication, the court J^ss. ^^■^^■
4 shall continue the case from time to time until the child is born. At g'. s. 72! § 5.
5 any time after adjudication, after inquiring into the respective means p. s.'s5,''
6 of the defendant and the mother, the court haxing jurisdiction of the il/i'.se?.
7 case may make an order for the paj-ment to the mother or to a probation ^j- g- ff;
8 officer of a sum of money determined by the court for the expenses of ||^|'|®f'
9 the confinement of the mother, and for failure to comply therewith may
10 order the defendant committed to jail, as for a contempt of court, for a
11 term not exceeding two months, unless he shall sooner comply with such
12 order.
1 Section 14. After the adjudication, the court may make such order Custody of
2 as may be considered expedient relative to the care and custody of the 1913,' ses, § 5.
3 child, and from time to time may revise and alter said order, as justice
4 and the welfare of the child require, which order shall be binding on all
5 persons.
1 Section 15. Any father of an illegitimate child, whether begotten Non-support
2 within or without the commonwealth, who neglects or refuses to contribute c. l.'s5. § 2.
3 reasonably to its support and maintenance, shall be guilty of a misde- i785r6'o.^§'2^. ^'
4 meaner. If there has been any final adjudication of the paternity of the g- 1- 1|' 1 1-
5 child, such adjudication shall be conclusive on all persons in proceedings ?• s. ss^ §15^
6 under this section; otherwise, the question of paternity shall be deter- i9i3,' sea,
7 mined in proceedings hereunder. The duty to contribute reasonably to 5 Mass. sn.
8 the support of such child shall continue during its minority. '°'^ '"^^
112 Mass. 60. 223 Mass. 150.
1 Section 16. After the adjudication and the birth of the child, in Penalties.
2 proceedings under section eleven, or after conviction, in proceedings practice uke
3 under the preceding section, the defendant shall be subject upon the for clfeTol'*^'^
4 original complaint or indictment in such proceedings to penalties and Jfifjjdren*^
5 orders for paj-ments similar to those provided by the first ten sections 9gg2L3*j| \ 5
6 of this chapter; and the practice established thereby shall, so far as i7S5, ee. §' 2.
7 applicable, apply to any proceedings under sections eleven to nineteen, k. s.'49, '
8 inclusive. is57, 305. §§ 1, 2. *^ ^' *' ®"
1859, 239, § 4. P. S. 85, §§ 4, 15, 16, 21. 1913, 5fi3, §§ 6, 7, 9.
G. S. 72, §§ 7, 8, 12. R. L. 82. §§ 4, 15, 16, 21. 219 Mass. 197.
1871,42, §1. 1911,53.
1 Section 17. If the court having jurisdiction of any case under sec- Dismissal,
2 tions eleven to nineteen, inclusive, or any of them, becomes satisfied Effect* "'"^ "
3 that no living child will be born of which the defendant at the time of J^^'tF' ^ ^•
4 making the complaint was the father, or that the defendant and the ||g|' i^^
5 mother have married each other and the child has become or will be the ^'^''g^'gig"'
6 legitimate child of the defendant, or that adequate provision has been i§ 12,17-19.
7 made for its maintenance, the case may be dismissed and any adjudica- r.lI 82^ '
8 tion vacated; and if the court certifies that such pro\-ision has been llosisVs!^^'
9 made, no further prosecution shall be maintained under any of said jl'l;!*^^'
10 sections. 4Allen, 59. 121 Mass. 533.
1 Section 18. If money is forfeited or recovered upon a recognizance Forfeited bail
2 or deposit in lieu thereof gi\-en in proceedings under sections eleven to "or^sup^port.
3 nineteen, inclusive, or any of them, the court in which such proceedings p^f'ss^'^i 7.^'
4 are pending may order such money paid to the probation officer and 5^ii3;?,?,3f jg.
5 expended by him, under the direction of the court, for the support of i9is, 199.
6 the child.
2784
FELONIES, ACCESSORIES -tXD ATTEMPTS.
[Ch.U'. 274.
StCT bL'ta°rfy'^ Section 19. No proceedings shall be maintained under any of the 1
undsf/^rmer ^iglit preceding sections in any case where bastardy proceedings were 2
law. begun before July first, nineteen hundred and thirteen. 3
1913. 563, §§ 7, 9. 229 Mass. 157.
DESTITUTE PARENTS.
Section 20. Any person, over twenty-one, who, being possessed of
offence and
punishment.
223\/ass' 150 Sufficient means, unreasonably neglects or refuses to provide for the
4 Op. A. G. 613. support and maintenance of his parent, whether father or mother, re-
siding in the commonwealth, when such parent tlirough misfortune and
without fault of his own is destitute of means of sustenance and unable
Jurisdiction
and venue.
1915, 163, § 3.
by reason of old age, infirmity or illness to support and maintain himself,
shall be punished by a fine of not more than two hundred dollars or
by imprisonment for not more than one year, or both. No such neglect
or refusal shall be deemed unreasonable as to a child who shall not 9
during his minority have been reasonably supported by such parent, if 10
such parent was charged with the duty so to do, nor as to a child who, 11
being one of two or more children, has made proper and reasonable 12
contribution toward the support of such parent. 13
Section 21. Proceedings under the preceding section shall be begun, 1
if in the superior court, in the county in which is situated the place where 2
the defendant or the parent lives, and, if begun in a district court, in 3
the court ha\ing such place T\'ithin its judicial district. Complaints in 4
district courts under the preceding section may be made by any such 5
parent, by any child of such parent, by the overseers of the poor of the 6
town where such parent has a settlement, or by any other public relief 7
officer. 8
Orders and
practice like
those provided
for cases
of wives and
children.
1915, 163, I 2.
Section 22. Before trial, with the consent of the defendant, or after 1
entry of a plea of guilty or nolo contendere, or after conviction, the court 2
may make for the benefit of such destitute parent orders similar to those 3
pro\'ided by section five; and the practice established by the first ten 4
sections of this chapter shall, so far as applicable, apply to proceedings 5
under this and the two preceding sections. 6
CHAPTER 274
FELONIES ACCESSORIES AND ATTEMPTS TO COMMIT CRIMES.
Sect.
1. Felony and misdemeanor.
2. Accessory before the fact.
3. Accessory before the fact. When and
how tried.
Sect.
4. Accessorj- after the fact.
5. Accessory after the fact. How, when
and where tried.
6. Attempt to commit crime.
A crime punishable by death or imprisonment in the 1
2
Felony and SeCTION 1
misdemeanor. OU^IIU-^ 1.
1852,37 § 1 state prison is a felony. All other crimes are misdemeanors.
p. S. 210, 5 1. 11 Allen, 243. 206 Mass. 417.
R. L. 215, § 1. 151 Mass. 96.
Accessory be-
fore the fact.
1784,65, § 1;
66, § 9.
Section 2. 'NMioever aids in the commission of a felony, or is ac- 1
cessory thereto before the fact by counselling, hiring or otherwise pro- 2
Chap. 274.] felonies, accessories and attempts. 2785
3 ciiriiiii such felony to be committed, shall be punished in the manner iso4, i3i, § i.
4 provided for the punishment of the principal felon. . g. s. les, § 3. ^' ^' ^^^' ^ ^^
P.'S. 210, § 3. R. L. 215, § 2. 127 Mass. 15. 221 Mass. 43.
1 Section 3. Whoever counsels, hires or otherwise procures a felony Accessory
2 to be committed may be indicted and con^■icted as an accessory be- wh°enandhow
3 fore the fact, either with the principal felon or after his conviction; or Jslo,^,
4 may be indicted and convicted of a substantive felony, whether the fj^g'igg
5 principal felon has or has not been convicted, or is or is not amenable §§2,3;
6 to justice; and in the last mentioned case may be punished in the same §§4,' 5, '
7 manner as if convicted of being an accessory before the fact. An acces- Tm, 5^°'
8 sory to a felony before the fact may be indicted, tried and punished .in fe Ma^sl^^s^'
9 the same county where the principal felon might be indicted and tried, fi^ll^en, ms
10 although the counselling, hiring or procuring the commission of such Jos Mass' i?*'
11 felony was committed within or \nthout this commonwealth or on the iiiMasl:395.
TO 1 • 1 114 Mass. 307.
12 high seas.
1 Section 4. ^^^aoever, not a husband or wife, or, by consanguinity, Accessory after
2 affinity or adoption, the parent or grandparent, child or grandchild, i7ll%, § 2;
3 brother or sister of the offender, after the commission of a felony, j8ol,^i23, § 2-
4 harbors, conceals, maintains or assists the principal felon or accessory I^^q'^^' "^'
5 before the fact, or gives such offender any other aid, knowing that he iso5.97, §2;
6 has committed a felony or has been accessory thereto before the fact, R s 133, § 4.
7 with intent that he shall avoid or escape detention, arrest, trial or punish- is7g,2*i3,^§^7.
8 ment, shall be an accessory after the fact, and, except as otherwise pro- r.l.2'i°s,§4.
9 vided, be punished by imprisonment in the state prison for not more f^^^ ^^''■
10 than seven years or in jail for not more than two and one half years or j^J^'^-
11 by a fine of not more than one thousand dollars.
1 Section 5. An accessory to a felony after the fact may be indicted, ^ft^r'th^fact
2 convicted and punished, whether the principal felon has or has not How, when and
3 been previously convicted, or is or is not amenable to justice, either in isao, 49, § 3.
4 the county where he became an accessory or in the county where the a', s. les! 1 7'.
5 principal felony was committed. p. s. 210, § 7. r. l. 215. § s.
1 Section 6. ^^^loever attempts to commit a crime by doing any Attempt to
2 act toward its commission, but fails in its perpetration, or is intercepted ^S-STm!^"™^'
3 or prevented in its perpetration, shall, except as otherwise provided, § g Hf | g^-
4 be punished as follows: p. s. 210, §8.
R. L. 21.5, § 6. 107 Mass. 225. 177 Mass. 267.
1911, 130. 123 Mass. 422. 188 Mass. 330.
10 Met. 422. 140 Mass. 451. 210 Mass. 445.
3 Gush, 529. 143 Mass. 32. 213 Mass. 225.
5 Cush. 365. 149 Mass. 229. 215 Mass. 209.
105 Mass. 162, 169, 460. 170 Mass. 18. 235 Mass. 357.
5 First, by imprisonment in the state prison for not more than ten
6 years, if he attempts to commit a crime punishable with death.
7 Second, by imprisonment in the state prison for not more than five
8 years or in jail for not more than one year, if he attempts to commit a
9 crime punishable by imprisonment in the state prison for life or for five
10 years or more.
1 1 Third, by imprisonment in jail for not more than one year or by a fine
12 of not more than three hundred dollars, if he attempts to commit a crime
13 punishable by imprisonment in the state prison for less than five years
14 or by imprisonment in jail or by a fine.
2786
PROCEEDINGS TO PRE'S'ENT CRniES.
[Chap. 275.
TITLE II.
PROCEEDINGS IX CRIMINAL CASES.
Chapter 275.
Chapter 276.
Ch.^pter 277.
Chapter 27S.
Chapter 279.
Chapter 2S0.
Proceedings to prevent Crimes.
Search Warrants, Rewards, Fugitives from Justice, Arrest, Exam-
ination, Commitment and Bail. Probation Officers and Commis-
sion on Probation.
Indictments and Proceedings before Trial.
Trials and Proceedings before Judgment.
Judgment and Execution.
Fines and Forfeitures.
CHAPTER 275.
PROCEEDINGS TO PRE\TNT CRIMES.
Sect.
1. Justices authorized to keep the peace.
2. Complaint of threat to commit crime.
3. Arrest.
4. Penalty. Recognizance to keep the
peace.
5. Commitment on failure to recognize,
etc.
6. Complainant. When to pay expenses.
7. Payment of expenses.
8. Appeal.
9. Witnesses to recognize.
10. Proceedings on appeal.
Sect.
11. Recognizance to remain in force if ap-
peal is not prosecuted.
12. Discharge from commitment upon rec-
ognizing.
13. Recognizance to be transmitted to
superior court.
14. Recognizance. When to be required on
view of court or justice.
15. Persons who go armed to find sureties
for the peace, etc.
16. Remission of penalty.
17. Surrender of principal by surety.
Justices
authorized to
keep the
peace.
R. S. 134, § 1.
G. S. 169. § 1.
P. S. 211, § 1.
R. L. 216, 1 1.
Section 1. Tlie justices of the supreme judicial court, of the su-
perior court, of district courts and trial justices may cause all laws made
for the preservation of the public peace to be kept; and in the execution
of that power may require persons to give security to keep the peace,
or for their good behavior, or both, as provided in this chapter.
Complaint of
threat to com-
mit crime.
R. S. 134. 5 2.
G. S. 169. § 2.
P. 8.211, § 2.
R. L. 216, § 2,
Section 2. If complaint is made to any such court or justice that 1
a person has threatened to commit a crime against the person or property 2
of another, such court or justice shall examine the complainant and 3
any witnesses who may be produced, on oath, reduce the complaint to 4
writing and cause it to be subscribed by the complainant. 5
1692^3, 18. § 6. Section 3. If, upon such examination, it is found there is just 1
JZ|^, 51. |i. cause to fear that such crime may be committed, such court or justice 2
R. s.' 134, § 3. shall issue a warrant, reciting the substance of the complaint, and re- 3
Ch.\P. 275.] PROCEEDINGS TO PRE\-ENT CRIMES. 2787
4 quiring tlie officer to whom it is directed fortliwith to apprehend the g. s. leg, § 3.
5 person complained of and take him before such justice or some other r.l.I'ig.^s.
6 justice or court having jurisdiction of the cause. Such warrant, if
7 issued by a justice, shall be under his hand.
1 Section 4. If the person complained of is convicted, he may be Penalty.
2 punished by a fine of not more than one hundred dollars or by imprison- to^kelp the°^
3 ment for not more than six months. He may appeal as in other criminal 'ilas^s.
4 cases, and section twenty-four of chapter two hundred and seventy-eight §■ |- H^' 1 1-
5 shall apply to such appeals. Instead of imposing sentence, the court p-S-2ii,'§4.
6 or justice may order the person complained of to enter into a recogni- §§ i,'2.
7 zance, with sufficient sureties, in such sum as the court or justice orders, r. l! 216' § 4.
8 to keep the peace toward all the people of the commonwealth, and es- t MaS iT.'
9 pecially toward the person requiring such security, for such term, not
10 exceeding six months, as the court or justice may order. The court or
11 justice may, for good cause, revoke such order or reduce the amount of
12 the recognizance, or order that it be taken without surety.
1 Section 5. If the person complained of so recognizes, he shall be Commitment
2 discharged, but if he refuses or neglects so to do, he shall be committed Tfmgidze, etc.
3 to the jail or house of correction during the period for which he was i^l.'fli,^^'
4 required to give security, or until within that time he so recognizes, ^ I ii;g § 5
5 stating in the warrant the cause of commitment and the sum and time ^g|^- ^^^^ i^-
6 for which security was required. R. l. 2ig, § 5.
1 Section 6. If, upon such examination, it is found that there is not Complainant.
r% * p \ 1 • '11 1 -111 When to pay
2 just cause to tear that such crmie will be committed by the person expenses.
3 complained of, he shall be forthwith discharged; and if it is found that gIs. legile!
4 the complaint is unfounded, frivolous or malicious, the complainant r'. l, 216, § e.
5 may be ordered to pay the expenses of prosecution.
1 Section 7. If a person is required to give security to keep the peace Payment of
2 or for his good behavior, the court or justice may order him to pay the i82™i2s, § 2.
3 expenses of prosecution, or any part thereof, and that he shall stand r.^s.' 134.' 1 8.'
4 committed until they are paid or he is otherwise legally discharged. p I' 211,' §7'
R. L. 216, § 7.
1 Section S. Whoever is aggrieved by an order of a district court ^^^^^^^-^ , 1
2 or trial justice, requiring him to recognize as aforesaid, may, upon R. s.'iai, §9.
3 giving the security reciuired, appeal to the superior court, such appeal g. s.'i69, §s.
4 to be entered on the next return day. p. s. 211, § s. r. l. 216, 5 8.
1 Section 9. The court or justice shall require such witnesses as may witnesses to
2 be necessary to support the complaint to recognize for their appearance ks^i'sI,' § 10.
3 at the superior court.
G.S. 169. §9. P. S. 211, §9. R. L. 216, §9.
1 Section 10. The superior court may affirm the order or discharge Proceedings
2 the appellant, or may require him to enter into a new recognizance, i°s^m','§ 11.
3 with sufficient sureties, in such sum and for such time as it may order, p ; |; 2n; | lo.'
4 and may make such order relative to the expenses of prosecution as is ^- ^- ^^'^- ^ ^°-
5 just and reasonable.
2788
PROCEEDINGS TO PREVENT CRDIES.
[CH-VP. 275.
Recognizance
to remain in
force if appeal
is not
prosecuted.
R. S. 134, § 12.
G. S. 169, § 11.
P. S. 211. § 11.
R. L. 216, § 11.
Section 11. If the appellant fails to prosecute his appeal, his recog- 1
nizance shall remain in full force and effect as to any breach of the 2
condition, without an affirmation of the judgment or order of the court 3
or justice, and shall also stand as security for any expenses of prosecu- 4
tion which the superior court may order the appellant to pay. 5
f?im''coSnit- Section 12. A person committed for not finding sureties, or for 1
"'^"'niJS' refusing to recognize as required, may be discharged upon giving such 2
R.''s^Tli?|i3. security. 3
G. S. 169, § 12. P. S. 211, § 12. - R. L. 216, § 12.
ufbeTran""^* Section 13. Thc rccognlzance taken pursuant to the foregoing pro-
^periJ)r court visions shall be transmitted to the superior court on or before the next
K- s. i|4, 1 14. return day, and shall be there filed of record by the clerk; and upon
G.s.'i69, § 13. a breach of the condition an action shall be commenced thereon bv
p. S. 211, § 13. .,,■.■...
R. L. 216, s 13. the district attornev.
whento be'^re- Section 14. ^Miocvcr, in the presence of a justice named in section
ofTiJit or '*"* one or before a court of record, makes an affray, or threatens to kill or
ieo-'-s 18 § 6 ^^^i another, or to commit any violence or outrage against the person
i'9*.2fi.§.2. or property of another, or contends with hot and angry words, to the
g: s! 169! I u'. disturbance of the peace, may be ordered, without process or any other
r'. l. 216, § 14. proof, to recognize to keep the peace or be of good behavior for not
more than three months
provided in section five.
and in case of refusal mav be committed as
Persons who
go armed to
find sureties
for the peace,
etc.
1692-3. IS. 5 6.
1794, 26. § 2.
R. S. 134, § 16.
G.S. 169, i 15.
P. .S. 211. § 15.
R. L. 216. § 15.
1906, 172, § 2.
190S, 350, I 1.
Section 15. Whoever, not being duly licensed, goes armed with a 1
dirk, dagger, sword, pistol or other offensi\-e and dangerous weapon, 2
without reasonable cause t6 fear an assault or other injury or violence 3
to his person, or to his family or property, may, upon complaint of a 4
person who has reasonable cause to fear an injury or breach of the 5
peace, be required to find sureties for keeping the peace for not more than 6
six months, with the right of appeal as before provided. 7
1919, 207, I 2.
^*™j^.'°°°^ Section 16. If, upon a suit brought on such recognizance, the 1
ifs'm 5 17 P^'^^lty thereof is adjudged forfeited, the court may, upon petition of 2
g'. s. i6o', § 16.' a defendant, remit such portion of it as it finds ought to be remitted. 3
P. S. 211, §16. R. L. 216, §16.
Surrender of
principal by
Burety.
R. S. 134. I IS.
G. S. 169. § 17.
P. S. 211, § 17.
R. L. 216, § 17.
Section 17. A surety in a recognizance to keep the peace, or for
good behavior, or both, shall have the same authority and right to
take and surrender his principal as if he were bail for him in a civil
cause; and after such surrender shall be discharged from all liability
for any act of the principal subsecjuent to such surrender which would
be a breach of the condition of the recognizance. The person so sur-
rendered may recognize anew M'ith sufficient sureties for the residue of
the term, and shall thereupon be discharged.
CiL\p. 276.]
SE.UICH W.UIR.VNTS, ETC.
2789
CHAPTER 276.
SEARCH WARRANTS, REWARDS, FUGITIVES FROM JUSTICE, ARREST,
EXAMINATION, COMMITMENT AND BAIL. PROBATION OFFICERS
AND COMMISSION ON PROBATION.
Sect.
search wakb.4.nts.
1. Issue.
2. Form.
3. Disposition of property seized.
4. Notice to parties before forfeiture.
5. Service of notice.
6. Postponement of trial.
7. Sale or destruction of property seized.
8. Appeal to superior court.
KEWABDS.
9. Governor may offer reward.
10. Mayor, etc., may offer reward.
FDGITIVES FROM JUSTICE.
11. Delivery and demand of fugitive.
12. Proceedings.
13. Warrant. Arrest.
14. Opportunity to apply for writ of habeas
corpus.
15. Fees.
16. Arrest of person liable to be demanded
by another state.
17. Recognizance.
IS. Commitment on failure to recognize.
19. Proceedings and discharge.
20. Expenses.
ARREST, EXAMIN.ATION, COMMITMENT AND
BAIL.
21. Warrants to arrest, by whom issued.
22. Warrants, how issued.
23. Service of warrants.
24. When summons instead of warrant.
Service of summons.
Failure to obey summons a contempt.
Recognizance.
Arrest for misdemeanors.
29. Recognizance out of county, if a mis-
demeanor.
30. Magistrate, taking bail, to return re-
cognizance and certificate to court,
etc.
31. Proceedings if prisoner not bailed.
32. Conveyance of prisoner to county
where warrant issued, if felony
charged.
33. Physical examination of and report on
persons arrested.
34. Examination of prisoner.
35. Adjournment of trial or examination.
36. Proceedings in case of default on re-
cognizance.
25.
26.
28.
Sect.
37. Proceedings if defendant fails to recog-
nize.
38. Conduct of examination.
39. Separation of witnesses.
40. Testimony reduced to writing, etc.
41. Discharge.
42. Bail or commitment.
43. Prisoner may be carried through an-
other county.
44. Certificate of expenses.
45. Witnesses to recognize.
46. Same subject.
47. Sureties required, when.
4.S. Recognizances by minors.
49. Commitment of witness.
50. Deposition of witness.
51. Discharge on recognizance, when.
52. Treatment of witnesses in jail.
53. Transportation of male and female
prisoners.
54. Treatment by officers of witnesses in
custody.
55. Discharge if injured party satisfied.
56. Discharge a bar to civil action.
57. Magistrates who may admit to bail.
Money and certain eecurities may
be deposited.
Notice to officer if bail not fixed.
Admission to bail by masters in chan-
cery regulated.
Bail in Suffolk county.
Certificate of sureties required.
Notice to dLstrict attorney.
No fees for taking bail, when.
Bail on Sunday.
Condition of recognizance.
Return of recognizance and examina-'
tion to court.
Forfeiture of bail a bar to further bail.
Surrender of principal before default.
Return of certificate. New bail.
Remission of penalty after default.
Exoneration if unable to surrender
principal.
Default on recognizance.
Surety may pay amount of recogni-
zance, etc.
Award of forfeiture out of penalty of
recognizance.
. Action and judgment on recognizance.
. Irregularities not to defeat action.
. Review of judgment on forfeited re-
cognizance.
. Service of petition.
68.
n.
73.
2790
SE-UICH WARE,\NTS.
[CiL\P. 276.
Sect.
78. Proceedings if former judgment dimin-
ished.
79. Deposit in lieu of surety.
SO. Upon default, sale of securities and
pajTnent of money out of proceeds
of sale to county.
81. Self-surrender of defendant. Disposi-
tion of deposit.
82. "Magistrate" includes bail commis-
PROBATION OFFICERS.
S3. Probation officers.
84. Bonds.
85. Duties.
86. Boston juvenile court may appoint
deputy probation officers.
87. Court may place certain persons in care
of probation officer.
88. Clerical assistance.
89. Temporary probation officers.
90. Powers. Inspection of records.
91. Boston juvenile court officers to serve
process.
Sect.
92. Restitution to be made through pro-
bation officer.
93. Money collected by probation officer
to be paid to county if unclaimed,
etc.
94. Expenses of probation officers.
95. Support of probationers.
96. Penalty for neglect of duties.
97. Duties of department of public welfare
not affected.
COMMISSION ON PROBATION.
98. Commission on probation, deputy
commissioner, etc.
99. Powers and duties.
100. Detailed reports to be made of the pro-
bation work, etc.
101. Annual report.
102. Not to affect certain authority of the
courts.
103. Commission to be given notice of ap-
pointment or removal of probation
officers.
SEARCH WARRANTS.
Issue.
R. S. 142,
§§ 1. 2.
G. S. 170,
§§1.2.
P. S. 212.
§§1,2.
R. L. 217. § 1.
2 Met. 329.
Section 1. A court or justice authorized to issue warrants in criminal 1
cases may, upon complaint on oath that the complainant believes that 2
any of the property or articles hereinafter named are concealed in a par- 3
ticular house or place, if satisfied that there is reasonable cause for such 4
belief, issue a warrant to search for the following property or articles: 5
3 .Mien, 310.
103 Mass. 456.
119 M.1SS. 332.
140 Mass. 147.
145 Mass. 182.
217 Mass. 44a.
Stolen
property.
Concealed
property.
1S65, 127, § 2.
Insured
property.
Counterfeit
coin, notes, etc.
1823, 40, § 1.
Counterfeit
trade marks,
etc.
184)9, 359, § 8.
Unwholesome
meat or
provisions.
1866, 253, § 2.
1S94, 491, § 14,
Diseased
animals.
First, Personal property stolen, embezzled or obtained by false 6
pretences. 7
Second, Personal property hired or leased or held as collateral security 8
and fraudulently concealed. 9
Third, Personal property insured against loss or damage by fire which 10
the complainant has reasonable cause to believe has been removed or is 11
concealed for the purpose of defrauding the insurer. 12
Fourth, Counterfeit or spurious coin, forged bank notes and other 13
forged instruments, or tools, machines or materials prepared or provided 14
for making them. 15
Fifth, Counterfeits or imitations of a label, trade mark, stamp or form 16
of advertisement recorded pursuant to the statutes of the commonwealth, 17
goods upon which such counterfeit or imitation has been impressed, 18
affixed or used, and any dies, plates, brands, moukls, engravings, printing 19
presses, tj'pes or other tools, machines or materials prepared or provided 20
for making such counterfeit or imitation. 21
Si.xth, Diseased animals or carcasses thereof, or any tainted, diseased, 22
corrupted, decayed or unwholesome meat, fish, vegetables, produce, fruit 23
or provisions of any kind, or the meat of any calf killed when less than 24
four weeks old or any product thereof, if kept or concealed with intent 25
to kill, sell or oft'er the same for sale for food. 26
Seventh, Diseased animals. isoo, 4os, § lo. 27
Ch.\P. 276.] SEARCH W.\EE.\NTS. 2791
28 Eighth, Books, pamphlets, ballads, printed papers and other things obscene liter-
29 containing indecent, impure or obscene language, or indecent, impure or fs'i'i.'iisl
30 obscene prints, pictures, figures or descriptions manifestly tending to 5§2,4.
31 corrupt the morals of youth, and intended to be sold, exliibited, loaned,
32 circulated or distributed, or introduced into any family, school or place
33 of education, and the type, forms, press, woodcuts, raw material and
34 mechanical apparatus used and employed in printing and publishing
35 such books, ballads, pamphlets or printed papers.
36 Ninth, Drugs, medicines, instruments and other articles intended to Drugs, medi-
37 be used for self-abuse, or for the prevention of conception, or for causing I'sTs,' fsg, § 2.
38 unlawful abortion, and the raw materials, tools, machinery, implements,
39 instruments and personal property used or intended to be used in the
40 manufacture of such drugs, medicines, instruments or other articles.
41 Tenth, Lottery tickets or other materials unlawfully made, provided J-°^'/j7
42 or procured for the purpose of drawing a lottery.
2 Met. 329. 5 Cush. 369.
43 Eleventh, Gaming apparatus or implements used or kept and provided Gaming appa-
44 to be used in unlawful gaming in any gaming house, or in any building, furmturc.
45 apartment or place resorted to for the purpose of unlawful gaming, and ii'^Met^Tg.
46 the furniture, fixtures and personal property found in such place at a iliMassiii*:
47 time when persons are engaged in unlawful gaming. iss Mass. les.
48 Twelfth, Pool tickets or other materials unlawfully made, provided or Pooi tickets.
49 procured for the purpose of buying or selling pools. ^*^*' ^■*"' ^ '■
50 Thirteenth, An unreasonable number of rifles, shotguns, pistols, re- Rifles, etc
51 volvers or other dangerous weapons or an unnecessary quantity of ammu- mg'ng.'Ti.
52 nition, if kept or concealed for any unlawful purpose.
53 Fourteenth, Bombs and explosives illegally kept. ?Q°,'2''^ol*'i;' ..
1 Section 2. Search warrants shall designate and describe the place fo™.
2 to be searched and the articles to be searched for, and shall be directed fjf,"^'
3 to the sheriff or his deputy or to a constable or police officer, commanding «f i'^°'
4 him to search, in the day time, or if the warrant so directs, in the night i"; f |i2,
5 time, the house or place where the property or articles for which he is isoo, im.
6 required to search are believed to be concealed, and to bring such property 1619. 179', § 3.
7 or articles when found, and the persons in whose possession they are sMet'gs^'
8 found, before a court or trial justice having jurisdiction. 3AUen, 310.
103 Mass. 456. 119 Mass. 332. 140 Mass. 147, 2S7. 145 Mass. 1S2.
1 Section 3. If an officer in the execution of a search warrant finds Disposition
2 property or articles therein described, he shall seize and safely keep them, seized''"'^
3 under the direction of the court or justice, so long as necessary to permit §■ g {70' f j-
4 them to be produced or used as evidence on any trial. As soon as may J^jgo 45",' ^^•
5 be afterward, all property seized under clauses one and two of section iswUio, §i;
6 one shall be restored to the owner thereof; property seized under clause isab, 40s, § 16.
7 three of said section shall be disposed of as the court or justice orders; 1902,' ue] '
8 property or other articles seized under clause six of said section shall, if flii'.eos,
9 upon a hearing the court or justice finds that they were so kept or con- ||j}; ^j-,,
10 cealed, be destroyed or disposed of in accordance with section one hun- || g^^ig'*'''''
11 dred and forty-six of chapter Binety-four by the board of health or sCuVh. 369.
12 by an officer designated by the court or justice, otherwise, they shall be 2i7Mass!446.'
13 returned to the owner; diseased animals seized under clause seven of
14 said section one shall, if upon a hearing the court or justice finds that
15 they were kept or concealed in a particular building, place or enclosure.
2792
SEARCH W.UlR.iJSrTS.
[CiL^p. 276,
be destroyed or disposed of by the division of animal industry of the 16
department of conservation, without compensation to the owners thereof, 17
otherwise, they shall be returned to their owners; property seized under 18
clause thirteen of said section one, if found to have been kept for an un- 19
lawful purpose, shall be forfeited and disposed of as the court or justice 20
orders; and all other articles seized by virtue of such warrants shall be 21
adjudged forfeited and be destroyed or sold as hereinafter provided. 22
Notice to
parties before
forfeiture.
1870, 242, § 2.
P. S. 212, § 6,
1894,410, § 1.
R. L. 217, §4.
1919, 179, § 3.
103 Mass. 456.
Section 4. Before a decree of forfeiture of property seized under a
search warrant is issued, the court or justice shall, unless otherwise
expressly provided, issue a notice under seal, signed by the clerk of the
court or by the justice, setting forth the substance of the complaint,
and commanding the persons, if any, in whose possession the articles
were found, and the owner, if alleged, and all other persons who claim
an interest therein, to appear at a time and place therein named to show
cause whv the articles seized should not be forfeited.
Service of
notice.
1870, 242. § .■?.
P. S. 212, § 7.
1894,410, § 1.
R. L. 217. § 5.
1919, 179, § 3.
Section 5. The notice shall, not less than foiu-teen days before the 1
-time appointed for trial, be served upon the person, if any, alleged to be 2
the owner of the articles seized, by an officer authorized to serve criminal 3
process, by lea\ing an attested copy thereof with him personally or at 4
his usual place of abode and by posting an attested copy thereof on the 5
house or building in which the articles were seized, if they were found 6
in a house or building; otherwise, in a public place in the town where 7
they were seized. 8
Postponement
of trial.
1870, 242, § 4.
P. S. 212, §8.
1894, 410, § 1.
R. L. 217, §6.
1919, 179. § 3.
Section 6. If, at the time appointed for the trial, such notice has 1
not been duly served, or if it appears necessary that any of the articles 2
so seized should be kept longer for the purpose of being produced or 3
used as evidence on any trial, or if other sufficient cause appears, the 4
trial may be postponed to another day and place and further notice 5
issued. 6
) 5.
3.
i9.
Sale or de-
struction of
property
seized.
1862, 168,
1869, 3G4,
P. S. 212, 1
1885, 60, i 1.
1894,410, § 1.
1899, 359, I 8.
R. L. 217, § 7.
1908, 370.
1019, 179, § 3.
103 Mass. 456.
119 Mass. 332.
155 Mass. 165.
Section 7. If, upon the trial, the property is adjudged forfeited,
the t^-pe, forms, press, woodcuts, raw material and mechanical apparatus
described in clause eight of section one, the dies, plates, brands, moulds,
engravings, printing presses, tj-pes or other tools, machines or materials
described in clause five of said section, the raw materials, tools, machinery,
implements, instruments and personal property described in clause nine
of said section, and all furniture, fixtures and personal property described
in clause eleven of said section, or so much thereof as the court or justice
may order, shall be sold by the sheriff and the proceeds paid to the
county, and the remainder of the property shall be destroyed as the 10
court or justice may order. The court or justice may order any article 11
not found to have been unlawfull.^' used or intended for unlawful use, 12
or any article unlawfully used without the knowledge of its o^vTier, 13
lessor or mortgagee, to be delivered to the party legally entitled to its 14
possession. 15
Appeal to
superior court.
1870, 242, § 1.
P. S. 212, § 10.
1894,410, 5 1.
R. L. 217, § 8.
1919, 179, § 3.
Section 8. A person aggrieved by a decree of forfeiture of a district
court or trial justice may appeal therefrom to the superior court; but
before his appeal is allowed, he shall recognize to the commonwealth
in the sum of two hundred dollars, with sufficient surety or sureties, to
prosecute his appeal and to pay all such expenses as may thereafter
\
Chap. 276.] rewaeds, fugitives from justice. 2793
6 arise, if final judgment is rendered against the articles adjudged forfeited,
7 and to abide the judgment of the superior court thereon; and upon such
8 appeal, any question of fact shall be tried by a jm-y. All proceedings in
9 the superior court, including the right of exception, shall conform so
10 far as may be to proceedings in criminal cases; and if, upon final judg-
11 ment, the articles are adjudged forfeited, they shall be disposed of under
12 the direction of the superior court as they might have been disposed of
13 had no appeal been taken.
RE'nARDS.
1 Section 9. The governor, if he deems the public good so requires. Governor may
2 may offer a suitable reward of not more than one thousand dollars in any is36,'4.™i8.
3 one case to be paid by the commonwealth to any person who, in conse- pf^i'^'lu
4 quence of such offer, apprehends, brings back and secures a person who f^^- g'J' § ^■
5 is convicted of or charged with a felony, who has escaped from prison
() in the commonwealth, or to any person who, in consequence of such offer,
7 apprehends and secures a person charged with such crime, or for infor-
8 mation that shall lead to the arrest and conviction of any person who
9 has committed a felony, if the person cannot be arrested and secured in
10 the common course of proceedings. If more than one claimant applies
1 1 for the payment of such reward, the governor shall determine to whom it
12 shall be paid, and if to more than one person, in what proportion to each,
13 and his determination shall be final.
1 Section 10. The aldermen or the selectmen, if in their opinion the Mnyor. etc.,
2 public good so requires, may offer a suitable reward of not more than i'ew'ir'd'"
3 five hundred dollars in any one case, to be paid by the town to any person Jfg- JI5
4 who, in consequence of such offer, detects or secures a person who has f|/g'|-
5 committed a felony in such place, either before or after he has been charged p- f'^\f
G therewith, and such reward shall be paid by the treasurer upon the war- r. l.'217, § 10.
7 rant of the aldermen or selectmen. If more than one claiiiiant applies scush. 219.
8 for the payment of such reward, the aldermen or selectmen shall deter- Ifl';'^^' ^'~'
9 mine to whom it shall be paid, and if to more than one person, in what i.33'm°'s1^233.
10 proportion to each, and their determination shall be final. i^^ ^^'^^- ^^•
FUGITIVES FROM JUSTICE.
1 Section 11. The governor, in any case which is authorized by the Delivery and
2 constitution and laws of the United States, may, upon demand, deliver fu^uve."
3 to the executi\-e of any other state or territory any person charged Jsgi; fg; ^ j
4 therein with treason, felony or other crime; or may, upon application, jf'I'J'^g §6
5 appoint an agent to demand of the executive authority of any other is5|. s_l ' ^
6 state or territory any such offender fleeing from the justice of this p.'.s.'218.'§ i.'
• T? T ''IT S 11
7 commonwealth. Such demand or application shall be accompanied by ids Mass". 223.'
8 sworn evidence that the person charged is a fugitive from justice and by isl Mass! 149!
9 a duly attested copy of an indictment or complaint made before a court 236 mITs. 493.
10 or magistrate authorized to receive it. Such complaint shall be accom- 2o°''3S6 '^^ ^^'''
1 1 panied by affidavits to the facts constituting the crime charged by persons 2 op. a. g. ses,
12 who have actual knowledge thereof, and by such further evidence as the sop.A. G.432.
13 governor may require. 4 0p. a. 0.433. Op. a. o. (1920) isi, 293.
1 Section 12. Upon such demand or application, the attorney general f|S4^'i gg"^! 2
2 or a district attorney shall, if the governor so requires, forthwith investi- i|- i^- Jir | ^.
3 gate the grounds thereof and report to the governor all the material facts i'.'s.'2is,' § 2'.
2794
FUGITIVES FROM JUSTICE.
[CiLVP. 276.
R.L. 217, §12. which may come to his knowledge, with an abstract of the evidence in 4
2 Op. A.^G. 3GS, the case, and, in case of a person demanded, whether he is held in custody 5
*^*' or is under recognizance to answer for a crime against the laws of this 6
commonwealth or of the United States or by force of any civil process, 7
with an opinion as to the legality or expediency of complying therewith. 8
Warrant.
Arrest.
1782,31.
1801, 10, § 2.
R. S. 142, § 7.
G. S. 177, §3.
P. S. 218, § 3.
H. L. 217, § 13.
1920, 399.
9 Gray, 262.
106 Mass. 223.
122 Mass. 324.
236 Mass. 493.
Section 13. If the governor is satisfied that the demand conforms 1
to law and ought to be complied with, he shall issue his warrant under 2
the seal of the commonwealth to an officer authorized to serve warrants 3
in criminal cases, directing him to arrest and deliver such person to the 4
agent making the demand, and shall also, by the warrant, request such 5
officers within this commonwealth to afford all needful assistance in the 6
execution thereof. 2 0p. a. c.sso. 7
Opportunity
to apply for
writ of habeas
corpus.
1857, 289.
I§1, 2.
G. S. 177,
5§4, 5.
P. S. 218,
l§ 4, 6.
R. L. 217, I 14.
2 Op. A. G. 3.S0.
Section 14. A person arrested upon such warrant shall not be de- 1
livered to such agent of a state or territory until he has been notified 2
of the demand for his surrender and has had an opportunity to apply for 3
a writ of habeas corpus, if he claims such right of the officer who makes 4
the arrest. If such writ is applied for, notice thereof and of the time and 5
place of hearing shall be given to the attorney general or district attorney 6
for the district where the arrest is made. An officer who delivers a 7
person in his custody upon such warrant to such agent for extradition 8
without having complied with this section shall forfeit not more than 9
one thousand dollars. 10
Fees.
ISOl, 10, § 1.
R. S. 142, § 6.
G. S. 177, § 6.
P. S. 218, § 0.
1886, 267.
R. L. 217, § 15.
Section 15. If the application for the arrest of a fugitive from the
justice of the commonwealth is complied with and an agent is appointed,
his account shall be paid like other expenses in criminal cases by the
county where the proceedings are pending; but the governor may direct
the whole or a part thereof to be paid by the commonwealth.
person ?fabie Section 16. If a pcrson fouud in this commonwealth is charged with 1
by anot£r°''^ ^ Crime Committed in another state or territory and is liable by the con- 2
S^l^-i.o , c stitution and laws of the United States to be delivered upon the demand 3
K. to. 14.i, 8 8... ' p t 1 • •• A
G.s. i77,|7. or the executive oi such other state or territory, a court or justice au- 4
R.L. 217, § i6. thorized to issue warrants in criminal cases may, upon complaint on oath 5
setting forth the crime and such other matters as are necessary to bring 6
the case within the provisions of law, issue a warrant to bring the person 7
charged before the same or another court or justice within the common- S
wealth to answer to such complaint as in other cases. 9
Recognizance.
R. S. 142, § 9.
G. S. 177, § 8.
P. S. 218, §8.
R. L. 217, § 17
Section 17. If, upon examination of the person charged, the pourt 1
or justice has reasonable cause to believe that the complaint is true 2
and that such person may be lawfully demanded of the executive, he 3
shall, if not charged with a capital crime, be required to recognize with 4
sufficient sureties in a reasonable sum to appear before such court or 5
justice at a day appointed, allowing a reasonable time to obtain the. 6
warrant of the executive, and to abide the order of the court or justice. 7
onMurTtS' Section IS. If he does not so recognize, he shall be committed to 1
r.'^s^'hI] § 9. i^il until such day, as if the crime charged had been committed within 2
G.s. 177, §9. the commonwealth; and if he fails to appear according to the condition 3
Chap. 276.] .\rrest, ex.\mination, commitment, bail. 2795
4 of his recoarnizance, he shall be defaulted and like proceedings had as p. s. 218, § 9.
5 in case of other recognizances entered into before such court or justice. ' '
6 If charged with a capital crime, he shall be committed to jail until the
7 day so appointed for his appearance.
1 Section 19. If the person so recognized or committed appears be- Proceedings
2 fore the court or justice upon the day appointed, he shall be discharged r" s. u2!'?To.
3 unless he is demanded by a person authorized by the warrant of the p, i; 2ii.' i m.'
4 executive to receive him, or unless the court or justice has cause to ^- ^- ^^''^ ^ ^^•
5 commit him or to require him to recognize anew for his appearance on
6 another day, and if, when ordered, he does not so recognize, he shall
7 be committed and detained as before. If the person charged has recog-
S nized or is committed or discharged, a person authorized by the warrant
9 of the executive may at any time take him into custody and the same
10 shall be a discharge of the recognizance and not be an escape.
1 Section 20. The complainant in such case shall be answerable for ExpcDses.
2 all actual costs and charges and for the support in jail of a person so g! sin?! §11!
3 committed, which shall be paid as by a creditor for his debtor committed r. L.^2f7,V26.
4 on execution. If the charge for support in jail is not so paid, the jailer
5 may discharge him as if he had been committed on execution.
ARREST, EXAMINATION, COMMITMENT AND BAIL.
1 Section 21. Justices of the supreme judicial, superior or district warrants to
srr6st bv
2 courts, and trial justices, may issue process for the apprehension of whom' issued.
3 persons charged with crime and to carry into effect sections twenty-two g! s.' 170,' § 9/
4 to eighty-two, inclusive.
p. S. 212, § 14. R. L. 217, §21. 126 Mass. 238.
1 Section 22. Upon complaint made to any such justice that a crime warrants,
2 has been committed, he shall examine on oath the complainant and any r°s.'i351 §2.
3 witnesses produced by him, reduce the complaint to writing, and cause fssu 127. ^ ^'^'
4 it to be subscribed by the complainant, and, if it appears that a crime R;L.ln,V22.
5 has been committed, shall, except as otherwise provided, issue a war- 1 ^rf'' l?^'
6 rant, reciting the substance of the accusation and requiring the officer s Gray', 463.
7 to whom it is directed forthwith to arrest the accused and to take him 2S3.
8 before a coiu't or trial justice of the county to be dealt with according to uo'S's. ei.
9 law, and to summon such witnesses as shall be therein named to appear J30 Mass! Ig*'
10 and give evidence on the examination or trial.
157 Mass. 556. 210 Mass. 33.
1 Section 23. Warrants and other processes issued for the apprehension Service of
2 of persons charged with crime may be directed to and served in any part rs20, 52.'
3 of the commonwealth by an officer authorized to serve criminal process ml, 211'. '
4 in any county. Such officer may command aid and exercise the same p; f; 212,' 1 2a
5 authority as if in his own county. iss6, 247. r. l. 217, §§ 23, 28.
1 Section 24. Upon a complaint for a crime punishable by fine only, whensum-
2 or by imprisonment for not more than one year, with or without a fine, of°warr"nr
3 a summons may be issued instead of a warrant for arrest, if, in the judg- ^^i.'iil'ih.
4 ment of the court or justice receiving the complaint, there is reason to J^^'-*^' '^ff . 24
5 believe that the defendant will appear upon a summons. I'-ii^. 269.
2796
ARREST, EX^iMINATION, COMMITMENT, BAIL. [Ch.\P. 276.
sunimons' SECTION 25. Such summons shall fix a clay and hour of appearance
¥^s'2i2'iii ^^^ trial, and shall be served by an officer authorized to serve criminal
R. L. 217, § 25. process by giving to the defendant in hand or by leaving at his last and
usual place of abode an attested copy, not less than twenty-four hours
before the return hour.
simimons°a''^^ SECTION 26. If a defendant so summoned fails, without reasonable
issuTIt,' § 3 cause, to appear and abide the orders of the coiu-t or justice, he shall
p. s. 212^ 1 18. be considered in contempt of court, and may be punished by a fine of
not more than twenty dollars. A warrant, if necessary, may be issued
at any time after the issue of such summons, whether it has been served
or not.
R. L. 217
I 26.
1
2
3
4
5
6
?8mT?27?T4' Section 27. If a defendant so summoned duly appears, he may be 1
R. L.%^7,\^27. ordered to recognize for his further appearance but shall not be required 2
to give surety upon his recognizance at any stage of the prosecution 3
without a special order. 4
Arrest for
misdemeanors.
1912, 482.
Section 28. Any officer authorized to serve criminal process may
arrest and detain a person charged with a misdemeanor, without having
a warrant for such arrest in his possession, if the officer making such arrest
and detention shall have actual knowledge that a warrant then in full
force and effect for the arrest of such person has in fact issued.
Recognizance
out of county,
if a misde-
meanor.
1692-3, 18, § 6.
1783,51, § 1.
1784, 66, § 5.
1794; 26,
§§ 1,2.
1804, 143, § 17.
R. S. 135, §4.
G. S. 170, § 12.
P. S. 212, §21.
R. L. 217, § 29.
16 Mass. 198.
13 Pick. 86.
Section 29. If the crime charged in a warrant is not a felony, and
the defendant requests to be taken before a magistrate of the county
where he was arrested, for the purpose of entering into a recognizance
without a trial or examination, the officer who arrested him shall take
him before a magistrate of that county, who may recfuire from him a
recognizance, with sufficient sureties, for his appearance at the court
which has jurisdiction of the crime and next to be held in the county or
judicial district in which it is alleged to have been committed, and upon
entering into such recognizance the defendant shall be released.
11 Gray, 463. 168 Mass. 471.
Magistrate,
taking bail, to
return recog-
nizance and
certiBcate to
court, etc.
R. S. 135, §5.
G. S. 170, § 13.
P. S. 212, 5 22.
R. L. 217, § 30.
Section 30. The magistrate who so admits the defendant to bail 1
shall certify that fact upon the warrant, and deliver it, with the recogni- 2
zance and certificate required by section sixty-one, to the officer, who 3
shall cause the same to be delivered without unnecessary delay to the 4
clerk of the court before which the defendant was recognized to appear; 5
and, upon application of the complainant, the justice who issued the 6
warrant or the district attorney shall cause such witnesses as he thinks 7
necessary to be summoned to the same court. 8
prSotTetnlV^ Section 31. If a pcrsou is arrested in a county other than that where
R 's'^iso § 6 *^® crime was committed, and the magistrate before whom he is taken
p' I' 21™' I •'3' J'^^uses to admit him to bail, or if no sufficient bail is offered, the officer
R. L. 2r7, § si. shall take him before the court or trial justice to which or before whom
the warrant is returnable^
pnsonw °o^ °^ Section 32. If the crime charged in a warrant is a felony, the officer 1
warrantTssued ^^^'^ makcs the arrcst in another county shall convey the prisoner to 2
if felony ' tlic couutv whcFc the Warrant was issued. 3
charged. ^
R. S. 135, I 7. G. S. 170, § 15. P. S. 212. § 24. R. L. 217, § 32.
ClL\P. 276.] ARREST, EXAMINATION, COMMITMENT, BAIL. 2797
1 Section 33. Whenever a person is arrested for a crime and is taken Physical ex-
2 to or confined in a jail, police station or lockup, the officer in charge and^epon on
3 thereof shall immediately examine the prisoner, and if he finds any P"ested.
4 bruises, cuts or other injuries shall forthwith make a written report Jgjg'lj^o^'/i^^a
5 thereof to the chief of police of the town concerned, or in Boston to the
6 police commissioner, and in towns where there is no chief of police to
7 the selectmen. If the place of confinement is under control of the metro-
8 politan district commission, the report shall be made to it. The require-
9 ment that the prisoner be examined shall not be deemed to compel the
10 removal of clothing. When a person is transferred from one place of
1 1 confinement to another prior to his arraignment in court or to his release,
12 the requirement that he shall be examined shall apply only to the place
13 to which he is first taken after his arrest. Whoever violates this section
14 shall be punished by a fine of not more than ten dollars.
1 Section 34. \Mioever is arrested by warrant for a crime shall, unless Examination
2 other provision is made for his examination, be taken before a court or r.s"i35"§8.
3 trial justice having jurisdiction where the crime was committed; and Rl^™,'!!!;
4 the warrant, with a proper return thereon signed by the person making f cmh ^los ^^'
5 the arrest, shall be deli\ered to the coiu-t or justice.
1 Section 35. Except in proceedings under sections eleven to nineteen, Adjournment
2 inclusi^'e, of chapter two hundred and seventy-three, the court or justice "xaSfnaUon.
3 may adjourn an examination or trial from time to time, not exceeding R.^i; ifs.Vg.
4 ten days at any one time against the objection of the defendant, and to pfl™'!!!'
5 the same or a dilTerent place in the county. In the meantime, if the R- l- 217, § 34.
6 defendant is charged with a crime not bailable, he shall be committed ; uo Mass! 205.
7 otherwise, he may recognize in a sum and with sureties to the satisfac-
8 tion of the court or justice, or without surety, for his appearance for
9 such further examination, and for want of such recognizance he shall
10 be committed.
1 Section 36. If the recognizor does not appear according to his re- Proceedings in
2 cognizance, the court or justice may issue process to bring him into on^reOTgni'-"""
3 court for trial. After his failure so to appear, the court or justice may at 5|i;f gg . 2
4 any time order his default recorded ; but it mav be removed for good ii- s' 135, § io.
* . *". OS 170 § IS
5 cause at any time to which the case may be continued. If such default p.' s.' 212,' §27.'
6 IS not removed, the recognizance shall be certified with a record of such 1904,' i64.'
7 default to the superior court, and like proceedings shall be had thereon ^'^'°' **■*' ^ ^'
8 as upon a breach of the condition of a recognizance for appearance before
9 said superior court, except in cases where bank books, bonds or money
10 have been deposited at the time of the recognizance.
1 Section 37. If the defendant fails to recognize, he may be committed Proceedings if
2 to jail by an order stating concisely that he is committed for further to recognize.
3 examination on a future day to be named in the order, and on the day a', s. no, § lo!
4 named he may be brought before the court or justice by a verbal order r. L.^2f7, Vie.
5 to the officer who made the commitment, or by a written order to a
6 different person.
1 Section 38. The court or justice before whom a person is taken Conduct
2 upon a charge of crime shall, as soon as may be, examine on oath the tion^"""""'
3 complainant and the witnesses for the prosecution, in the presence of the f§ fi,^ii,'
2798
ARREST, EXAMINATION, COMMITMENT, BAIL.
[Chap. 276.
G. S. 170,
« 20, 21.
P. S. 212,
§§ 29, 30.
R. L. 217, §37
11 Gray, 07.
defendant, relative to any material matter connected with such charge. 4
After the testimony to support the prosecution, the witnesses for the 5
prisoner, if any, shall be examined on oath, and he may be assisted by 6
counsel in such examination and in the cross examination of the witnesses 7
in support of the prosecution. 8
Separation of
witnesses.
R. S. 135, § 14.
G. S. 170, § 22.
P. S. 212, §31.
R. L. 217, § 38.
Section 39. The court or justice may, while examining a witness,
exclude from the place of examination all other witnesses, and may if
requested, or if cause therefor appears, order the witnesses for or against
the prisoner to be kept separate, so that they cannot converse with each
other until their examination.
Section 40. The testimony of the witnesses examined shall be re- 1
Testimony
reduced to
R"s''f35*'§ 15 fli'ced to writing by, or under the direction of, the court or justice, if he 2
G|i7o!§23. considers it necessary, and shall, if required by him, be signed by the 3
R. L. 217, § 39. witnesses. 4
Discharge.
R. S. 135, "
16.
G. S. 170. § 24.
P. S. 212, § 33.
R. L. 217, § 40.
Section 41. If it appears, upon the whole examination, that no 1
crime has been committed or that there is not probable cause for charging 2
the prisoner therewith, he shall be discharged. 3
Bail or
commitment.
R. S. 135, § 17.
G. S. 170, § 25.
P. S. 212, §34.
R.L.217, §41.
Section 42. If it appears that a crime has been committed and that
there is probable cause to believe the prisoner guilty, the court or justice
shall, if final jurisdiction is not exercised, admit the prisoner to bail, if
the crime is bailable and sufficient bail is offered; otherwise, he shall be
committed to jail for trial.
bfca^ried"'^ Section 43. If the journey from the town where the prisoner is held 1
other TOunty ^^ *^^ towH whcro lic is to bc Committed on the service of a mittimus 2
1,862. 211), § L ean be made by railroad, the officer may convey the prisoner through 3
r'. l. 217, § 42. any portion of another county in the prosecution of such journey. 4
Mpeifses'" ''^ Section 44. If the defendant is held to appear before the superior 1
R ^L 21?' 1 43' *^o^"'t> the copies and record of proceedings sent to the superior court 2
shall contain the details of all fees and expenses allowed or paid in the 3
district court or before the trial justice. 4
Witnesses to
recognize.
R. S. 135, § 18.
G, S. 170, § 2(j.
P. S. 212, §36.
R. L. 217, § 44.
Section 45. If the prisoner is admitted to bail or is committed, the
court or justice shall bind by recognizance the material witnesses against
the prisoner to appear and testify at the next sitting of the court having
jurisdiction of the crime and in which the prisoner is held to answer.
isss! i36:'?i. Section 46. If the examination or trial of a defendant charged with
R. L. 217, § 45. g^ felony is adjourned under section thirty-five, the com-t or justice may
bind by recognizance the principal witnesses against the prisoner to ap-
pear and testify at the time and place to which the trial or examination
is adjourned.
qm^drwhen. SECTION 47. The court or justice, if satisfied that there is good cause
o'. s 170, 1 27' to believe that a witness will not perform the condition of his recognizance
isis ^130 I?' '^"l^ss other security is given, may order the witness to enter into a re-
R. l! 217', § 46. cognizance with such sureties as the court or justice deems necessary
for his appearance at court.
Ch.\P. 270.] .\KREST, EXAMINATION, COMMITMENT, BAIL. 2799
1 Section 48. If a minor is a material witness, any other person may Recognizances
20.
28.
38.
2 be allowed to recognize for his appearance; or, in the discretion of the r^^TsTs
3 court or justice, he may recognize in a sum not exceeding fifty dollars, p.f.iia.'f
4 which shall be valid and binding in law, notwithstanding his minority. r*l'217'|I7
1 Section 49. A witness who, when required, refuses to recognize. Commitment
2 either with or without sureties, shall, except as provided in the following R.ai35!§2i.
3 section, be committed to jail until he complies with such order or is fsvl'.l'H'u^
4 otherwise discharged; but if the court or justice finds that the witness, I'jgg.^lo'
5 unless he is the prosecutor or an accomplice, is unable to procure sureties i|P' !*'■ 5 2.
6 when so ordered, he shall, except in cases of felony, be discharged upon R. £.' 217, § 48.
7 his own recognizance. Upon a complaint or indictment for a felony,
8 against a defendant not in custody, a material witness committed for
9 failure to furnish sureties upon his own recognizance may be held in
10 custody for a reasonable time, pending the pursuit and apprehension of
11 the defendant.
1 Section 50. The court or justice may, with the consent of the defend- °'P°tn*s™
2 ant, take or cause to be taken by a magistrate authorized to take deposi- i^^i, 7_i
3 tions in civil cases, in manner and form as provided in civil cases, the si'ao, si.'
. ..PS 212
4 deposition of a witness whom he finds to be unable to furnish siu-eties §§40.41!
5 upon his recognizance as ordered and who is not the prosecutor or an r. l.' 217,' § 49.
6 accomplice; and thereupon the witness shall be discharged. The attorney
7 for the commonwealth who will have charge of the case at the trial shall
8 have the same notice as parties in civil actions of the time and place of
9 taking the deposition, and the assent of the defendant shall be endorsed
10 upon the deposition. The fees shall be the same as in civil cases and
1 1 shall be paid as other expenses in criminal cases are paid. The deposition
12 shall be seasonably transmitted to the coiu-t at which the witness was
13 ordered to appear. If the witness is unable to attend the trial, by reason
14 of his absence from the commonwealth, or of his death, insanity, illness
15 or infirmity, the deposition may be read in evidence upon the trial by
16 either party, subject to all legal objections.
1 Section 51. If a witness has been committed because of his inability Discharge on
2 to fm-nish sureties for his appearance before the superior court, the jailer when.
3 shall forthwith give notice to the chief justice of the superior court, who r*^l.' 217.' 1 56.
4 shall direct the district attorney to inquire as to the importance of his
5 testimony and the necessity for detaining him in jail, and the district
6 attorney, if in his opinion the public interest will not sutler by the release
7 of the witness on his own recognizance, shall so report to the chief jus-
8 tice, who may thereupon order the witness to be released upon his own
9 recognizance.
1 Section 52. The commissioner of correction shall from time to Treatment of
2 time make such rules relative to the diet, size of cells, amount of liberty "^'j,"''^*^^ '°
3 and exercise, correspondence, visits and such other matters as he con- r^^l!217[§5i.
4 siders necessary regulating the treatment of witnesses held in jail as }g}9;||o!^^'
5 will secure their clear distinction and separation from other prisoners so §§S2, S3.
6 far as possible, consistent with their safe custody and the prevention
7 of tampering with their testimony. Said commissioner may, with the
8 approval of the district attorney, remove such witnesses from the jail
9 where they are confined to a jail in another county, and shall, at the
2800
.tRREST, EX.«IIXATION, COMMITIIENT, B.VIL. [CH-\P. 276.
request of the district attorney, cause them to be returned to the jail 10
whence they were removed. The proceedings for such removal shall be 11
the same as for the removal of prisoners from one jail or house of correc- 12
tion to another. The cost of support of a witness so removed and of both 13
remoA'als shall be paid b\' the county whence he is removed. 14
Transportation
of male and
female
prisoners.
1S94, 273.
R. L. 217. §52.
Section 53. An officer who, having the custody or control of prison- 1
ers, causes or permits male and female prisoners to be transported to- 2
gether to or from a coiu-t in a vehicle, in a city of more than thirty 3
thousand inhabitants according to the latest census, shall be punished 4
by a fine of not more than twenty dollars. 5
Treatment by
officers of
witnesses in
custody.
1S94, 160.
R. L. 217, § 53.
Section 54. An officer who, having the custody of a witness com- 1
mitted because of his failure to furnish sureties, causes or permits him to 2
be handcuffed to a person, held in custody, charged with or sentenced 3
for crime, or to be transported within a city to or from any court or 4
prison iii a vehicle with such person, shall be punished by a fine of not 5
more than twentv dollars. 6
Discharge if
injured party
satisfied.
R. S. 135. §25;
136, § 27.
1846, 198.
G. S. 170, § 33;
171, § 28.
P. S. 212, §43;
213, § 36.
R.L. 217, §54.
12 Allen, 402.
lis Mass. 133.
120 Mass. 403.
216 Mass. 344.
Section 55. If a person committed to jail is under indictment or
complaint for, or is under recognizance to answer to, a charge of assault
and battery or other misdemeanor for which he is liable in a ci\il action,
unless the ofl'ence was committed by or upon a sheriff or other officer
of justice, or riotously, or with intent to commit a felony, and the person
injured appears before the coiu-t or justice who made the commitment or
took the recognizance, or before which the indictment or complaint is
pending, and acknowledges in wTiting that he has received satisfaction 8
for the injury, the court or justice may in its or his discretion, upon pay- 9
ment of such expenses as it or he shall order, discharge the recognizance 10
or supersede the commitment, or discharge the defendant from the 11
indictment or complaint, and may also discharge all recognizances and 12
supersede the commitment of all witnesses in the case. 13
Discharge a
bar to civil
action.
R. S. 135. §26;
136, § 27.
G. S. 170, § 34;
171. § 28.
P. S. 212, § 44;
213, § 36.
R.L. 217. §55.
12 Alien, 402.
Section 56. Such order discharging the recognizance, indictment or 1
complaint of the person or the recognizance of witnesses shall be filed 2
in the office of the clerk before the sitting of the court at which they are 3
bound to appear; and such order superseding the commitment of the 4
person charged or of a witness shall be delivered to the keeper of the jail 5
where he is confined, who shall forthwith discharge him; and such order, 6
so filed and delivered, shall forever bar a civil action for such injury. 7
Ma£jstrates
who may admit
to bail.
Money and
certain securi-
ties may be
deposited.
1812,30.
R. S. 133, § 22.
1851, 92, § 2.
1855, 265, § 1.
G. S. 170, § 36.
1874, 306, § 4.
1878, 188, § 4.
1879, 228.
P. S. 212. § 46.
1898,411, § 1.
R. L. 217, I 56.
1912, 226.
1914, 390, § 1.
1920, 584, § 2.
Section 57. A justice of the supreme judicial or superior court, a 1
clerk of courts or the clerk of the superior court for criminal business 2
in the county of Suffolk, a standing or special commissioner appointed by 3
either of said courts, a justice or clerk of a district court, a master in 4
chancery or a trial justice, upon application of a prisoner or witness 5
held under arrest or committed, either with or without a warrant, or held 6
in the custody of an officer under a mittimus, may inquire into the case 7
and admit such prisoner or witness to bail; and may admit to bail any 8
person committed for not finding sureties to recognize for him. All 9
persons authorized to take bail under this section shall be governed 10
by the rules established by the supreme judicial or superior court. No 11
person offering himself as surety shall be deemed to be insufficient if he 12
Ch.\P. 276.] ARREST, EX,\MINATION, COMMITMENT, BAIL. 2801
13 deposits money of an amount equal to the amount of the bail required
14 of him in such recognizance, or a bank book of a savings bank or of the
15 savings department of a trust company doing business in the common-
16 wealth, properly assigned to the clerk or trial justice with whom the
17 same is or is to be deposited, and his successors, and satisfactory to the
18 person so authorized to take bail, or deposits non-registered bonds of
19 the United States or of the commonwealth or of any county, city or
20 town within the commonwealth equal at their face value to the amount
21 of the bail required of him in such recognizance.
1 Section 58. If the person is committed without an order fixing the Notice to
2 amount of the recognizance, he shall not be admitted to bail under the nSTxed''*'^
3 preceding section until reasonable notice of his application has been }|5|'2i5\^i
4 given to the officer by whom he was committed, or a hearing has been g. s.' no,' § 37.
5 given to the officer in whose custodv he is held; and if committed with F- s.'212, §47.
6 such order, he shall not be admitted to bail, except by a justice of the 107 Mass. 227!
7 supreme judicial or superior court, for a less amount than is required by
8 the order.
1 Section 59. After a person is committed to jail to await the action Admission
2 of the grand jury, he shall not be admitted to bail by a master in chancery masteJ-s^'m
3 who does not reside or have a usual place of business within the county reguiat?d
4 where the jail is situated, except upon proof that written notice of the ^^°^' 2^*-
5 proposed application has been duly served upon the district attorney,
6 or one of the assistant district attorneys, for the district, at least twenty-
7 four hoiu-s before a hearing on the application, specifying the name of
8 the person, the crime with which he is charged, the time and place of
9 hearing, and the name, occupation and residence of the proposed sureties,
10 or upon proof that the district attorney, or one of the assistant district
11 attorneys, for the district has waived notice of the hearing on such pro-
12 posed application.
1 Section 60. After a conviction or a plea of guilty or of nolo contendere Bail in Suffolk
2 in the superior court in Sufl'olk county, the prisoner shall not be admitted iseS'^isg, § 1.
3 to bail except in open court; but when said court is not in session, bail r.l.I'it.IsI.
4 may be taken by any judge of a court of record or by any commissioner ^^^ ^^^^- ^^^■
5 appointed by the justices of the superior court, upon proof that written
6 notice of the proposed application has been duly served upon the district
7 attorney, or one of the assistant district attorneys for the Suffolk district,
8 at least twenty-four hours before the hearing of such application, specify-
9 ing the name of the prisoner, the crime of which he has been convicted,
10 the time and place of hearing, and the name, occupation and residence
1 1 of the proposed sureties. No person who has been once offered and re-
12 jected as surety shall afterward be accepted as surety for the same per-
13 son in the same case.
1 Section 61. If bail is taken out of court, the person authorized to Certificate of
2 take bail in criminal cases shall cause a certificate to be signed and quired." "^
3 sworn to by each surety, which shall contain the name, the residence, p^''^;iil'^ig,
4 including the name of the street and number, if any, of the dwelling house l^'f- jl^ | |g
5 thereon, the occupation and place of business of the surety, a statement '"5°,;^*;'' 1^;
6 of the nature, location and value of his property, and of the encumbrances,
7 if any, thereon, the amount of his indebtedness and all other matters
2802
,\EREST, EX.«kIINATION, COMMITMENT, BAIL. [Ch.\P. 276.
pertinent to the amount and value of such property, and shall return a 8
proper recognizance to the proper court. A surety may, instead of making 9
said certificate, give his personal recognizance as surety and deposit 10
money, bonds or a properly assigned bank book, of the kind and in the 11
amount and under the conditions set forth in section fifty-seven for 12
making deposit of like nature. 1.3
Notice to dis-
trict attornev.
1862, 159, § 3.
P. S. 212. § 50.
1898,411, §3.
R. L. 217, § 60.
Section 62. If application is made to a person authorized to take
bail in criminal cases in Suffolk county to accept bail out of court in a
case in which no amount has been fixed, he shall, if the crime charged is
not within the jurisdiction of the municipal court of the city of Boston,
before fixing bail, cause notice of such application to be given to the
district attorney or one of the assistant district attorneys for the Suffolk
district, if any of said attorneys is at the time within said district.
Sing bl". Section 63. No justice of any court shall receive any fee or com- 1
isM^'isg, §5 pensation for taking and approving bail in criminal cases in Suffolk 2
1879,254,11. county. P.S. 212, §51. 1885,135. R. L. 217, § 61. 3
Sunday. Section 64. Persons held in custody or committed upon a criminal 1
a a' no,' Us. charge, if entitled to be released upon bail, may, in the discretion of the 2
p. s. 212, s 52. magistrate, be admitted to bail on Sunday. 3
R. L. 217. § 62. 1906, 180.
Condition of
recognizance.
1845, 166, § 2.
G. S. 170, § 39.
1878, 188, § 1.
P. S. 212, § 53.
R. L. 217. §63.
7 Grav, 310.
143 Aiass. 210.
172 Mass. 427.
Section 65. The condition of a recognizance of a person, either with
or without surety, binding him to appear before a court or justice to
answer to a charge against him or to prosecute an appeal shall be so
framed as to bind him personally to appear at the time so expressed, and
at any subsequent time to which the case may be continued, unless pre-
viously surrendered or discharged, and so from time to time, until the
final decree, sentence or order of the court or justice thereon, and to abide
such final sentence, order or decree, and not depart without leave.
Return of
recognizance
and examina-
tion to court.
R. S. 135, § 24.
G. S. 170, § 40.
P. S. 212, § 54.
R. L. 217, §64.
9 Allen, 371.
Section 66. A recognizance and examination taken by a magistrate
under this chapter shall be certified and returned by him to the district
attorney or to the clerk of the court before which the person charged is
bound to appear, on or before the first day of the sitting thereof; and if
he refuses or neglects to return the same, he may be compelled to do so
forthwith by order of com't, and, in case of disobedience, may be pro-
ceeded against as for contempt.
Forfeiture of
bail a bar to
further bail.
1862, 169, § 1.
1874, 306, § 1.
1879, 87.
P. S. 212, § 55.
1901, 215.
R. L. 217, §65.
13 Allen, 396.
126 Mass. 224.
Section 67. A person arrested on a criminal charge who forfeits or 1
makes default upon his bail bond or recognizance or has been surrendered 2
by a probation officer shall not be again released upon further bail or 3
recognizance in the same case, unless by order of a justice of the court 4
where such charge was pending at the time of said default or of such 5
surrender. 233 .Mass. 74. 6
Section 68. Bail in criminal cases mav be exonerated at anv time
Surrender of
principal before
Retonof before default upon their recognizance by surrendering their principal
N^ljai'i*' ^^^^ court or to the jailer in the county where the principal is held to
1863,59, § 1. appear, or by such voluntary surrender by the principal himself, and in
CH-^P. 276.] ARREST, EX.UIINATION, COMMITMENT, BAIL. 2803
5 either event, in all cases where bank books, money or bonds are deposited ?• S. 212, § as.
6 by the surety, the court shall thereupon order the bank books, money mis'. 25-;
7 or bonds so deposited to be returned to the surety or his order, and to im's.
8 be reassigned to the person entitled thereto. They shall deliver to the Ittfl
9 jailer their principal, with a certified copy of the recognizance, and he ^ssMasa.Ti.
10 shall be received and detained by the jailer, but may again be bailed in
11 the same manner as if committed for not finding sureties to recognize for
12 him. The jailer shall forthwith notify the clerk or justice of the court
13 where the proceeding is pending of such surrender.
1 Section 69. Bail may surrender their principal at any time after Remission of
2 default made upon the recognizance, or the principal may surrender him- Sefeiit ^'""^
3 self, in the manner provided in the preceding section; and the court r|?.'2T2,V57.
4 where the default is recorded may, upon application, remit the whole fgislsy'^'^''-
5 or any part of the penalty, if satisfied that the default of the principal was ^g*™-,
6 not with the connivance or consent of the bail. 1920, 2.
1 Section 70. If, bv the act of God, of the government of the United Exoneration
r» o p 7 nil' unable to
2 States, or any state or by sentence or law, bail are unable without their surrender
3 fault to surrender their principal, they shall, upon motion before final issg, 131.
4 judgment on scire facias, be exonerated and discharged by the court, p.' s.' 21^2,'! si.'
5 with or without costs as the court deems equitable. ^' ^' ^^^' ^ '^*'
1 Section 71. If a person under recognizance to appear and answer Default on
2 or to prosecute an appeal in a criminal case fails to appear according to isia^'i'Srrs.
3 his recognizance, and if a person under recognizance to testifj' in a criminal fg^l j^g ||^-
4 prosecution fails to perform the condition of his recognizance, his default p l^i^'ll^'
5 shall be recorded, his obligation and that of his sureties forfeited, and rl. 2i7."§69.
6 process issued against them or such of them as the prosecuting officer
7 directs; but in such suit no costs shall be taxed for travel. No such
8 process shall issue in cases where bank books, bonds or money have been
9 deposited at the time of such recognizance.
1 Section 72. A surety in such recognizance may, by leave of the surety may
2 court, after default, and either before or after process has been issued ?e«)gni'z°a"nc'e.°^
3 against him, pay to the county treasurer or clerk of the court the amount jj^'^g 135 jos
4 for which he was bound as surety, with such costs as the court shall direct, p- 1- ^[.?' |
5 and shall be thereupon forever discharged. r. l. 217, §70.
47.
60.
1 Section 73. If, in a suit on a recognizance to prosecute an appeal, f^^jllf °l
2 the penalty is adjudged forfeited, or if by leave of court such penalty of penalty of
3 has been paid without suit or before judgment as provided in the pre- R. s. iss, §9.
4 ceding section, and any forfeiture accrues by law to a person by reason p.' s. 212,' lei.
5 of the crime of which the appellant was convicted, the court may award ^' ^' ~"' ^ "^"
6 to such person the portion of the amount paid to which he is entitled.
1 Section 74. If the penalty of a recognizance of a party or witness Action and
2 in a criminal prosecution is adjudged forfeited, the court may render iecognI"an°e.
3 judgment, upon such terms as it may order, against the principal or Jf 's.' fas, § 29.
4 surety, or both, for the whole of the penalty with interest, or, in its dis- pf' 21^2' III'
5 cretion, upon application of the defendant in the judgment for a part RL. 217,172.
thereoi.
2804
AEEEST, EXAMINATION, COMMITMENT, BAIL.
[ClL\F. 276.
Irregularities
not to defeat
action.
R. S. 135, § 30.
G. S. 170. § 49.
P. S. 212. § 63.
R. L. 217. § 73.
9 Met. 407.
7 Grav. 316.
13S Jiass. 200.
143 Mass. 210.
Section 75. Such action shall not be barred or defeated, nor shall 1
judgment be arrested, by reason of neglect or omission to note or record 2
the default of any principal or surety at the time when it happens, nor 3
by reason of a defect in the form of the recognizance, if it sufficiently 4
appears from the tenor thereof at what court the party or witness was 5
bound to appear, and that the court or magistrate before whom it was 6
taken was authorized to reciuire and take such recognizance. 7
Review of
judgment on
forfeited
recognizance.
1852, 126, § 1.
G. S. 170, § 50.
P. S. 212, § 64.
R. L. 217, § 74.
Section 76. A court which has rendered judgment on a recognizance 1
may, upon petition of any person interested, stating the ground relied 2
upon and filed in said court, grant a re\"iew and a rehearing of the case, 3
upon the surrender or recaption of the prisoner who was released, or for 4
any sufficient cause which has occurred or been ascertained by the person 5
interested after the rendition of such judgment, or at such time as not 6
to have afi'orded opportunity for presenting the same in evidence. 7
Service of
petition,
1852, 126, I 2.
G. S. 170, § 51.
P. S. 212, § 65.
R. h. 217, § 75,
Section 77. Notice of the petition and a copy thereof shall be given 1
to or served upon the district attorney for the county where the petition 2
is pending fourteen days at least before the return day expressed therein, 3
and such notice shall be returnable on the first ]\Ionday of the first or 4
second month after the filing of the petition. 5
Proceedings
if former
judgment
diminished.
1852, 126,
§§3,4.
G. S. 170,
§§ 52, 53.
P. S. 212,
§§ 66, 67.
R. L. 217, § 7
Section 78. If the court finds that a part of the judgment has been 1
actually paid to or for the county upon the recognizance or judgment 2
and orders the judgment to be reversed or entered for a less amount than 3
has been so actually paid, it may order the amount of the difference 4
between the payment and the new judgment to be repaid to the person 5
who made the payment or to his legal representatives. The treasurer 6
or other county officer who received or then has the amount paid shall, 7
upon presentation of a copy of the order certified by the clerk of the court, 8
make said repayment. If, upon such petition, the review is not granted 9
or the original judgment is not altered, the court may award reasonable 10
costs against the petitioner. 11
Deposit in
lieu of surety.
1879, 126, § 1.
P. S. 212, § 68.
1882, 134.
R.L. 217, §77.
1906, 221.
1911, 160.
1920, 584, § 6.
172 Mass. 427.
187 Mass. 476.
233 Mass. 74.
Section 79. A person held in custody or committed upon a criminal 1
charge, if entitled to be released on bail, or a person held in custody 2
or committed as a witness to a crime, may, instead of giving surety or 3
sureties, at any time give his personal recognizance to appear before 4
the court or trial justice and deposit the amount of the bail which he 5
is ordered to furnish, or bonds or a properly assigned bank book, of the 6
kind and in the amount and under the conditions set forth in section 7
fifty-seven for making deposit of like nature, with the court, clerk of the 8
court, trial justice or magistrate authorized to take such recognizance, 9
who shall give him a certificate thereof, and upon delivering said certificate 10
to the officer in whose custody he is, shall be released. The court, trial 11
justice or magistrate shall forthwith, upon receipt of such amount, deposit 12
it with the clerk of the court or with the trial justice before whom such 13
person was recognized to appear. 14
Se°of1ficuri-' Section SO. At any time after default of the defendant, the court
ment o'f mo'ne ■ ^'' ^"^^ justicc may Order forfeited the money, bonds or bank books de-
out of proceeds posltcd at the time of the recognizance and the court or clerk of the
county. court with whom the deposit was made shall thereupon pay to the county
Chap. 276.] peobation officers. 2805
5 treasurer any money so deposited. The clerk of the court, or trial jus- is-g. i26, §3.
6 tice, shall immediately proceed to sell any bonds so deposited either at r. L.ln.l re.
7 public or private sale, and shall forthwith pay the proceeds thereof, after IsrVifst'. 47^6.
8 deducting all expenses connected with such sale, to the county treasurer
9 and if bank books are so deposited, the said clerk shall collect the amount
10 of bail from the depository, and pay the same, less the expense of col-
li lection, to the county treasurer.
1 Section 81. The defendant may surrender himself at any time Seif-surrender
2 before a default, in the same manner as sureties in criminal cases may DisposWon of
3 surrender their principal, and the court shall thereupon order the bank fgygf'i^e,
4 books to be reassigned and the money or bonds so deposited to be re- |.^|'|i,
5 turned to the person in whose name the deposit is made or to his order. H 69 71'.
6 At any time after default, on the surrender or recaption of the defendant, woa. 236.
7 the court may order the whole or any part of the money so deposited or is? iiass". 476.
8 of the bonds, or of the amount of the net proceeds of the sale of said
9 bonds, or the bank books, or the whole or any part of the amount col-
10 lected from the depository thereunder, to be returned to the person in
11 whose name the deposit is made or to his order. If the amount realized
12 by sale or collection pursuant to the preceding section exceeds the amount
13 of the recognizance, the court shall, on an application made at any time,
14 order such excess to be returned to the party found by the coiu-t to be
15 entitled thereto.
1 Section 82. The term "magistrate", in any section of the statutes "Magistrate"
2 which provides for admitting persons to bail in criminal cases, shall be commissioner.
3 construed to include a bail commissioner, so far as to give him authority ^^i'iii.'ifs
4 to admit prisoners to bail. r. l. 217, § so.
PROBATION officers.
1 Section 83. The superior court, the chief justice of the municipal o^°'^rs'°°
2 court of the city of Boston, subject to the approval of the associate ^^^■P^'i?'
3 justices thereof, and the justice of each other district court and of the issa, 125.
4 Boston juvenile court may appoint such male and female probation §§ i.'e.^ '
5 officers as they may respectively from time to time deem necessary for jh",'!*^' ^^^'
6 their respective courts; and if there is more than one probation officer §§Y,'3.^^'
7 in one court, one of such officers may be designated as chief probation If^f'!'''
8 officer. All officers so appointed shall hold office during the pleasure RgV-iJ'
9 of the court making the appointment. The compensation of each pro- i905,'295.
10 bation officer appointed by the superior court shall be fixed by that 489. §6. '
11 court and by it apportioned from time to time among the counties wherein jUSs,' ilo- 637.
12 said officer performs his duties. In the municipal coiu-t of the city of JJuiJ; flf; 479.
13 Boston the chief justice of said court, subject to the approval of the }9j.V64s'l™'
14 associate justices thereof, and in other district courts and the Boston {''"''/fl,, 5/
15 juvenile court, the justice thereof, shall fix the compensation of each 1915', 89.'§ i;'
IG probation officer appointed for such court, which compensation shall be 227' Mass. 598.
17 subject to approval by the county commissioners and shall be paid by (igis)'^'.
18 the county on vouchers approved respectively by the chief justice of
19 the municipal court of the city of Boston or by the justice of such other
20 district or juvenile courts.
1 Section 84. Before performing any official duty, each probation Bonds.
2 officer shall give bond to the county treasurer, in a sum to be fixed '®^^' '"°'
2806
PROBATION OFFICERS.
[CH-\P. 276.
and with sufficient sureties to be approved by a Justice of the superior 3
court, conditioned to account for and pay, as and when required by law, 4
all moneys or property received by him in the exercise of his official 5
duty. Failure to so give bond shall be sufficient cause for removal from 6
office. 7
Duties.
1880. 129,
§§3-5. U.
P. S. 212.
§§ 75-77, 79.
1891.356,
§§3.4.
1892. 276. § 2.
1897, 266, § 2.
1898,511, I 1.
R. L. 217,
l§ 84, 96.
1911, 8.
Section So. In addition to the other duties imposed upon him, each
probation officer shall, as the court may direct, inquire into the nature
of every criminal case brought before the court under the appointment
of which he acts, and inform the court, so far as is possible, whether the
defendant has previously been con-\-icted of crime. He may recommend
that any person convicted be placed upon probation. He shall perform
such other duties as the court requires. He shall keep full records of all
cases investigated by him or placed in his care by the court, and of all 8
duties performed by him. E\ery person released upon probation shall 9
be given by the probation officer a written statement of the terms and 10
conditions of the release. 11
Boston
juvenile court
may appoint
deputy proba-
tion officers.
1906, 489, § 6.
Section 86. The justice of the Boston juvenile court may appoint 1
as many deputy probation officers, without salary, as he may deem de- 2
sirable, who shall assist probation officers in such way as the court may 3
direct in making investigations of cases of children against whom com- 4
plaints have been made, and in the care of children placed on probation. 5
Court may
place certain
persons in
care of proba-
tion officer.
1880, 129. § 4.
P. S. 212. I 76.
1891, 356, § 3.
1898,511, § 1.
Section 87. The superior court may place upon probation under 1
any of its probation officers any person before it charged with crime and 2
any court may place any person convicted before it in the care of its 3
probation officer for such time and upon such conditions as it deems 4
proper. R. L. 217, § 84. 1911, S. 1S3 Mass. 238. 199 Mass. 44. 5
Clerical
assistance.
1891.427,
§§ 6, 7.
R. L. 212. § 40.
1908, 440.
1913,612
1914, 739.
1915, 89, §
254, § 2.
1918, 257,
§ 4.52.
1919, 5.
1920, 2.
.§2.
Section 88. E\-ery court appointing probation officers may employ 1
such clerical assistance as it deems necessary to keep, index and con- 2
solidate the records required to be kept by probation officers and for 3
such other work in connection with its probation service as the court 4
may determine. The compensation for such service shall be fixed by 5
the respective courts, and, together with such other necessary expenses 6
as the court shall incur in connection with such work, shall be paid by 7
the county upon vouchers approved by said court. 8
Temporary
probation
officers.
1S94. 372.
R. L. 217. § 82.
1910, 275, § 1.
Section 89. The justice of a district court may, in the absence of a
probation officer, appoint a temporary probation officer, who shall have
the powers and perform the duties of such probation officer and shall
receive from the county as compensation for each day's service an amount
equal to the rate by the day of the compensation of the officer in whose
place he serves; but compensation so paid to a temporary probation
officer for any excess over thirty days' service in any one year shall be
deducted by the county treasurer from the compensation of the proba-
tion officer in whose place such service is rendered.
Powers. In-
spection of
records.
18S0, 129,
§§1,5.
P. S. 212. § 74.
1891. 356. § 2.
Section 90. A probation officer shall not be an active member of 1
the regular police force, but so far as necessary in the performance of 2
his official duties shall, except as otherwise provided, have all the powers 3
of a police officer, and if appointed by the superior court may, by its 4
Chap. 276.] probation officers. 2807
5 direction, act in any part of the commonwealth. He shall report to the isss, sn, § i.
6 court, and his records may at all times be inspected by police officials of ' ^^^' * "
7 the towns of the commonwealth.
1 Section 91. Probation officers appointed by the Boston juvenile Boston
2 court may serve such process as may be directed to them by the court. j,ffice°s''to°"'
190G, 4S9. § 6. serve process.
1 Section 92. If a person is placed on probation upon condition that Restitution
to nP 1111106
2 he make restitution or reparation to the person injured by him in the through pro-
3 commission of his offence, and payment is not made at once, the court 1907, 335.
4 may order that it shall be made to the probation officer, who shall give
5 receipts for and keep record of all payments made to him, pay the money
6 to the person injured and keep his receipt therefor, and notify the clerk
7 of the court whenever the full amount of the money is received or paid
8 in accordance with such order or with any modification thereof.
1 Section 93. Except as provided by section one of chapter two hun- Money coi-
2 dred and seventy-nine, money collected by a probation officer under bTtion offi?e?
3 order of the court by which he is appointed, if unclaimed after one year cSu'ntylf'' '"
4 from the time of its collection, shall, upon further order of the court, be i9'2o"'i22!' ^^'^'
5 paid to the treasurer of the county where the court is situated for the
6 use of the county; provided, that any part of the said money may be
7 paid to persons establishing a lawful claim thereto before the county
8 commissioners within five years of its payment to said treasurer, unless
9 sooner paid over by order of the said commissioners.
1 Section 94. The reasonable expenses incurred by probation officers Expenses of
2 of the superior court in the performance of their duties shall be approved officere'°°
3 and apportioned by the com-t, and paid by the county to which they are Jfgl; 51?; § 2.
4 thus apportioned. Probation officers of district courts and of the Boston ^"""'^"J;''
5 juvenile court shall be reimbursed bv the county for their actual dis- Pn^^-^iJ!'!??-
6 bursements for necessary expenses incurred while in the periormance 01
7 their duties, including their reasonable traveling ex-penses in attending
8 conferences authorized by section ninety-nine, not exceeding two hun-
9 dred dollars to each in any one year, upon vouchers approved by the
10 court by which they are appointed.
1 Section 95. The superior court, the Boston juvenile court or a Support of
2 district court, except the municipal court of the city of Boston, may isw^bbs"'"'
3 authorize a probation officer to ex-pend such amount as the court con- i9otr,440;
4 siders ex-pedient for the temporary support or transportation, or both, tgii.Vgi.
5 of a person placed on probation, and such amount shall be repaid to the
6 probation officer by the county upon vouchers approved by the court.
7 A record of any amount so authorized shall be entered on the clerk's
8 docket of the case.
9 The chief probation officer of the municipal court of the city of Boston
10 may provide for the temporary support or transportation, or both, of a
1 1 person placed on probation in said court, or for the relief of the immediate
12 distress of such person, in any manner which he may deem proper, and
13 for these purposes may annually expend a sum not exceeding two thou-
14 sand dollars for all such cases of relief. At the end of each month said
15 chief probation officer shall submit to the chief justice of said court a
16 list of the expenses so incurred, with proper vouchers, and upon approval
2808
COMMISSION ON PROBATION.
[Chap. 276.
of the chief justice the amount thereof shall be paid to the chief proba- 17
tion officer by Suffolk county. 18
negiecfof"^ Section 96. Any probation officer who refuses or neglects to perform 1
i89i"'356 § 8 ''^y °^ ^'^® duties required of him shall forfeit two hundred dollars to the 2
1892; 276; § 3. usc of the commonwealth. i897, 266, § 3. r. l. 217. § 95. 3
Duties of de-
partment of
public welfare
not affected,
1880, 129, § 12.
Section 97. The fourteen preceding sections shall not authorize a 1
probation officer to interfere with any of the duties required of the depart- 2
ment of public welfare under the law relative to juvenile offenders. 3
1919, 350, § 87.
P. S. 212, §81.
1886, 101, § 4.
1891. .^56, § 9.
R. L. 217, § 97.
COMMISSION ON PROBATION.
Commission on
probation,
deput.v com-
missioner, etc.
1900, 449. § 8,
R. L. 217, § 90.
1908, 465,
5§1.6.
1914, 191.
4 Op. A. G. 467,
576.
Powers and
duties.
1900. 449,
§§ 4-6.
R. L. 217,
§§ 86-88.
1908, 465,
§§2,6.
1916, 241, § 1.
1919, 350,
§§ 82, 83, 87.
Section 98. There shall be a commission on probation of five persons,
appointed by the chief justice of the superior court, one or more of whom
may be justices of the courts. Said chief justice shall annually appoint
one member of the commission to serve for five years from the second
Wednesday in July. A vacancy in the commission shall be filled in the
same manner for the unexpired term. Any member of the commission
may be removed by the chief justice. The commission shall appoint a
deputy commissioner as its executive officer, who shall hold office during
its pleasure. He shall perform such duties as may be required of him 9
by the commission and shall receive such salary as it shall, subject to 10
the appro\'al of the governor and council, determine. The commission 11
shall be pro\'ided with suitable office accommodations, in the Suffolk 12
county court house or elsewhere, and may employ such assistance as is 13
needed to perform its work. The members of the commission shall re- 14
ceive no compensation for services hereimder, but they and the deputy 15
commissioner shall be allowed the necessary expenses incurred in the 16
performance of their official duties. The commission on probation may 17
expend for the purposes for which it is established such sums as the 18
general court may appropriate. 19
Section 99. The commission shall prescribe the form of all records 1
and of all reports from probation officers, and shall make rules for the 2
registration of reports and for the exchange of information between 3
the courts. It shall provide for such organization and co-operation of 4
the probation officers in the several courts as may seem advisable. To 5
promote co-ordination in the probation work of the courts, the commis- 6
sion may call a conference of any or all of the justices of the district 7
courts and the Boston juvenile court, or a conference of any or all of 8
the probation officers and assistant probation officers, and a member 9
of the commission shall preside. With the approval of the commission, 10
the commissioner of correction or the department of public welfare may 11
hold a conference with any or all of the probation officers to secure their 12
co-operation in keeping trace of the whereabouts of persons who are at 13
liberty from the prisons of the commonwealth. The traveling expenses 14
of said justices or officers in attending any conference herein named 15
shall be paid as the other expenses of the respective courts are paid. 16
repOTtliobe Section 100. E^-ery probation officer, or the chief or senior proba- 1
probation''^ tiou officer of a court having more than one probation officer, shall trans- 2
work, etc. mit to the commissiou, in such form and at such times as it shall requu-e, 3
Ch.\P. 277.] IXDICTMENTS AXX) PROCEEDINGS BEFORE TRL\.L.
2809
4 detailed reports regarding the work of probation in the court; and under isso. 129. § 2.
5 the direction of the commission a record shall be kept of all such cases fs9^i,356,\T'
6 as the commission may require for the information of the justices and §§°3;4,''®'
7 probation officers. Police officials shall co-operate with the commission ?,■ gj ^^^'
8 and the probation officers in. obtaining and reporting information con- i'M2. ise.
9 cerning persons on probation. The information so obtained and re-§§3.'6.
10 corded shall be accessible at all times to the justices and officers of the 1919', 350!
11 courts, to the police commissioner of Boston, and to all chiefs of police ^^^^■*3, s..
12 and city marshals. The commissioner of correction and the department
13 of public welfare shall at all times give to the commission and the pro-
14 bation officers such information as may be obtained from the records
15 concerning prisoners under sentence or who have been released.
1 Section 101. The commission shall make an annual report to the Annual report.
2 general court of the probation work of the courts for the year ending i^'l.'Iit.'Iss.
3 on September thirtieth preceding. The report shall include such infor- ij^l/e.*^^'
4 mation as the commission may consider useful, with its suggestions or
5 recommendations.
1 Section 102. The four preceding sections shall not affect the au- Not to affect
2 thority of the courts to require the keeping by their probation officers tSodtyof the
3 of probation records in addition to those necessary to conform to forms igosfies, 1 5.
4 of records and reports prescribed by the commission nor the authority of
5 the courts to approve expenses and disbursements relating to the pro-
6 bation system.
1 Section 103. Upon the appointment or removal of a probation offi- Commission to
2 cer, the clerk of the court by which the appointment or removal is made of apVointrnent
3 shall forthwith give notice thereof to the commission on probation. probation' °^
ISSO. 129, I 2. 1891, 356, § 5. R. L. 217, § 91. officers.
P. S. 212, § 74. 1898, 511, § 3. 1910, 485.
REFERENCES.
Disposition of firearms taken from certain unnaturalized foreign born residents,
Chap. 131, § 17.
Rendition of insane persons, Chap. 123, §§ 106-109.
CHAPTER 277.
INDICTMENTS AND PROCEEDINGS BEFORE TRIAL.
Sect.
GRAND JUHT.
1. Grand jurors.
2. Grand jurors in Suffolk.
3. Jurors, how drawn, etc.
4. Deficiency in grand jurors.
5. Impanelling and oath.
6. Affirmation in lieu of oath.
7. Foreman.
8. Foreman, duty and term of service.
Temporary foreman.
9. Administration of oaths to witnesses.
List of witnesses.
Sect.
10. Clerk and record.
11. Re-summoning at same sitting.
12. Disclosure of indictment found forbid-
den.
13. Disclosure of proceedings forbidden.
14. Grand juror not to be traverse juror.
INDICTMENTS AND COMPLAINTS.
15. Discharge of prisoner not indicted.
16. Conmiitment if not indicted by reason
of insanity.
17. Contents of indictment.
2810
INDICTMENTS AND PROCEEDINGS BEFORE TRLiL.
[CiLYP.
Sect.
18. Circumstances of the act.
19. Name of defendant.
20. Time and place.
21. Means.
22. Description of written instrument.
23. Description of money.
24. Description of value or price.
25. Description of ownership.
26. Description of public place.
27. Description of animal.
28. Description of judicial proceedinj!S.
29. General intent.
30. Intent to injure or defraud.
31. Alternative descriptions.
32. Continuing offences.
33. Unnecessary and immaterial allega-
tions.
34. Immaterial defects.
35. Variance.
36. Scope of word "oath".
37. Exceptions and provisos.
38. Allegations, presumptions and proof in
prosecutions imder certain sections of
chapter 94.
39. Meaning of certain words and phrases.
40. Bill of particulars.
41. Indictment for larceny.
42. Indictment for receiving stolen prop-
erty.
43. Indictment for perjury.
44. Indictment for subornation of perjury.
45. Indictment for unnatural and lascivious
acts.
46. Different cotmts for different offences
in same indictment.
PEOCEEDING.S nPON ARRAIGNMENT IN CAP-
ITAL C.1SES.
47. Arraignment.
48. Assignment of counsel in capital case
in district court.
49. Compensation to counsel.
50. Indictments in Dukes and Nantucket
counties.
51. Change of venue.
52. Transmission of papers.
53. District attorney to conduct ease in
new venue.
hECT.
54. Custody of prisoner.
55. Compensation of counsel of prisoner.
56. Expenses of counsel of prisoner.
VENUE OF SPECIFIC CRIMES.
57. Crime near boundarj' line.
58. Venue of larceny.
59. Venue of indictment for obtaining
money by false pretences.
60. Venue of indictment if injury is in one
county and death in another.
61. Venue of indictment for crime com-
mitted at sea, etc.
62. Venue of indictment if injury is in this
commonwealth and death outside.
LIMIT.\TION OF CRIMINAL PROSECUTIONS.
63. Limitation of criminal prosecutions.
64. Limitation of new indictment against
corporation after abatement of former
one, etc.
ARREST, ARRAIGNMENT AND OTHER PRO-
CEEDINGS.
65. Prisoner to be seri'ed with copy of in-
dictment, etc.
66. Prisoner to have list of jurors and
process for witnesses.
67. Other prisoners entitled to copy of in-
dictment.
68. Prosecuting officers may issue sub-
poenas.
69. Witnesses for commonwealth to attend
without fees.
70. Witness to rgcognize, when.
71. Arraignment. Standing mute.
72. Limit of time of trial.
73. Compensation of persons discharged in
certain cases.
74. Verification of plea in abatement.
75. Form of plea of former acquittal, etc.
76. Commission to examine witnesses.
77. Commission, how executed. Deposi-
tion, how used.
78. Civil remedies not barred by criminal
proceedings.
79. Effect of annexed forms.
Grand jurors.
C. L. 86. § 2.
1694-5. 24. § 1.
1784, 4, §§ 1, 2.
1807, 140, § 4.
1832. 130, § 6.
R. S. 136, § 1.
1840, 74.
G. S. 171, I 1.
1860, 143.
P. S. 213. § 1.
1897, 490, § 7.
R. L. 218, § 1.
2 Gush. 149.
119 Mass. 326.
171 Mass. 459.
GR.AND JITRY.
Section 1. The clerk of the courts for each county, except Suffolk, 1
shall, not less than seven nor more than thirty days before the com- 2
mencement of the first sitting of the superior court for criminal business 3
in each j'ear, issue writs of venire facias for twenty-three grand jurors to 4
be returned to that court, who shall serve until the first regular sitting 5
in the year next after they have been impanelled and until another 6
grand jury has been impanelled in their stead. In counties where sit- 7
tings of the court are established for the transaction of criminal busi- 8
ness, they shall be required to attend only at such sittings. 9
ClLVP. 277.] INDICTMENTS AND PROCEEDINGS BEFORE TRL\.L. 2811
1 Section 2. The clerk of the superior court for criminal business in Grand jurors
2 Suffolk county shall, not less than seven nor more than fourteen days isw"!^. §3.
3 before each sitting commencing on the first IMondays of January and fsoo, III'. ^ ^'
4 July, issue writs of venire facias for twenty-three grand jurors to serve j^- ^ ^2^3 ^§^2
5 in said court, twenty-two of whom shall be drawn and returned from
6 Boston, and one from Chelsea, Revere or \Yinthrop, who shall serve for
7 each sitting thereof for six months and until another grand jury has
8 been impanelled in their stead.
1 Section 3. Grand jurors shall be drawn, summoned and returned in Jurors, how
2 the same manner as traverse jurors; and, if drawn at the same time R.^s/'ilurs 3.
3 with traverse jurors, the number of persons required whose names are p.' |; 2 13, '§^3^'
4 first drawn shall be returned as grand jurors, and those whose names ^- ^- ^'*' ^ ^•
5 are afterward drawn shall be returned as traverse jurors.
1 Section 4. If there is a deficiency of grand jurors, writs of venire Deficiency in
2 facias may be issued to the constables of such towns as the court orders 1784, 7,"§T'
3 to return forthwith the further number of grand jurors required. ^°l[ ile, I 4.
G. S. 171. § 4. p. S. 213, § 4. R. L. 218, I 4. 119 Mass. 326.
1 Section 5. The clerk of the court shall prepare an alphabetical list impanelling
2 of the names of all persons returned as grand jurors, and, when they c. l. i67, § 2.
3 are to be impanelled, the first two persons named thereon shall be first 1784. 4', § i.
4 called, and the following oath shall be administered to them: §§°i6\*4'
R. S.'l36, § 5.
You, as grand jurors of this inquest for the body of this county of , p- 1- ^ ''3 ' 5^5^'
do solemnly swear that you -nill diligently inquire, and true presentment make, r l. 218, § s.
of all such matters and things as shall be given you in charge; the common- JI7 J^j^ 111'
wealth's counsel, your fellows' and your own, you shall keep secret; you shall 231 Mass. 5841
present no man for env>', hatred or malice, neither shall you leave any man un-
presented for love, fear, favor, affection or hope of reward ; but you shall present
things truly, as they come to your knowledge, according to the best of your under-
standing; so help you God.
5 The other jurors shall then be called in such divisions as the court con-
6 siders proper, and the following oath shall be administered to them:
The same oath which yoTir fellows have taken on their part, you and each of
you on your behalf shall well and truly observe and keep; so help you God.
1 Section 6. If a person who is returned as a grand juror is con- Affirmation
2 scientiously scrupulous of taking the oath prescribed, he may affirm. oath." °
1807, 140, § 14. G. S. 171, § 6. R. L. 218, § 6.
R. S. 130, § 6. P. S. 213, § 6. 168 U. S. 532.
1 Section 7. After the grand jurors have been impanelled and have Foreman.
2 received their charge from the court, they shall retire with the officer r. s! i3k,' § 7. '
3 appointed to attend them, and shall forthwith, by ballot, elect one of p.i^iii.'ii.'
4 their number as foreman and give notice thereof to the court, and the ne^jusil/'
5 clerk shall record the same.
1 Section 8. The foreman so elected shall be foreman for the whole Foreman, duty
2 period the grand jurors are required to serve, but in his absence another te„i'ce'"°
3 foreman shall be elected in the same manner, who shall perform the /^r^^an""'^
4 duties during such absence, and, in case of the death of the foreman, jf^l'Jsg;!!
5 for the residue of their period of service.
G. S. 171. § 8. P. S. 213, § 8. R. L. 218, § 8.
2812
INDICTMENTS AND PROCEEDINGS BEFORE TRIAL. [ClL^P. 277.
Administration
of oaths to
witnesses.
List of wit-
nesses.
1807, 140, § 10.
R. S. 1.3li, § 9.
G. S. 171, § 9.
P. S. 213, § 9.
Section 9. The foreman of the grand jury or the prosecuting ofBcer
before them may administer oaths and affirmations to witnesses who
appear to testify before the jury, and the foreman shall under his hand
return to the court a list of all witnesses sworn before the grand jury
during the sitting, which shall be filed of record by the clerk.
R. L. 218, § 9. 4 Gray, 1. 163 Mass. 453. 207 Mass. 259.
Clerk and
record.
R. S. 136, § 10.
G. S. 171, § 10.
P. S. 213, § 10.
R. L. 218, § 10.
Re-summoning
at same sitting.
R. S. 136, § 11.
G. S. 171, § 11.
P. S. 213, § 11.
Section 10. The grand jury may appoint one of their number to 1
be their clerk, and he shall keep a record of their proceedings and, if 2
the jury so direct, shall deliver it to the attorney general or district 3
attorney. 4
Section 11. If the grand jury are dismissed before the court is 1
adjourned without day, they may be summoned to attend again in the 2
same sitting, at such time as the court orders. R. l. 21s. § 11. 3
Disclosure of
indictment
found for-
bidden.
R. S. 136, § 12.
G. S. 171, § 12.
P. S. 213, § 12.
Section 12. No grand juror or officer of the court shall disclose 1
the fact that an indictment has been found against any person not in 2
custody or under recognizance, otherwise than by issuing or executing 3
process on the indictment. R- l. 218, § 12. 4
Disclosure of
proceedings
forbidden.
R. S. 136, I 13.
G. S. 171, I 13.
P. S. 213, I 13.
R. L. 21s, § 13.
Section 13. No grand juror shall be allowed to state or testify in 1
any court in what manner he or any other member of the jury voted on 2
any question before the grand jury, or what opinion was expressed by 3
any juror relative thereto. In charging the grand jury, the court shall 4
remind them of the provisions of this and the preceding sections. 5
Grand juror
not to be
traverse juror.
R. S. 137, § 2.
Section 14. No member of the grand jury which has found an indict- 1
ment shall serve upon the jury for the trial thereof. 2
G. S. 172, § 2.
p. S. 214, § 4.
R. L. 218. § 14.
indictments and complaints.
Section 15. The grand jury shall, during its session, make daily re-
turn to the court of all cases wherein it has finally determined not to
Discharge of
prisoner not
indicted.
R. s! 136, § 14. present an indictment against an accused person held in custody pend-
p.s.'2i3.'§ 14.' ing its action, and such person shall thereupon forthwith be discharged
?92o|.ii3.' ^ ^^' by order of the court unless he is held on other process.
Whoever is held
in custody on a charge of crime shall be discharged if he is not indicted
before the end of the second sitting of the court at which he is held to
answer, unless the court finds that the witnesses for the prosecution have 8
been enticed or kept away, or are detained and prevented from attend- 9
ing the court by illness or accident, and except as provided in the fol- 10
lowing section. 11
Commitment
if not in-
dicted by
reason of
insanity.
1862, 223, § 17.
p. S. 213, § 15.
1883, 148, § 2.
1889, 90, § 1.
1895, 390, I 4.
R. L. 218, § 16.
1909, 504, § 98.
Section 16. If the grand jury does not indict a person who is held 1
in custody on a charge of crime by reason of his insanity, they shall so 2
certify to the court, which, if satisfied that he is insane, may order him 3
committed to a state hospital, except the Bridgewater state hospital, 4
under such limitations as it may order; or, if the court finds that he has 5
been a criminal or is of vicious tendency, it may order him committed 6
to the Bridgewater state hospital, and if he is charged with felony his 7
expenses in any such hospital or in any state charitable institution to 8
which he may be transferred shall be paid by the commonwealth. 9
Ch.\P. 277.] INDICTMENTS .\ND PROCEEDINGS BEFORE TRIAL. 2813
1 Section 17. An indictment shall contain — Contents of
2 First, The caption, which shall consist of the name of the common- Wo
ndictment.
409.
6, 7, 12.
3 wealth, county and court in which the indictment is presented, and the f^ l. 2i8T§ n.
4 time of the sitting of the coiu-t. One caption shall be sufficient, although \ll Hm- \f;^
5 the indictment contains more than one count. 213 Mass. 135.
ri 1 « 1 • • 1 • ■ 1-1 • ^^® Mass. 308.
6 becond, A plam and concise description of the act which constitutes
7 the crime, or the appropriate legal term descriptive of such act, without a
8 detailed description thereof. The words used in a statute to define a
9 crime, or other words conveying the same meaning, may be used.
1 Section IS. The circumstances of the act may be stated according Circumstances
2 to their legal effect, without a full description thereof.
1899. 409. § 13. R. L, 218, § 18. 1S9 Mass. 12.
1 Section 19. If the name of an accused person is unknown to the Name of de-
2 grand jury, he may be described by a fictitious name or by any other is99?4d9, § s.
3 practicable description, with an allegation that his real name is unknown. isQ^iil'si' iV^"
4 An indictment of the defendant by a fictitious or erroneous name shall not
5 be ground for abatement; but if at any subsequent stage of the proceed-
6 ings his true name is discovered, it shall be entered on the record and may
7 be used in the subsequent proceedings, with a reference to the fact that
8 he was indicted by the name or description mentioned in the indictment.
1 Section 20. The time and place of the commission of the crime need V"^^ '"'<•
... . place.
2 not be alleged unless it is an essential element thereof. The allegation jsga, 409, 1 10.
3 of time in the caption shall, unless otherwise stated, be considered as an isg .Mass! 12
4 allegation that the act was committed before the finding of the indict- 212 Mass! 253!
5 ment, after it became a crime, and within the period of limitations. The "'^^ ^'"^^^ ^^*'
6 name of the county and court in the caption shall, unless otherwise stated,
7 be considered as an allegation that the act was committed within the
8 territorial jurisdiction of the court. All allegations of the indictment
9 shall, unless otherwise stated, be considered to refer to the same time
10 and place.
1 Section 21. The means by which a crime is committed need not be Means.
2 alleged in the indictment unless an essential element of the crime. r. l. 218, § 21!
189 Mass. 12. 207 Mass. 259. 235 Mass. 449.
1 Section 22. If an allegation relative to a wTitten instrument con- Description of
2 sisting wholly or in part of writing, print or figures is necessary, it may ment^° 'nstr"-
3 describe such instrument by any name or designation by which it is ^^l[ l%\ 1 12.
4 usually known, or by the purport thereof, without setting out a copy or 231 Mass' 449
5 facsimile of the whole or of any part thereof; and no variance between
6 such recital or description and the instrument produced at the trial shall
7 be material, if the identity of the instrument is evident and the purport
8 thereof is so described as not to prejudice the defendant.
1 Section 23. If an allegation relative to any bullion, money, notes. Description
2 bank notes, checks, drafts, bills of exchange, obligations or other securities i834°'isti', § 2
3 for money of any country, state, county, city, town, bank, corporation, fgjl; 215; ^ ^^'
4 partnership or person is necessary, it may describe it as money, without J?'*|' \l\- 1 fj
5 specifying any particulars thereof; and such descriptive allegation shall p^"?'2mS44
2814
r^DICTME^TS and proceedixgs before trial. [Cil^p. 277.
R ^L 111' 1 23 t>6 sustained by proof of any amount of bullion, money, notes or other 6
100 Mass. 1 securities for money as aforesaid, although the particular nature thereof 7
118 Mass. 443. , i, i i" ^ o i
173 Mass. 541. shall not be proved. 8
Description of
value or price.
1899. 409. § 17,
R. L. 21S, § 24.
Section 24. The value or price of property need not be stated, unless 1
an essential element of the crime. If the nature, degree or punishment 2
of a crime depends upon the fact that the property exceeds or does not 3
exceed a certain value, it may be described, as the case may be, of more 4
than that value, or of not more than that value. 5
^erSif"""^ Section 25. If an indictment for a crime involving the commission 1
1899. 409. 1 18. or attempted commission of an injury to property describes the property 2
■with sufficient certainty in other respects to identify the act, it need not 3
allege the name of the owner. 4
H. L. 218, I 25.
Section 26.
If one element of the criminality of an act is its com- 1
2
3
"in a public place". 4
Description of
public place.
1899, 409, 1 19. mission in a public place, and if such place is not more particularly defined
'in the statute, the act may be alleged generally to have been committed
Description
of animal.
Section 27. In an indictment for the larceny of an animal, or for 1
R ^L 218 1 2?' ^^y other crime in respect thereof, it may be described by the name by 2
which it is commonly known, without stating its age or sex or whether 3
it is alive or dead. 4
'^cUcIa?''??-''' Section 28. If it is necessary to set fortli the judicial proceedings in
i899'°409 5 21 ^^^ ^^^^ ^'^^^ °'' ^o^merly pending in any court, ci\-il or military, or any
R. l! 218! 1 28! proceedings before a justice of the peace or any other magistrate, only
the substance of said proceedings or such part thereof as shall constitute
in %vhole or in part the crime charged need be alleged.
?8™9"409?t9'" Section 29. An allegation that the defendant committed the act 1
is^^ials' n^' charged shall be a sufficient allegation that he was criminally responsible 2
therefor. 3
Section 30. If an intent to injure or defraud is an essential element
Intent to in-
jure or de-
R*s^i27 § 14 °^ ^ crime, an intent to injure or defraud may be alleged generally, with-
T'i'iof'iii' ^^^ naming the person, corporation or government intended to be injured
1899, 409, § 23 or dcfraudcd. Proof of an intent to injure or defraud any person or body
12 Met. 446. Corporate shall be competent to support the allegation.
100 Mass. 12. 231 Mass, 449.
descrip^tVOTs. Section 31. Different means or different intents by or with which 1
R^^L. lis! 1 3i! ''■ crime may be committed maj' be alleged in the same count in the 2
alternative. 3
Continuing
offences.
1899,409, § 11.
R. L. 218. § 32,
212 Mass. 253.
Section 32. An allegation that a crime was committed or that cer-
tain acts were done during a certain period of time next before the finding
of the indictment shall be a sufficient allegation that the crime alleged
was committed or that the acts alleged were done on divers days and
times within that period.
Unnecessarj'
and immaterial
allegations.
R. S. 137, § 14.
Section 33. Presumptions and conclusions of law, matters of which 1
judicial notice is taken and allegations not required to be proved need 2
Chap. 277.] indictments and proceedings before trul. 2815
3 not be alleged. An indictment shall not be considered defective or isss, isi, § 4.
4 insufficient because it omits to allege that the crime was committed, or §''1*5.' ''^' ^^'
5 the act was done "traitorously", "feloniously", "burglariously", "wil- lifi;!!'^^'
6 fully", "maliciously", "negligently", "unlawfully" or otherwise sim- f^j^-^i®! \|^_
7 ilarly to describe the crime, unless such description is an element of the l}j- ,„, ^ ,„
--, . 1 11 . . nil* 18b0, 191, § 10.
8 crime charged, or because it omits to allege that the crime was com- P- s. 210, § 2-.
9 mitted or done with "force and arms", or "against the peace", or against isss, 144.'
10 the form of the statute or statutes, or against a by-law, ordinance, order, isgg] 409, §§ 3,
11 rule or regulation of any public authority, or because it omits to state or fj^f, 21s, §33.
12 misstates the title, occupation, estate or degree of the defendant or of \ll ^i^l ^^^
13 any other person named in the indictment, or of the name of the county, i^^ ^^^- 225.
14 city, town or place of his residence, unless such omission or misstatement
15 tends to the prejudice of the defendant, or by reason of describing a fine or
16 forfeiture as enuring to the use of the commonwealth instead of to the
17 use of the county, city or town, or by reason of any misstatement as to
18 the appropriation of any fine or forfeiture, or by reason of its failure to
19 allege or recite a special statute or a by-law or ordinance of a city or
20 town or order of the mayor and aldermen or selectmen or rules or regu-
21 lations of any public board of officers.
1 Section 34. An indictment shall not be quashed or be considered immaterial
2 defective or insufficient if it is sufficient to enable the defendant to under- isss, 409. § 5.
3 stand the charge and to prepare his defence; nor shall it be considered 212 Mass'. 253."
4 defective or insufficient for lack of any description or information which 231 Mass. 598.
5 might be obtained by requiring a bill of particulars under section forty. 235 MaS.' 449.'
1 Section 35. A defendant shall not be acquitted on the ground of J'j'g'^^^j^o 5 1
2 variance between the allegations and proof if the essential elements of p. s.'2i4,'§26.
3 the crime are correctly stated, unless he is thereby prejudiced in 'his r. l! 218! § 35.
4 defence. He shall not be acquitted by reason of an immaterial misnomer gs Mass! 9.
5 of a third party, an immaterial mistake in the description of property or 227. '^'''^^' '^^'
6 the ownership thereof, failure to prove unnecessary allegations in the JIlMaS:!?!:
7 description of the crime or any other immaterial mistake in the indictment. J^s Mass. 393.
211 Mass. 578. 235 Mass. 449.
1 Section 36. The word "oath" as used in an indictment shall include scope of word
2 an "affirmation". is99, 409. § 22. r. l. 218, §36. "oath".
1 Section 37. An excuse, exception or proviso not stated in the enact- Exceptions
2 ing clause of a statute creating a crime or stated only by reference to i899f40™| 26.
3 other provisions of the statute need not be negatived in the indictment fisiliss. loi.'
4 unless necessary for a complete definition of the crime. If any statute
5 shall prescribe a form of indictment in which an excuse, exception or
6 proviso is not negatived, it shall be taken that it is not necessary to a
7 complete definition of the crime that they should be negatived. If a
8 statute creating a crime permits an act, therein declared to be criminal, to
9 be performed without criminality under stated conditions, such condi-
10 tions need not be negatived.
1 Section 38. In a prosecution under any provision of sections one Allegations,
2 hundred and ninety-seven to two hundred and thirteen, inclusive, of ^nf p^'inS^
3 chapter ninety-four, for unlawfully prescribing, selling, furnishing, giving {;n'de™'rtain
4 away or delivering a narcotic drug in violation of any provision of said ^i,'''"™,"]
5 sections, it shall be sufficient to allege that the defendant did unlawfully i9i7. 275,
'^ §§ IG, 17.
2816
rNTDICTMENTS AKD PKOCEEDIXGS BEFORE TEUL. [ChAP. 277.
prescribe, sell, furnish, give away or deliver, as the case may be, the 6
alleged narcotic drug, without any further allegations, and without nam- 7
ing the person prescribed for, or the amount or quantity of the drug, or 8
the person to whom such sale, furnishing, giving away or delivery was 9
made; but the defendant shall be entitled to a bill of particulars under 10
section forty. In such a prosecution, a defendant reljdng upon a prescrip- 1 1
lion, written order, registration, appointment or authority as a defence 12
or justification shall prove the same, and until he has proved it the pre- 13
sumption shall be that he is not so justified or authorized. 14
Meaning of
certain words
and phrases.
1899, 409, § 12.
R. L. 21S, § 3S.
184 Mass. 320.
187 Mass. 5S1.
202 Mass. 121,
379.
222 Mass. 504.
224 Mass. 42.
231 Mass. 449.
232 Mass. 5S8.
230 Mass. 567.
Section .39. The words used in an indictment may, except as other- 1
wise provided in this section, be construed according to their usual 2
acceptation in common language; but if certain words and phrases are 3
defined by law, they shall be used according to their legal meaning. 4
The following words, when used in an indictment, shall be sufficient to 5
convey the meaning herein attached to them: 6
Adultery. — Sexual intercourse by a married man with a woman not 7
his wife, by an unmarried man with a married woman, by a married 8
woman with a man not her husband. 9
Affray. ■ — Fighting together of two or more persons in a public place 10
to the terror of the persons lawfully tliere. 1 1
False Pretences. ■ — False representations made by word or act of such 12
a character, or made under such circumstances and in such a way, with 13
the intention of influencing the action of another, as to be punishable. 14
Forgery. — The false making, altering, forging or counterfeiting of any 15
instrument described in section one of chapter two hundred and sixty- 16
seven, or any instrument which, if genuine, would be a foundation for
or release of liability of the apparent maker.
Fornication. — Sexual intercourse between a man and an unmarried
woman.
Murder. — The killing of a human being, with malice aforethought.
Ra^e. — The unlawful forcible carnal knowledge by a man of a woman 22
against her will or without her consent; or the carnal knowledge by a 23
man of a female child under the statutory age of consent. 24
Robbery. — The taking and carrying away of personal property of 25
another from his person and against his ■will, by force and violence, or by 26
assault and putting in fear, with intent to steal. 27
Stealing. Larceny. — The criminal taking, obtaining or converting 28
of personal property, with intent to defraud or deprive the owner per- 29
manently of the use of it; including all forms of larceny, criminal embez-
zlement and obtaining by criminal false pretences.
17
18
19
20
21
30
31
Bill of par-
ticulars.
1SS7, 436, § 2.
1S99. 409,
§S 10, 13. 14,
16. 24, 27.
E. L. 218. § 39.
184 Mass. 320.
187 Mass. 5S1.
189 Mass. 12.
195 Mass. 100.
199 Mass. 583.
202 Mass. 379.
207 Mass. 259,
572.
213 Mass. 135.
218 Mass. 507.
227 Mass. 57.
231 Mass. 449.
Section 40. The court may, upon arraignment of the defendant, or 1
at any later stage of the proceedings, order the prosecution to file a state- 2
ment of such particulars as may be necessary to give the defendant and 3
the court reasonable knowledge of the nature and grounds of the crime 4
charged, and if it has final jurisdiction of the crime, shall so order at the 5
request of the defendant if the charge would not be otherwise fully, 6
plainly, substantially and formally set out. If there is a material variance 7
between the e\idence and the bill of particulars, the court may order the 8
bill of particulars to be amended, and may postpone the trial, Mhich may 9
be before the same or another jury, as the court may order. If, to prepare 10
for his defence, the defendant desires information as to the time and place 11
Chap. 277.] indictments and proceedings before trial. 2817
12 of the alleged crime or the means by which it is alleged to have been com-
13 mitted, or more specific information as to the exact nature of the property
14 described as money, or, if indicted for larceny, as to the crime which he
15 is alleged to have committed, he may apply for a bill of particulars as
16 aforesaid.
1 Section 41. In an indictment for criminal dealing with personal , indictment for
2 propert-s' with intent to steal, an allegation that the defendant stole said is99, 469, § 24.
3 property shall be sufficient; and such indictment may be supported by is3 Mass', ifii.'
4 proof that the defendant committed larceny of the property, or embezzled 222 Mass! 504!
5 it, or obtained it by false pretences.
1 Section 42. In prosecutions for brndng, receiving or aiding in the indictment for
2 concealment of stolen property known to have been stolen, it shall not property. ^'° ^°
3 be necessary to allege or pro^•e that the person who stole the property has J^'g' i^l,' 1 24.'
4 been convicted.
G. S. 161. I 45. P. S. 203, § 50. R. L. 218, § 41. 3 Mass. 126.
1 Section 43. In an indictment for perjury alleged to have been com- indictment
2 mitted in a criminal case an allegation of the substance of the crime shall iseo.^^sefi i.
3 be sufficient; if alleged to have been committed in a civil case, an allega- r. l.1i8,V42.
4 tion of the nature of the controversy in general terms shall be sufficient, l^ofity^u'^'
5 In both cases, the court or magistrate before whom the oath or affirmation ?„4'l^"' *^ii«
„ 1 11 I 11 I 1 !■ 1 1- • 1 • 1 105 Mass. 582.
6 was taken shall be alleged, but no part ot the proceeding in which, or the io7 Mass. 227.
7 commission or authority of the court or person before whom, the perjury 122 Mass! 449!
8 was committed need be alleged. 164 Mass. 398. lee Mass. 174. ^^ "^'^ *^^'
1 Section 44. If, in an indictment for subornation of perjury or for indictment for
2 attempting to incite or procure another person to commit perjury, it is perj°u^'!"°° "'
3 alleged that perjury has been committed, an allegation of the perjury as p*s'.'2a5,'|6.'
4 pro\'ided in the preceding section and an allegation that the defendant fsc^iasf' Igl^'
5 wilfully incited or procured said person to commit said perjury shall be i^s Mass. 224.
6 sufficient. If it is not alleged that such perjury has been committed, an
7 allegation of the substance of the crime with which the defendant is
8 charged shall be sufficient, without allegations as to matters or things
9 which by the preceding section are declared to be unnecessary.
1 Section 45. In an indictment under section thirty-five of chapter indictment
2 two hundred and seventy-two, an allegation that the defendant com- andlasdWoL
3 mitted an unnatural and lascivious act with the person named or referred If^j^ 433 5 2.
4 to in the indictment shall be sufficient. R. l. 21s. § 44. leo Mass. 536.
1 Section 46. Two or more counts describing different crimes depend- ^'fXfor
2 ing upon the same facts or transactions may be set forth in the same different,
3 indictment if it contains an averment that the different counts therein same indict-
4 are different descriptions of the same acts. isei, isi.
p. S. 213, § 18. 102 Mass. 487. 132 Mass. 263. 152 Mass. 276. 283.
R. L. 218, § 45. 127 Mass. 15. 134 Mass. 201. 159 Ma.ss. 56.
12 Allen, 451. 128 Mass. 46. 150 Mass. 394. 181 Mass. 1S4.
proceedings upon arraignment in capital cases.
1 Section 47. If a prisoner, under indictment for a capital crime. Arraignment.
2 pleads guilty, upon being arraigned, the court shall award sentence }s32,' 136,^^6.
3 against him; if he does not plead guilty, the court may assign him fjfs^ie
2818
INDICTMENTS AJSTD PROCEEDINGS BEFORE TRIAL. [CHLiP. 277.
G. S. 112,
§§ 8, 9, 20.
P. S. 150, § 19.
1891, 379, § 4.
1893, 365.
R. L. 157. § 10.
5 Gush, 386.
counsel and take all other measures preparatory to a trial, which shall,
subject to section seventy-two, be held as soon after the finding of the
indictment as the other official duties of the justices ■will admit and the
circumstances of the case require.
9 AUen, 585. 12 Al\en. 155. 104 Mass. 537.
Assignment
of counsel
in capital
case in dis-
trict court.
1911, 432, § 1.
Section 48. If a defendant in a capital case does not plead guilty
upon being arraigned before a district court or trial justice, the superior
court may assign him counsel upon his petition, and upon certification
to the superior court of the record of the arraignment and plea by the
clerk of the district court, or by the trial justice before whom the ar-
raignment was held. The case shall thereupon be continued until the
assignment of counsel has been made, and certification thereof received
by the clerk of the district court or by the trial justice.
Compensation
to counsel.
1911, 432, § 2.
Section 49. The superior court may allow reasonable compensation 1
for the services of counsel in the district court assigned to defend the 2
prisoner, if he is otherwise unable to procure counsel, and such com- 3
pensation shall be paid by the county where the indictment is found. 4
Indictments in
Dukes and
Nantucliet
counties.
1832, 130, 5 6.
R. S. 81, § 46.
G. S. 112, § 24.
1878, 151.
P. S. 150, § 24.
1891, 379, § 5.
R. L. 157, § 11.
Section 50. An indictment for a capital crime found in Dukes or 1
Nantucket coimty shall be tried in Bristol county; and the court for 2
that purpose shall be convened and held, and all proceedings relative 3
thereto conducted, as though the indictment had been originally found 4
in Bristol county. The court may in such case, from time to time while 5
the indictment is pending, make orders relative to the place of confine- 6
ment of the prisoner, and the expense of his keeping shall in all cases 7
be paid by the county where the indictment is found. 8
Change of
venue.
1871, 240, § 1.
P. S. 150. § 26.
1891, 379, § 6.
R. L. 157, § 12.
Section 51. Upon petition of a person indicted for a capital crime, 1
the court may, if in its opinion an impartial trial cannot be had in the 2
county where the case is pending, order a change of venue to any county 3
adjoining the county where the indictment was found; and on such 4
order, the court shall have jurisdiction in the county to which such 5
change may be made. All other proceedings in such case shall be the 6
same, as nearly as may be, as if the indictment had been originally 7
entered in such adjoining county. 8
Transmission
of papers.
1871, 240, § 2.
P. S. 150, § 27.
1891, 379, § 7.
R. L. 157, I 13.
Section 52. The clerk of the courts in the county where the in- 1
dictment is pending, or, if pending in Suffolk county, the clerk of the 2
superior court for criminal business, shall forth^^^th, upon the entry of 3
such order upon the docket, transmit the original indictment, with the 4
papers in the case and a duly certified copy of said order, to the clerk 5
of the coiu-ts for the county to which the venue has been changed, or, 6
if the last named county is Suffolk county, to the clerk of the superior 7
court for criminal business; and the clerk, upon recei\ing the indict- 8
ment so transmitted, shall make immediate entry of the case upon the 9
docket of the superior court for such county. 10
District at-
torney to
conduct case
in new venue.
1871, 240, § 3.
P. S. 150, § 28.
1891, 379, § 8.
Section 53. After the venue has been changed under the two pre- 1
ceding sections, the district attorney for the county where the indict- 2
ment was found shall have the same authority and duty in the case as 3
if the venue had not been changed. R. l 157, § 14. 4
Chap. 277.] indictments and proceedings before trial. 2819
1 Section 54. If a change of venue is ordered, the sheriff hax-ing Custody of
2 custody of the prisoner shall forthwith deliver him to the sheriff of the i87°,°240, § 4.
3 county to which the venue has been changed, who shall receive and fsgl'.sTg.VI.'
4 safely keep him as if the indictment had been found in such county. ^- ^- ^^^- * ^^•
1 Section 55. A justice of the court, sitting at the trial or other Compensation
2 proceedings upon an indictment for murder, may allow reasonable prisoner.'' °
3 compensation for the services of counsel assigned to defend the pris- r^^l! ilv', I le.
4 oner if he is other%\'ise unable to procure counsel, and such compensa-
5 tion shall be paid by the county where the indictment is found.
1 Section 56. The reasonable expenses incurred and paid by counsel ^jfj'ng^fof"^
2 assigned by the court for the defence of a person indicted for murder, fgg"|°|g4 . j
3 who is otherwise unable to procure counsel, shall be paid by the county R. l! is?! | i7.
4 where the indictment is found after approval by a justice sitting at the
5 trial or other proceedings of the case.
VENUE OF specific CRIMES.
1 Section 57. A crime committed on or within one hundred rods of bouSdairfine.
2 the boundary line of two counties may be alleged to have been com- r^J'^ssV?
3 mitted, and may be prosecuted and punished, in either county; and foyf 27V I j'^'
4 if committed on or within fifty rods of the boundary line of two judicial p. s.'i54.'§ 56:
5 districts, it may be alleged to have been committed, and may be prose- i8,s5, 322.
6 cuted and punished, in either district. A crime committed upon the Ifil'. 431! *'
7 sea within one league of the shore may be prosecuted and punished in J^enJIol.*^'
8 an adjacent county. 11s Mass. 1. le? Mass. 173. 216 Mass. 314.
1 Section 58. Larceny, whether at common law or as defined by venueof
2 section thirty of chapter two hundred and sixty-six, may be prosecuted i87l,°i6.5.
3 and punished in any county where the defendant had possession of the r.l.2\s,\47.
4 property alleged to have been stolen.
165 Mass. 526. 188 Mass. 308. 210 Mass. 443.
1 Section 59. The crime of obtaining money or a personal chattel by Venue of in-
2 a false pretence, and the crime described in section thirty-one of chapter obtaining °^
3 two hundred and six-ty-six, may be alleged to have been committed, and pr^ences^ " ^^
4 may be prosecuted and punished, in any county where the false pretence p^ a'2^i3^'§^2\.
5 was made, written or used, or in or through which any of the property fsg'^fass' los '
6 obtained was carried, sent, transported or received by the defendant.
1 Section 60. If a mortal wound is given, or if other violence or injury Venue of in-
2 is inflicted, or if poison is administered, in one county, by means whereof inTuT is in
3 death ensues in another county, the homicide may be prosecuted and anddeath^in
4 punished in either county. another.
1795, 45, §1. P. S. 213, §22. 118 Mass. 1.
R. S. 133. § 8. R. L. 218, § 49. 216 Mass. 314.
G. S. 171, § 18. 2 Pick. 549.
1 Section 61. If a mortal wound is given, or if other violence or injury Venucof
2 is inflicted, or if poison is administered, on the high seas or on land either c"ime"om- °^
3 within or without tlie commonwealth, by means whereof death ensues in "tc"'''^ "' ^''^'
2820
INDICTMENTS AND PROCEEDINGS BEFORE TRUL. [ClL^P. 277.
1795, 45. § 2. any county thereof, the homicide may be prosecuted and punished in the 4
a', s. i7i! § 19. county where the death happens. 5
p. S. 213, § 23.
R. L. 218, I 50.
101 Mass. 1.
123 Mass. 430.
dictmentir SECTION 62. If a mortal wound is given, or if other violence or injury
comrnonweaith^ Js inflicted, or if poison is administered, in any county of the common-
outeid™*'' wealth, by means whereof death ensues without the commonwealth, the
PS-2i'3 \24 homicide may be prosecuted and punished in the county where the act
was committed.
Limitation of
criminal
prosecutions.
R. S. 136, § 16.
G. S. 171, I 20.
P. S. 213, I 25.
R. L. 218. § 52.
205 Mass. 128.
LnilTATION OF CRIMINAL PROSECUTIONS.
Section 63. An indictment for murder may be found at any time 1
after the death of the person alleged to have been murdered. An indict- 2
ment for any other crime shall be found and filed within six years after 3
the crime has been committed; but any period during which the defend- 4
ant is not usually and publicly resident within the commonwealth shall 5
be excluded in determining the time limited. 6
Limitation of
new indictment
against corpo-
ration after
abatement of
former one, etc.
1867, 164.
P. S. 213, § 26.
R. L. 218. § 53.
Section 64. If an indictment, duly found and returned within the 1
time limited by law against a corporation to recover a pecuniary penalty, 2
is abated or otherwise avoided or defeated by reason of any matter of 3
form, or if after a verdict against such corporation judgment is arrested, 4
or if a judgment against such corporation is reversed on 'v\Tit of error, a 5
new indictment for the same cause may be found and filed within one 6
year after the abatement of the former indictment or the reversal of the 7
judgment as aforesaid. 8
Prisoner to be
serv-ed ^vith
copy of indict-
ment, etc.
1832, 130, § 6.
R S. 136,
§§ 18, 19.
G. S. 171,
1869, 433,
1878, 151,
P. S. 213. §28.
1891,379, § 11.
R. L. 218, § 54.
r22.
» 1.
i 2.
ARREST, .UIR.4.IGNMENT AND OTHER PROCEEDINGS.
Section 65. After the finding of an indictment for murder, the defend-
ant, if in custody, shall forthwith be served by the sheriff or his deputy
with a copy thereof and with an order of the court notifying him that the
indictment will be entered forthwith upon the docket of the superior court
for the county where found, or, if found in Dukes or Nantucket county,
that it will be entered forthwith upon the docket of the superior court
for Bristol county. 5 Cush. 385.
Prisoner to
have list of
jurors and
process for
witnesses.
R. S. 136, § 23.
G. S. 171, § 24.
P. S. 213. § 31.
R. L. 218, § 55.
Section 66. A prisoner indicted for a crime punishable with death 1
or imprisonment for life, upon demand by him or his counsel upon the 2
clerk, shall have a list of the jurors who have been returned and process 3
to summon witnesses who are necessary to his defence, at the expense of 4
the commonwealth. 13 Mass. 501. 104 Mass. 537. 5
entitie<f toTOpy Section 67. \Mioever, having been indicted for felony, is under re-
R.'s. i36!'r24. cognizance or in custody to answer therefor shall be entitled to a copy
G. s. Ill, § 2o. p^ ^j^g indictment and of all endorsements thereon without charge.
p. S. 213, § 32. R. L. 218, § 56.
Prosecuting
officers may
issue sub-
poenas.
R. S. 136, § 25.
G. S. 171, § 21;.
P. S. 213, § 33.
R. L. 218, § 57.
Section 68. The attorney general and district attorneys may issue 1
subpoenas under their hands for witnesses to appear and testify on behalf 2
of the commonwealth, and such subpoenas shall have the same force, and 3
be obeyed in the same manner, and under the same penalties, in case of 4
default, as if issued by the clerk of the.court, 5
Ch.\P. 277.] INDICTMENTS AND PROCEEDINGS BEFORE TRIAL. 2821
1 Section 69. Witnesses summoned in behalf of the commonwealth witnesses for
2 shall attend without the payment of fees, and shall be punishable for to'SuenT'"' *
3 non-attendance; but if the court finds that they are unable to defray r.'s.°i36,T26.
4 their expenses, it shall order their fees which have accrued to be paid, Q^|'f|i 527
5 and may make such further order for the payment of their fees as may be ?■ |; ^^^- § ||-
6 considered reasonable. The court may at each sitting pass a general
7 order for the payment of the fees of such witnesses.
1 Section 70. A justice of a court of record may at any time order a witness to
2 witness for the commonwealth in a criminal case or in a case under sec- when.
.3 tions fifty-two to sixty-four, inclusive, of chapter one hundred and nine- UtI', tu.
4 teen, pending in such court to recognize, with or without sureties, to R.i'.l'is.Vsg.
5 appear and testify at the next or any succeeding sitting of said court,
6 and may issue a M-arrant to bring such witness before him to recognize as
7 aforesaid ; but a witness unable to procure sureties shall not on that ac-
8 count be committed to jail except in cases of felony.
1 Section 71. If a defendant upon arraignment refuses to plead or Arraicnment.
2 does not confess the indictment to be true, the court shall order a plea of mute."^
3 not guilty to be entered, and shall thereupon proceed as if he had pleaded r®|; i^af ^'
4 not guilty. It shall not be necessary in any case to ask a prisoner how ^ |*'in, § 29
5 he will be tried.
p. S. 213, § 37. 10 Met. 222. 125 Mass. 397.
R. L. 218, § 60. 13 Allen, 663. 165 Mass. 296.
1 Section 72. Whoever is held in custody upon an indictment shall, ot^riif' ""^
2 if he requires it, either be tried at the sitting of the court next after the ^^^^' ^^.^l i3.^
3 expiration of six months from the time when he was imprisoned or be g- s. i7i! § 3o.
4 bailed upon his own recognizance, unless the court finds that the wit- r. l. 218. § oi.
5 nesses on behalf of the government have been enticed or kept away or
6 have been detained and prevented from attending the court by illness or
7 inevitable accident.
1 Section 73. Any person in the commonwealth kept in confinement Compensation
2 awaiting trial for more than six months after having been indicted, and dischal-ged in
3 finally acquitted or discharged without trial, if the delay in trial was not IViulyjf^'
4 at his request or with his consent, or at the request or with the consent
5 of his attorney of record, may receive compensation for the period of his
6 confinement after the lapse of said six months and until his acquittal or
7 discharge; provided, that the payment of compensation is approved by
8 the justice who presided at the trial, or in case of a discharge without trial,
9 by a justice of the superior court sitting at a session for criminal business
10 in and for the county where the indictment was found. Such compen- -
11 sation shall be paid by the county where the indictment was found and
12 shall be equivalent to the amount which the indicted person earned or
13 received from his regular emplojTnent for any period of equal length
14 during the two years immediately preceding his confinement; and if he
15 had no employment, the compensation shall be such reasonable sum as
16 shall be determined by the justice who presided at the trial, or, in case of
17 a discharge without trial, by a justice of the superior court sitting at a
18 session for criminal business in and for the county where the indictment
19 was found. The justice, upon application by the person acquitted or
20 discharged, shall give a hearing at which such person or his representa-
21 tive may be present, if he so desires, and the district attorney or other
2822
INDICTMENTS AND PROCEEDINGS BEFORE TRUL. [ClLiP. 277.
officer representing the commonwealth or the county may also be present, 22
and the person acquitted or discharged and the commonwealth or county 23
may offer testimony as in any civil case. The decision of the justice 24
shall be final. 25
oiphTin"^ Section 74. The coiu-t may refuse to receive a plea in abatement or 1
n'^sl'Tle'i 31. other dilatory plea to an indictment until its truth has been proved by 2
G. s. 171, 1 31. affidavit or other evidence. p. s. 213, § 39. r. l. 21s, § 62. 3
pie™of°former SECTION 75. In a plea of autrefois acquit or autrefois con\'ict, an
i864'"5o 1 4 'I'^egation that, at a certain sitting of a certain court, which shall be set
PS.'2i3.§4o. forth, the defendant was lawfully acquitted or convicted, as the case
8 Allen, 545. ' may be, of the same crime with which he is again charged shall be
sufficient.
113 Mass. 200.
toTxamtne' Section 76. If an issue of fact is joined upon an indictment, the
H.'s'^rie, 1 32. court may, upon application of the defendant, grant a commission to
p.' I.' 213,' Ml' examine any material witnesses residing out of the commonwealth, in
5'Met^4i2^ '^' ^^^^ same manner as in ci\dl causes; and the prosecuting officer may join
in such commission, and may name any material witnesses to be ex-
amined on the part of the commonwealth.
how Secute'd. SECTION 77. When such commission is issued, the interrogatories to
how'Ssed'."' be annexed thereto shall be settled and the commission executed and
§; I; J71; 1 11 returned as is provided in relation to commissions in civil cases, and
R L ^2\^8 Yis ^'^^ depositions taken thereon and returned shall be read in the same
manner and with the like effect, and subject to the same exceptions,
as in civil cases; but if the defendant on his trial declines to use the
deposition so taken, the prosecuting officer shall not, without the de-
fendant's consent, make use of any deposition taken on behalf of the
commonwealth.
norbarred^by SECTION 78. No proceedings against a person for a crime shall bar a 1
prOTMdings ^^^'^^ actiou which might otherwise be maintained by a person aggrieved 2
1851, 151, § 6. by the commission of the crime. 3
1856, 123, § 6, G. S. 171, § 34. P. S. 213, § 43. R. L. 218, § 66.
aifne'^ed^orms. SECTION 79. The provisions of this chapter, and the forms hereto
sIT'l'^ls annexed, shall apply as well to complaints as to indictments, and such
R- L. 218, § 67. forms shall be sufficient in cases to which they are applicable. In other
§ 18-' ' cases, forms as nearly like the forms hereto annexed as the nature of the
232 Mass! 588. cases and the provisions of law will allow may be used; but any other
form of indictment or complaint authorized by law may be used.
Forms of
pleadings.
Caption and
commencement
of indictment.
SCHEDULE OF FORMS OF PLEADINGS.
Caption and Commencement of Indictment.
commonwealth of massachusetts.
(Suffolk,) to wit:
At the Superior Court liolden at (Boston,) within and for the County of
(Suffolk,) for the transaction of criminal business, on the day of
in the year of our Lord one thousand, etc.
The jurors for the said Commonwealth on their oath present
Chap. 277.] indictments and proceedings before trial. 2823
Caption and Commencement op Complaint.
{To a Police, District or Municipal Court.)
COMMONWEALTH OF MASSACHUSETTS.
(Suffolk,) to wit: Caption and
To the court of _ holden at for the trans- ^""nTof ctm-
action of criminal business, within the County of , A. B. of plaint.
in behalf of the Commonwealth of Massachusetts on the day of
in the year , on oath complains that
{To a Trial Justice.)
To A. B., a Trial Justice in and for the County of and Com-
monwealth of Massachusetts, C. D. of {etc. as ■ in form above).
{To a Justice of the Peace commissioned to Issue Warrants.)
To A. B., Justice of the Peace in and for the County of and Com-
monwealth of Massachusetts, designated and commissioned to issue warrants
in criminal cases, C. D. of {etc. as inform above).
{If the statute requires a particular person to make complaint, this should be
alleged.)
Abduclwn. (Under Chap. 272, §§ 1, 2.) — (1) That A. B. did fraudulently Abduction.
and deceitfully entice (and take away) one C. D., an unmarried female under the
age of sixteen years, from the house of her father {or guardian, etc., as the case
may be), without the consent of the said father {or guardian, etc., as the case may
be), under whose care and custody said C. D. was living, for the purpose of effect-
ing a clandestine marriage of said C. D. without the consent of her said father
{or guardian, etc., as the case may be).
(2) That A. B. did fraudulently and deceitfully entice (and take away) C. D., a
woman or girl, from her father's house {or if elsewhere, state it, as the case may be),
for the purpose of prostitution {or for the purpose of unlawful sexual intercourse
wth her) .
Abortion. (Under Chap. 272, § 19.) — (1) That A. B., with intent to procure Abortion,
the miscarriage of C. D., did unlawfully administer to her (or ad\'ise, or prescribe 195 Mass. lOO.
for her, or cause to be taken by her) a certain drug {or medicine or other no.xious
thing, as the case may be) .
// the woman dies, add "and in consequence thereof said C. D. died".
(2) That A. B., with intent to procure the miscarriage of C. D., did unlaw-
fully use a certain instrument upon the body of said CD., and in consequence
thereof said C. D. died.
(3) That A. B., with intent to procure the miscarriage of C. D., did unlawfully
do certain things {naming them) to {or upon the body of) said C. D.
Accessory before the fact. (Under Chap. 274, § 2.) — Charge principal felony and Accessory
proceed: That A. B., before the said felony was committed, did incite, procure, fac°.™ * ^
aid, counsel, hire or command the said (principal) the said felony to do and 202 Mass. 121.
commit.
Accessory after the fact. (Under Chap. 274, § 4.) — Charge principal felony Accessory
and proceed: That A. B. afterwards, well knowing the said C. D. to have com- aftw the £»<=*•
mitted the felony aforesaid, did harbor, (conceal, maintain,) or assist said C. D.,
with intent that said C. D. should avoid or escape (detention, arrest,) trial, or
punishment; the said A. B. not standing in the relation of husband or wife, parent
or grandparent, child or grandchild, brother or sister, by consanguinity, affinity
or adoption to the said C. D.
Adultery. (Under Chap. 272, § 14.) — (1) That A. B. and C. D., a married Adulter^-,
woman, they not being married to each other, did commit adultery with each
other.
(2) That A. B., a married man, did cormnit adultery mth C. D., they not
being married to each other.
Affray. — That A. B. and C. D. did make an affray. Affray.
Armed with dangerous weapon when arrested. (Under Chap. 2G9, § 9.) — Armed with
(1) That A. B., while being lawfully arrested on a sufficient warrant on a criminal ^eaponwhen
charge, was armed with a dangerous weapon, to wit, a slung shot {or other dan- arrested,
gerous weapon, as the case may be) .
2824
nSIDICTMENTS AND PROCEEDINGS BEFORE TRLiL. [ClL\P. 277.
Arson.
Assault and
batteo'.
Assault to
maim, etc.
Assault to
murder.
Assault to
rape.
Assault with
dangerous
weapon to rob,
etc.
Assault upon
an officer.
Assuming to
be an officer.
Attempt to
break and
enter.
Attempt to
commit crime.
177 Mass. 267.
Attempt to
steal from
person.
Bastardy.
Breaking,
entering, etc,
(2) That A. B., while committing tlie crime of (here state crime), was lawfully
arrested by C. D., .sheriff of said county, and when so arrested was armed with,
and had on his person, a certain dangerous weapon (a slung shot, etc., as the
case may be) .
Arson. (Under Chap. 266, §§ 1, 2, 4.) — (1) That A. B. wilfully and maliciously
did burn the dwelling house of C. D. in in said county.
(2) That A. B. wilfully and maliciously did burn a building adjoining the
dwelling house of C. D. in in said county.
(3) That A. B. -ndlfully and maliciously did set fire to a building in
by the burning whereof the dwelling house of C. D. was burned.
(4) That A. B. wLfully and maliciously, in the night time, did burn
(a) A meeting house (or church, town house, etc.) in in said county,
erected for public use.
(6) A banking house (or warehouse, etc.) of C. D. in in said county,
of the value, with the property therein, of one thousand doUars and not the
property of (the defendant).
(c) A barn (or .stable or shop or office) of C. D., in in said county,
the same being there within the curtilage of the dwelling house of said C. D.
(5) That A. B. wilfully and maliciously did burn a building, by the burning
whereof [(o), (b), or (r)] was burned in the night time.
(6) That A. B. wilfully and maliciously did burn a banking house (or other
sirvcture mentioned in the statute, as the case may be) of C. D., in
in said county.
Assault and battery. — That A. B. did assault and beat C. D.
Assmdtio maim, etc. (Under Chap. 26.5, § 1.5.) — That A. B. did assault C. D.,
with the malicious intent to maim (or disfigure) said C. D. by cutting out his
tongue (or other facts required by the nature of the case).
Assault to murder. (Under Chap. 265, § 15.) — That A. B. did assault C. D.,
with intent to murder him.
Assault to rape. (Under Chap. 265, § 24.) — (1) That A. B. did assault C. D.,
with intent to commit rape ujion her.
(2) That A. B. did assault C. D., a female child under the age of sixteen
years, with intent unlawfully and carnally to know and abuse her.
Assault U'ith dangerous iceapon, with intent to rob, etc. (Under Chap. 265, § 18.)
— That A. B., being armed with a dangerous weapon, did assault C. D., with
intent to rob him (or to murder him).
Assault upon an officer. — That A. B. did a.ssault and beat C. D., who was a
police officer of the (city of Boston) (or whatever the fact may be), and who was
also in the lawful discharge of his duties as such officer, as said (defendant) well
knew, (and knowingly resisted and obstructed him in the discharge of his lawful
duties). This clause may be added if facts require.
Assuming to he an officer. (Under Chap. 268, § 33.) — That A. B. did falsely
assume and pretend to one C. D. that he, said A. B., was a police officer of (the
city of ) (or a constable of the city of ), and did take upon
himself to act as such officer, and did (state what he did if desired).
Attempt to break and enter. (Under Chap. 274, § 6.) — That A. B. did attempt
to break and enter a certain building in said (Boston) of one C. D., in the (night)
time, with intent therein to commit larceny, and in such attempt did (set out the
orert act relied on) ; but did fail in the perpetration of said attemjited offence
(or was intercepted and prevented in the execution of said attempted offence).
Attempt to commit crime. (Under Chap. 274, § 6.) — That A. B. did attempt
to commit larceny of the property of (another), (or such other crime as may he
intended to he charged), and in such attemijt did (set out the overt act relied on);
but did fail in the perpetration of said attempted offence (or was intercepted
and prevented in the execution of said attempted offence).
Attempt to steal from person. (Under Cha]"). 274, § 6.) — That A. B. did attempt
to steal from the person of C. D., and in such attemijt did put his hand against
the person and into the pocket of the said C. D.; but did fail in the perpetration
of said attempted offence (or was intercepted and prevented in the execution
of said attempted offence).
Ba.itardy. (Under Chap. 273, § 11.) — That A. B. did get C. D. with child,
which is now living (or of which she is now pregnant), he, the said A. B., not then
nor since being the lawiul husband of her, the said C. D.
Breaking, entering, etc. (Under Chap. 260, §§ 16-19.) — (1) That A. B. did
break and enter in the night time the building (or ship or vessel) of one X., situated
in said (Boston), with intent therein to conunit murder (or rape, robbery, etc.).
ClL\P. 277.] INDICTMENTS ANT) PROCEEDINGS BEFORE TRIAL. 2825
(2) That A. B. did break and enter (or entered in the night time Tvithout
breaking) a building (or ship or vessel) of one X., in said (Boston), with intent
(as above), the said X. (or other person), who was lawfully therein, being put in
fear.
(3) That A. B. did break and enter (or entered in the night time without break-
ing) a railroad car situated in said (Boston), of the (name of the railroad), with
intent therein to commit larceny (or murder, etc., as the case may be).
(4) That A. B. did enter in the night time the dwelling house of one X., in said
(Boston), with intent therein to commit larceny (or murder, etc., as the case
may be).
(5) That A. B. did break and enter a building (or ship or vessel) of one X., in
said (Bo.ston), with intent therein (etc. as above).
Breaking glas.'i. (Under Chap. 266, § 114.) — That A. B. did wantonly (or Breaking
maliciously) break certain panes of glass in and part of a certain building, the siasa.
property of C. D. in said (Boston).
Burglarious implemenls. (Under Chap. 266, § 49.) — That A. B. knomngly did Burglarious
have in his possession certain machines, tools and implements adapted and de- "np''=n«o's.
signed for cutting through, forcing and brealdng open buildings, rooms, vaults,
safes (and other depositories), in order to steal therefrom such money and other
property as might be found therein, said A. B. knowing said machines, tools
and implements to be adapted and designed for the purpose aforesaid, and in-
tending to use and employ them therefor.
Burglary, etc. (Under Chap. 266, §§ 14, 15.) — (1) That A. B. in the night Burglary, etc
time did break and enter the dwelling house of C. D., situated in said (Boston),
■with intent therein to commit larceny (or murder, rape or robbery, as the case
may be).
(If desired add actual larceny in the building. )
(2) That A. B. did enter the dwelhng house of one X., situated in said (Bo.ston),
with intent therein to commit larceny, and after ha\ing so entered with said
intent did break said dwelling house in the night time, X. being lawfully therein,
and said A. B. being armed with a dangerous weapon at the time of such entry
(ofT such breaking) (or arming himself with a dangerous weapon in said house)
{or did make an assault on said X., wiio was lawfully therein).
(3) That A. B. did break and enter the dwelling house of one X., in said (Bos-
ton), in the night time, with intent therein to commit larceny (or murder, etc., as
the case may be).
Burning to defraud insurance company. (Under Chap. 266, § 10.) — That Burning to
A. B. did burn a certain building in in said county, [or certain goods, ance'company
wares and merchandise (or other chattels — na7ne the property)] wliich was (or were) 177 Mass. 267.'
at the time of such burning insured in the Insurance
Company, a corporation duly established by law, against loss or damage by fu-e,
with the intent thereby to injure the said insurer.
Common drunkard. (Under Chap. 272, § 53.) — That A. B., during the three Common
months next before the making of this complaint, was a common drunkard. drunkard.
Common nightiralker. (Under Chap. 272, § 53.) — That A. B., during the three Common night-
months next before the making of this complaint, was a common nightwalker, J^?'''"- -^,
habitually walking in the streets in the night time for the purpose of prostitution. ^ "*'*■
Concealing mortgaged personal property. (Under Chap. 266, § 82.) — That Concealing
A. B. did mortgage to X. in due form of law certain personal property (setting ™°g'^;!^'^'^
out the mortgaged property), and that afterward, the said mortgage being in full property,
force and effect, and the said X. remaining the owner thereof (if such be the fact),
said A. B. did remo\-e and conceal the said property with fraudulent intent to
place the same beyond the control of the said X.
Conspiracy. — (1) That A. B. and C. D. conspired together to murder one E. F. Conspiracy.
(2) That A. B. and C. D. conspired together to commit rape upon E. F.
(3) That A. B. and C. D. conspired together to steal the property, money,
etc., of E. F.
Cruelty to animals. (Under Chap. 272, § 77.) — (1) That A. B. did over- Cruelty to
drive (overload) (drive when overloaded) (overwork) (torture) (torment) (de- animals.
prive of necessary sustenance) (cruelly beat) (cruelly mutilate) (crueUy kill)
a certain horse (or dog, etc.).
(2) That A. B. did cause and procure one C. D. to overdrive (etc.) a certain
horse (etc.).
(3) That A. B., having the charge and custody of a certain horse (etc.), did
inflict unnecessary cruelty ujion it.
(4) That A. B., having the charge and custody of a certain horse (etc.), did
2826
INDICTMENTS AND PROCEEDINGS BEFORE TRIAL. [ChAP. 277.
Disorderly
house.
Drunkenness.
Eavesdropping.
Escape.
1920, 558, § 4.
Exposure of
person.
Forged
endorsement.
Forgery.
Fornication.
Gaming,
House of
iJl fame.
Idle and dis-
orderly
person.
Incest.
Larceny.
202 Mass. 379.
210 Mass. 445.
213 Mass. 225.
218 Mass. 607.
224 Mass. 42.
Larceny from
a conveyance.
Larceny from
realty.
Larceny in
building.
unnecessarily fail to pro\dde it Tvith proper food {or drink or shelter or protection
from the weather) .
Disorderly house. (Under Chap. 219, § 27.) — That A. B., during the three
months next before the finding of this indictment, at said (Boston) did keep and
maintain a certain and common, noisy, Ul-governed and disorderly house, re-
sorted to for the purpose of drinking, quarrelling, making great noises, and break-
ing and disturbing the peace, to the common nuisance of all the people.
Drunkenness. (Under Chap. 272, § 48.) — That A. B. was, by the voluntary
use of intoxicating liquor, drunk.
Eavesdropping. (Under Chap. 272, § 99.) — That A. B. did commit the
crime of eavesdropping.
Escape. (Under Chap. 268, § 16.) — That A. B., being la^\-fully imprisoned
in the House of Correction {or State Prison), in said county, did break therefrom
and escape.
Exposure of person. — That A. B., in a public place in said (Boston), wherein
were great numbers of people, indecently did expose to the view of the said
people his body and person naked and uncovered.
Forged endorsement. — That A. B. did forge a certain endorsement in and upon
the back of, and as a part of, a certain promissory note, with intent to injure and
defraud. {The purport or substance of the note and endorsement may be set forth.)
Forgery. (Under Chap. 267, § 1.) —That A. B., with intent to injure and
defraud, did forge a certain instrument purporting to be, etc. {give the name of
the instrument, description, tenor or substance as the pleader chooses).
Fornication. (Under Chap. 272, § 18.) — That A. B. did commit fornication
with C. D., a single woman.
Gaming. (Under Chap. 139, § 1.5.) — That A. B., during the three months
next before the finding of this indictment, at said (Boston), did keep and main-
tain a certain common nuisance, to wit, a tenement resorted to and used for
illegal gaming.
House of ill fame. (Under Chap. 272, § 24.) —That A. B., during the three
months next before the finding of this indictment, did keep at said (Boston) a
certain house of ill fame, resorted to for purposes of prostitution and lewdness.
House of ill fame — ■ Nuisance. (Under Chap. 139, § 15.) — That A. B., during
the three months next before the finding of this indictment, at said (Boston),
did keep and maintain a certain tenement used for prostitution, assignation
and lewdness {or in which acts of prostitution, assignation and lewdness occurred),
to the common nuisance of all the people.
Idle and disorderly person. (Under Chap. 272, § 53.) — That A. B., during
the three months next before the making of this complaint, was an idle and
disorderly person, and neglected all lawful business and habitually misspent
his time by frequenting houses of ill fame, gaming houses or tippling shops.
Incest. (Under Chap. 272, § 17.) —That A. B., being the father of C. D.
{or state such relationship as will show the parties to be within the degree of
consanguinity viithin which marriages are proliibited or declared by law to be
incestuous and void), did have carnal knowledge of the body of said C. D.
(A. B. being married to another woman than said C. D., if such be the fact, and
it be desired to cover adultery.)
Larceny. (Under Chap. 266, § 30.) — (1) That A. B. did steal one horse of
the value of more {or less, as the case may be) than one hundred dollars, of the
property of C. D.
(2) That A. B. did steal six cows, each of the value of twenty dollars, of the
property of C. D.
Larceny from a conveyance. (Under Chap. 266, § 30.) — That A. B. did steal
from a certain conveyance, to wit, the wagon of one C. D., one book of the value,
etc., of the property of C. D., the said C. D. being a common carrier {or a person
carrjing on the express business), and said conveyance being used by the said
C. D. in said business.
Larceny from really. (Under Chap. 266, § 44.) — That A. B., by a trespass,
with intent to steal, did take and carry away from the realty, to wit, from the
building of C. D., in said (Boston), ten pounds of lead pipe, each of the value of
(etc.), of the property of C. D., against his will, the said lead pipe being annexed
to and a part of said building.
Larceny in building. (Under Chap. 266, § 20.) — That A. B. did steal (one
coat of the value of more than or less than ), of the
property of X., in a certain building {or ship or vessel or railroad car) of the said
X., situated in said (Boston).
Chap. 277.] indictments and proceedings before trial. 2827
Larceny of beast or bird. (Under Chap. 266, § 46.) — That A. B. did steal a Larceny of
certain domesticated animal (or bird which was ordinarily kept in confinement), '''''^' °'^ '^''■''■
which was the property of C. D.
Lewd and lascivious cohabitation. (Under Chap. 272, § 16.) — That A. B. and Lewd and las-
C. D., not being married to each other, did during one month ne.xt before the tatlon* cohabi-
finding of this indictment (or such time as the evidence requires), lewdly and
lasci\'iously associate and cohabit together.
Lewdness. (Under Chap. 272, § 53.) — That A. B., during the three months Lewdness,
next before the finding of this indictment, was a lewd, wanton and lascivious
person in speech and beha^^or.
Liquor. (Under Chap. 138, § 2.) — That A. B. did expose and keep for sale Liquor,
intoxicating liquors, ■nith intent unkA\'fullv to sell the same.
Liquor — Sale. (Under Chap. 138, § 2.)— That A. B. unlawfully did sell
intoxicating Uquors to C. D.
Liquor — Nuisance. (Under Chap. 139, § 15.) — That A. B., during the
three months next before the finding of this indictment, without legal authority,
did keep and maintain a certain tenement in said (Boston), by him used for the
illegal sale and illegal keeping for sale of intoxicating liquor, to the common
nuisance of all the people.
Lord's Day. (Under Chap. 136, § 5.) — That A. B., on the day of Lord's Day.
, in the year of our Lord one thousand, etc., that day being the Lord's
Day, did keep open his shop in said (Boston), for the purpose of doing business
therein (or did labor or business or work), the same not being a work of neces-
sity or charity.
Lottery. (Under Chap. 271, § 7.) — (1) That A. B. did set up and promote a Lottery,
lottery for money.
(2) That A. B. was concerned in the setting up (or managing or drawing) of a
certain lottery for money.
(3) That A. B. did dispose of a certain horse of the value of ten doUars to
C. D., by way of a lottery.
(4) That A. B., under the pretext of the sale of certain property, to wit: (state
the property) to C. D., did dispose of to said C. D. certain other personal property,
to wit: (state the property), with intent of said A. B. to make the said disposal of
said (property) dependent upon a chance by lot, and that such chance was made
an additional inducement to the disposal and sale of said (property).
Maiming, etc. (Under Chap. 265, § 14.) — That A. B. did assault C. D., and. Maiming, etc.
with malicious intent to maim and disfigure said C. D., did cut out his tongue.
Malicious injury. (Under Chap. 266, § 127.) — That A. B. did wilfully and Malicious
mahciously injure (or destroy) certain personal property (name it and allege value) "''"^•
of C. D.
Malicious injury to real property. (Under Chap. 266, § 104.) — That A. B. did
wilfully (or maliciously) destroy (or deface or mar) a certain building of C. D.
in said (Boston).
Manslaughter. (Under Chap. 265, § 13.) — That A. B. did assault and beat Manslaughter.
C. D., and by such assault and beating did kill C. D.
Mandaiighter by negligence. — That A. B., being under the legal duty, and Manslaughter
being of sufficient ability to pro\ide C. D., who was his wife, with sufficient food ^^ negligence,
and drink for her sustenance and maintenance, did neglect and refuse so to do;
by reason whereof said CD., being unable to provide sufficient food and drink
for herself, became and was mortally sick and died.
Murder. (Under Chap. 265, § L) — That A. B. did assault and beat C. D., Murder. _
with intent to murder him (by striking him over the head with an axe), and by 202 Mass! 121!
such assault and beating did (kiU and) murder C. D. (and the jurors further 207 Mass. 251;.
say that the defendant is guilty of murder in the second degree and not in the ^^^' *"'
first degree). This may be added if murder in the first degree is not alleged.
Neglect of wife or minor child. (Under Chap. 273, § 1.) — ■ That A. B., during Neglect of wife
the three months next before the making of this complaint, being of sufficient '"' "'"">'■ '^'"'d.
ability, did unreasonably neglect to provide for the support of C. D., his lawful
wiie (and E. D., his minor child).
Obtaining signature by false pretences. (Under Chap. 266, § 31.) — That A. B. Obtaining
designedly and with intent to defraud did falsely pretend to C. D. that, etc., and wse" pretences,
bj' means of said false pretences, which said C. D. believed and relied upon, did
obtain the signature of said C. D. to a certain written instrument, the false making
whereof would be punishable as forgery, to wit, a certain promissory note (de-
scribe as in forgery); that the pretences so made to C. D. were false and were
known to be false by the said A. B. at the time when he so made them.
2828
INDICTMENTS AND PROCEEDINGS BEFORE TRIAL. [Ch.\P. 277.
Open and gross
lewdness.
Perjury.
Polygamy.
Rape.
Receiving
stolen prop-
erty.
Rescue.
Robbery.
Sodomy, etc.
Stubborn
child.
Threats to
extort.
Unlawful ap-
propriation.
Unnatural act.
Uttering.
199 Mass. S83.
Vagabond.
207 Mass. 572.
Vagrant.
Open and gross lewdness. (Under Chap. 272, § 16.) — That A. B. wa.s guilty
of open and gro.ss lewdness and lasci\aous beha\aor in the presence of C. D.
Perjury. (Under Chap. 268, § 1.) — That in a proceeding in the_ course of
justice before the (set forth the tribunal), on an issue wathin the jurisdiction of said
court duly joined, and tried before a jury of the county between X. as plaintiff
and Y. as defendant, A. B. was lav\-fully sworn as a witness.
Wliereupon it became and was material to said issue whether (say what) , and
to this the said A. B. did -ndlfully and corruptly testify and say in substance
and effect that (say xchat) ; all his said testimony as above set forth being false,
as he well knew.
Polygamy. (Under Chap. 272, § 15.) — (1) That A. B. unlawfully married
C. D., the said A. B. having at the time he so unlawfully married a lawful wife
living other than said C. D.
(2) That A. B., ha\-ing a la\^'ful vnle li\'ing, to wit: X., did at (state place)
unlawfully marry and have for his wife one C. D., after which the said A. B. did,
while said X. was still living, on, at, etc., unlawfully cohabit and continue to
cohabit in (Boston) with the said C. D.
Rape. (Under Chap. 265, §§ 22, 23.) — (1) That A. B. did assault C. D.,
with the intent to commit rape upon her; and her, the said C. D., did commit
rape upon.
(2) That A. B., in and upon C. D., a female cliild under the age of sixteen
years, did make an as.sault with the intent her, the said C. D., unlawfully and
carnally to know and abuse; and her, the said C. D., did unlawfully and carnally
know and abuse.
Receinng stolen property. (Under Chap. 266, § 60.) — That A. B., one watch
of the value of dollars, the property of one CD., then lately before
stolen, did buy, receive, and aid in the concealment of, the said A. B. weU knowing
the said property to have been stolen as aforesaid.
Rescjie. (Under Chap. 268, § 15.) — That A. B. did forcibly rescue and take
out of the lawful custody of E. F. one C. D., the said C. D. being a prisoner
arrested by and held in the la\\'ful custody of E. F., upon the charge of the crime
of (larceny), the said E. F. being a police officer of (said city), duly authorized
to arrest and hold in custody the said C. D. upon the charge aforesaid.
Robbery. (Under Chap. 265, § 19.) — That A. B. did assault C. D. with intent
to rob him, and thereby did rob and steal from the person of said C. D. (mention
the property) of the property of said C. D.
Sodomy, etc. (Under Chap. 272, § 34.) — That A. B. did commit the abom-
inable and detestable crime against nature with a (state the person or beast).
Stubborn child. (Under Chap. 272, § 53.) — That A. B., a minor, during the
three months next before the making of this complaint, was a stubborn child,
and stubbornly refused to submit to the la^v'ful and reasonable commands of
C. D., whose commands said A. B. was bound to obev.
Threats to extort. (Under Chap. 265, § 25.)— That A. B. did verbally (or
by a WTitten or printed communication) mahciously threaten one C. D., to
accuse him of the crime of (name it), with the intent thereby to extort money
from the said C. D.
Unlawful appropriation. (Under Chap. 266, § 63.) — That A. B. did wilfully,
miscliievously and without right take, drive and use a certain horse, the property
of one C. D., without the consent of the said owner of said horse, or any person
having the legal custody, care or control of the same.
tfnnatwal act. (Under Chap. 272, § 35.) — That A. B. did commit an un-
natural and lasci\'ious act with one C. D.
Uttering. (Under Chap. 267, § 5.) — That A. B., wth intent to injure and
defraud, did utter and pubhsh as true a certain forged instrument (describe as
in forgery), well knowing the same to be forged.
Vagabond. (Under Chap. 272, §§ 53, 68.)— That A. B., for three months
next before the making of this complaint, was a vagabond, and wandered about
from place to place, neglecting all lawful calHng and emploj-ment, and not having
any home or means of support.
Vagrant. (Under Chap. 272, § 66.)— That A. B., during the three months
next before the making of this complaint, was an idle person who, not having
visible means of support, hved -without lawful emplojTuent (and wandered abroad
and ^^.sited tippling shops, and lodged in outhouses, and in the open air, and chd not
give a good account of himself, and wandered abroad and begged, and went about
from door to door and placed himself in public places to beg and to receive alms).
The complaint may stop at the xcord "employment'', or such part of the matter
in parentheses may be added as the case requires.
Ch.\P. 278.] TRIALS AND PROCEEDINGS BEFORE JUDGMENT.
2829
{Under Chapter 94, Sections 197-213.)
Common nuisance. — That A. B., during the three months next before the
finding of this indictment, at said (Boston), did keep and maintain a certain
tenement resorted to by habitual users of narcotic drugs for the purpose of using
narcotic drugs.
Unlaicfid possession. — That A. B. did have in his possession unla\\'fully
certain narcotic drugs, to wit, morphine {or cocaine or heroin or the name of
the drug as it is commonly knoum).
Unlaivfid possession irith intent to sell. — That A. B. did have in his possession,
with intent unlawfully to sell and deliver, a certain narcotic drug (naming the drug) .
Conspiracy. — That A. B. and C. D. conspired together to engage in unlawful
traffic in narcotic drugs.
Sale and delivery. — That A. B. did unlawfully sell {or give away or deliver)
a narcotic drug, to wit, morphine {or name drug is commonly known by).
Unlawful prescribing and delivery, etc., by physician, etc. — That A. B., a
physician {or pharmacist or dentist or veterinarian, etc.), did unlawfully prescribe
{or sell, give away, furnish or deliver) a certain narcotic drug, to wit, {naming it).
Possession of hypodermic inMrument. ■ — That A. B. did have in his possession
unla\vfully a hypodermic syringe and needle.
Sale and delivery of hypodermic instrument. — That A. B. did unlawfully sell
(or deliver) a hypodermic syringe {or needle) .
False making of prescription. — That A. B. did falsely make {or alter) a pre-
scription for a narcotic drug.
Uttering a false prescription. — That A. B. did utter and publish as true a cer-
tain false prescription for a narcotic drug, well knowing the same to be falsely
made {or altered).
Misrepresentation. — That A. B. did falsely represent to C. D. (a physician,
or dentist, veterinarian, pharmacist, etc.),ioT the purpose of obtaining a narcotic
drug, that {state the substance of the statements claimed to be representations) .
Common
imisance.
1917, 275, § IS.
Unlawful
possession.
Unlawful
possession with
intent to sell.
Conspiracy.
Sale and
delivery.
Unlawful pre-
scribing and
delivery, etc.
Possession of
hypodermic
instrument.
Sale and deliv-
ery of hypoder-
mic instrument.
False making
of prescription.
Uttering a
false prescrip-
tion.
Misrepresenta-
tion.
REFERENCE.
Definition of "narcotic drug", etc., Chap. 94, § 197.
CHAPTER 278.
TRIALS AND PROCEEDINGS BEFORE JUDGMENT.
Sect.
1. Trial list of criminal cases.
2. Issues of fact, how tried.
3. Opinions disqualifying juror in capital
case.
4. Oath of jurors.
5. Affirmation of jurors.
6. Presence of defendant at trial, etc.
7. Burden on defendant to prove license.
S. Justification in cases of libel.
9. Proof of ownership of property.
10. Night time defined.
11. Jury to decide law and fact.
12. Proceedings on conviction of part of
crime charged.
13. Commitment of person acquitted by
reason of insanity.
14. Person acquitted, etc., not liable for fees.
15. Discontinuance of prosecution under
by-law.
16. Counsel lor inmates of reform school.
17. Objection to formal defects, when to be
taken. ^
24
25
Sect.
18. Appeals in criminal cases.
19. Recognizance of witnesses.
20. Transmission of papers.
21. Copies to be transmitted.
22. Statement of fees.
23. Certain acts not to be used as evidence
in trials of criminal cases.
If appeal not entered, appellant to be
sentenced.
Withdrawal of appeals in criminal
eases.
26. Fees allowed to jailer.
27. Decisions on plea in abatement final.
28. Appeal to supreme judicial court.
29. New trial.
30. Report.
31. Exceptions.
32. Affirmance of judgment upon non-
entry of appeal.
33. Transmission of papers.
34. Motions in arrest of judgment.
35. Trial of female defendants.
2830
TRLiLS AND PROCEEDINGS BEFORE JUDGMENT. [CH-^P. 278.
Trial list of
criminal cases.
1870. 290.
P. S. 214.
§§1.2.
1884, 193.
1889, 432.
R. L. 219, § 1.
Section 1 . At each session of the superior court for criminal business,
the district attorney, before trials begin, shall make and deposit with the
clerk, for the inspection of parties, a list of all cases to be tried at that
session, and the cases shall be tried in the order of such trial list, unless
otherwise ordered by the court for cause shown. Cases may be added to
such list by direction of the court, upon motion of the district attorney
or of the defendant.
Section 2. Issues of fact joined upon an indictment or complaint
Issues of fact,
how tried.
as. m'.W'. shall, in the superior court, be tried by a jury drawn and returned in the
p. s. 214, § 3. manner provided for the trial of issues of fact in civil causes.
R. L. 219, § 2. 12 Allen, 155.
Opinions dis-
qualifying
juror in
capital case.
R. S. 137, § 6.
Section 3. A person whose opinions are such as to preclude him from 1
finding a defendant guilty of a crime punishable with death shall not 2
serve as a juror on the trial of an indictment for such crime. 3
G. S. 172, § 5. P. S. 214, § 7. R. L. 219, § 3.
Oath of
jurors.
C. L. 167. § 3.
1692-3, 35.
1S07, 140, § 14.
R. S. 137. § 7.
G. S. 172, § 6.
P. S. 214, § 8.
R. L. 219, §4.
Section 4. The following oath shall be administered to the jurors 1
for the trial of all criminal cases which are not capital: 2
You shall well and truly try the issue between the commonwealth and the
defendant, (or the defendants, as the case may be,) according to your e\idence;
so help you God.
The following oath shall be administered to the jurors for the trial of 3
capital cases: 4
You shall well and truly try, and true deliverance make, between the com-
monwealth and the prisoner at the bar, whom you shall have in charge, according
to your evidence; so help you God.
of^ju^ra!"" Section 5. A juror who is conscientiously scrupulous of taking either 1
R 's' 137,' I "' °^ t^^ oaths above prescribed shall be allowed to affirm. 2
G. S. 172, § 7. p. S. 214, § 9. R. L. 219, § 5.
Presence of
defendant at
trial, etc.
R. S. 137, 5 9.
G. S. 172, § 8.
P. S. 214, § 10.
R. L. 219, § 6.
Section 6. A person indicted for a felony shall not be tried unless he 1
is personally present during the trial; but if indicted for a misdemeanor, 2
he may, at his request and by leave of the court, be tried in his absence, 3
if represented by an attorney duly authorized for that purpose. 4
121 Mass. 371. 163 Mass. 458. 165 Mass. 133.
Burden on de-
fendant to
prove license.
1844, 102.
1859, 160.
G. S. 172,
1864, 121.
10.
Section 7. A defendant in a criminal prosecution, relying for his 1
justification upon a license, appointment, admission to practice as an 2
attorney at law, or authority, shall prove the same; and, until so proved, 3
the presumption shall be that he is not so authorized. 4
p. S. 214. § 12.
R. L. 219, § 7.
1909. 49.
2 Allen, 292.
100 Mass. 204.
108 Mass. 292.
110 Mass. 107, 357,414.
115 Mass. 139.
119 Mass. 206.
122 Mass. 8, 36.
133 Mass. 574.
138 Mass. 490, 511.
141 Mass. 420.
142 Mass. 533.
230 Mass. 2SI.
Jxistification in
cases of libel.
1826, 107, I 1.
R. S. 133. I 6.
1855, 396.
G. S. 129. § 77;
172, § 11.
Section 8. The defendant in a prosecution for wTiting or publishing 1
a libel may introduce in evidence the truth of the matter contained in 2
the publication charged as libellous, and the truth shall be a justification, 3
unless actual malice is proved. p. s. i67, § so; 214, § 13. 4
R. L. 219, § 8.
3 Pick. 304.
9 Met. 410.
124 Mass. 338.
136 Mass. 441.
151 Mass. 127.
ownersWp of Section 9. In the prosecution of crimes which relate to or affect 1
R.°i'^'i33 § 11 ^^^^ °'" personal estate, it shall be sufficient, and shall not be a variance, 2
Chap. 278.] trl^ls and proceedings before judgment. 2831
3 if it is proved on the trial that, at the time when the crime was com- o, s. 172. § 12.
4 mitted, either the actual or constructive possession or the general or r. L.^ifg.Vo-'
5 special property in the whole or any part of such real or personal estate g^oray ; jol.'
6 was in the person or community alleged to be the owner thereof. 1° ^^'^y- *''^-
5 Allen, 517. 110 Mass. 503. 164 Mass. 587.
11 Allen, 110. 114 Ahiss. 272, 299. 172 Mass. 187.
103 Mass. 423, 435. 122 Mass. 454. 181 Mass. 424.
104 Mass. 552. 124 Mass. 449. 187 Mass. 581.
108 Mass. 466, 469.
1 Section 10. If a crime is alleged to have been committed in the night ^'f''* j*™"
2 time, night time shall be deemed the time between one hour after sunset i847, 13.
• • C S 172 5 13
3 on one day and one hour before sunrise on the next day; and the time of p.s.'2i4,'§ 1.5'.'
4 sunset and sunrise shall be ascertained according to mean time in the ^cush.^ssl. '°'
5 place where the crime was committed.
1 Section 11. The jury shall try, according to established forms and fa^^andllc?^
2 principles of law, all criminal causes committed to them, and, after having ^sot. 139, § 15.
3 received the instructions of the court, shall decide, in their discretion, g. s! 172'. § 15.
P ^ 21 4 S 1 7
4 by a general verdict, both the fact and the law involved in the issue, or r.l. 219, § 13.
5 they may, at their election, find a special verdict. The court shall super- 20 pick' toe.
6 intend the course of the trials, decide upon the admission and rejection 6°Gray,' ill.'
7 of evidence, upon all questions of law raised during the trials and upon all ioo"M"as^''fiG
8 collateral and incidental proceedings, and shall charge the jury. us Mass. 37.
125 Mass. 203. 132 Mass. 8. 147 Mass. 423, 576. 149 Mass. 68.
1 Section 12. If a person indicted for a felony is acquitted by the Proceedings
2 verdict of part of the crime charged, and is convicted of the residue, such oFpanof °°
3 verdict may be received and recorded by the court, and thereupon the 5m!66,Tii.'
4 defendant shall be adjudged guilty of the crime, if any, which appears r°|' ffv^^n
5 to the court to be substantially charged by the residue of the indictment, p■|■2\?'s^8^■
6 and shall be sentenced and punished accordingly.
R. L. 219, § 14. 2 Met. 193. 97 Mass. 59. 142 Mass. 454.
19 Pick. 479. 10 Gray, 11. 109 Mass. 349. 162 Mass. 466, 495.
1 Met. 258. 2 Allen, 163. 115 Mass. 150. 230 Mass. 567.
1 Section 13. If a person charged with crime other than murder or commitment
2 manslaughter is acquitted by the jury by reason of insanity, the jury acqSttedby
3 shall state that fact to the court, which, if satisfied that he is insane, fnsl^ty.'
4 may, under such limitations as it deems proper, order him committed to If 'f.:!*'
5 a state hospital, except the Bridgewater state hospital; but such person, i834, 1'so, is
6 if a male, or any person coming within the pro\asions of section one hun- g'. s. m, \ li.
7 dred or one hundred and one of chapter one hundred and twenty-three, p. s.'2T4.'§ lo!'
8 may be committed or removed to the Bridgewater state hospital if, in the }|g|; 90^' ^ ^'
9 opinion of the court, he has been a criminal or is of vicious tendency; R.^Lfig,^*'
10 and if he has been held on a charge of felony, the expense of his support f^oi^'sw § 98
1 1 in any such hospital or in any state charitable institution to which he i3fi Mass! 489.
12 may be transferred shall be paid by the commonwealth. 322,52s.
1 Section 14. No prisoner or person under recognizance, acquitted by Person ac-
2 verdict or discharged because no indictment has been found against not liable for
3 him, or for want of prosecution, shall be liable for any costs or fees or for r^s. 137, § 13.
4 any charge for subsistence while he was in custody.
G. S. 172, § 18. p. S. 214, § 22. R. L. 219, § 18.
1 Section 15. In a prosecution before a district court or trial justice Discontinu-
2 under the by-laws, ordinances, orders, rules or regulations of a city or mtfonunTeT'
3 town, the city solicitor, town counsel or other person appointed to repre- isss.^Vg, § 2.
2832
TRIALS AND PROCEEDINGS BEFORE JUDGMENT. [ClL^P. 278.
G. s. 172, 1 20. sent such city or toT\Ti may enter a nolle prosequi or do anything relative 4
R. L.^2i9,Vi9. to such prosecution which may be done by the district attorney. 5
1918, 257, § 461. 1919, 5. 1920, 2.
Counsel for
inmates of
reform school.
1877, 184.
P. S. 214, § 24.
R. L. 219, § 20.
Section 16. The court may assign counsel to an inmate of any 1
institution for the reformation of juvenile offenders who is to be tried 2
for an offence alleged to have been committed therein; and shall, upon 3
application, order the superintendent or other officer of such institution 4
to produce at the trial such inmates thereof as, in the opinion of the 5
counsel for the defence, certified in UTiting, or of the judge, in the absence 6
of counsel, are material 'witnesses for the defence; and such officer shall 7
obey the order and provide for the custody and safe return of such inmates. 8
temai'd?fe?ts, SECTION 17. An objection to a complaint, indictment or other criminal 1
taken '° ^^ process for a formal defect apparent on the face thereof shall be taken by 2
1864, 250, 1 2 demurrer or by motion to quash, assigning specifically the objections 3
r'. l. 219, § 21. relied on, before a judgment has been rendered by a district court or a 4
11 Aiiln, 2381 trial justice, or before a jury has been sworn in the superior com-t. 5
1.3 Allen, 550, 554.
98 Mass. 6.
IDS Mass. 173, 176.
108 Mass. 441,457.
110 Mass. 67, 103.
111 Mass. 417,420.
113 Mass. 10.
116 Mass. 13.
123 Mass. 251, 252.
126 Mass. 235, 248, 472.
129 Mass. 489.
131 Mass. 584.
133 Mass. 383, 571.
135 Mass. 530, 552.
136 Mass. 155.
137 Mass. 560.
138 Mass. 484.
141 Mass. 420.
143 Mass. 113,167,
145 Mass. 403.
146 Mass. 512.
147 Mass. 29.
154 Mass. 405.
157 Mass. 386, 462.
170 Mass. 228.
467.
Appeals in
criminal cases.
1783, 51, § 3.
1831, 70, § 1.
R. S. 85,
§ 28; 87, § 36;
138, § 1.
1845, 166, § 2.
1849, 31.
G. 8. 116, § 32;
173, §U, 4.
P. S. 154, § 39;
155. §§ 58,61.
1893, 396, § 47.
1894,431.
1897, 490, I 3.
R. L. 219, § 22.
1905, 319.
1913, 652.
6 Gray, 343.
115 ^iass. 151.
142 Mass. 457.
145 Mass. 375.
181 Mass. 15.
205 Mass. 155.
206 Mass. 417.
Section 18. ^^^loever is convicted of a crime before a district court 1
or trial justice may appeal to the superior court, and at the time of con- 2
viction shall be notified of his right to take such appeal. The case shall 3
be entered in the superior court on the return day next after the appeal is 4
taken, and the appellant shall be committed to abide the sentence of said 5
court until he recognizes to the commonwealth, in such sum and with 6
such surety or sureties as the court or trial justice requires, with con- 7
dition to appear at the superior court on said return day and at any 8
subsequent time to which the case may be continued, if not pre\'iously 9
surrendered and discharged, and so from time to time until the final 10
sentence, order or decree of the court thereon, and to abide such final 11
sentence, order or decree, and not depart without leave, and in the mean- 12
time to keep the peace and be of good behavior. In cases of misdemeanor 13
the appellant may, in the discretion of the court or trial justice, be held 14
on his own recognizance. The appellant shall not be required to advance 15
any fees upon claiming his appeal or in prosecuting the same. 16
rf^witnrases!^ Section 19. Upon sucli appeal, said courts and trial justices shall 1
G ^s" 173 5 2 ^^'^'6 the like power to bind witnesses in the case by recognizances as they 2
PS. i54,'§ii; have by chapter two hundred and seventy-six when a prisoner is ad- 3
1893, 396. § 48. mitted to bail or committed. is94, 431. r. l. 219, § 23. 4
IrpT^f"" Section 20. Upon such appeal, the clerk of the district court shall
G i' 173' 1 1' transmit to the clerk of the superior court a copy of the complaint and of
^^i'lil'in ^^^ record of con\'iction, the original recognizances, a list of the vrit-
1893, 396, § 49. nesscs, the appearance of the attorney for the defendant, if any is entered,
R. l'. 219, § 24. and a statement of the expenses; and no other papers need be transmitted.
1918, 257, § 462. 97 Mass. 541. 117 Mass. 150.
1919,5. Ill Mass. 422. 140 Mass. 481.
1920, 2. ' 113 Mass. 203. 147 Mass. 578.
14 Gray, 398, 399.
ClL\P. 278.] TRIALS AND PROCEEDINGS BEFORE JUDGMENT. 2833
1 Section 21. Upon such appeal, the trial justice shall make a copy Copies to be
2 of the conviction and other proceedings in the case, and transmit them, r^s^°i3s%'2.
3 with the recognizance, the appearance of the attorney for the defendant, p. liVs^'j eo.
4 if any is entered, and a statement of the expenses, to the clerk of the ^^£' ^|°' | J^-
5 superior court. isis, 257, § 463. 1919, 5. 1920, 2.
2 Met. 18. 14 Gray, 398, 399. 115 Mass. 139, 146. 131 Mass. 417.
S Gray, 482. 97 Mass. 541. 117 Mass. 150. 147 Mass. 639, 578.
11 Gray, 313. Ill Mass. 428. 12C Mass. 267. 155- Mass. 296.
1 Section 22. Upon such appeal, the copies and records sent to the statement
2 superior court shall contain the details of all fees and expenses allowed i89or440, § lo.
3 or paid in the district court or before the trial justice. r^^l. Ill', § 26.
1 Section 23. At the trial of a criminal case in the superior court, Certain acts
2 upon indictment or appeal, the fact that the defendant did not testify a3e\?dence^n
3 at the preliminary hearing or trial in the lower court, or that at such 'naVcase"™"
4 hearing or trial he waived examination or did not offer any evidence in las^fa^ss'. 20.
5 his own defence, shall not be used as evidence against him, nor be re-
6 ferred to or commented upon by the prosecuting officer.
1 Section 24. If the appellant fails to enter and prosecute his appeal, if appeal not
2 he shall be defaulted on his recognizance and the superior court may lantto'be
3 impose sentence upon him for the crime of which he was convicted, as i7S3, 51, § 3.
XX ' .j^ Q 1 QQ & 1
4 if he had been convicted in said court, and, if he is not then in custody, g! s! 173! § s^
5 may issue process to bring him into coiu-t to receive sentence. i5|§'g2'. ^ ^^'
1S93. 396, § 50. R. L. 219, § 27. 109 Mass. 361. 210 Mass. 445.
1894, 431. 108 Mass. 5. 160 Mass. 354.
1 Section 25. The appellant may, at any time before the next sitting withdrawal
2 of the superior court for criminal business, come personally before the crimmafcases.
3 court or trial justice from whose judgment the appeal was taken and If^i*'!^'
4 withdraw his appeal. If the appellant has been committed, the officer Tify^'J}^'-
5 in charge of the jail, within forty-eight hours after his commitment, 1893.396,'
6 shall notify him of his right to withdraw his appeal and shall furnish i894,'43i', § i.
7 him with a blank form of withdrawal, which, if signed by him, shall be §§ 28,^29.'
8 witnessed by said officer ; thereupon, or if prior to said notice the appellant H'^i III'.
9 notifies the said officer of his desire to withdraw his appeal, the said
10 officer shall forward the defendant, with the signed form of withdrawal,
11 to the court or trial justice before whom the appeal was taken. In such
12 case the court or trial justice may order the appellant to comply with the
13 sentence appealed from, in the same manner as if it were then first im-
14 posed, or may revise or revoke the same if satisfied that cause for such
15 revision or revocation exists; provided, that the court or trial justice
16 shall not increase the sentence as first imposed, and if sureties had rec-
17 ognized with the appellant to prosecute his appeal they shall be dis-
18 charged. If the copy of the record of conviction has been transmitted
19 to the superior court, the court or trial justice shall notify the clerk of
20 the superior court of the withdrawal of the appeal, who shall thereupon
21 make a memorandum thereof upon the record of the superior court.
1 Section 26. In such case, compensation shall be allowed and paid Feesaiiowed
2 by the town where the crime was committed to the jailer for his expenses is74!33. § 3.
3 in the conveyance and custody of the appellant, at the same rate as is 155. /Is! '"'
4 allowed to officers serving a mittimus. If the appeal was from a sentence 44o|''§^2.*' ^ ^'
5 to pay a fine, the fees of the jailer shall be paid by the appellant if, after ^H' 35^' | jj
6 the appeal is withdrawn, he pays the fine. i894, 431. r. l. 219, § 30.
2834 "trl-vls and proceedings before judgment. [Chap. 278.
5ea1n°abatl- SECTION 27. Dccisions of the Superior court upon questions raised 1
1859* igl' 5 27 upon a plea in abatement to an indictment or complaint shall be final. 2
G. S. 115, § 7. ISSO, 118. p. S. 153, § 8. R. L. 219, § 31.
fup'Jl^e judi- Section 28. A defendant aggrieved by a judgment of the superior 1
isJo'Tg^'s 4 court founded upon matter of law apparent upon the record in any crim- 2
1S32; 130 § 3. inal proceeding, except a judgment upon a plea in abatement, may appeal 3
138, § 5.' ' therefrom to the supreme judicial court. 4
1859, 196, § 26. R. L. 219, § 32. 160 Mass. 307.
G. S. 114, § 10. 110 Mass. 188. 208 Mass. 162.
P. S. 152, § 10. 156 Mass. 61, 348. 210 Mass. 360.
Section 29. The superior court may, at the sitting in which an in- 1
dictment is tried, or within one year thereafter, upon motion in WTiting 2
of the defendant, grant a new trial for any cause for which by law a new 3
trial may be granted or if it appears to the court that justice has not 4
been done, and upon such terms or conditions as the court shall order. 5
R. L. 219, § 33. Ill Mass. 439. 183 Mass. 199.
1 Met. 428. 123 Mass. 418.
Section 30. If, upon the trial of a person convicted in the superior 1
court, a question of law arises, which, in the opinion of the presiding 2
justice, is so important or doubtful as to require the decision of the 3
supreme judicial court, he shall, if the defendant desires or consents to 4
it, report the case so far as necessary to present the question of law aris- 5
ing therein; and thereupon the case shall be continued to await the de- 6
cision of the supreme judicial court. 7
Section 31. Exceptions may be alleged by a defendant in a criminal 1
case who is aggrieved by an opinion, ruling, direction or judgment of the 2
superior court rendered upon any question of law arising at the trial of 3
such case or upon a motion for a new trial, but not upon a plea in abate- 4
ment. The exceptions shall be reduced to writing and filed with the clerk 5
and notice thereof given to the commonwealth within three days after 6
the verdict or after the opinion, ruling, direction or judgment excepted 7
to is given, unless a further time, not exceeding five days, except by 8
consent of the district attorney, is allowed by the court. The clerk, 9
immediately upon the filing of the exceptions, shall present them to the 10
coiu-t, and if, upon examination thereof by the presiding justice, they are 11
found conformable to the truth, tliey shall be allowed by him. In all 12
cases, the district attorney shall have an opportunity to be heard con- 13
ji9 Mass' isl cerning the allowance of such exceptions. The provisions of sections one 14
156 Mass. 61.^ hundred and fifteen to one hundred and seventeen, inclusive, of chap- 15
217 Mass! 473. tcr two hundred and thirty-one, so far as appropriate, shall apply to ex- 16
ceptions taken m crimmal cases. 17
Affirmance of SECTION 32. If the defendant neglects to enter his appeal, exceptions 1
judgment upon , ,. . , , . ^
non-entry of or report in the supreme judicial court, or neglects to take the necessary 2
1817, 185, § 5. measures for the hearing of the cause in the supreme judicial court, the 3
1832! 130. § 3. superior court may, upon the application of the district attorney and 4
fii.'^s. ^ ^°' after notice, order that the appeal, exceptions or report be dismissed and _ 5
p.' 1. 150,' 1 16.' that the judgment, opinion, ruling or order appealed from, excepted to 6
1^88.94/ ^^' or reported be affirmed. R.L.219, §36. 236 Mass. 326. 7
New
trial.
1830,
113,
§3.
1832,
130,
§4.
R. S.
82, § 30;
86, § 11;
138,
§ 10.
1855,
152.
G. S.
173,
§ 7.
P.S.
214,
§ 28.
Report.
1830.
113,
§ *■
1832,
130,
§5.
R. S.
138,
§ 12.
G. S.
173,
§8.
P.S.
214.
§29.
R. L.
219,
§34.
105 Mass.
468.
126 Mass.
248.
183 Mass.
461.
219 Mass.
386.
224 Mass.
42.
233 Mass.
535.
Exceptions.
1804,
105,
IS-
1817,
185,
§5.
1820,
79, i
5 5.
1830,
113,
§4,
1832,
130,
§ 5.
R. S.
82. § 29;
138, i
5 11.
1851,
261.
1859,
196,
§§27
■,29.
G.S.
115.
§§7,
8,10,
11.
1863,
ISO,
|2.
1880,
118.
P.S.
153,
§§8,
10.1:
2.13.
1891,
379,
§2.
1894,
204;
412.
1895,
153,
§1.
R. L.
219,
§35.
3 Gush. 212.
110 Mass.
491.
Ch.\p. 279.]
JUDGMENT AND EXECUTION.
2835
1 Section 33. Copies and papers relative to a question of law which Transmission
2 arises in a criminal case in the superior court upon appeal, exception, R.a'i'ss'ie.
3 report or otherwise shall be prepared by the clerk of the court and shall if^fe/s*.'
4 thereupon be transmitted to and entered in the law docket of the supreme 5|g|; in'. ^ '^'
5 judicial court for the proper county as soon as may be after such question ^- ^ ^^nj V37
6 of law has been reserved and duly made matter of record in the superior
7 court. The entry thereof shall not transfer the case, but only the ques-
8 tion to be determined.
1 Section 34. No motion in arrest of judgment shall be allowed for Motions in
2 a cause existing before verdict, unless it affects the jurisdiction of the judgment.
3 court. 1864, 250, § 3. P. S. 214, § 27.
R. L. 219, § 38.
10 Allen. 193.
129 Mass. 489.
151 Mass. 394.
153 Mass. 444.
159 Mass. 61.
160 Mass. 307, 354.
162 Mass. 339.
170 Mass. 460.
202 Mass. 379.
210 Mass. 445.
213 Mass. 135.
1 Section 35. In all trials in district courts, male and female prisoners Trial of
2 shall not be placed at the same time in the same dock, unless they are deTendant,
3 complained of jointly. i904, 218.
REFERENCES.
Disposition and examination of insane prisoners, Chap. 123, § 100.
Disposition of persons acquitted of murder or manslaughter by reason of insanity,
Chap. 123, § 101.
Speedy trial in superior court of persons held in jail in default of bail. Chap. 212, § 29.
CHAPTER 279.
JUDGMENT AND EXECUTION.
Sect.
1. Execution of sentences may be sus-
pended, etc.
2. Execution of certain orders of commit-
ment may be suspended, etc.
3. Arrest of person on probation.
4. Sentence notwithstanding appeal, etc.
6. Sentence if no punishment is provided
by statute. Service of sentence in
certain cases.
6. Sentence to jail or house of correction.
7. Same subject.
8. Commitments upon two or more sen-
tences.
9. Second sentence for non-payment of
fine.
10. Conditional sentence.
11. Remission of fine or imprisonment
where law prescribes both.
12. Husband assaulting wife to recognize,
etc.
13. Recognizance to keep the peace in
other cases.
14. Proceedings on forfeiture of recogni-
zance.
15. Sentence to jail, etc., in any county.
Sect.
16. Female sentenced to reformatory, when.
17. Sentences to reformatory for women.
IS. Term of sentences to reformatory for
women.
19. Place of imprisonment of women.
20. Imprisonment of women sentenced to
confinement at hard labor, where
executed.
21. Woman with infant may be sentenced
to town workhouse, etc.
22. Boy to be sentenced to jail instead of
state prison, when.
Sentences to jail and house of correc-
tion limited.
Indeterminate sentence.
Punishment of habitu.al criminals.
Further sentence of convict in state
prison.
Sentence to state prison may be exe-
cuted immediately.
Same subject.
Form of sentence. Solitary imprison-
ment.
Offices forfeited by sentence to state
prison.
23
24.
25.
26.
27
28.
30.
2836
JUDGMENT AND EXECUTION.
[Chap. 279.
Sect.
31. Persons punishable in reformatory.
32. Indeterminate sentence to reformatory.
33. Length of sentences at reformatory.
34. Sheriff, etc., to execute sentences.
35. Copy of indictment, etc., to be trans-
mitted to warden, etc.
36. Sentences to state farm.
37. Name of crime to be stated in mittimus.
3S. Powers of officer in execution of a
warrant of commitment.
Return of precept to magistrate. Copy
with jailer, etc.
Service of new mittimus upon convict.
Default of corporation.
39
40.
41.
Sect.
42. Warrant of distress.
43. Appointment of time for execution of
a death sentence.
44. Confinement of prisoner under sentence.
45. Sentence, when executed.
46. Death penalty, how inflicted.
47. Insane person or woman quick with
child not to be sentenced.
48. Respite of execution in such cases.
49. Respite in other cases.
50. Witnesses of the execution.
51. Post mortem examination of certain
bodies.
52. Return of warrant.
Execution of
sentences may
be suspended,
1900,449. § 1.
R. L. 220, § 1.
1905, 338.
1912, 154.
1913, 653.
203 Mass. 155.
Section 1. \\'Tien a person convicted before a district court is 1
sentenced to imprisonment, the court may direct that the execution of 2
the sentence be suspended, and that he be placed on probation for 3
such time and on such terms and conditions as it shall fix. Wlien a 4
person so convicted is sentenced to pay a fine, and to stand committed 5
until it is paid, the court may direct that the execution of the sentence 6
be suspended for such time as it shall fix, and tha't he be placed on pro- 7
bation on condition that he pay the fine within such time. If the fine 8
does not exceed fifteen dollars and the court finds that the defendant is 9
unable to pay it when imposed, the execution of the sentence shall be 10
suspended and he shall be placed on probation, unless the court shall 11
find that he will probably default, or that such suspension will be detri- 12
mental to the interests of the public. If he is committed for non-payment 13
of a fine, the order of commitment shall contain a recital of the findings 14
of the court on which suspension is refused. The fine shall be paid in one 15
payment, or in part payments, to the probation officer, and when fully 16
paid the order of commitment shall be void. The probation officer shall 17
give a receipt for every payment so made, shall keep a record of the same, 18
shall pay the fine, or all sums received in part payment thereof, to the 19
clerk of the court at the end of the period of probation or any extension 20
thereof, and shall keep on file the clerk's receipt therefor. If at the end 21
of said period the probation officer shall report that the fine is in whole 22
or in part unpaid, and in his opinion the person is unable to pay it, the 23
court may either extend said period, place the case on file or revoke the 24
suspension of the execution of the sentence. When such suspension is 25
revoked, in a case where the fine has been paid in part, the defendant 26
may be committed for default in payment of the balance. 27
cMtaS'Srders Section 2. lu all cascs the execution of orders of commitment to
ma'^°be"s*™'^°' *^^ Massachusetts reformatory, the reformatory for women, the Suffolk
pended etc. school for boys, the Plummer farm school of reform for boys, any training
1913! 47i] § 2. school, however named, any house of reformation for iuvenile offenders,
4. Op. A. G. 628! the Lyman school, the industrial school for girls, the industrial school for
boys and the department of public welfare may be suspended, and such
suspension continued or revoked, in the same manner and with the same
effect as the execution of sentences in criminal cases.
Arrest of
person on
probation.
1897, 236.
1900, 449, § 2.
R. L. 220, § 2.
Section 3. At any time before final disposition of the case of a 1
person placed on probation in the custody of a probation officer, the 2
probation officer may arrest him without a warrant and take him before 3
Chap. 279.] judgment aiv-d execxttion. 2837
4 the court, or the court may issue a warrant for his arrest. Wlien taken iss Mass. 23s.
5 before the court, it may, if he has not been sentenced, sentence him or
6 make any other lawful disposition of the case, and if he has been sentenced,
7 it may continue or revoke the suspension of the execution of his sentence.
8 If such suspension is revoked, the sentence shall be in full force and effect.
1 Section 4. Sentence shall be imposed upon conviction of a crime Sentence not-
2 not punishable by death, although exceptions have been alleged or an ^peai^etc!"^
3 appeal taken. The reservation, filing or allowance of exceptions, or the HH] If^]
4 entry of an appeal, shall not stay the execution of the sentence unless fgV^Mi^ss.' is^'
5 the justice imposing it, or a justice of the supreme judicial court, files J|o Mass i6
6 a certificate that in his opinion there is reasonable doubt whether the i75Mas8. 37.
7 judgment should stand. If sentence is so stayed, the justice may at the 210 Mass! 445!
8 same time make an order relative to the custody of the prisoner or for 235 Ria?s. 357.
9 admitting him to bail. 2 0p.a.g,482.
1 Section 5. If no punishment for a crime is provided by statute. Sentence, if
2 the court shall impose such sentence, according to the nature of the i^°p?o"-ided ^"^
3 crime, as conforms to the common usage and practice in the common- serWce'of'
4 wealth. If a person is convicted of a misdemeanor punishable by im- sentence in
, , ,. "Ill 1 *^6'"^'^'n cases.
5 prisonment, he may, unless otherwise expressly provided, be sentenced i782, 9 § 1
6 to imprisonment either in the jail or in the house of correction. g! s.' 174,' § i.'
p. S. 215, § 1. 1902. 544, § 34. 165 Mass. 446.
R. L. 220, § 4. 13 Allen, 581. 189 Mass. 76.
1 Section 6. Whoever is convicted of a crime punishable wholly or Sentence to
2 in part by imprisonment in jail may be sentenced to such imprisonment J,Tcorrec™on.
3 in the house of correction or to solitary imprisonment and confinement r_^s! ul', 1 17!
4 at hard labor either in the jail or house of correction; and if convicted pf^Vs^'sV'
5 of a crime punishable by imprisonment in the house of correction may i*s2, 241, 1 1.
6 be sentenced to such imprisonment in a jail.
2 Met. 419. 161 Mass. 120. 188 Mass. 443.
4 Met. 360. 184 Mass. 320. 215 Mass. 525.
1 Section 7. Whoever is convicted of a crime punishable by a fine. Same subject.
2 and is liable to imprisonment in the jail for its non-payment, may be g. s! 174', § 5.
3 sentenced to such imprisonment in the house of correction, or to con- r. L.^ilo.^^is.
4 finement at hard labor either in the jail or house of correction. ^ ^^**- *°*-
1 Section 8. A convict upon whom two or more sentences to imprison- Commitmenta
2 ment are imposed may be fully committed upon all such sentences at X'resen-"'^
3 the same time, and shall serve them in the order named in the mittimuses i8S4?265.
4 upon which he is committed ; but when fine and imprisonment are fgj^- ^|g; 5 7.
5 named in one of the sentences the prisoner shall always be committed
6 upon the term sentence first.
1 Section 9. If a convict is sentenced to pay a fine in more than one second sen-
2 case and has been committed to a jail, house of correction or other prison non-payment
3 for refusing to pay such fine, the subsequent sentence shall take effect i874'',"253.
4 upon the expiration of the imprisonment under the former sentence. r.l.^22o,\^s.
1 Section 10. If a person has been convicted of a crime punishable. Conditional
2 at the discretion of the court, by fine or imprisonment in the jail or house i78s. 53,'
3 of correction or by fine or imprisonment in the state prison, the court 1S34', i5i, § 17.
2838
JUDGMENT AND EXECUTION.
[Chap. 279.
R. S. 139,
§§2.3.
G. S. 174.
§§6.7.
P. S. 215.
§§ 6. 7.
R. L. 220. § 9.
5 Met. 559.
may impose upon him a conditional sentence, and order him to pay a fine 4
within a limited time which shall be expressed in the sentence, and in 5
default thereof to suffer such imprisonment as is provided by law. He 6
shall be forthwith committed to the custody of an officer in court or to 7
the jail, to be detained until the sentence is compUed with; and if he does 8
not within the time limited pay the fine imposed, the sheriff shall cause 9
the other part of the sentence to be executed forthwith. 10
Remission
of fine or
imprisonment
where l.iw
prescribes
both.
R. S. 1.39. § 4.
1855, 215. § 39.
G. S. 174. § 8.
1866. 280. § 1.
P. S. 213. § S.
1896. 397, § 17.
R. L. 220, § 10.
Section 11. \\lioever is convicted of a crime, punishable by fine 1
and imprisonment either in the jail or house of correction, except a 2
person convicted under section thirty-three of chapter one hundred and 3
thirty-eight, may, at the discretion of the court, be sentenced to be pun- 4
ished by imprisonment only, or by a fine only, if he shows to the satis- 5
faction of the court that he has not before been convicted of a similar 6
crime. 12 Alien, 421, 428. is Alien, 581. 109 Mass. 361. 7
127 Mass. 452. 155 Mass. 8. 184 Mass. 320. 236 Mass. 281.
Husband
assaulting
wife to
recognize, etc.
1879, 42.
P. S. 215,
§§ 9, 10.
R. L. 220, I 11.
Section 12. Except as provided in section twenty-eight of chapter 1
two hundred and eighteen and in section twenty of chapter two hundred 2
and nineteen, if a husband is convicted of an assault upon his wife, the 3
court may, in addition to the other penalties imposed, or in lieu thereof, 4
order him to recognize with surety or sureties to keep the peace for any 5
term of not more than two years, and may at any time revoke such order 6
or reduce the amount required or order that the recognizance be taken 7
without suretv. 8
Recognizance
to keep the
peace in other
cases.
R. S. 139, § 5.
G. S. 174, § 10.
P. S. 215, § 11.
R. L. 220. § 12.
2 Allen, 61.
Section 13. Except as provided in section twenty-eight of chapter
two hundred and eighteen and in section twenty of chapter two hundred
and nineteen, whoever is convicted of a misdemeanor may, in addition
to the punishment prescribed by law, be required to recognize, with
sufficient sureties, in a reasonable sum to keep the peace, or to be of good
behavior, or both, for any term of not more than two years, and to stand
committed until he so recognizes.
Proceedings
on forfeiture of
recognizance.
R. S. 139, § 6.
F'i'iis'iv'^' proceedings shall be as provided in chapter two hundred and seventy-five
R. L. 220, § 13. relative to recognizances to keep the peace and be of good behavior.
Section 14. Such recognizance shall be filed of record in the superior
court for the county, and, upon a breach of the condition thereof, the
fal?.*™c.! in° Section 15. 'WTioever is convicted of a crime, punishable by imprison-
isi8'^'i'23*^' 6 ment in the jail or house of correction, may be sentenced to a jail or house
Jf^S- ?is' I ?■ of correction of any county, and the master or keeper shall receive and
1870, 3/0, §4. .,.."' •'' .i>iiii 11
P. s. 215. § 13. detain him in the same manner as it he bad been sentenced by a court
12 Allen, 424. ' sittiiig iu the county where such jail or house of correction is situated.
1 Op. A. G. 309.
fe^n"edVo^°" Section 16. A female, convicted of a crime punishable by imprison- 1
wh^L™'"'^ ■ ment in a jail or house of correction, may be sentenced to the reformatory 2
i874,'383. § 17. for women. 3
1881, 189.
P. S. 215, § 14.
R. L. 220, § 15.
1903, 209.
1906. 282.
1907, 251, § 1.
1911, 181.
1914, 635.
flfo*rmatoi^° Section 17. The court or trial justice, imposing a sentence to the 1
for women. reformatory for women, shall not prescribe the limit of the sentence 2
1903, 209, § 1.
1911, 181. unless it is for more than five years.
215 Mass. 525.
ChL^P. 279.] JUDGMENT AND EXECUTION. 2839
1 Section 18. A female sentenced to the reformatory for women for Termofsen-
2 larceny or any felony may be held therein for not more than five years, reroTmatory
3 unless she is sentenced for a longer term, in which case she may be held i'9oJ°209°'
4 therein for such longer term; if sentenced to said reformatory for any fgo| Igo « ^
5 other offence, she may be held therein for not more than two years. 55°^^^^^'
1910,3-17. 1911,181. 215 Mass. 525.
1 Section 19. The sentence to imprisonment of a female convicted ^'fso^^'ei^'of
2 of a felony shall be executed in the reformatory for women; or the court "omen.
3 imposing sentence in such a case may impose the sentence in a jail or house 1907! 251! § 1.
4 of correction provided by law in the case of male prisoners, if it does not i9i4,'635. '
5 exceed two and one half years. 21s Mass. 525.
1 Section 20. Subject to the preceding section, a sentence of a female imprisonment
2 convict of whatever age to confinement at hard labor shall be executed °enTe^edto
3 in a jail or house of correction or the reformatory for women as the at"m"rd°ilbor,
4 court orders. vhere
CX6CUt6Q
I8IS, 123, § 8. G. S. 174, §14. 1889,113. 1911,181.
1834, 151, § IR. 1874, 385, § 17. R. L. 220, § 16. 12 Gush. 237.
R. S. 143, § 18. P. S. 215, § 15. 1904, 224. 215 Mass. 525.
1 Section 21. A woman with a nursing infant, con\-icted of a crime woman with
2 punishable by imprisonment in a house of correction, may be sentenced senten™dto^
3 to a workhouse in the county; and two dollars a week shall be paid by hou°e™c^"
4 the county to the town where the sentence is executed for her support If^*;!/*^'
5 and custody. G. s. i74, § 12. p. s. 215, § le. r. l. 220, § 17.
1 Section 22. If a boy under sixteen, convicted of felony and sen- Boy to be
2 tenced to solitary imprisonment and confinement at hard labor for not flii fiStead of
3 more than three years, has not been previously sentenced to the state when."™""'
4 prison, or to any state prison or penitentiary in the United States, the \llf^ \lf^ | f^,
5 sentence shall, subject to the following section, be executed in the jail. g- 1- j^f 1 1|-
p. S. 215, § 17. R. L. 220, § 18.
1 Section 23. No sentence of a male con\'ict to imprisonment or con- Sentences
2 finement for more than two and one half years shall be executed in any housl-'of"
3 jail or house of correction. This section shall apply only to sentences ififted?'^
4 hereafter imposed.
1818, 123, § 1. 1870, 206, § 1. 1919, 5. 188 Mass. 330.
1834. 151, I 14. p. S. 215, § 19. 1920. 2. 215 Mass. 209.
R. S. 143, §19. R. L. 220, §19. 152 Mass. 1. 235 Mass. 357.
G. S. 174, § 16. 1918, 257, § 464. 161 Mass. 120.
1 Section 24. If a convict is sentenced to the state prison, except for indeterminate
2 life or as an habitual criminal, the court shall not fix the term of impris- r,"s™i39, § o.
3 onment, but shall fix a maximum and a minimum term for which he may fgyy; jgo. ^^'
4 be imprisoned. The maximum term shall not be longer than the longest p*f '21^5 ^20
5 term fixed by law for the punishment of the crime of which he has been J^as, 504, § 1.
6 convicted, and the minimum term shall not be less than two and one half R i- 220! 1 26.
7 years. If a convict sentenced to the state prison receives an additional liu MaS 12a.
8 sentence thereto, it shall take effect upon the expiration of the minimum leg Mass] 592!
9 term of the preceding sentence. 172 Mass. 264.
174 Mass. 369. 188 Mass. 330. Op. A. G. (1920) 73.
1 Section 25. Whoever has been twice convicted of crime and sen- Punishment
2 tenced and committed to prison in this or another state, or once in this Criminal"!'
3 and once or more in another state, for terms of not less than tliree years r^^l! 220! | ii.
4 each, and does not show that he has been pardoned for either crime on Jsj^m^^s' 163.
2840
JUDGMENT AND EXECUTION.
[Chap. 279.
158 Mass, 598.
163 Mass. 226.
165 Mass. 133.
173 Mass. 322.
175 Mass. 202.
ISO U. S. 311.
Further sen-
tence of con-
vict in state
prison.
the ground that he was innocent, shall, upon con\action of a felony, be 5
considered an habitual criminal and be punished by imprisonment in the 6
state prison for the maximum term provided by law as a penalty for the 7
felony for which he is then to be sentenced. 8
Section 26. A con%act under sentence of imprisonment in the state 1
prison may be sentenced for a further time of not less than one year. 2
1880, 15, § 2. P. S. 215, | 21. R. L. 220, § 22.
Sentence to
state prison
may be exe-
cuted immedi-
ately.
1881, 139,
P. S. 215, 5 22.
R. L. 220, § 23.
Section 27. If a convict serving a sentence of imprisonment in a 1
jail or house of correction is convicted of a felony, the court may impose 2
sentence of imprisonment in the state prison and order it to take effect 3
forthwith, notwithstanding the former sentence. The convict shall there- 4
upon be removed to the state prison, and shall be discharged at the ex- 5
piration of his sentence thereto. 6
Same subject.
1891, 200.
K. L. 220, § 24.
Section 28. If a convict serving a sentence of imprisonment in the 1
Massachusetts reformatory is convicted of a crime punishable by impris- 2
onment in the state prison or house of correction, the court may impose 3
sentence of imprisonment therein and may order it to take effect forth- 4
with, notwithstanding the former sentence. The convict shall thereupon 5
be removed accordingly, and shall be discharged at the expiration of his 6
sentence thereto. 7
Form of
sentence.
Solitary
imprisonment.
R. S. 139, § 8.
G. S. 174, § IS.
1866, 254.
P. S. 215. I 23.
R. L. 220, § 25.
4 Met. 360.
8 Met. 533.
11 Met. 575.
161 Mass. 120.
167 Mass. 11.
215 Mass. 209.
Section 29. The form of a sentence to the state prison shall be, that
the convict be punished by confinement at hard labor and by solitary im-
prisonment for such terra, not exceeding twenty days at one time, as the
court orders. In the execution of such sentence, the solitary imprison-
ment shall precede the punislunent by hard labor, unless the court other-
wise orders; but in case of severe illness of the contact, the warden,
upon the certificate of the prison physician, may postpone the solitary
imprisonment until the health of the convict is so far restored that his
life will not be endangered thereby.
Offices for-
feited by
sentence to
state prison.
R. S. 144, § 31.
G. S. 174, § 19.
P. S. 215. § 24.
R. L. 220. 5 26.
24 Pick. 277.
Section 30. If a con\-ict sentenced by a court of the commonwealth
or of the United States to imprisonment in the state prison holds an
office under the constitution or laws of the commonwealth at the time of
sentence, it shall be vacated from the time of sentence. If the judgment
against him is reversed upon writ of error, he shall be restored to his office
with all its rights and emoluments; but, if pardoned, he shall not by rea-
son thereof be restored, unless it is so expressly ordered by the terms of
the pardon.
pShlbie Section 31. A male under forty years of age, not previously sen-
^84^ 255!^§T'' tenced for felony more than three times, convicted of a crime punishable
1886] iil; § 5. by imprisonment in the state prison or in a jail or house of correction
R ^L 2% 5 27 ^^y b^ sentenced to the Massachusetts reformatory. District courts and
1908, 232.' ■ trial justices shall have the same jurisdiction to sentence such person to
said reformatory as they have to sentence him to such jail or house of
correction.
1
2
3
4
5
6
7
8
9
1
2
3
4
5
6
7
8
1
2
3
4
5
6
7
sentracfto"'^ Section 32. The court imposing a sentence of imprisonment in the 1
1884™ 55°"^' Massachusetts reformatory shall not fix the term thereof unless it exceeds 2
§§8,9. five years, but shall merely impose a sentence of imprisonment therein; 3
7.
20.
Chap. 279.] judgment and execution. 2841
4 but prisoners may be received and held therein who have been sentenced jf^f'!^^-
5 thereto by a court of the United States for a fixed or hmited term. R l. 220. § 28.
216 Mass. 594.
1 Section 33. Whoever is sentenced to the Massachusetts reformatory Length ot
2 for larceny or for any felony may be held therein for not more than five reformato^.
3 years unless sentenced for a longer term, in which case he may be held jfls!'!.^^'
4 therein for such longer term; if committed to said reformatory as a de- r^^l! 220, § 29.
5 linquent child he may be held therein for not more than two years; if JgJJgfl'
6 sentenced to said reformatory for drunkenness he may be held therein for §§ 1.2.
7 not more than one year; if sentenced to said reformatory for any other
8 offence he may be held therein for not more than two years.
1 Section 34. \Vlien a convict is sentenced to pay a fine or to be im- sheriff, etc.,
2 prisoned, the clerk of the court shall forthwith make out and deliver to sentences^
3 the sheriff or to some officer in court a duly certified transcript from the §■ f- Jy^' | _
4 minutes of the court of the conviction and sentence, which shall authorize p^^i'2^^'^2^
5 the officer to execute such sentence, and he shall execute it accordingly. R- l. 226, § 36.
1 Section 35. When a person is committed to the state prison, the Copy of in-
2 Massachusetts reformatory, the reformatory for women or to any other to^tetrans-""
3 public penal institution, on conviction of felony, the clerk of the court "ardelifeto.
4 shall, without charge, transmit with the mittimus an attested copy of p®i'2i.|'|26
5 the complaint or indictment under which such person was convicted, and issV. 255, 1 10.
6 the names and addresses of the witnesses who testified for and against lau.'sfo.'
7 such person at the trial, together with a record containing the names
8 and addresses of the presiding justice, district attorney and of the attorney
9 for the defendant.
1 Section 36. In imposing a sentence of imprisoimient at the state sentences to
2 farm, the court or trial justice shall not fix or limit the duration thereof. i*898,443?'§ 1.
3 Whoever is sentenced to the state farm for drunkenness may be there ^' ^' *^' ^ ^^■
4 held in custody for not more than one year, and if so sentenced for any
5 other offence may be there held in custody for not more than two years.
1 Section 37. Every warrant for the commitment of a person sentenced ^^F'^ 9^,"}'"''
r» l_ J* • • 1 • • 1 n i» 1 1 '0 to be stated in
2 by a district court or trial justice shall set forth the statutory name, if any, ?i'H'°JVI-
3 of the crime of which the person was convicted, and shall contain a cita- wis! 257!
4 tion of the statute, if any, under which the complaint was drawn. i9i9,'5.
1920, 2.
1 Section 38. A sheriff, deputy sheriff or constable, when engaged in Powers of
2 the execution of a warrant for the commitment of a person to a penal execud'on of a
3 institution which is not in his own county, shall have the same powers ^ommUmLt.
4 in any county through which he may pass as he would have in his own }|I°' |™' | f •
5 county in the performance of a similar duty.
1880. 120, § 3. p. S. 21,5, § 27. R. L. 220, § 32.
1 Section 39. The officer serving the precept in a criminal case shall, pj^e"™ to
2 without charging travel therefor, return it with his doings and fees en- magistrate.
o 1 111 . ... 1 1 n n Cony with
3 dorsed tiiereon to the court or magistrate issuing it, who shall tax, allow iaifer, etc.
4 and certify the fees as a part of the expenses in the case. In case of com- g. s.' 174', 1 22.
5 mitment, the officer shall leave with the jailer or keeper of the prison an r s'.'2Y5!'§ 2I.
6 attested copy of the precept, with his return thereon, which shall author- u Gray,°468^^'
7 ize the detention of the person committed.
2842 JUDGMENT AND EXECUTION. [ChAP. 279.
mTttimu^'upra SECTION 40. If a convict imprisoned Under sciitence is again Sentenced 1
G^s" n4, § 23 to confinement in a prison other than that in which he is then held, the 2
R L ^20 \% '^arrant for his commitment in pursuance of the second sentence shall 3
be placed in the hands of the warden, superintendent, master or keeper 4
of the prison where the convict is held, and said warden, superintendent, 5
master or keeper, upon the expiration of the first sentence, shall commit 6
the convict in obedience to said warrant. 7
Default of
corporation.
Sectjon 41. If a corporation, after being duly served with process, 1
G ^s' 174' I ^9 ^'^''^ ^^ appear and answer to an indictment or complaint brought against 2
R L 220 1 35' ^* under the laws of the commonwealth, its default shall be recorded, 3
206 Mass! 417. ' the chargcs in the indictment or complaint taken to be true, and judgment 4
rendered accordingly. 5
dutress* "^ SECTION 42. If judgment is rendered against a corporation upon an 1
i?^l' ?i?' t ?>, indictment or complaint under the laws of the commonwealth, the court 2
O. h. 174, 8 oU. , (•!• 1 i»ii «-*
p. s. 215. § 31. may issue a warrant or distress to compel payment or the penalty pre- 3
206 Mass.' 417. ' scribcd by law, with interest. 4
oftime*f™r' Section 43. In pronouncing sentence of death upon a person con- 1
death*s°e'nten«; victcd of a Capital crimc, the court shall appoint a week within which 2
C-^]^3o^| 1. the sentence shall be executed. The clerk of the court shall, as soon 3
§ 24. ' ' as may be, make out and deliver to the governor a certified copy of the 4
i852[ 274! ' whole record of the conviction and sentence, and shall immediately 5
1857, 37. thereafter make out, sign and deliver to the sherift" of the county M'here 6
?87f, 166, 1 ]^' the con\'iction was had a warrant under the seal of the court stating 7
i89s',326'. |i^ the conviction and sentence, and the week appointed for the execution 8
ns^Mas"' 1 ^^' thereof, and shall at the same time transmit to the warden of the state 9
prison a certified copy of the warrant. Such warrant shall be directed to 10
the warden of the state prison commanding him to cause execution to be 11
done in accordance with the provisions of such sentence upon a day within 12
the week so appointed. 13
^"pHsoM™* Section 44. After a convict has been sentenced to the punishment 1
is9"32li!'r2'^^' o^ death, he shall be confined in jail in the county where he was con- 2
r°l' 220 38 '^i^ted until within ten days of the first day of the week appointed for the 3
178 Mass! 549. ' exccutiou of the sentence of death. He shall, within such ten days, at 4
a time choseri by the sheriff', be conveyed by him or a deputy designated 5
by him, as secfl-etly as may be, to the state prison, and shall, with the war- 6
rant, be delivered to the warden thereof or to the officer performing the 7
duties thereof. He shall, unless lawfully discharged from such imprison- 8
ment, be kept in a cell provided for the purpose from the time of such 9
delivery until the sentence of death is executed upon him, and no person 10
shall be allowed access to him without an order of the court, except the 11
officers and employees of the prison, his counsel, and such physicians, 12
priest or minister of religion as the warden may approve, and the mem- 13
bers of his family who are identified to the satisfaction of the warden. If 14
the execution of the sentence of death is respited by the governor, or is 15
otherwise delayed by process of law, the convict may, in the discretion of 16
the warden, be confined in a cell used for solitary confinement. 17
executed! ^ ^° Section 45. The sentence of death shall be executed by the warden 1
1/^6- , 32. ^£ ^YiQ state prison, or by a person acting under his direction, within the 2
CH-^P. 279.] JUDGMENT AND EXECUTION. 2843
3 week appointed by the court, unless the governor pardons the crime, r. s. 139,
4 commutes the punishment therefor or respites the execution. If the g s'174,
5 execution is respited, the sentence of death shall be executed within the ilret'iBe, § 2.
6 week beginning on the day next after the day on which the term of ^g|g Ige |?'
7 respite expires. The sentence of death shall be executed upon such day fyg^j^g,' l^^-
8 within the week appointed as the warden elects, at some time between 210 Mass. 609.
9 midnight and sunrise; but no previous announcement thereof shall be
10 made, except to such persons as may be permitted to be present.
1 Section 46. The punishment of death shall be inflicted by causing a Death penalty,
2 current of electricity of sufficient intensity to cause death to pass through r°'s."i39, "§ is.
3 the body of the convict, and the application of such current shall be con- \ll^] ly'^' ^ ^"
4 tinuous until he is dead. The sentence shall be executed within an en- p^i^iU^H?.'
5 closure or building for that purpose adjoining the state prison and the 5f^|'|-5'o
6 company which furnishes the electric power or light to the state prison R- l- 220 i 40.
7 shall provide all necessary electricity for executions at such times as the 11 Cusii. eoi.
8 warden orders. i78 Mass. 549.
1 Section 47. If a person convicted of a capital crime is, at the time insane person
2 when motion for sentence is made, found by the court to be insane, it may quick'n™h
3 cause such person to be removed to one of the state hospitals for such term be sentenced.
4 and under such limitations as it may order. If a woman convicted of a p*s^'2\'5%^34.
5 capital crime is, at the time when motion for sentence is made, found by R- ^- 220, § 41.
6 the court to be quick with child, the court shall not pass sentence upon
7 her until it finds that she is no longer quick with child.
1 Section 48. If it appears to the satisfaction of the governor and ^e^p^'ffo°'in
2 council that a convict under sentence of death has become insane, the ^'''s^lg^. 12
3 governor, with the advice and consent of the council, may, from time to c'. s. iii. 1 25!
4 time for stated periods, respite the execution of said sentence, until it p. s.' 215,' §35.
5 appears to their satisfaction that the convict is no longer insane. If it ^' ■ ^^ • ^ * ■
6 appears to the satisfaction of the governor and council that a female con-
7 vict under sentence of death is tjuick with child, the governor, with the
8 advice and consent of the council, shall from time to time respite the
9 execution of said sentence for stated periods until it appears to their
10 satisfaction that she is no longer quick with child.
1 Section 49. The governor, with the advice and consent of the council, JthTr mses.
2 may from time to time respite the execution of a sentence of death for p'^'afs'llr,
3 stated periods so long as he may consider it necessary to afford him, with R. l- 220, § 43.
4 the advice and consent of the council, an opportunity to pardon the con-
5 vict and to investigate and consider the facts of the case for that purpose.
1 Section 50. There shall be present at the execution of the sentence witnesses of
2 of death, in addition to the warden, deputy warden and such officers of the r.^s.''i39,'|°i4.
3 state prison as the warden deems necessary, the person performing the p' |; 2/5,' § ss^'
4 execution under the direction of the warden, the prison physician, the ^^l' ||^; 1 14
5 chief surgeon of the militia, a medical examiner for Suffolk county, or,
6 if they are unable to be present, such physicians as the warden approves.
7 The physicians present shall be the legal witnesses of the execution.
8 There may also be present the sheriff of the county where the defendant
9 was convicted or his deputy, a priest or minister of religion and, with
10 the approval of the warden, not more than three other persons.
2844
FINES AND FORFEITURES.
[CUAF. 280.
fx'JmSati^" Section 51. There shall be a post mortem examination by a medical
bodfes*"" examiner for Suffolk county of the body of every person electrocuted in
1911. 274. § 1. conformity with the sentence of a court. 3
1
2
wl^ant°^ Section 52. WTien the warden has executed the sentence of death 1
G I' lu'iM' 'Lipon a convict in obedience to a warrant from the court, he shall forth- 2
1876. 166', 5 6^ ^ith make return thereof under his hand, with the doings thereon, to the 3
p. S. 215. § 39. „ „ , , , » . ,
1898, 326. 5 7. offace 01 the clerk or said court.
E. L. 220, J i5.
CHAPTER 280.
FINES AND FORFEITURES.
Sect.
1. Fines and forfeitures, how recovered.
2. Paj-ment of certain fines and forfeitures.
3. Counsel in proceedings for penalties.
4. County to pay expense of prosecution.
5. Expense of briefs in criminal cases.
6. Expenses of prosecution.
7. Certificates of fines.
8. Accounts of fines, etc.
9. Same subject.
10. Paynaent of witness fees.
11. Fines, etc., to be paid to sheriff, and
by him to county.
Sect.
12. Sheriff suffering escape to pay fines,
etc.
13. Remedy if sheriff neglects to pay over
fines.
14. PajTnents to jailer or master of house
of correction.
15. Jailer and master of house of correction
to make quarterly returns.
16. Expenses to be paid by county treas-
urer if demanded within tliree years,
etc.
Fines and for-
feitures, how
recovered.
1793. 43. I 4.
ISOO. 57. I 4.
R. S. 118, § 42;
133, § 14.
G. S. 176, I 2.
P. S. 217, 5 2.
Section 1. Fines and forfeitures exacted as punishments for offences 1
or violation or neglect of any duty imposed by statute may, unless other- 2
wise provided, be prosecuted for and recovered by indictment or com- 3
plaint or by an action of tort in the name of the commonwealth in a court 4
having jurisdiction of the offence or action. 5
R.L. 221. 5 1.
108 Mass. 139.
124 Mass. 277.
144 Mass. 170.
151 Mass. 60.
183 Mass. 491.
216 Mass. 344.
1 Op. A. G. 638.
2 Op. A. G. 125.
Payment of SECTION 2. A fine or forfeiture imposed by the superior court shall,
certain tines 'iii •! i pi
R°V°i33''§T4' ^'^'^^P* ^^ otherwise pro^•lded, be paid over to the treasurer ot tlie county
1839. 135. ' where the proceeding in which the fine or forfeiture was imposed was
G; .?• \i6- . 1- ^.j.;gj^ Qj. jjj Suffolk county to the collector of Boston, except that in cases
appealed from district courts or trial justices, in counties other than
Suffolk, the fine or forfeiture shall be paid into the treasury of the
county where it was imposed, and the treasurer of the said county shall
pay to the town where the offence was committed the costs as certified
bv the clerk of the inferior court from which the case Mas appealed.
I860, 191, § 10.
P. S. 217, § 1.
1890, 440. § 5.
1891,416, I 1.
R. L. 221, § 2.
1911, 250,
§§ 1. 2.
153 Mass. 211.
157 Mass. 14,
4G7.
i0p.AfG.63s. A fine or forfeiture imposed by a district court or trial justice shall, ex- 10
cept as otherwise p^o^•ided, be paid to the town where the crime or offence 1 1
was committed. If the whole or any part of a fine is by law payable 12
to a complainant or informant or to a person or corporation as benefi- 13
ciary, the court or trial justice may apportion the fine or forfeiture be- 14
tween such complainant, informant or other beneficiary and the county 15
or town, respectively. This section shall not apply to fees and fines re- 16
ceived under section thirty-four of chapter ninety. 17
CbAF. 2S0.] FINES .\ND FORFEITURES. 2845
1 Section 3. In proceedings in the name of the commonwealth for the Counsel in pro-
2 recovery of fines, forfeitures or penalties, the whole or any part of which penalties."
3 do not enure to the benefit of the commonwealth, the court may, upon ^,'s.' 211.' i s.'
4 motion of the district attorney, appoint an attorney to conduct the cause 2ie^Ma"8s'. 344.
5 imder his direction; but such attorney so appointed shall have no right
6 to control the cause or receive compensation from the commonwealth.
1 Section 4. Expenses arising in a criminal prosecution, including fees County to
2 of grand and traverse jurors for travel and attendance therein, shall of prosecution.
3 be paid by the county where the prosecution is pending; but no part of 1752, 55' '
4 the expenses arising under a prosecution for the violation of a by-law or jyfi; 53; § 2.
5 ordinance, except witness fees, shall be paid by the county.
1817.145. 1841,74. §1. 1860, 191.510. 1898. 204. § 4.
1824.117. 1845.227. 1880, 120, § 2. R. L. 221, § 4.
1825, 73, § 2. 1860, 68. P. S. 217, § 4. 2 Op. A. G. 112.
R. S. 141, § 1. G. S. 176, § 4. 1890, 440, § 2,
1 Section 5. In a criminal case in which questions of law are carried bSfffncrim-
2 to the supreme judicial court, the attorney general or district attorney isfg''^'''-
3 may have necessary copies of the brief for the commonwealth printed, Sf; 221^55
4 and the expense thereof shall be paid in the same manner as other
5 expenses in the case.
1 Section 6. Before imposing a fine as a penalty or part penalty for a Expenses of
2 crime, the court or justice shall determine the reasonable and actual ex- is9a*328?'§' i;
3 penses of the prosecution, including the ser'vices of officers and wdtnesses, r.°l. 221, § 6.
4 the detention and support of the defendant and the expense of serving a
5 mittimus or other warrant of commitment; and may impose a fine, not
6 exceeding the maximum fine prescribed for the crime, which shall in-
7 elude the whole or any part of the amount of the expenses so found
8 and determined. If the presiding justice is of opinion that the maximum
9 fine is an inadequate penalty for the crime committed, he may impose
10 such maximum fine and order the defendant to pay the whole or any part
11 of the expenses of the prosecution. Defendants who pay such expenses
12 after commitment shall also pay the expense of commitment.
1 Section 7. At the end of every sitting of the superior court for the Certificates
2 transaction of criminal business, the clerk shall make and deliver to the c. l. isi, 5 4.
3 treasurers of the respective counties, cities or towns certificates of all n'oo^ii 21, u.
4 fines imposed by the court, to the use of the commonwealth, county, il^;ttij'^%_
5 city or town. g. s. i76, 5 s.
1861, 184. P. S. 217, § 8. 1890, 218, § 2. R. L. 221, § 7.
1 Section 8. The clerk of the superior court for the transaction of fi,"°""t^°^
2 criminal business for Suffolk county, the clerks of the municipal courts J^gi, 236, § i.
3 in Boston, the sheriff, master of the house of correction or other officer,
4 except those named in the following section, upon receiving fines, fees or
5 other money in any criminal proceedings, payable to Suft'olk county or
6 to Boston, shall, before the tenth day of every month, pay over to the
7 collector of said city and account, on oath, for all fines, fees or other
8 money so received during the preceding calendar month, and make the
9 detailed statements required by law.
1 Section 9. The clerks of all courts in Suffolk county, except those Snme subject.
2 named in the preceding section, who are required to account to Bos- r. l! 221; 1 0.
2846
FINES AND FOKFEITUEES.
[CiLVP. 2S0.
ton shall, on or before the tenth day of each month, pay over to the col- 3
lector of said city and account, on oath, for all fines, fees and other money 4
received by them in any criminal proceedings during the preceding cal- 5
endar month remaining after the payments therefrom allowed by law. 6
Payment of
witness fees.
1891, 236, § 2.
R. L. 221, § 10.
1918, 257,
§ 466.
1919,5.
1920, 2.
Section 10. The treasurer of Boston shall pay to the persons en- 1
titled thereto all witness fees or other money due for services rendered 2
or e.\penses incurred in any of the courts named in section eight, or for 3
any of the aforesaid officers, upon presentation to him of a certificate 4
stating the name of the claimant, of the court and of the case, the nature 5
of the services rendered or expenses incurred and the amount due therefor, 6
signed by the clerk of the court or by the officer for whom the ser\-ice 7
was rendered. 8
Fines, etc., to
be paid to
fiheriff, and by
him to county.
1093-4, 2, § 1.
1791, 53, § 2.
R. S. 141, § 9.
1857, 107, § 1.
G. S. 176,
§§9,12.
1881, 52. § 1.
P. S. 217,
§§9,12.
1890, 218, § 1.
R. L. 221, § 11.
1918, 257,
§467.
1919,5.
1920, 2.
2 Gray, 428.
Section 11. Except as otherwise provided in section eighty of 1
chapter two hundred and seventy-sLx, fines and forfeitures imposed in 2
criminal prosecutions by the superior court to the use of the common- 3
wealth, or to any county, or to Boston, and all amounts found to be due 4
on forfeited recognizances, shall, under the direction of the court, be 5
certified by the clerk to the sheriff. The sheriff or his deputy may re- 6
ceive such fines and forfeitures, but the sheriff shall, except as otherwise 7
provided by law, within ten days after the final adjournment of the 8
sitting of the court, pay the same without deduction to the county 9
treasurer and render to him, or in Suffolk county to the collector of 10
Boston, an account, on oath, of all amounts which he has received since 11
the last preceding sitting of the court for fines, forfeitures and forfeited 12
recognizances and the names of the persons from whom received and 13
against whom awarded. If a sheriff neglects for thirty days to render 14
such account he shall be liable to a penalty of two hundred dollars, which 15
shall be recovered in the manner provided in section thirteen. 16
fe^ringVscape Section 12. A shcrlff who, having a person in his custody by virtue
etc'"'^ ^'^' of tli^ sentence of a court, voluntarily or negligently suffers him to escape
1791. 53 §3 shall be held to have received the fines, forfeitures or forfeited recog-
1857! 107,' § 1.' nizances described in the preceding section, at the time of the escape,
p." s.' 217,' § 10.' and shall be liable for the same, with interest and costs, as if he had
R. L. 221, § 12. • 1 . ,
received them.
Remedy if
sheriff neglects
to pay over
fines.
1791.53. § 3.
R. S. 141, § 9.
1857, 107, § 1
G. S. 176, § 11.
P. S. 217, § 11.
Section 13. If a sheriff neglects to make such payment for thirty
days, the county treasurer shall recover of him in contract the amount
of such fines, forfeitures and forfeited recognizances, Mith interest at the
rate of twelve per cent from the time of receiving or from the time he is
held to have received the same and costs. r.l.22i,§i3.
Section 14. A person committed to a jail or house of correction in
default of paj-ment of a fine may pay it to the keeper of the jail or master
Payments to
jailer or
master of
house of
i88r52!°§ 1. of the house of correction, and the warrant for his commitment shall
1891, 4'ifi' I V' designate the town where the offence for which the fine was imposed was
R. L. 221, § 14. committed and the uses to which such fine is payable by the officer
receiving it.
.Jailer and
master of
house of
correction to
Section 15. Every keeper of a jail and master of a house of correc- 1
tion shall, except in Sufl'olk county as provided in section eight, on the 2
Ch.\P. 280.] FINES AND FORFEITUEES. 2847
3 first days of January, April, July and October, pay over to the persons make quarterly
4 entitled thereto all money received by him under the preceding section issi^m. § 2._
5 during the preceding three months, and render to the county treasurer im, 4\o, § a^'
6 an account, on oath, showing the names of the prisoners by whom pay- ^' ^' ^^^' ^ ^^'
7 ments have been so made, the court by which each was committed and
8 the amount received from each.
1 Section 16. The county treasurer shall pay over to the persons Eipenses to
2 entitled thereto all amounts allowed to them for expenses or fees in crim- coimTy ^
3 inal prosecutions, or allowed by the courts as rewards or compensations demlnde/
4 to prosecutors, which have been duly certified by the clerks, if demanded ye^^^ei^^^
5 M'ithin three years after the allowance thereof; but he shall pay no such jff'ffi Vj,
6 amounts to a trial justice, or to a clerk of a district court, until the trial g- s. 176, § 17.
7 justice or clerk has rendered a WTitten account of all fines received by §§8,16. '
8 him since his last return, and of all fees which have remained in his p. s.'2i7,' § 16.
9 hands for one year after their allowance. R- l- 221, § le. 14 AUen, 217.
2848
THE GENERAL L-^WS AND THEIR EFFECT.
[Chaf. 281.
PART V.
THE GENERAL tAWS, AXD EXPRESS REPEAL OF CER-
TAIN ACTS AND RESOL^^S.
Chapter 281. The General Laws and their Effect.
Chapter 2S2. Express Repeal of Certain Acts and Resolves.
CHAPTER, 281.
THE GENERAL LAWS AND THEIR EFFECT.
Sect.
1. General Laws, how cited, when to take
effect.
2. General Laws to be a continuation of
former acts.
3. Repeal by General Laws not to revive
former acts, etc.
4. Repeal by General Laws not to affect
acts done, etc. Effect in probate
appeals.
Sect.
5. Repeal by General Laws not to affect
penalties or forfeitures, except, etc.
6. Repeal by General Laws not to affect
criminal actions commenced, etc.
7. Tenure of office preserved.
S. Salaries to continue.
9. Periods of limitation to continue to run.
10. Temporary- laws to continue in force.
Geneml Laws,
how cited,
when to take
effect.
R. S. 146,
§§1,2.
G. S. 181,
§§ 1,2.
P.S.223, § 1.
Section 1. This act shall not in any citation or enumeration of the 1
statutes be reckoned as one of the acts of nineteen hundred and twenty, 2
but may be designated as the General Laws, adding the number of the 3
chapter and section when necessary, and shall take effect from and after 4
December thirty-first, nineteen hundred and twenty. 5
R. L. 226, 5 1.
203 Mass. 539.
General Laws
to be a con-
tinuation of
former acts.
G.S. 181, §9.
P. S. 223. § 2.
R. L. 226, § 2.
138 Mass. 593.
181 Mass. 522.
186 Mass. 376.
210 Mass. 588.
Section 2. The provisions of the General Laws, so far as they are 1
the same as those of existing statutes, shall be construed as a continua- 2
tion thereof and not as new enactments, and a reference in a statute 3
wliich has not been repealed to provisions of law which are revised and 4
re-enacted herein shall be construed as applying to such provisions as 5
so incorporated in the General Laws. 213 Mass. 79. 6
Repeal by
General Laws
not to re\'ive
former acts,
etc.
Section 3. The repeal of a law by this act shall not revive a law 1
heretofore repealed or superseded, nor an office heretofore abolished. 2
R.S. 146, §§3,9.
G. S. ISl, § 3.
P. S. 223, § 3.
R. L. 226, § 3.
Repeal by
General Laws
not to affect
acts done,
Section 4. The repeal of a law by this act shall not affect any act 1
done, ratified or confirmed, any liability incurred, or any right accrued 2
Chap. 2S1.] the general laws and their effect. 2849
3 or established, or any action, suit or proceeding commenced or had in a etc. Effect in
4 civil case, before the repeal takes effect, but the proceedings in such case R^sJ'iiefrs.^'
5 shall, when necessary, conform to the provisions of the General Laws; p.f.ils,'!*.
6 provided, that appeals from orders, decrees or denials of probate courts 5|,i9|f4' ^'^'
7 made before this act takes effect shall be governed by the law then in l^^'"^^- *i^'
8 effect, notwithstanding its subsequent repeal by this act.
19 Pick. 57S. 4 Gray, S6. 125 Mass. 316.
20 Pick. 99. 2 Allen, 49, 496. 1S6 Mass. 376,
21 Pick. 109, 210. 3 Allen, 153. 2 Op. A. G. ISO.
5 Met. 400. 5 Allen, 150.
1 Section 5. The repeal of a law by this act shall not affect any pun- Repeal by
2 ishment, penalty or forfeitiu-e inciurcd under such law, except that any notTo^affec?^
3 provision of the General Laws by wliich a punishment, penalty or for- forfeiture"
4 feiture is mitigated may be extended and applied to any judgment pro- R"'|'''i'4|"'i q
5 nounced after said repeal.
G. S. 181, § 5. P. S. 223, § 5. E. L. 226, § 5.
1 Section 6. The repeal of a law by this act shall not affect any action, Repeal by
2 suit or prosecution pending at the time of the repeal for an offence com- noTto^affert^
3 mitted, or for the recovery of a penalty or forfeiture incurred, under any commeM^ed'""^
4 of the laws repealed, except that the proceedings therein shall, when fj^g j4g g 7
5 necessary, conform to the provisions of the General Laws.
G. S. 181, §6. P. S. 223, §6. R. L. 226, § 6. 1 Allen, 1.
1 Section 7. Whoever, when said repeal takes effect, holds an office Tenure of
2 under any of the laws repealed shall continue to hold it according to servecf'^''
3 the tenure thereof, unless it is abolished or unless a different provision §; |; \ll[ 1 1;
4 relative thereto is made by the General Laws.
p. S. 223, § 7. R. L. 226, § 7.
1 Section 8. The salary or compensation of any incumbent of any Salaries to
2 office or position at the time when the General Laws take effect shall not "^°°"°"^-
3 be diminished thereby, notwithstanding the repeal therein of any act
4 establishing such salary or compensation and notwithstanding that the
5 General Laws establish a different salary or compensation for the office
6 or position.
1 Section 9. If a limitation or period of time prescribed in any of the Periods of
2 acts repealed for acquiring a right, barring a remedy or any other pur- c'ontinue"to°
3 pose has begun to run, and the same or a similar limitation is prescribed ^sSe, 7, § 4.
4 in the General Laws, the time of limitation shall continue to run and p.f.^fsjls!
5 shall have like effect as if the whole period had begun and ended under RL.226, § s.
6 the operation of the General Laws.
1 Section 10. All acts and resolves or parts thereof in force at the time Temporary
2 of the taking effect of the General Laws which are of limited duration tmue inTorce.
3 shall continue in effect according to their terms, notwithstanding any
4 provisions of said General Laws inconsistent therewith.
2850 EXPRESS REPEALS. [Ch.\P. 282,
CHAPTER 282.
EXPRESS REPEAL OF CERTAIN ACTS AND RESOLVES.
The acts and resolves, and parts of acts and resolves, specified in the 1
annexed schedule, shall be expressly repealed from and after December 2
thirty-first, nineteen hundred and twenty, subject to all the pro\'isions 3
contained in chapter two hundred and eighty-one; but no implication 4
shall be drawn from such repeal that said acts and resolves were in force 5
until so repealed. • 6
Schedule of Acts and Resolves, and Parts of Acts and Resolves,
EXPRESSLY repealed.
Acts prior to Re\'ised Laws.
1863, chapter 220, except section 3.
1871, chapter 378.
1882, chapter 212.
1883, chaiiter 105.
1887, chapter 31.
1889, chapters 45; 439, except section 12.
1890, chapter 270.
1891, chapter 192.
1892, chapter 251.
1893, chapter 407, except sections 4, 9.
1894, chapters 101; 143; 288, except section 7.
1895, chapters 57; 294, except section 1; 406, except sections 9, 15; 450; 488,
except sections 4, 14, 16, 17, 22.
1896, chapters 414, section 4; 465.
1897, chapters 83, sections 3-5, inclusive; 121; 336; 339; 520, sections 8-10,
inchisive.
1898, chapters 166; ISO, sections 4-6, inclusive; 215, section 4; 392; 424, sec-
tions 4-6, inclusive ; 455; 463; 464; 473.
1899, chapters 241, sections 4-6, inclusive; 306; 308; 342; 349; 400; 419;
424, except section 14.
1900, chapters 108; 172, sections 1, 6, 7; 242; 340; 393; 413.
1901, chapters 93; 146; 168, except section 5; 380; 442; 464; 489; 498; 513.
Resolves prior to Revised Laws.
1860, chapter 50.
1884, chapter 50.
Re-v^sed Laws.
The Revised Laws, except the following chapters and sections:
1, section 5.
15, in so far as it applies to estates of persons deceased before September first,
nineteen hundred and seven.
19, sections 10, 11.
20, sections 8, 9, 33.
25, section 46, in so far as it relates to the title to land which reverted to the
owner before July first, nineteen hundred and eighteen.
26, section 14.
29, section 23, in so far as it relates to the appointment of a registrar in Boston.
46, section 8, in so far as it relates to releases from the parental school of the
city of Boston.
49, section 31, in so far as it relates to Boston.
82, in so far as it relates to proceedings begim before July first, nineteen hundred
and thirteen.
Chap. 282.]
EXPRESS REPEALS.
2851
85, section 45.
91, sections 7, 3S-41, inclusive, 43-51, inclusive, 53-56, inclusive, 7S (in so far
as it relates to violations of section 39, 40, 43, 44 or 47), 79 (in so far as it
relates to violations of section 41, 4S or 49), 82, 99, 115, 121-130, inclusive.
92, sections 10, 13, 23.
100, section 58, in so far as it relates to owners or lessors of buildings or premises
under lease on April thirtieth, eighteen hundred and seventy-nine.
103, section 10.
110, sections 48, 82.
115.
125, section 12.
161, section 55.
166, sections 15-17, inclusive.
193, section 22, in so far as it relates to judgments entered by trial justices, and
section 29.
Acts of 1902.
Chapter 57
Chapter 256
Chapter 412
77
272
413
91
286
414
101
289
417
109
292
422
112
299
423
113
308
436
115
309
437
116
310
438
127
312
441
137
314
443
154
320
444
159
321
453
160
324
454
161
327
455
171
336
456
177
342
457
178
349
458
186
355
462
187
356
471
189
358
474
190
359
478
192
360
490
196
361
493
206
364
499
213
368
505
226
371
613
227
374
624
228
378
530
230
383
531
236
389
537
249
391
539
250
403
540
251
406
644
253
Resolve of 1902.
Chapter 65
Acts op 1903.
Chapter 54
Chapter 137
Chapter 179
95
150
195
96
157
207
97
158
209
100
161
212
116
171
213
120
177
219
2852 EXPEESS EEPEALs. [Chap. 282.
Acts of 1903 — Concluded.
Chapter 220
Chapter 294
Chapter 377
222
297
383
226
299
386
227
305
387
228
306
398
229
307
402
231
308
407
233
320
408
236
322
415
237
323
420
241
329
423
244
•330
424
245
332
428
246
333
437
247
334
452
248
344
455
249
354
459
253
355
460
260
357
467
283
361
472
287
365
480
291
375
Acts of 1904.
483
Chapter 38
Chapter 219
Chapter 329
87
220
331
88
224
344
99
226
348
105
231
350
107
234
355
119
241
356
120
242
360
122
243
361
127
244
363
142
248
365
144
258
367
145
259
369
152
261
370
153
263
371
161
264
374
163
271
379
164
272
381
165
273
382
170
274
383
172
277
386
173
278
392
176
281
395
181
282
396
183
283
401
186
286
403
194
292
409
198
295
413
200
300
422
204
302
426
206
303
427
207
305
430
208
306
431
209
307
433
214
308
439
215
317
440
216
318
442
217
322
443
218
327
444
Ch.\P. 282.] EXPRESS REPEALS. 2853
•
Acts of
190'i — Conclnded
Chapter 446 except sec-
Chapter 452
Chapter 455
tion 13
453
459
448
454
460
4.51
Acts of 1905.
Chapter 79
Chapter 242
Chapter 338
90
243
339
92
244
340
106
245
341
107
247
344
110
249
347
115
250
348
124
251
365
127
256
369
133
258
370
144
259
373
149
260
375
150
263
377
154
266
381
155
269
384
156
271
390
157
272
391
159
280
407
162
284
410
165
285
415
167
288
417
169
289
428
175
291
432
176
295
434
179
296
435
183
298
436
192
303
437
193
307
443
195
315
447
204
316
452
206
319
454
209
320
456
211
321
457
216
322
458
218
323
459
222
324
461
228
325
464
229
326
468
233
328
472
235
330
473
236
331
474
240
332
475
241
Acts of 1906.
Chapter 50
Chapter 129
Chapter 181
59
139
183
63
141
184
66
146
185
67
147
187
73
149
190
104
151
192
107
159
194
116
165
195
117
166
196
120
172
197
126
175
198
127
180
201
2854 EXPRESS REPEALS. [Chap. 282.
Acts of 1906 — Concliided.
Chapter 203
Chapter 303
Chapter 413
212
304
414
215
305
415
219
306
416
221
315
418
223
322
421
224
323
423
225
324
425
228
325
433
232
327
440
233
329
449
234
336
450
235
337
451
239
338
452
240
341
457
242
342
460
243
344
463 except Part
244
345
I, sections
248
346
42,44; Part
251
347
III, sections
256
349
7, 58, 93
257
351
465
261
352
468
262
355
469
265
365
470
266
368
471
267
369
474
268
371
476
269
372
480
271
373
481
273
374
487
274
375
489 except sec-
276
383
tion 1
277
384
493
280
385
494
282
386
501
286
387
502
287
395
503
288
398
504
289
403
505 section 7
290
404
516
293
407
521
301
408
522
302
Acts of 1907.
Chapter 26
Chapter 159
Chapter 206
43
163
207
80
165
208
98
169
211
99
170
215
110
173
216
111
176
219
117
177
222
118
179
223
128
180
225
129
181
228
130
183
229
133
186
231
138
189
232
139
190
234
140
191
236
145
195
238
158
204
240
Chap. 282.] express repeals. 2855
Acts of 1907-
— Co7iclvded.
Chapter 241
Chapter 336
Chapter 442
243
337
443
245
343
445
246
344
447
250
348
448
251
349
451
252
351
453
254
354
454
256
355
458
257
356
459
259
359
460
261
362
464
262
363
465
266
364
466
271
365
467
272
366
469
273
367
471
274
370
472
276
371
473
282
373
474
283
375
475
284
377
480
285
378
487
286
384
490
287
386
500
293
389
503
299
390
517
303
392
521
305
393
524
308
394
526
309
395
533
311
396
534
312
399
535
314
401
537
315
402
539
318
405
546
319
410
549
320
411
553
323
413
561
324
414
564
327
417
571
328
427
576
329
428
578
332
431
582
333
433
585
334
438
586
335
Acts of
1908.
Chapter 57
Chapter 133
Chapter 173
75
135
177
81
142
178
91
143
179
98
149
180
99
150
181
104
151
182
108
153
185
110
158
187
116
162
189
120
163
190
121
165
191
123
166
193
126
169
194
127
170
195
2856 EXPRESS REPEALS. [ChAP. 282.
Acts or 1908 — Concliided.
Chapter 205
Chapter 352
Chapter 493
208
353
495
218
354
498
220
356
499
221
358
502
222
360
504
226
365
505
227
368
509
229
370
510
230
371
511
231
372
513
232
374
515
233
375
516
237
378
520
243
379
525
245
381
528
247
382
530
248
385
531
250
386
534
251
387
537
253
390
539
255
392
541
256
395
542
257
397
543
263
405
544
266
411
549
268
414
550
269
416
552
273
417
553
278
418
555
280
422
560
286
424
561
289
426
663
290
431
568
295
433
570
296
435
583
299
436
586
300
440
590 except sec-
301
442
tion 68,
304
443
cl. 3 e (7)
305
446
591
313
450
594
314
452
595
315
453
597
316
454
598
317
458
599
318
459
601
319
463
606
323
464
612
324
465
614
325
468
615
326
469
617
327
470
620
328
471
621
329
473
630
330
474
636
333
475
637
338
476
638
341
478
639 except sec-
343
479
tion 7
344
482
643
348
488
646
350
492
649
351
ClL-VP. 282.] • EXPRESS REPEALS. 2857
Acts of 1909.
Chapter 47
Chapter 254
Chapter 415
49
255
417 except sec-
50
256
tions 1 and 6
60
258
420
67
259
421
74
261
422
92
263
423
93
267
429
94
270
430
95
273
431
98
274
432
103
276
433
114
278
434
115
279
439
116
286
441
117
287
442
119
292
443
131
295
450
132
297
453
133
301
457
136
302
467
145
309
468
147
310
469
154
312
471
155
319
472
160
326
473
165
331
474
166
342
476
174
343
485
177
345
488
180
346
490 except sec-
181
348
tions 12, 19,
183
350
52, 53, 59,
184
357
60 of Part I,
186
358
sections 68,
187
362
69, 70 of
188
363
Part II, and
189
364
Part IV
190
365
491 except sec-
192
366
tion 1
193
367
494
196
368
497
197
369
504 except sec-
198
371
tions 97, 98
199
379
508
201
380
513
208
381
514
212
382
515
214
384
516
216
386
517
217
390
524 except sec-
219
391
tions 1-4,
227
393
inclusive,
229
394
and section
230
398
10
233
399
526
235
402
528
236
405
531
242
407
534
243
408
536 except sec-
245
410
tions 3, 7
248
412
541
250
413
542
2858 EXPRESS REPEALS. [Ch.\P. 2S2
Chapter
Acts of 1910.
63
Chapter 268
Chapter 397
80
269
398
84
270
399
87
272
400
90
273
401
94
275
404
95
279
405
98
281
411
100
282
412
114
287
414
121
288
417
122
296
419
123
297
420
125
300
421
126
306
422
130
310
424
141
311
426
143
313
428
150
316
429
151
317
430
152
319
436
153
322
439
154
326
443
166
327
449
171
328
452
172
329
453
177
330
454
179
332
456
181
333
457
184
335
458
185
338
459
187
339
460
188
342
462
193
343
463
201
345
465
204
346
467
209
347
470
214 except sec-
350
472
tion 54
353
473
217
355
476
219
356
478
223
358
479
224
359
480
230
360
481
235
364
483
237
366
485
244
367
489
245
369
491
248
370
493
249
375
495
253
376
497
255
377
499
256
378
500
257
379 except sec-
501
258
tion 2
508
259
383
512
260
385
516
261
387
518
262
390
523
263
392
524
264
393
525
265
394
528
266
396
531
Chap. 2S2.] express repeals. 2859
Acts of 1910 — Concluded.
Chapter 532
533
534
536
537
538
540
541
543
544
548
550
551
552
554
555
559
Chapter 3
4
6
8
9
19
30
31
35
36
37
38
43
51
54
60
63
70
71
72
73
75
77
81
82
83
84
85
87
88
89
90
101
111
115
116
118
119
120
121
127
129
135
136
Chapter 560
Chapter 607
563
608
565
611
567
616
569
619
575
622
576
624
583
629
585
633
587
634
588
640
590
641
596
645
598
649
599
653
605
656
Acts of 1911.
Chapter 140
Chapter 235
143
236
146
237
147
241
150
242
151
246
154
247
158
249
160
250
162
251
163
254
172
259
173
261
174
263
175
264
176
265
177
266
178
268 section 1
179
269
184
270
185
273
186
274
188
275
192
278
194
281 •
195
282
198
284
199
285
204
290
205
292
206
294
207
297
208
299
211
302
212
305
214
309
215
313
216
314
218
322
220
325
228
328
229
329
231
334
232
337
2860
EXPRESS REPEALS.
[Chap. 2S2.
Acts of 1911 — Concluded.
Chapter 338
Chapter 452
Chapter 576
339
454
577
341
456
584
343
460
588
344
461
689
345
462
595
350
466
596
352
468
597
356
470
600
357
471
603
358
473
604
361
474
607
365
477
610
366
478
613
367
480
616
370
483
618
372
484
619
375
486
620
377
487
625
379
488
628
380
489
629
381
490
632
384
491
634
388
492
635
389
493
649
391
494
656
392
495
667
394
497
668
395
498
669
397
600
673
399
501
676
400
503
676
406
606
681
409
507
682
410
608
709
414
609
722
423
526
723
427
527
727
428
532
728
429
534
731
430
639
736
431
541
743
432
542
748 except sec-
433
548
tion 17
442
551
751 except Part
443
561
IV, sections
444
562
1-15, in-
445
666
clusive
447
567
755
451
Resolve of 1911.
Chapter 5
Acts of 1912.
Chapter 3
Chapter 54
Chapter 73
13
69
74
17
61
77
45
64
79
49 section 1
66
80
62
70
82
53
71
90
ClL\.P. 282.] EXPRESS REPEALS. 2861
Acts of 1912 — Continued.
Chapter 96
Chapter 270
Chapter 465
97
271
466
103
272
467
104
277
468
106
280
470
109
283
472
114
284
474
115
289
477
119
298
482
120
304
486
122
308
488
123
310
491
124
311
493
128
312
495
129
315
496
134
317
497
139
318
498
144
320
499
151
322
500
154
325
502
155
330
503
156
331
507
158
332
512
159
333
516
160
335
522
161
336
623
162
347
524
163
353
527
165
354
531
170
357
532
171
360
533
172
362
535
173
363
546
174
368
547
175
372
548
181
375
549
185
377
552
187
378
560
189
380
561
190
382
562
191
384
563
192
387
565
197
389
566 except sec-
201
390
tion 2
203
391
567
209
396
571
212
400
575
218
401
577
219
403
580
223
406
581
226
412
584
234
419
585
241
438
586
246
442
587 except sec-
248
443
tion 2
251
445
589
253
447
595
256
448
597
257
452
603
260
457
606
263
459
608
264
462 ■
614
269
463
621
2862 EXPRESS REPEALS. [Chap. 282.
Acts of 1912-
- Concluded.
Chapter 622
Chapter 654
Chapter 700
623 except sec-
658
705
tion 44
660
706
629
663 except sec-
711
632
tion 2
712
635
664
715
637
666
719
639
672
722
648
674
723
649
675
725 Part II
651
683
726
652
695
729
653
Acts of
1913.
Chapter 38
Chapter 254
Chapter 365
48
255
368
62
256
369
63
257
370
68
259
376
70
264
386
81
266
390
82
269
391
85
270
392
93
281
401
95
288
404
112
289
409
114
290
410
116
291
411
120
294
413
121
295
414
123
296
416
130
300
417
161
305
419
164
307
421
174 ■
309
422
176
310
426
177
311 except
430
178
forms 25,
435
179
26 and 29
439
180
312
441
181
316
444
182
317
445
191
323
446
206
324
447
209
328
448
210
329
450
211
• 330
451
213
332
452
214
333
453
225
334
454
226
335
458
227
336
464
228
339
467
235
343
469
236
346
471
237
347
472
240
349
473
245
355
474
246
356
475
247
357
480
248
359
481
250
360
483
Chap. 282.] express repeals. 2863
Acts of 1913 — Concluded.
Chapter 485
Chapter 623
Chapter 726
487
624
727
488
625
728
489
626
736
494
628
737
499
633
738
501
636
743
502
637
744
503
638
745
504
642
746
509
643
748
515
644
750
517
645
752
518
646
758
520
647
761
523
648
762
525
649
763
526
651
764
529
652
766
530
653
779 except sec-
533
654
tion 10
534
655
784
535
657
786
537 section 1
660
791
538
668
792
541
669
795
542
673
796
545
674
797
549
676
801
551
677
805
552
681
806 except sec-
563
682
tion 12
564
685
807
568
687
813
569
688 except sec-
815
573
tion 2
816
578
690
817
585
691
819
595
692
822
596
694
825
597
696
829
598
697
831
599
702
832
600
705
833
602
706
834
603
709
835 except sec-
605
711
tions 8, 23,
610
713
38, 60, 62,
611
716
65, 76-87,
612
718
97, 99, 110,
613
719 except sec-
198, 203-207,
614
tions 13, 18,
217,226,229,
616
22,
23,24
230,236,251,
617
720
259, 298, 305,
619
722
332, 450, 469
620
724
840
622
2864 EXPRESS REPEALS. [GhAP. 282.
Chapter
Acts or 1914.
18
Chapter 336
Chapter 467
33
■ 340
470
34
345
471
35
346
473
54
347
474
55
349
477
67
352
479
76
356
483
83
358
484
90
359
486
91
367
490
116
368
491
118
370
492
120
371
493
121
373
494
122
374
504
126
375
505
138
379
509
143
384
510
146
385
511
155
386
515
158
387
518
159
390
520
164
391
521
174
393
522
177
397
523
179
399
625
180
401
527
183
404
531
190
405
532
191
406
533
198
407
537
200
408
538
204
409
540
206
411
542
209
419
544
216
420
645
217
421
646
239
422
547
241
423
553
246
424
554
247
426
556
262
428
557
263
429
558
272
432
569
276
435
566
283
436
567
284
442
568
287
443
570
291
445
571
310
446
573
311
447
576
315
448
577
316
449
580
317
450
582
318
451
587
320
452
689
323
453
590
325
454
594
326
455
697
328
458
698
329
464
600
334
4G5
604
CiLVP. 2S2.] EXPRESS REPEALS. 2865
Acts of 1914 — Concluded.
Chapter 606
Chapter 661
Chapter 720
610
662
722
611
663
723
615
666
726
616
667
728
619
669
736
620
670
739
621
671
740
622
673
742 except sec-
623
676
tion 71
624
679
743
625
681
744
626
684
745
627
686
746
629
688
750
631
689
757
633
690
759
634
695
761
635
696
762
637
699
770
642
700
778
643
702
783
647
708
787
648
710
790 except sec-
649
712
tion 7
653
714
791
654
717
792
656
719
795
658
General Acts of 1915.
Chapter 2
Chapter 44
Chapter 88
6
45
89
7
46
90
9
47
91 except sec-
10
49
tion 7
11
51
92
12
52
93
13
53
94
14
54
95
15
55
97
16
56 except sec-
98
17
tion 5
99
18
57
100
19
60
101
20
61
104
21
63
105
22
64
106
23
68
107
24
69
108
25
70
109
26
73
110
27
74
111
28
75
112
32
76
113
33
77
114
34
78
115
37
81
116
38
83
117
39
84
118
41
85
120
42
86
121
43
87
123
2866 EXPRESS REPEALS. [Chap. 282.
General Acts of 1915 — Concluded.
Chapter 124
125
127
129
130
131
132
133
134
135
136
137
138
139
141
142
143
144
145
146
147
148
150
151
155
156
157
158
159
160
161
162
163
164
165
166
167
169
171
174
175
177
178
Chapter 3
4
5
6
7
12
13
14
15
16
18
19
Chapter 179
Chapter 245
180
249
181
250
182 except
scc-
253
tion 7
254
183
259
184
260
185
261
189 except
sec-
262
tion 3
263
190
264
191
265
192
266
193
267
197
268
198
269
200
271
201
272
205
273 except sec'
206
tion 1
207
274
208
275
209
277
211
278
213
280
214
282
216
283
217
284
219
285
220
286
222
287
223
288
225
290
226
292
231
293
234
294
236
295
237 except
sec-
296
tion 20
298
238
299
239
301
240
303
241
304
SpECLiL Act of :
1915.
Chapter 329
General Acts of
1916.
Chapter 20
Chapter 38
21
39
22
40
23
42
24
43 section 2
26
44
28
45
29
46
31
47
32
48
36
49
37
51
Chap. 282.] express repeals. 2867
Chapter
GENEILUiACTS OF 1916-
- Concluded.
52
Chapter 130
Chapter 223
54 except
sec- 131
224
tion2
133
225
55
134
226
56
135
227
57
136
228
58
137
229
59
138
233
60
139
236
61
140
238
62
142
239
63
143
240
64
144
241
65
145
242
66
146
243
67
147
244
68
148
247
69
149
248
70
150
249
71
151
251
72
153
252
75
154
257
76
155
258
78
158
259
80
160
260
81
161
261
82
162
262
83
164
263
84
166
264
85
167
266 except sec-
87
168
tion 1
88
169
269 except sec-
89
173
tions 22, 23
90
174
270
91
175
271
92
177
272
95
179 except
sec-
273
97
tion7
274
99
182
276
101
183
279
102
184
281
103
185
285 except sec-
104
188
tion 1
105
189
286
107
190
287
108
191
288
109
192
289
110
194
290
111
195
291
112
196
292
113
197
296
114
198
297
115
199 except
sec-
299
116
tion 1
301
117
200 section 1
303
119
201
304
120
208 except
sec-
305
122
tion 3
306
125
218
308
128
220
314
129
222
316
2868
EXPRESS REPEALS. [Ca-VP. 282.
Special Act of 1916.
Chapter 174 except section 4
General Acts of 1917.
Chapter 2 Chapter 77 Chapter 146
4 78 14Q
7 79
8 80
78 149
150
151
152
153
154
155
13 85 156
14 88
9 81
10 82
11 83
12 84
15
17 90
18 91
19 94
159
160
. 161
162
163
20 95 164
21 97 165
22 98 166
23 99 168
24 100 169
2/ 101 170
29 except sec- 102 171
tions 7-12, 103 172
inclusive 104 173
32 106 sections 1-7 176 except sec-
35 and 17-20, tion 1
"50 both inclu- 178
37 sive 180
38 107 185
39 108 186
41 109 187
42 110 189
44 111 190
40 112 191
46 113 192
f' 115 193
48 116 194
49 117 196
50 121 198
51 122 199
52 123 200
53 124 201
54 125 202
55 126 203
58 128 204
60 129 205
61 130 • 206
62 131 207
63 132 208
66 133 209
67 section 2 134 21O
69 135 214
Z9 136 215 except sec-
tl 138 tion 1
'2 139 216
73 140 217
74 141 218
75 143 219
'6 144 221
Chap. 282.] express repeals. 2869
General Acts of 1917 — Concluded.
Chapter 223
Chapter 262
Chapter 298
224
263
300
226
265
302 except sec-
227
266
tion 3
229
267
303
231
269
305
232
270
306
233
271
307
235
273
309
237
275
311
238
276
319
240
277
320
243
279 except sec-
321
244
tions 45, 48
326 except sec-
245
280
tion 12
246
282
327 except sec-
247
283
tion 268
248
284
328
249
286
329
250
.289
330
251
290
333
252
291
335
253
292
336
255
293
340
256
294
341
257
295
344 except Part
258
296
S, section 2
259
297
345
260
General Acts of 1918.
Chapter 1
Chapter 53
Chapter 91
4
54
93
7
55
96
9
56
98
10
57
99
11
58
100
14
59
101
17
60
103
18
61
104
21
62
105
23
63
106
25
64
109
26
65
110
27
66
111
28
67
112
29
68
113
30
69
114
32
70
115
35
71
116
36
72
117
38
77
119
39
78
120
41
79
121
42
80
122
44
81
123
45
82
124
46
83
126
47
85
127
48
86
128
50
87
129
52
89
130
2870 EXPRESS REPEALS. [ChAP. 282.
General Acts of 1918 — Concluded.
Chapter 131
Chapter 190
Chapter 246
133
192
247
135
193
248
136
195
249
137
197
250
138
198
251
139
199
254
140
200
257 except sec-
141
201
tions 37, 52,
142
202
56,211,
144
203
219a, 478,
145
204
and sub-
146
205
section 46
147
207
of section
148
208
187
149
209
258
150
210
259
151
211
261
153
213
262 except sec-
155
214
tions 1-3,
156
215
inclusive
159
216
263
160
217
264
161
218
265
162
220
266
163
221
268
164
222
271
166
225
272
168
227
273
169
228 except sec-
274
170
tions 6, 7
275
171
230
280
173
231
281
175
232
2S2 except sec-
176
234
tions 8-16,
178
235
inclusive
180
237
283
181
238
287
183
239
289
184
240
290
187
241
291
189
244
Special Act op 1918.
Chapter 157
General Acts of 1919
Chapter 11
Chapter 27
Chapter 43
12
28
45
13
29
46
14
30
47
15
31
48
17
32
49
18
33
50
19
34
51
20
35
52
21
36
63
22
37
54
23
38
56
25
41
57
26
42
59
Ch-\p. 282.]
EXPRESS REPEALS.
2871
General Acts of 1919 — Continued.
Chapter 60
Chapter 135
Chapter 217
61
136
219
62
137
220
63
138
221
64
140
222
65
141
224
68
142
226
69
143
227
70
145
228
71
146
229
72
148
230
73
149
233
76
150
234
77
151
235
80
152
236
81
153
239
82
154
241
83
155
242
84
156
243
86
157
244
87
158
245
88
159
246
89
160
247
90
168
249
91
169
250
92
171
251
93
176
252
94
177
253
95
178
254
96
179
255
97
180
256
98
181
259
99
183
262
100
184
263
101
186
'264
102
187
265
104
188
266
105
189
267
106
190
268
108 except sec-
191
269 except sec-
tions 8-16,
193
tions 1, 6, 7,
inclusive
194
12
109
195
271
110
196
272
111
197
273
112
198
274
113
199
275
114
200
277
115
201
280
116
202
281
117
203
282
120
204
286
122
205
287
123
206
288
124
207
289 except sec-
127
208
tions 20, 21
128
209
290
129
210
291
130
212
292
131
213
293
132
214
294
133
215
295
134
216
296
2872 EXPRESS REPEALS. [ChAP. 282.
Gener.\l Acts of 1919 — Concluded.
Chapter 297
Chapter 321
Chapter 351
298
323
352
299
325
353
301
326
354
303
328
355
304
329
356
305
331
357
306
333 except sec-
358
308
tion 41
360
309
334
361
310
347
362 except sec-
311
349
tion 6
312
350 except sec-
363 except sec-
313
tions 2-7,
tion 17
314
inclusive,
364
318
and section
371
319
130
372
320
Acts of 1920.
Chapter 1
Chapter 164
Chapter 256
14
165
257
18
166
259
29
167
262
38
168
269
40
169
270
44
172
274
45
174
280
46
175
282
47
179
285
48
181
286
49
185
288
50 except sec-
188
290
tions 3, 5
191
292
55
199
295
56
201
297
72
202
298
78
204
300
87
205
304
100
207
306
102
208
307
103
209
308
110
210
310
111
213
311
112
216
317
113
217
319
114
218
320
120
219
321
122
221
322
123
222
324
124
223
325
127
232
326
131
236
327
137
237
328
139
238
333
141
240
334
143
242
335
146
243
336
147
244
337
149
245
339
150
253
340
152
254
341
157
255
342
Chap. 282.] express repeals. 2873
Acts of 1920 — Concluded.
Chapter 343
Chapter 429
Chapter 541
344
431
545
345
432
546
346
433
547
349
434
548
352
435
549
353
436
551
354
437
553
358
443
556
359
447
558
360
451
559
361
459
560
362
460
563
364
461
564
365
463
567
367
464
569
368
467
573
369
468
674
371
470
579 except sec-
376
473
tion 1
377
476
580
378
477
582
380
478
583
382
479
584
383
481
587
385
482
590
386
484
591
387
485
593
388
486
594
395
487
595
396
488
596
399
490
597
403
491
598
404
492
599
408
494
601
411
495
602
412
496
603
414
508
604
415
510
614
416
511
615
417
512
618
418 except sec-
514
619
tions 20, 22
515
620
419
517
623
420
527
625
421
528
626
422
531
627
423
534
633
424 except sec-
535
640 except sec-
tion 5
537
tion 6
425
539
426
540
I